IN THE CASE OF: BOARD DATE: 30 APRIL 2009 DOCKET NUMBER: AR20080019784 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, complete removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 9 February 2003 through 3 August 2003 (hereafter referred to as the contested OER) from his records. 2. In the alternative the applicant requests that if the entire contested OER cannot be removed that all adverse information in the OER be redacted and/or corrected as follows: a. Part IVa(6) (Army Values-Selfless Service), change the entry from "No" to "Yes"; b. Part IVb(3) (Actions-Decision Making), change the entry from "No" to "Yes"; c. Part Va (Performance and Potential Evaluation (Rater)), change the entry from "Satisfactory Performance, Promote" to "Outstanding Performance, Must Promote"; d. Part Vb (Comments on Specific Aspects of the Performance and Potential), delete the first five sentences and delete line seven through the word “countered," start the new sentence at the following word "an," and delete the last sentence; e. Part Vc (Identify Unique Professional Skills or Areas of Expertise of Value to the Army that the Officer Possesses), delete the entry "can be a continued asset" and replace it with "unlimited potential." f. Part VI (Intermediate Rater), the following corrections: (1) Delete the entire section or alternatively, (2) Delete the first sentence; (3) Delete the second sentence and replace with "[Applicant] attempted to PCS (permanent change of station) with DA (Department of the Army) approved orders to attend a DA functional qualification course" and add to the third sentence after the word Soldier "but immediate supervisor chose him to serve as the Early Entry Command Post Fire Support OIC (Officer in Charge) and sent him to Baghdad"; (4) Add to fourth sentence after the word occurrence "[Applicant] sought assistance from the 3rd Army Chief of Staff to discern the status of his exception to policy, which was in keeping with DA MILPER (Military Personnel) Message 03-074 and 3rd Army policy"; and (5) Delete the fifth and final sentence. g. Part VIIa (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade), change the entry from "Yes" to "No." 3. Once corrected, the applicant also requests to be re-boarded for lieutenant colonel (LTC) promotion. 4. The applicant states that the contested OER contains substantive and administrative errors to include undue influence, lack of counseling, reference to other rating periods thus violating the requirement that each report must stand alone, prohibited narrative gimmicks, and unproven derogatory information. He also states that there was no factual documentation to support negative comments and perceptions and that there was a retroactive change of the rating scheme. 5. The applicant provides the following additional documentary evidence in support of his request: a. the contested OER; b. Officer Record Brief (ORB), dated 19 September 2008; c. self-authored memorandum, dated 11 August 2008; d. self-authored memorandum, dated 10 August 2008, waiver request for substantive appeal; e. two statements, dated 2 July 2008 and 26 June 2003, by the applicant’s wife; f. email message demonstrating undue influence (This email was classified SECRET when submitted and was declassified on 30 January 2009); g. five character reference letters and/or statements, by various individuals, dated on miscellaneous dates; and h. self-authored memorandum, dated 10 August 2008, with the following enclosures: (1) statement, dated 6 July 2008, by a sergeant major (SGM); (2) statement, dated 8 July 2008, by a sergeant first class (SFC); (3) statement, dated 30 January 2008, by a colonel (COL); (4) three DA Forms 2823 (Sworn Statement) by various military personnel on miscellaneous dates; (5) copy of Orders 058-02, issued by Headquarters, Fort McPherson, Georgia, on 27 February 2003; (6) MILPER Message Number 03-074, dated 31 December 2002; (7) Coalition Forces Land Component Command (CFLCC) Policy Memorandum, dated 14 March 2003; (8) Initial DA Form 67-9 for the period 9 February 2003 through 3 August 2003; (9) Undated memorandum, response to a request for Commander’s Inquiry; and (10) seven character reference letters/statements by various individuals, dated on miscellaneous dates. CONSIDERATION OF EVIDENCE: 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 Army Board for Correction of Military Records (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. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. With prior enlisted service, the applicant’s records show he was appointed as a Field Artillery (FA) second lieutenant in the U.S. Army Reserve (USAR) with concurrent call to active duty and executed an oath of office on 30 July 1992. He subsequently entered active duty, completed several military training courses, served in various command and staff positions, and was promoted to captain (CPT) on 1 August 1996 and major (MAJ) on 1 July 2003. 3. The applicant’s records further show that he was assigned to Headquarters, Third U.S. Army, Fort McPherson, Georgia, from 26 May 2000 to 25 May 2001; Headquarters, Army Central Command (ARCENT), CFLCC, Camp Doha, Kuwait, from 26 May 2001 to 8 February 2002; and Headquarters, Third U.S. Army, Fort McPherson, from 9 February 2003 to 3 August 2003, during the period of the contested OER. 4. During the month of August 2003, the applicant received a change of rater OER which covered 6 months of rated time, from 9 February 2003 through 3 August 2003. His Rater was a MAJ, his Intermediate Rater was an LTC, and his Senior Rater was a COL. 5. On an unknown date, the applicant raised questions concerning the contents of this OER and requested a commander’s inquiry. A copy of the applicant's request that contains his specific issues is not available for review with this case. However, on 7 October 2003, a COL was appointed as an investigating officer (IO) pursuant to Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers). 6. A copy of the IO’s findings and recommendation is not available for review with this case. However, the IO provided a recent memorandum, dated 30 January 2008, in which he states that during the course of the investigation, he (the IO) made several findings and recommendations and that the Chief of Staff elected not to follow them. He states that he made the following recommendations: a. The Rater and Senior Rater should reevaluate their intent as to the type of OER being rendered and that if that intent was to submit a “Referred” report, rating officials should follow Army Regulation 623-105 (Officer Evaluation Reporting System); b. The Senior Rater was not eligible to senior rate the applicant as he was a non-promotable LTC and by rule, the Senior Rater must be two grades higher than the rated officer; c. A new Senior Rater must be designated, and if so, the new Senior Rater must indicate that he/she is unable to evaluate this officer because he/she has not been his Senior Rater for the required number of days; and d. All referred reports must be reviewed by the Chief of Staff. 7. The IO also indicated that in his professional opinion, the applicant was a victim of not receiving due process under the terms of the Preliminary Inquiry of Army Regulation 15-6 and strongly recommended the entire OER be removed from his file due to inconsistencies and blatant disregard by the Chief of Staff and the applicant’s chain of command not adhering to Army Regulation 623-105. 8. On an unknown date, by memorandum, the Commanding General (CG), CFLCC, Third U.S. Army, Fort McPherson, notified the applicant that an investigation was conducted to address his issues that the OER was not factual and was based on erroneous presumptions and perceptions, that the rating scheme was not valid, and that the substantive comments were in violation of the regulation. The CG further stated that: a. The rating scheme was found to be valid. According to the intent of the regulation, the rating chain must correspond as closely as practicable to the chain of command or supervision and each person in the rating chain must be qualified to rate the rated officer. Upon promotion to MAJ on 1 July 2003, a new Senior Rater, a COL in the position of Deputy Chief of Staff, C3, was the best qualified person to serve as the Senior Rater because, as a staff principal, he was the next official in the chain of command/supervision who would qualify to render an evaluation; b. As far as the content of the evaluation, he (the CG) can instruct the rating chain to correct administrative errors and obvious violations, but could not influence the rating officials to change their rating as it is their responsibility to carry out this duty without regard to command influence; c. Upon further investigation, however, it was determined that the C3 qualified as his (the applicant’s) Senior Rater but did not have enough time in that position to provide Senior Rater comments; and d. The OER was forwarded to U.S. Army Human Resources Command (HRC), Alexandria, VA and posted to his (the applicant’s) Official Military Personnel File (OMPF) on 23 February 2004. As such, it became an official record and any changes should be requested through the appeal process. 9. On an unknown date, the contested OER was resubmitted, again, as a change of rater report and covered the same 6 months of rated time, from 9 February 2003 through 3 August 2003, for the applicant's duties serving as the "Fire Support Officer." His rater remained the same; however, his SR was designated as an Intermediate Rater and a new Senior Rater (the C3) was designated. The OER shows the following entries: a. In Part IVa(6), the Rater placed an "X" in the "No" block for "Selfless Service"; b. In Part IVb(3), the Rater placed an "X" in the “No” block for "Decision Making"; c. In Part Va, the Rater placed an "X" in the "Satisfactory Performance-Promote" block and in Part Vb, he entered the following comments: [Applicant’s] performance during this period was overshadowed by a lapse of judgment. [Applicant] repeatedly pursued an exception to policy to leave Kuwait during Operation Iraqi Freedom (OIF) and all requests were denied. Instead of accepting the chain of command’s decision, and applying the counseling recommendations he received, he continued to pursue an effort to leave, creating a situation that called into question his motives and integrity. He gave the strong appearance of leaving a combat zone without proper authorization. He had obtained an airline ticket and partially completed clearance of his assigned unit without any formal approval. This incident was unfortunate because it countered an otherwise outstanding period of performance. He helped manage the prosecution of operational targets in support of ground combat operations over demanding and extended periods. [Applicant] assisted with the coordination and firing of over 400 missiles. This complex task involved cross component coordination and very difficult management of constricted airspace. He applied an expertise that had been honed during several exercises and directly impacted the outcome of the campaign and assisted the commander in making time critical decisions. [Applicant] has served a variety of crucial roles during 3rd Army’s deployment in support of OIF. He was selected to represent the Deep Operations Coordination Cell (DOCC) of the 3rd Army Early Entry Command Post (EECP), a highly mobile Army level command post that is deployable on short or no notice. He ensured that all equipment was present at EECP and functioning correctly. His attention to detail played a key role when the EECP deployed forward to Baghdad on 24 hours notice. He quickly adapts to tough situations, finds solutions to complex problems efficiently and his technical skills are excellent. However, [Applicant’s] lapse of judgment brings into question his personal commitment to unit and mission. d. In Part Ve, the Rater entered the following comments: "[Applicant] has exceptional skills and can be a continued asset to the Army as an automation officer. He would best serve the Army in IOCF/53 (Information Operation Career Field/53)"; e. In Part VI, the Intermediate Rater entered the following comments: A wholesale turnaround in performance and judgment from the last rating period. [Applicant’s] attempt to depart the theater during combat operations is inexcusable; it reflects extremely poor judgment and dedication to his unit as well as the Army in general. I do not trust his judgment and question his ability to lead Soldiers. Although his action is a one-time occurrence, I do not find any way to excuse it, particularly as it occurred during combat operations. [Applicant] has reached his potential and should not be promoted further. f. In Part VIIa, the Senior Rater placed an "X" in the "Yes" block, indicating that a completed DA Form 67-8-1 was received with this report and considered in his (the Senior Rater) evaluation and review, and further indicated in Part VIIe (Comment on Performance and Potential) that he was unable to evaluate the rated officer because he has not been his senior rater for the required number of days and that the Soldier refused to sign (the OER). 10. The contested OER was processed at HRC, Alexandria on 19 February 2004. However, there is no indication that the applicant appealed this OER within the time frame authorized by AR 623-105. 11. On 10 August 2008, the applicant submitted an appeal of the contested OER. Upon receipt at HRC, Alexandria, the Chief, OER Appeals and Corrections Branch forwarded the OER and supporting evidence to the Officer Special Review Board (OSRB). The Chief further indicated that the applicant was a onetime non-select for promotion to LTC and therefore had a priority 2. 12. On 12 December 2008, by letter, the OSRB notified the applicant that his appeal was returned without action because it was not submitted within 3 years of the through date of the report. The OSRB further notified the applicant that his argument of family hardship, operational tempo, and administrative miscues in the processing of his OER did not constitute exceptional justification to warrant an exception to process his appeal outside the 3-year through date. 13. On 19 December 2008, the applicant submitted a DD Form 149 (Application for Correction of Military Records Under the provisions of Title 10, U.S. Code, section 1552) to the ABCMR. He provided documents, statements, letters, and memoranda, dated on miscellaneous dates, by various individuals with his DD Form 149 as follows: a. In his memorandum, dated 10 August 2008, the applicant states that the adverse portions of his OER are all based on false and baseless allegations that he had partially cleared and obtained an airline ticket without authority and gave the appearance of leaving a combat zone without authority. He also adds that he had since endured several family hardships, extreme operational tempo, and multiple miscues in processing, investigating, and appealing this OER. He argues that he was never counseled or told of any performance deficiencies. Specifically, the applicant makes the following arguments: (1) The Rater was specifically directed by the intermediate rater to use the phrase "leaving the combat zone without proper authorization" and to enter "No" on the front side of the OER, a clear influence of one rating official over another; (2) The Rater did not conduct any counseling or facilitate a communication process with him. Had the required counseling been conducted, the rater would have pointed out any deficiencies and a recommended course of action and the applicant would have corrected the deficiencies; (3) The Rater’s rating and comments are unwarranted and constitute erroneous perceptions based on subjective feelings and emotions instead of merit and facts. As an example, the Rater never states what the "lapse of judgment" was and/or that there is no documentation that shows he (the applicant) "obtained an airline ticket and partially cleared"; (4) He (the applicant) was on orders to attend a DA-approved school. He did not submit an exception to policy to leave early because he was deployed to Baghdad at the time. Another officer submitted the request on his (the applicant’s) behalf. Yet, the Rater uses excessive capital letters and gimmicks to make a sentence stand out and thus leading the reader to a negative conclusion; (5) The request for an exception to policy was not processed completely and a decision on this request was never rendered by the chain of command. Rating officials were angered by the fact that the applicant sought assistance through the 3rd Army Chief of Staff; (6) He neither attempted to leave the combat zone nor obtained an airline ticket. He simply scheduled the appointments and reserved an airline ticket in anticipation for the approval to depart; however, there was no actual outprocessing completed or airline ticket bought; and (7) A DA Form 67-9-1 (OER Support Form) was not submitted because the rating scheme was retroactively changed after the rating period was completed. He adds that he was never provided with the Senior Rater OER support form. b. In her statements, dated 26 June 2003 and 2 July 2008, the applicant’s wife states that since she and the applicant had a joint domicile assignment at the time, she merely scheduled the outprocessing appointments and only reserved an airline ticket for him while his request for an exception to policy was being processed; however, everything was done in accordance with the rules at the time; c. The applicant provided several letters of support from co-workers and observers which all spoke highly of his performance, that he was an officer who cared, conducted himself professionally, and diligently worked to produce meaningful results. He also provided several character reference statements, authored by various senior officers and a noncommissioned officer, on miscellaneous dates, who also comment on his integrity, loyalty, professionalism, unselfish attitude, and superb technical skills. The authors further opined that the applicant’s OER was not a true reflection of what happened and that he deserves a better evaluation. 14. Army Regulation 623-105, in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provided guidance regarding redress programs including commander inquiries and appeals. 15. Paragraph 3-57 of Army Regulation 623-105 provides the basic rule applicable to modifications of previously submitted reports. It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored. Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified; and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared. 16. Chapter 6 contains the policies and procedures pertaining to managing the OER redress program. Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal. Paragraph 6-6 states, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 17. The OER regulation further stipulates that statements from rating officials are also acceptable to support an appeal if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. 18. Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It states, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 19. Army Regulation 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official. 20. Army Regulation 600-8-29 (Officer Promotions) provides the Army’s policies and procedures on officer promotions. Chapter 7 provides guidance on Special Selection Boards (SSBs). SSBs are convened to consider or reconsider commissioned or warrant officers for promotion when DA discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information. 21. Paragraph 7-3 of the promotions regulation provides guidance on cases that will not be considered by a SSB. It states, in pertinent part, that a SSB will not be authorized when it is determined that the officer, in exercising reasonable diligence, could have discovered and corrected the error in the ORB or OMPF. The regulation stipulates that it is the officer's responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that the contested OER should be removed or alternatively, the adverse information should be redacted and/or corrected. 2. The evidence of record shows that the contested OER contained comments that the applicant perceived to contain alleged errors and injustices and brought such concerns to the commander’s attention. Accordingly, a 15-6 investigation, as a commander’s inquiry, was conducted in order to provide a greater degree of command involvement in preventing potential injustices to the applicant and correcting the errors before they become a matter of permanent record. 3. With respect to the rating chain, the evidence of record shows that the applicant was promoted to MAJ on 1 July 2003. By rule, a non-promotable LTC could not be his Senior Rater. Accordingly and contrary to the IO's statement that the Chief of Staff and the chain of command blatantly disregarded Army Regulation 623-105, and in what appears to be an honest attempt to provide the applicant with the appropriate rating officials that mirrored his chain of command, the Deputy Chief of Staff, C3, was designated as the Senior Rater with his previously designated Senior Rater becoming his Intermediate Rater. The applicant’s rating scheme was found to be valid and corresponded as closely as practicable to the chain of command or supervision. 4. With respect to lack of counseling, the evidence of record shows that the applicant’s Senior Rater marked the “Yes” block in Part VIIa, indicating that a completed OER support form was received with this report and considered in the Senior Rater’s evaluation and review with this report. This form provides an opportunity for the rated individual, rater, intermediate rater (if applicable), and Senior Rater to communicate. 5. Nevertheless, the applicant was a MAJ with over 12 years of service at the time the contested OER was rendered. He should have been intimately familiar with the evaluation process and the need to be actively involved in that process. When the rater failed to complete face-to-face counseling or provide feedback regarding duty performance, the applicant should have sought counseling and feedback. One cannot argue after the fact that the rater failed in his responsibilities when he himself took no active role in his own evaluation process. 6. With respect to any undue command influence, the applicant’s rating officials are presumed to be as professional as the applicant and there is no evidence that shows the intermediate rater instructed the rater to use specific words. Furthermore, it appears that the IO addressed this issue, as evidenced by the CG’s memorandum in which he stated that he can instruct the rating chain to correct administrative errors and obvious violations, but could not influence the rating officials to change their rating as it is their responsibility to carry out this duty without regard to command influence. 7. With respect to the comments made by the IO in his reconstructed memorandum where he noted that in his professional opinion, the applicant was a victim of not receiving due process under the terms of the Preliminary Inquiry of Army Regulation 15-6 and strongly recommended the entire OER be removed from his file due to inconsistencies and blatant disregard by the Chief of Staff and the applicant’s chain of command not adhering to Army Regulation 623-105, the evidence of record shows that the chain of command did not disregard his recommendations and acted upon those recommendations by providing the applicant with the appropriate rating officials that mirrored his chain of command or supervision when the Deputy Chief of Staff, C3, was designated as the applicant’s Senior Rater. Furthermore, the IO was not one of the applicant's rating officials and therefore was not privy to the goals and/or standards established between the supervisor and his subordinates. 8. There is no evidence and the applicant has not provided evidence that shows that the rater, intermediate rater, and SR did not comply with the regulatory requirements of evaluating the applicant in a fair and unbiased manner. Although, the applicant provided several letters of support from co-workers and observers with his OER appeal, the authors did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation of the applicant by his rating officials. 9. Based on the applicable regulations, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing or redacting the contested OER. Therefore, there is no basis for removing or redacting of the contested OER. 10. With respect to the applicant’s request to re-board his promotion file, this can be accomplished through the SSB process. However, the applicant’s OER became a matter of record on 19 February 2004. There is no evidence that the applicant appealed that OER within the time frame prescribed by governing regulation. Furthermore, there is no evidence that the applicant’s file contained a material error that led to his non-selection for promotion to LTC. Therefore, there is no basis to reconsider the applicant’s promotion file by an SSB. BOARD VOTE: ________ ________ ________ 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 that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ________XXX_______________ CHAIRPERSON 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. ABCMR Record of Proceedings (cont) AR20080019784 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080019784 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1