RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        8 March 2007
      DOCKET NUMBER:  AR20060008650


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Gerard W. Schwartz            |     |Director             |
|     |Ms. Loretta D. Gulley             |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William F. Crain              |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Ms. Rea M. Nuppenau               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the Officer Evaluation Report (OER)
covering the period 20 July 2003 through 26 February 2003 [hereafter
referred to as the contested report] from his Official Military Personnel
File (OMPF).

2.  The applicant states, in effect, that the contested report contains
administrative and substantive errors.  Specifically, the applicant
contends that the senior rater “back dated” the OER in question, did not
mark “NO” next to his signature, and that the height and weight on the OER
is incorrect.

3.  The applicant further argues that the rater demonstrated a routine
practice of bias and prejudice towards him which cumulated with the
Commander providing false information regarding his security clearance.

4.  The applicant argues that the contested report does not recognize his
accomplishments and believes the contested report was a personal attack
against him.  The applicant further argues that the rater's comments were
an attempt to hurt his career by generating a referred report.

5.  The applicant provides a nine-page self-authored statement, OER appeal
and supporting documentation in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows that on 5 November 2003, he was honorably
released from active duty and transferred to the USAR control group.  The
separation document (DD Form 214) he was issued at the time shows he
completed a total of 3 years and 22 days of active military service, and
that he held the rank of 2nd lieutenant (2LT) at the time.

2.  On an undetermined date, while serving on active duty as a 2nd LT
assigned to the 293rd Military Police (MP) Company 3rd MP Battalion (Prov),
Fort Stewart, Georgia,  the applicant received the contested permanent
change of station OER in question. This report covered the period 20 July
2002 through 26 February 2003, and rated the applicant in the position of
Platoon Leader.




3.  Part IId (This is a referred report, do you wish to make comments?) of
the contested report shows that an “X” was placed in the referred report
box and an “X” was placed in the ”No” do you wish to make comments box.

4.  Part IIe (Signature of Rated Officer) of the contested report shows the
applicant authenticated the report.

5.  Part IVa (Army Values) of the contested report shows that an "X" was
placed in all seven "Yes" blocks.

6.  Part IVb (Leader Attributes/Skills/Actions) of the contested report
shows that an "X" was placed in each of the "NO" blocks for Items b.1.3
“Emotional”,
b.2.1 “Conceptual”, b.2.2 “Interpersonal”, b.2.3. “Technical”, and b.3.1
“Communicating”.

7.  Part IVc (APFT) of the contested report shows that "71" was placed in
the "Height" block and that "211" was placed in the “Weight” block.

8.  Part V (Performance and Potential Evaluation) of the contested report
shows the rater placed his "X" in the "Unsatisfactory Performance" block.
In Part Vb (Comment on Specific Aspects of Performance), the rater noted
that the applicant’s performance to be inadequate.  The rater addressed all
blocks in Vb that he placed a “NO”.  The rater continued that the applicant
is unable to maintain a secret clearance, and is unable to perform his
duties as a commissioned officer.  Due to his continued poor performance,
no viable proof of satisfactory improvement, and inability to maintain a
secret clearance, the rater recommended that the applicant not be retained
or considered for promotion.

9.  Part Vc (Identify and Unique Professional Skills) of the contested
report contains no entry.

10.  Part VII (Senior Rater) of the contested report show that the SR
placed an "X" in the "Do Not Promote" block.

11.  Part VIIb (Potential Compared with Officers Senior Rated in Same
Grade) of the contested report shows that the applicant was rated in the
"Below Center of Mass, Do Not Retain" block.





12.  Part VIIc (Comment on Performance/Potential) of the contested report
shows the SR comments included "his somewhat adequate performance reflects
those missions and tasking that he has been about to perform due to his
inability to possess a security clearance"; and "applicant has not
demonstrated the maturity and leadership qualities and is falling behind
his peers."  The SR concluded that the applicant should not be considered
for "promotion or retention."

13.  Part VIId (List 3 Future Assignments for which this Officer is Best
Suited) of the contested report shows the applicant was best suited for
assignments as a "Platoon Leader, Battalion Staff, and Garrision Staff."

14.  Paragraph 3-2g and 3-2h of Army Regulation 635-105 (Officer Evaluation
Reporting System) indicate that rating officials must prepare reports that
are honest, fair, accurate and complete showing the achievements and
failures of the rated officers.

15.  Paragraph 3-7 of Army Regulation 635-105 sets forth the rater
responsibilities.  The rater has the obligation to notify the rated officer
under their supervision from the beginning and throughout the rating period
on their performance with face-to-face counseling and periodic follow-ups.
The rater is obligated to make a fair and honest evaluation(s) of the rated
officer under their supervision.

16.  Paragraph 3-19.b(2) of Army Regulation 635-105 states, in pertinent
part, that the rater will place an "X" in either the "yes" or "no" box for
each attribute/skill/action.  Comments are mandatory for any “No” entries.


17.  Paragraph 3-19.1a of Army Regulation 635-105 states, in pertinent
part, that the rater will enter (type) the APFT results and the height and
weight of the rated officer in Part IVc.  These entries will be verified by
the senior rater and the rated officer when they complete and sign their
portion(s) of the OER.

18.  Paragraph 3-20.b (1) of Army Regulation 635-105 states, in pertinent
part, that the rater compares the rater officer’s performance and potential
with that of his contemporaries in Part Va. This paragraph also in
pertinent part, states in paragraph 3-20.b. (2) that the rater comments on
specific aspects of performance and potential in Part Vb.  Comments should
be specific and address, as appropriate, the officer’s potential for
promotion, military and civilian schooling, specific assignment (both in
terms of level of organization and level of responsibility), and command.
Finally, Paragraph 3-30.b (2) of Army Regulation 635-105 states, in
pertinent part, that the rate will provide narrative comments  indicating
unique skills/expertise which the rated officer possesses.

19.  Paragraph 3-22.c (1) of Army Regulation 635-105 states, in pertinent
part, that based on the rated officer’s duty performance, the senior rater
assesses the rated officer’s potential to perform duties and
responsibilities at the next higher grade compared to all officers of the
same grade and then places an “X” in the appropriate box in Part VIIa.
Comments are mandatory for boxes checked “Do Not Promote”.

20.  Paragraph 3-22.c (2) of Army Regulation 635-105 states, in pertinent
part, that the senior rater makes an assessment of the rated officer’s
potential in comparison with all other officer’s of the same grade the SR
official rates in Part VIIb.  If the rated officer’s potential is below the
majority of officers in the SR population for that grade and the SR does
not believe the rated officer should be retained on active duty the SR will
“X’ the Below Center of Mass-So Not Retain” box.

21.  Paragraph 3-22.c (3) of Army Regulation 635-105 states, in pertinent
part, that the SR enters narrative comments in Part VIIc.  These comments
should focus on the rated officer’s potential and future assignments but
also address performance, the administrative review, or the evaluation of
the rater.

22.  Paragraph 3-22.d(4) of Army Regulation 635-105 states, in pertinent
part, that based on the rated officer’s duty performance and demonstrated
potential, the SR will list three future assignments focusing on the next 3-
5 years for which the rated officer is best suited in Part VIId.

23  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 states that an
evaluation report accepted by HQDA 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 represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.

24.  Paragraph 6-10 of Army Regulation 623-105 states 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.

25.  Paragraph 6-11 of the evaluation regulation contains guidance on the
burden of proof and type of evidence necessary to support an evaluation
appeal.  It states, in pertinent part, that the burden of proof rests with
the appellant, and accordingly, to justify deletion or amendment of a
report, the appellant will produce evidence that establishes clearly and
convincingly that the presumption of regularity referred to in paragraphs 3-
39 and 6-7 of the regulation will not be applied to the report under
consideration.  That action is warranted to correct a material error,
inaccuracy, or injustice; and clear and convincing evidence will be of a
strong and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.   The applicant contends that the contested report contains
administrative and substantive errors and should be removed from his
records.

2.  Notwithstanding the applicant's affidavit, the applicant has not
provided clear and compelling evidence which shows that the ratings on the
contested report were in error or that they were not considered opinions
and objective judgments of the rating officials at the time the report was
rendered.

3.  Notwithstanding the applicant's affidavit, the applicant has not
provided clear and compelling evidence which shows that the ratings on the
contested report were a result of bias opinions or as a result of personnel
attacks against him or his character by the rating officials at the time
the reports were rendered.

4.  In view of the facts of this case and notwithstanding the applicant’s
claim to the contrary, it appears the contested OER represents the
considered opinions and objective judgment of the rating officials.  As a
result, it is concluded that the OER in question was processed and accepted
for filing in the OMPF in accordance with applicable regulations, and there
is insufficient clear and compelling evidence to overcome the regulatory
presumption of regularity, and/or to remove or amend the contested report
at this time.

5.  Evaluation reports accepted and placed in the official military records
are presumed to be administratively correct, been prepared by the properly
designated rating officials, and represent the considered opinions and
objective judgments of the rating officials at the time the report is
rendered.

6.  Therefore, based on the foregoing, there is insufficient evidence to
support the applicant's contention that the contested report did not
accurately reflect his duties and did not appropriately rate his
performance.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___WFC _  ___EEM_  ___RMN_  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.




                                     __William F. Crain____
                                            CHAIRPERSON






                                    INDEX

|CASE ID                 |AR                                      |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |2007/03/08                              |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]