IN THE CASE OF: BOARD DATE: 20 August 2013 DOCKET NUMBER: AR20130005703 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 correction of his officer evaluation report (OER) for the period ending 14 April 2008 to show a senior rater (SR) rating of "Best Qualified" and addition of the statement: "Promote ahead of peers." 2. The applicant states the contested OER did not accurately reflect his work ethics and/or potential that ultimately resulted in not being selected for promotion to the rank of major in the primary zone. He states he received the OER while deployed to Afghanistan as a member of the South Carolina Army National Guard (SCARNG) and his SR told him that the change-of-rater report would have no bearing on his promotion potential. His SR has since provided a statement explaining that an error occurred and provides insight as to the ratings he should have received. 3. The applicant provides an unsigned memorandum from his SR, dated 18 March 2013; a copy of the contested OER; and a copy of the OER that preceded the contested OER. 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. The applicant was commissioned as a second lieutenant in the SCARNG on 17 November 1999. He was promoted to the rank of captain on 14 October 2005. 3. He was ordered to active duty on 25 November 2006 and deployed to Afghanistan during the period 27 April 2007 through 2 May 2008. He was honorably released from active duty on 2 May 2008. 4. Meanwhile, on 2 April 2008, the applicant received a change-of-rater OER covering the period 16 December 2007 through 15 April 2008 as a maintenance management officer of Task Force Phoenix. 5. In Part V (Performance and Potential Evaluation), his rater gave him an "Outstanding Performance, Must Promote" rating and stated that he should be promoted ahead of his peers. 6. In Part VII (Senior Rater), his SR gave him a "Fully Qualified" rating and stated he should be promoted with his peers. 7. On 15 July 2010, he was honorably discharged from the SCARNG and transferred to the U.S. Army Reserve. On 1 August 2010, he was ordered to active duty to complete his active duty obligation in a voluntary indefinite status. 8. The unsigned statement from his SR states the applicant was a stellar officer with superb performance and he gave the applicant a "Fully Qualified" rating and stated he should be promoted with his peers because at the time it was understood that the highest ratings would be given only to officers in a promotable status or if the report was an annual report. He states the applicant was not in a promotable status, but he unequivocally earned "Best Qualified" and "promote ahead of peers" ratings. 9. There is no evidence that the applicant appealed to the Officer Special Review Board to have his OER corrected. 10. Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER. It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation. Each report must stand alone. Requests that an accepted OER be altered, withdrawn, or replaced will not be honored. An exception is granted only when information which was unknown or unverified when the OER 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 at the time the OER was prepared. 11. Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 12. Paragraph 6-11 of Army Regulation 623-3 provides that in evaluating the whole Soldier, rating officials may consider the fact that a rated individual is in a zone of consideration for promotion, command, or school selection. Accordingly, a subsequent statement from a rating official that he or she rendered an inaccurate rating in order to preserve ratings for other officers in a zone of consideration will not be a basis for appeal. 13. Army Regulation 600-8-29 (Officer Promotions) provides that Department of the Army Selection Board members are not allowed to divulge information related to the selection or non-selection of members considered by the board. DISCUSSION AND CONCLUSIONS: 1. While the applicant comes to the Board with an unsigned memorandum from his SR stating that he should have given the applicant a higher rating 5 years after the fact, the governing regulation provides that statements from rating officials do not serve as the basis for an appeal. 2. The applicant's contention that the SR rating served to prevent his selection for promotion to the rank of major appears to be speculative at best on his part. 3. It is a well-known fact that not everyone considered for promotion will be selected. If such were the case, there would be no need for selection boards. It is also a well-known fact that statutory requirements prevent the disclosure of board proceedings to anyone not a member of the board. While it is unfortunate that the applicant has not been selected for promotion to major, he has failed to show sufficient basis to further amend the OER in question. 4. Accordingly, there appears to be no basis to grant his request to change the contested OER. 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 the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________X____________ 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) AR20130005703 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130005703 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1