IN THE CASE OF: BOARD DATE: 10 August 2021 DOCKET NUMBER: AR20210006788 APPLICANT REQUESTS: through counsel: * removal of the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 18 August 2013 through 17 August 2014 from his Army Military Human Resource Record (AMHRR) or, in the alternative, transfer to the restricted folder of his AMHRR * removal of the Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation report and associated documents from his AMHRR or, in the alternative, transfer to the restricted folder of his AMHRR * consideration for promotion to major (MAJ)/O-4 by a special selection board (SSB) * a personal appearance hearing before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Letter, 1 October 2020 (14 pages) with evidentiary documents labeled and organized as enclosures * Enclosure 1 – Applicant's Officer Record Brief (ORB) * Enclosure 2 – Applicant's Biography * Enclosure 3 – Applicant's 11 OERs Covering His Military Service (including His Contested OER) * Enclosure 4 – Applicant's Numerous Military Awards and Decorations * Enclosure 5 – Applicant's Numerous Civilian and Military Training Certificates * Enclosure 6 – Numerous Character-Reference Letters * Enclosure 7 – Applicant's Memorandum (Senior Leaders Rebuttal Letter for (Applicant), to Promotion Board, U.S. Army Human Resources Command (AHRC), 31 March 2020 * Enclosure 8 – Memorandum (Notification of eligibility for Retired Pay at Non- Regular Retirement (20-Year Letter), 26 July 2017 * Enclosure 9 – Applicant's Military Orders * Enclosure 10 – Applicant's Training Summary * Enclosure 11 – Military Photographs * Enclosure 12 – Applicant's Résumé * Enclosure 13 – AHRC Memorandum (Delay of Promotion and Referral to a Promotion Review Board), 24 July 2019 * Enclosure 14 – Army Regulation 15-6 Investigation and Associated Documents * Enclosure 15 – Applicant's Memorandum (Referred OER Response (Applicant) Report Period: 20130818-20140731), 17 April 2015 * Enclosure 16 – Fiscal Year 2018 (FY18) Reserve Component (RC) MAJ Chaplain Promotion Selection Board Results * Enclosure 17 – Licensed Clinical Psychologist Letter, 10 September 2020 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states: a. The applicant has 29 years of combined service in the Army, including active duty, Army National Guard, and U.S. Army Reserve (USAR). In June 2010, he accepted a direct commission in the USAR and finished his initial military training for chaplains on 15 October 2010. He is a chaplain and a captain (CPT)/O-3 in the USAR and has 18 years of service in the USAR. He has worked extremely hard during his career, as demonstrated by his multiple OERs, and aspired to be promoted to the rank of MAJ. b. In October 2012, he arrived at the San Antonio Medical Center, San Antonio, TX. Prior to his permanent change of station, his previous unit lost a Soldier due to suicide. With the weight of the loss on the unit, he did not want anything like that on his conscience. When the applicant met the female, he believed she was suffering from deep behavioral health issues though he did not realize the full extent at that time. The applicant really wanted to help the Soldiers and individuals who sought his counsel receive help. Concerned a Soldier may need help at various times, including after hours, he initially answered calls and messages whenever possible without concern regarding the hour. With the intent of trying to help the individuals and reach them with his own experiences, he initially shared details of his personal journey with God, through the military, and with his family. During various times while in San Antonio, he shared his personal experiences, such as his surgical procedure for his hernia and subsequent scar, his love for his wife and children, and his journey with his fellow classmates and school gatherings. See statement on 9 October 2013 stating, "I share a lot of my personal/family life with others in order to build a rapport where they are comfortable with me...I do share with others a lot to assure them that they can trust me as a chaplain and individual in order to feel comfortable sharing with me what's personally going on with them that I may be better able to serve and help them" (enclosure 14). These shared details were focused on creating rapport and trust; however, were ultimately used by the female to create baseless allegations against him. Unfortunately, the allegations raised by the female ultimately taught him to refer to behavioral health professionals early, always have a witness, watch the amount of calls and interactions, and the times of the calls. c. In 2013, the female met the applicant during training at the San Antonio Medical Center. He recalled her sitting at the table with his other classmates and often talking about her experiences in her volunteer work at the Wounded Warrior Center. She expressed to him her goal of working in the mental health field. The applicant spoke with her about his certificate in mental health and substance abuse and he offered to share with her his knowledge and journey as she tried to navigate through the mental health field. She began to take his kindness as something more than his intent. She began calling more frequently and discussing off-the-wall topics in addition to the mental health discussions. During their communications, the applicant did make calls to the female. He acknowledged that some returned calls were early and some late-night calls in response to her messages stating, "It's very important. I have an emergency; would you please call me back" or messages similar in affect. The applicant returned her calls because he was concerned that something really happened or may happen if he did not. He eventually realized her calls were not emergencies and he stopped answering her calls. Eventually he asked the female to stop calling him and advised her to seek a therapist to assist with her issues; he felt her conversations were more appropriately addressed by a personal therapist rather than a chaplain. The applicant did not realize at that time, that he should have reached out to his chain of command to notify them of his issues with her or her volunteer command; rather, he only spoke with his family and a close friend regarding her behavior. While he does not know her motive, he can only assume it arose from her feeling rejected that he would no longer provide her the professional advice and counseling she sought or perhaps she thought his kindness meant more than he intended. In October 2013, however, his orders ended and he was scheduled to leave San Antonio on 4 October 2013 with his wife and son. d. On 4 October 2013, an investigating officer (IO) was appointed under the provisions of Army Regulation 15-6 to investigate adultery allegations against the applicant. On 11 October 2013, the investigator found "There is no concrete evidence, such as pictures or videos, to indicate a sexual relationship (see enclosure 14 – Army Regulation 15-6 Memorandum of Findings). The entire investigation hinged on the female's statement to the U.S. Army Criminal Investigation Command (CID) when she filed a report regarding "an act of sodomy which was later determined to be unfounded." The investigation focused solely on the female's statements and ignored several inaccurate statements. e. On 8 October 2013, the applicant made a statement to CID regarding the allegations, where he stated he did not have anything other than a professional relationship with the female. He stated, "I never received any cards at the hospital so I gave out my name and number to a lot of people, males and females, who visited me or stated that they need to ask me a question or to contact me if I could assist them. In a religious, spiritual, professional manner only." Additionally, he stated, "I have met several people outside of the hospital at places like Starbucks in order to counsel with them because some were high ranking non-commissioned officers, officers, and enlisted that [sic] didn't really feel comfortable coming to the office for a visit. I feel that as a person in the position that I'm in that God has blessed me with I try to help any and everyone I can because I truly believe it's my calling." f. Despite his assertions of no improper relationship with her and that "there [was] no concrete evidence...to indicate a sexual relationship," the IO found a sexual relationship. In doing so, the IO ignored several discrepancies in her story: (1) For the majority of the allegations, the applicant and the female were not in the same locations. Initially she alleged the relationship began in September 2011 and lasted until September 2013. The female alleges "[she] went on several dates with him during the June 2012 - August 2012 timeframe." The applicant did not receive orders to active duty until October 2012, which ended October 2013. The orders were included in the investigation and the IO had "no explanation for the discrepancies in the Soldier's dates." During his 1 year in San Antonio, TX, he also left several times, which he indicated in his initial statement. (2) The female alleges he lived in Apartment Number 22 in the Wilshire Wood apartment complex on the ground floor. However, he lived in Dwelling Suites Number 202 in the Wilshire Wood Apartments, which was not a ground floor either. (3) The female alleges his birthday is in October, but she does not know the day despite an alleged 2-year relationship. The applicant explained he stood up at a barbeque, where she was present, and stated he was thankful for reaching 50 years in age that month. (4) The female alleges the applicant grew up in Brooklyn, NY; however, he did not grow up in Brooklyn, NY. (5) The female alleges several telephone calls and messages; however, she only could produce phone calls in July and August 2013, which were sporadically made and indicating back-and-forth phone calls over one weekend each month. The female had no other records despite alleging a 2-year communicating relationship. Further, she provided absolutely no photographic evidence of the applicant that would support any ongoing relationship. She appears to have provided random facts that did not actually match the applicant, but the IO assumed were true. The lack of evidence does not support the IO's findings. g. The applicant's OER (August 2012 through August 2013) during the allegations noted: "Outstanding Performance, Must Promote," noting him as "A self-less servant, [Applicant] directly mentored and coached over 90 Chaplains and Chaplain Assistants enrolled in the Emergency Medical Ministry Course during their clinical operation." These statements are consistent with his statements regarding his mentorship with several officers, noncommissioned officers, and Soldiers, including his reasons for his communication with the female. h. The applicant's subsequent OER (referred report) included a reference to the Army Regulation 15-6 investigation, but the applicant's command failed to follow Army Regulation 15-6 procedures. The applicant has provided an extensive quantity of character-reference statements in support. There are no witnesses to corroborate the female's statements; however, the character-reference statements show the applicant as a man of God, trustworthy, went above and beyond the call of duty, and sought out those who needed help. i. The applicant's Army Regulation 15-6 investigation findings are contrary to law. Under Article 133 (Conduct Unbecoming an Officer and Gentleman), an officer is punishable for acts that, under the circumstances, constitute conduct unbecoming an officer and a gentleman. As the investigation noted, "There is no concrete evidence...to indicate a sexual relationship." At most, the evidence demonstrates he called her a few times in July 2012 and August 2012 and he shared with her, as he did with other individuals who sought counseling from him, about his journey with God, his family, and the Army. This behavior is clearly not conduct that would normally be criminal and does not fall within the definition of criminal conduct punishable under Article 133. As for Article 134 (Adultery), the IO found a sexual relationship based on circumstantial evidence. This was erroneous because the evidence is insufficient to support that the applicant had sexual intercourse with the female. The elements of adultery are: (1) that the accused wrongfully had sexual intercourse with a certain person; (2) that, at the time, the accused or the other person was married to someone else; and (3) that, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the Armed Forces or was of a nature to bring discredit upon the Armed Forces. In his case, there is no evidence to support that he had sexual intercourse with her from September 2012 to September 2013. There were several inaccurate statements alleged by the female, which were assumed as correct. Apart from the female's inconsistent and inaccurate statements, nothing supports the applicant had an ongoing affair with her. Therefore, the IO's finding of adultery is clearly not supported by any evidence and is an abuse of discretion. j. The applicant's command significantly erred by failing to provide him protections before submitting his referred OER. Prior to receiving his OER, his command did not provide him the entire investigation, provide him a reasonable opportunity to respond with rebuttal matters, or review and evaluate matters submitted by him. Had the command provided him the opportunity to respond, he could have enclosed statements in support; a witness statement from his daughter, who was present; and additional documentation on his behalf. k. Retaining the applicant and promoting him to MAJ is in the best interest of the Army and the continued presence of the OER and related documents in his record is unjust. Since receiving the OER, he has worked extremely hard to overcome their effects despite being consistently adversely affected by them for the past four years. These adverse effects include, him not being selected for promotion during the February 2018 Chaplain MAJ Promotion Board process despite his numerous other OERs indicating "Above Center Mass" and his numerous witness statements in support from commanders, noncommissioned officers, and civilians. He believes the OER was the primary reason for his not being selected for promotion. He has strong potential for continued service in the Army if the OER and investigation are removed from his records. He has already suffered inordinately from receipt of the OER. l. Despite these difficulties, he has continued to perform exceptionably well and performed extraordinarily well. He is clearly among the very best officers and leaders in today's Army as supported by his multiple OERs that rate him "Above Center Mass." His request is further supported by his previous and current chain of command, who have provided supporting letters to remove the OER and supporting documents. These letters indicate the applicant is one of the very best chaplains in the Army and consistently, except for his OER, ranked amongst the top in his profession on his OERs. Moving the documents to his restricted folder will not address the issues in his documents. The continued presence of the OER and other related documents are unjust in this case. m. For the foregoing reasons, the applicant, through his counsel of record, requests removal of the OER based upon the unjust nature and circumstances surrounding his Army Regulation 15-6 investigation and his commendable service since receiving this derogatory document. He also requests removal of the Army Regulation 15-6 memorandum and any mention of the investigation in his OER from his official military file or filed in the restricted folder of his official military records, and that his appeal be expedited. He requests a special chaplain MAJ promotion board be created to review his previous board result from the February 2018 Chaplain MAJ Promotion Board or that the February 2018 Chaplain MAJ Promotion Board be considered as his first attempt for selection to MAJ. 4. After having prior enlisted service in the Regular Army, Army National Guard, and USAR, he was appointed as a Reserve commissioned officer in the chaplain Corps in the rank/grade of first lieutenant/O-2 effective 27 June 2010. He graduated from the chaplain Basic Officer Leader Course on 17 December 2010 and was subsequently promoted to CPT effective 22 March 2011. 5. AHRC Orders A-09-216283, 11 September 2012, ordered the applicant to active duty for contingency operation for operational support in support of Operation Enduring Freedom –Continental U.S. Support Base with duty at Brooke Army Medical Center (BAMC), Joint Base San Antonio, Fort Sam Houston, TX, for a period of 365 days with a reporting date of 15 October 2012. 6. On 4 October 2013, the applicant, became the subject of an Army Regulation 15-6 investigation while assigned to the BAMC based on a CID report, 4 October 2013, to investigate the facts and circumstances surrounding the allegation that he engaged in an adulterous relationship with (redacted). Specifically, the IO was asked to make a determination on the following questions: a. Did the applicant and (redacted) have an ongoing sexual relationship? If so, when did this relationship begin and what was the duration? How and where did they meet? Did they have sexual intercourse? b. Were the applicant or (redacted) married to anyone else during this relationship? c. Was the applicant's conduct prejudicial to the good order and discipline of the Armed Forces or was it of a nature to bring discredit upon the Armed Forces? If so, why? d. Was the applicant's conduct unbecoming of an officer and a gentlemen? If so, why? e. Since the applicant is a Reserve officer, did any of the events occur while he was assigned to BAMC? 7. The DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) with memorandum (Memorandum of Findings), 11 October 2013, shows (see attachment and auxiliary documents): a. Based on the investigation, the IO determined the following: (1) The applicant, a married man, engaged in an adulterous relationship with (redacted) starting in approximately October 2011 through September 2013. Sexual relations are believed to have taken place at the home of (redacted) and the applicant. The applicant and (redacted) met in 2011 at a BAMC barbeque. The relationship started via phone and developed into a physical relationship when he got stationed at Joint Base San Antonio. The applicant is in violation of Article 134 (Adultery). (2) The applicant is married per his own admission. (Redacted) is not married. (3) The applicant conduct is of a nature to bring discredit upon the Armed Forces because he engaged in an inappropriate relationship with (redacted). (4) The applicant conduct was unbecoming of an officer and a gentleman. The applicant's relationship with (redacted) compromised his standing as an officer. His actions are found to be indecent and indecorum. He engaged in an inappropriate personal relationship with (redacted). The applicant is in violation of Article 133 (Conduct Unbecoming an Officer and Gentlemen). (5) The applicant's actions occurred while on active duty. His last sexual contact with (redacted) was in September 2013. There is telephone evidence from 6 July 2013 through 5 October 2013. b. The IO recommended: (1) the applicant should receive punishment in accordance with applicable Uniform Code of Military Justice and (2) the applicant's home unit should be notified of his inappropriate conduct for appropriate action. c. The approving authority approved the IO findings and recommendations on an unspecified (redacted) date. 8. A review of the applicant's AMHRR does not contain the Army Regulation 15-6 investigation report or associated documents in his contention. These documents were provided by the applicant. 9. He received the referred OER covering the period 18 August 2013 through 17 August 2014 on or about 7 May 2015, which addressed his duty performance as the Battalion chaplain for the Headquarters and Headquarters Detachment, 345th Military Intelligence (MI) Battalion, Fort Gordon, GA. His rater was the battalion commander, his intermediate rater was the group chaplain, and his senior rater was the brigade commander. His rater, intermediate rater, and senior rater digitally signed the OER on 7 February 2015, 3 March 2015, and 19 March 2015 respectively. The applicant digitally signed the OER on 7 May 2015. The OER shows in: a. Part Ii (Reason for Submission), the entry "Annual";? b. Part IId (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, signifying to the applicant that he was receiving a referred report. In that same block, a checkmark was placed in the "Yes" block, indicating the applicant wished to make comments; c. Part IVb (This Officer's Overall Performance is Rated as), he was rated "Capable" and his rater entered the following comments: "During this last year [Applicant] received a General Officer letter of reprimand for serious misconduct and lack of judgement. After being reassigned to another position at Ft. Knox, [Applicant] received an AAM [Army Achievement Medal] for his ability to lead and mentor six Chaplain candidates. While [Applicant] is capable of doing good work, the unpredictability of his behavior raises grave concerns about this future as an Army Soldier"; d. Part IVc1 (Character), his rater entered the following comments: "Reprimanded for an adulterous relationship with a civilian while on orders. Used poor judgement demonstrating conduct unbecoming an officer. There were no complaints against [Applicant] relating to SHARP [Sexual Harassment/Assault Response and Prevention Program], EO [Equal Opportunity], and EEO [Equal Employment Opportunity] compliance while performing his duties as Chaplain in his TPU [troop program unit] assignments"; e. Part IVc2 (Presence), his rater entered the following comments: "[Applicant] exudes a caring and concerned attitude towards the Soldiers in the unit and is liked by many. His positive attitude and enthusiasm for his position and his role as a leader are evident. [Applicant] does need to reduce his weight to display a more military and professional bearing"; f. Part IVc3 (Intellect), his rater entered the following comments: "[Applicant] has the intellect and interpersonal tact to perform his job as Chaplain. However, his judgement and integrity are at times suspect. It was recommended that he not have unsupervised counseling sessions with female Soldiers following an investigation into an adulterous relationship. He also lost the trust and loyalty of the Chaplain assistants under his supervision while at the 345th MI BN [Battalion]"; g. Part IV, block c4 (Leads), his rater entered the following comments: "Supervised, advised, and mentored six Chaplain Candidates and two Chaplain Assistants to successfully complete training for the Candidates and 1500 Cadets attending the 2014 Leaders Training Course at Ft. Knox KY. However he lost the trust of the four Chaplain Candidates he mentored at the 345th MI BN [Battalion] for his behavior and failure to lead by example"; h. Part V (Intermediate Rater), his intermediate rater entered the following comments: "[Applicant] has provided passionate ministries and possessed a caring spirit for Soldiers and Families. He has a good knowledge on Chaplaincy Programs and services for Soldiers and Families. In light of an incident of poor judgment; [Applicant] has learned and determined to settle matters with God and others, in order to provide an examplerory [sic] ministry"; i. Part VIa (Potential Compared with Officers Senior Rated in Same Grade), he was rated "Qualified"; and j. Part VIc (Comments on Potential), his senior rater entered the following comments: "(Applicant) should be promoted with peers. He has shown a good propensity for training and mentoring others in the functions and requirements of an Army Chaplain. (Applicant) presents a strong positive attitude and supports Soldiers in an effort to strengthen resiliency within the unit. His lapse in judgement will take time to correct itself. However, (Applicant's) positive and humble attitude should persevere to overcome past mistakes." 10. His senior rater notified him by letter of referral, 19 March 2015. The specified reason for referral states: "Negative comments in Part IV.b, Part IV.c.1), Part IV.c.2), Part IV.c.3), Part IV.c.4), and Part VI.c." 11. He acknowledged receipt of the referred OER on 17 April 2015 and submitted a memorandum to the commander with the following comments, in effect (see enclosure 15): a. His proven track record has shown he is more than just a capable officer and he should be evaluated on his overall work/job performance rather than personnel opinions. b. Character. His commander had only met him twice and was less than professional in his manner toward him. The GOMOR's filing determination stated it was to be filed in his local file until he was reassigned or for a period of 3 years. He left the unit shortly before being reassigned to Fort Knox. He was reassigned for some time before his OER was finalized. c. Presence. His was within body fat standards and passed his Army Physical Fitness Test without difficulty. d. Intellect. He believes the negative statements regarding his situation and the use of the "A" word could damage his career and wanted a new commander to feel the same way as he did. The GOMOR was filed locally and should not have followed him to a new unit. His judgment/integrity should not be questioned as he has since counselled plenty of Soldiers, males and females, in a professional and confidential manner with caution and wisdom.? e. Leads. He questions how he could have lost the respect of the four chaplain candidates since he did not share or communicate his private business. f. He believes the senior rater was given bad information about him and he should have been rated as "Highly Qualified" instead of "Qualified" based on his accomplishments. 12. The applicant's AMHRR shows the referred OER is filed in the performance folder of his Official Military Personnel File. 13. The applicant's AMHRR does not contain a GOMOR as mentioned by the applicant and noted in his contested OER. 14. The AHRC memorandum (Delay of Promotion and Referral to a Promotion Review Board), 24 July 2019, notified the applicant that: a. The FY18 MAJ, Army Reserve Non-Active Guard Reserve, chaplain Corps, Promotion Selection Board which convened on 27 February 2018 recommended him for promotion to MAJ. b. In accordance with Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers), paragraph 3-18, the appointment of an officer may be delayed in any case in which there is cause to believe the officer is mentally, physically, morally, or professionally unqualified to perform the duties of the grade for which he or she was selected for promotion. c. He received a Report of Investigative Inquiry (Case Number HB 13XXXX), 12 December 2013, which mentions an Army Regulation 15-6 investigation, 15 October 2013, and a referred OER for the period 18 August 2013 through 17 August 2014 that mentions receipt of a GOMOR, which were identified in the post-selection screening. d. His records will be referred to a Promotion Review Board (PRB) which will recommend to the Secretary of the Army that he be retained on the promotion list, his name be removed from the promotion list, and/or that he show cause for retention on active duty. e. He had 5 days to sign and return the acknowledgement receipt and 30 days upon receipt of notification to submit a rebuttal, comments, information, and letters of endorsement on his behalf attesting as to why he should be retained on the promotion list. 15. The applicant acknowledged receipt of the notification memorandum by his signature on 29 July 2019 and with his initials he indicated he intended to submit a rebuttal within the suspense time frame. 16. The applicant's memorandum to the PRB (Senior Leaders Rebuttal Letter for (Applicant)), 31 March 2020, states, in effect, that (see enclosure 7): a. He would like to once again clear any questions or concerns that may have arisen. He deeply and sincerely apologizes for any perceptions of his actions that appeared ungodly and/or unprofessional. After being able to review a lot more information, he was not aware until just recently how detailed the report was with all the terrible unfounded allegations against him were. He could see how one might think that he was not acting in a manner that was considered unbecoming and wasn't consistent with his call as a man of the cloth. However, that was not the man he was or is. b. He always tries to help people, is very transparent, and strives do the right thing. He tried to help the female, who was suffering from deep behavioral health issues, and contends there was no inappropriate interactions with her during any time. c. He has worked hard and takes great pride in his military accomplishments. He has reviewed the derogatory documents and if he could go back in time, he would have handled things differently and been much more judicious about his decisions to try and assist everyone. His record since has been very good. d. He believes his referred OER should not have considered his investigation. He believes he is mentally, physically, morally, and professionally qualified and should have his promotion reinstated. 17. The results of the PRB are not available for review. 18. On 20 April 2020, the applicant submitted a DA Form 4651 (Request for RC Assignment or Attachment) requesting to be voluntarily transferred from the Individual Ready Reserve to the Retired Reserve with an effective date of 1 October 2020 for retirement. A DA Form 4856 (Developmental Counseling Form), 21 April 2020, shows his station officer-in-charge, U.S. Army Southeastern chaplain Recruiting Station, counseled him on his understanding and requirements for retirement. He acknowledged this counseling with his signature on the same date. 19. AHRC Orders C-04-005236, 24 April 2020 reassigned the applicant to the Retired Reserve by reason of completion of 20 or more years of Reserve duty effective 1 October 2020. 20. AHRC Orders C11-090668, 13 November 2020, retired the applicant and placed him on the Army of the United States Retired List effective 2 October 2020 in the retired grade of CPT. 21. The applicant, through counsel, provided the following evidence in addition to those documents discussed above: a. Enclosures 1 and 2 contain an ORB and a biography. b. Enclosure 3 contains 11 OERs, including the contested OER, covering his military service. c. Enclosures 4 and 5 contain numerous awards, badges, and civilian and military training certificates he garnered throughout his military service. d. Enclosure 6 contains 26 character-reference letters from his family, former colleagues, subordinates, and superiors, attesting to his trustworthiness, compassion, and leadership. e. Enclosure 8 contains a memorandum (Notification of Eligibility for Retried Pay at Non-Regular Retirement (20-Year Letter), 26 July 2017 that notifies the applicant that he has completed the required years of qualifying Reserve service and is eligible for retried pay upon application at age 60 in accordance with applicable statutory guidance. It also notified him he may be eligible for a reduced age retirement if he performed 90 days or more of qualifying service. f. Enclosure 9 contains numerous orders ordering him to active duty training and active duty for operational support during his period of military service. g. Enclosures 10, 11, and 12 contain a summary of his military training courses, numerous military photographs of him at military functions, and a personal résumé. h. Enclosure 16 contains the FY18 RC MAJ chaplain Promotion Selection Board results with a release date of 14 June 2018, showing the applicant's name. i. Enclosure 17 contains a letter from a licensed clinical psychologist, 10 September 2020, indicating the applicant is currently under care for treatment of acute stress based on an incident that occurred in April 2020 where he was denied an expected promotion. ? BOARD DISCUSSION: 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s and his Counsel contentions, the military record, and regulatory guidance were carefully considered. The Board also considered the character reference letters attesting to his performance and potential. Based upon a preponderance of the evidence, the Board determined there is insufficient evidence that shows the contested OER was erroneously completed and placed in his record, which would warrant removal of the form. The Board agreed the circumstances leading to the denial for promotion were appropriately adjudicated, and referral to a SSB is not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION ? BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. Army Regulation 15-6 establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 4. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. The AMHRR includes, but is not limited to: Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 6. Army Regulation 623-3 (Evaluation Reporting System) prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. It provided principles of support, standards of service, and policy governing all work required, including Army evaluation policy and guidance regarding redress programs, which include Commander's Inquiries and appeals. a. Paragraph 1-11 (Commander's or Commandant's Inquiry) stated when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. b. Paragraph 3-26 (Referred Evaluation Reports) states any report with a "Fail" for the Army Physical Fitness Test in Part IVa, indicating noncompliance with the standards of Army Regulation 350-1 or a rater performance evaluation of "Unsatisfactory" in Part IV will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Headquarters, Department of the Army (HQDA). c. Paragraph 3-28 states the referral process ensures the rated Soldier knows his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. (1) The senior rater will refer a copy of the completed OER or academic evaluation report (AER) (an OER or AER that has been signed and dated by the rating officials) to the rated Soldier for acknowledgment and comment. (2) Upon receipt of the rated officer's acknowledgment (for example, receipt of a signed OER or AER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER or AER for forwarding to the reviewer (if applicable). (3) If the senior rater (for OERs) or reviewing official (for AERs) decides the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater or reviewing official will not pressure or influence another rating official. Any rating official who elects to raise their evaluation as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the OER or AER is changed but still requires referral, the OER or AER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment ("YES" or "NO" on OER or AER signed by the rated Soldier) and the rated Soldier's comments, if submitted, will be forwarded to HQDA. d. Paragraph 4-7 provides evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by the HQDA Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by the HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. e. Paragraph 4-8 (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an OER's "THRU" date. f. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration; and (2) action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-11d stated for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents form official sources. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. 7. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to Department of the Army. It provides that: a. If a referred OER is required, the senior rater will place an "X" in the appropriate box in Part IId, on the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in Part IId. b. The rated officer may comment if he or she believes that the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered on the OER; rating officials may not rebut rated officer's referral comments. c. The rated officer's comments do not constitute an appeal. Appeals are processed separately. Likewise, the rated officer's comments do not constitute a request for a Commander's Inquiry. Such a request must be submitted separately. 8. Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides policy for selecting and promoting commissioned officers of both the Army National Guard of the United States and the USAR, and warrant officers of the USAR. a. Paragraph 3-19 states officers and warrant officers who have either failed of selection for promotion or who were erroneously not considered for promotion through administrative error may be reconsidered from promotion by either a promotion advisory board or an SSB. Records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines the ABCMR requests such a referral. b. Paragraph 3-20 (Information Provided to SSBs) states a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board. The records of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board. 9. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. a. Promotion eligibility is determined by the Deputy Chief of Staff, G-1, and approved by the Secretary of the Army. For centralized promotions, eligibility is based on an officer’s active date of rank and time in grade. Promotion boards make recommendations to the President of the United States. The President has delegated authority to the Secretary of Defense to approve or disapprove promotion board reports. Promotions to the grade of MAJ and above must be confirmed by the Senate in accordance with Title 10, U.S. Code, section 624c. b. The Secretary of the Army will provide guidance and instructions in a memorandum of instruction (MOI) to the board. The Secretary or his or her designee may modify, withdraw, or supplement the MOI before the board adjourns; however, once the board has convened, the maximum number of officers to be selected may not be increased without the written permission of the Office of the Secretary of Defense. c. Promotion selection boards will: (1) base their recommendations on impartial consideration of all officers in the zone of consideration as instructed in the MOI; and (2) keep confidential their reasons for recommending or not recommending any officer considered. For commissioned officers, one of the following methods of selection is used, as directed by the MOI: (1) The "Fully Qualified" method, when the maximum number of officers to be selected, as established by the Secretary, equals the number of officers above, in, and below the promotion zone. Although the law requires that officers recommended for promotion be "Best Qualified" for promotion when the number to be recommended equals the number to be considered, an officer who is fully qualified for promotion is also best qualified for promotion. Under this method, a fully qualified officer is one of demonstrated integrity, who has shown that he or she is qualified professionally and morally to perform the duties expected of an officer in the next higher grade. The term "qualified professionally" means meeting the requirements in a specific branch, functional area, or skill. (2) The "Best Qualified" method, when the board must recommend fewer than the total number of officers to be considered for promotion. However, no officer will be recommended under this method unless a majority of the board determines that he or she is fully qualified for promotion. As specified in the MOI for the applicable board, officers will be recommended for promotion to meet specific branch, functional area or skill requirements if fully qualified for promotion. d. SSBs are convened to consider commissioned officers for promotion when HQDA discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board due to an administrative error; or when the action by a board which considered an officer in or above the promotion zone was contrary to law or involved a material error; or the board which considered an officer from in or above the promotion zone did not have before it for consideration some material information. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. //NOTHING FOLLOWS//