RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 November 2007
	DOCKET NUMBER:  AR20070008203 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Michael L. Engle

Analyst


The following members, a quorum, were present:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry C. Bergquist

Member

Mr. Dale E. DeBruler

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, in effect, that his Officer Evaluation Report (OER) for the period from 6 June 2003 to 3 January 2004, be removed from his records.

2.  The applicant states, in effect, that he received a grave injustice from the leadership of the 9th Regional Readiness Command (RRC).  He received a below center of mass OER.  He claims that the command at no time followed the required procedures outlined in Army Regulation 623-105, Officer Evaluation Reporting System.  Despite his persistent inquires regarding his OER prior to his permanent change of station (PCS) in 2004 and assignment in support of Operation Iraqi Freedom (OIF), the command waited until after his PCS to process his OER.  The applicant identifies the following as relevant issues:

	a.  United States Army Human Resources Command (HRC), St. Louis, Missouri, received a referred OER from the 9th RRC Personnel Officer (G1) on 25 May 2004;

	b.  HRC, St Louis, immediately rejected the OER on or about June 2004 for failing to meet the guidelines addressed in AR 623-105.  The OER had erroneous information showing unrated time, lacked documentation for a referred report, and lacked discussion of potential;

	c.  on or about July 2004, the applicant first noticed an electronic mail 
(e-mail) with an attached copy of the subject OER from the senior rater.  This was the first time he saw the OER and was asked to sign it and return it to the senior rater;

	d.  upon review of the OER, the applicant noticed the non-rated time and that it was a referred report.  He attempted to contact the senior rater to discuss the OER and to find out why it went forward without his knowledge;

	e.  the senior rater neither answered his phone calls or returned his voice messages;

	f.  at the time, the applicant was in Iraq with limited ability to communicate.  He eventually contacted the senior rater and referenced his inability to sign an OER with an obvious error.  He was left with a distinct impression that his command made a covert decision to discretely implant career damaging information into his file without his knowledge;

	g.  the applicant then hired an attorney in Hawaii and spent over $3,000.00 to establish third party communication with the 9th RRC personnel;

	h.  the 9th RRC personnel became highly agitated that HRC, St Louis, would not accept the OER and began another tactic to damage his career;

	i.  the applicant was provided an e-mail from inside sources of the 9th RRC indicating that since his OER was rejected by HRC, St. Louis, the leadership was trying to find any means possible to insert derogatory information into his official military personnel file (OMPF).  The leadership started the process to submit a Relief for Cause OER (6 months after the fact) even though no counseling statements were ever executed.  HRC, St. Louis also rejected this action, forcing the 9th RRC back to its original plan to acquire a signature on the subject OER that contained improper administrative data;

	j.  the applicant  submitted a rebuttal through the Inspector General (IG), to the senior rater, hoping to negotiate his position, defend against the OER comments and refute the issues addressed in the senior rater portion;

	k.  the 9th RRC leadership no longer communicated with the applicant on this matter;

	l.  in the summer of 2005, when he temporarily returned home from OIF, the applicant saw on line that the subject OER was in his OMPF.  He sought to collect documents and communications from personnel still with the 9th RRC.  The applicant subsequently returned to OIF, completed his tour and returned in November 2006;

	m.  the applicant finally states that he finds this process very distressful and questions if we are an "Army of one". 

3.  The applicant provides a copy of the subject OER with referral, his electronic mail response, and the Senior Rater's memorandum forwarding the OER to the United States Army Human Resources Command.

CONSIDERATION OF EVIDENCE:

1.  The applicant, at the time of his application, was a major, United States Army Reserve, on active duty.



2.  The contested OER, dated in 2004, is a change of rater report for the period from 6 June 2003 to 3 January 2004.  The applicant was assigned to the 9th Regional Readiness Command, for duty as an Information Systems Manager, in the rank of major.  It is a referred report signed by the rater and senior rater.  The OER indicates that the applicant refused to sign the OER but wanted to attach comments.

3.  Part V (Performance and Potential Evaluation) (Rater), of the subject OER indicates that the applicant performed satisfactory and should be promoted.  The rater stated that he had served a key role as a contracting officer representative and had ensured continuing and efficient operation of the network through a full time staff of eight contractors and two Reserve military.  He had achieved above standard network uptime with no major service outages during the rating period.  The applicant had developed a plan to re-compete the informational technology (IT) services contract.  The statement of work [in the proposal] was not well written.  Miscommunication with the contracting office resulted in the new contracting company initially hiring eight new personnel and retaining none of the existing personnel.  Without intervention, all institutional knowledge would have been lost. The applicant was assigned to work on special projects.

4.  Part VII (Senior Rater) of the subject OER indicates that the applicant was fully qualified for promotion.  At the time, the senior rater had two officers in the rank of major, pay grade O-4, that he senior rated.  He placed the applicant below the center of mass when compared with the other two officers that he senior rated.  The senior rater stated that the applicant coordinated the funding of approximately $1.9 million for critical contract support and network equipment.  He also assisted the [resource management] staff, (G8) with the fiscal year 2003 year end close out.  The applicant took the lead in researching and initiating a new IT services contract with significant cost savings.  Unfortunately, he had experienced difficulties in developing a cohesive automation team, writing the new contract, and transitioning between contractors. 

5.  Attached to the OER is a memorandum for the applicant dated 6 June 2004, referring the OER to him for his acknowledgment and signature.  The applicant was given a suspense date of 6 July 2004 to complete his action.

6.  On 6 August 2004, the applicant sent an e-mail to the senior rater, rebutting the below center of mass rating in Part VII, b; and inaccurate statements in Part VII, c of the subject OER.  The applicant stated, in part, that the chain of command had failed to conduct mandatory initial and quarterly performance counseling; that the entry in the performance section of the subject OER addressing the miscommunication and statement of work was inaccurate; 
that the lack of communication within the organization fostered an environment obstructed with internal political pressures, which degraded the developmental counseling process and performance of the officers.

7.  In a memorandum dated 7 November from the 9th RRC to HRC, St. Louis, the senior rater forwarded a "certified true copy" of the subject OER.  This memorandum explained that the original OER was sent to the applicant via certified mail on 9 June 2004, with an acknowledgment letter directing the applicant to sign the OER, mark the appropriate box in Part II d, acknowledge receipt of the referred OER, and submit any desired comments by 6 July 2004.  The suspense date was extended until15 August 2004 to allow the applicant additional time to provide any comments.  The memorandum further states that the 6 August 2004 e-mail response by the applicant was not considered as an appropriate appeal, but rather as comments pertaining to his referred OER.  As such, the e-mail was not referred to the rating official because it did not provide significant new facts about his performance.  

8.  There is no evidence showing that the applicant submitted any other response or appeal regarding the subject OER, or that he had requested a commander’s inquiry.  

9.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for preparing, processing and using the OER.  The version in effect at the time provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The version in effect at the time and the current version state that the burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The contested OER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the rated period in question.



2.  The applicant’s contention that the senior rater included inaccurate comments has been considered.  However, absent a timely appeal of the OER or a request for a Commander’s inquiry they do not at this point satisfy the applicant’s burden of persuasion.

3.  There is no evidence showing that the applicant ever submitted an appeal or requested a commander's inquiry.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__ DED _  __MKP__  __LCB        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.





__       M. K. Patterson  __
          CHAIRPERSON




INDEX

CASE ID
AR20070008203
SUFFIX

RECON
 
DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY
  . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
111.0005
2.

3.

4.

5.

6.