IN THE CASE OF:	  

	BOARD DATE:	  3 July 2008

	DOCKET NUMBER:  AR20080006920 


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 that the comments he provided in response to a referred Officer Evaluation Report (OER) be removed from his records.

2.  The applicant states that he received the OER, for the period ending 22 May 2003, while he was deployed in Iraq.  The response he submitted reflected his state of mind during a hostile and life-threatening environment.  Upon his return from Iraq, he realized that his comments were not impartial and free of emotion.  The comments had an undue effect upon his selection for promotion to Major and were the reason he was twice non-selected.  

3.  The applicant provides his OER appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a second lieutenant out of the Reserve Officers’ Training Corps and entered active duty on 14 June 1994.  He was promoted to Captain, Medical Service Corps, on 1 June 1998.

2.  The applicant received a 6-rated month change of rater OER for the period     6 December 2002 through 22 May 2003 during which period he was rated as a company commander.  His rater rated his performance and potential for promotion as “outstanding performance, must promote.”  However, rater comments in Part Vb included, “An action oriented individual he tends to view the world from a rigid perspective”; and His leadership skills need some improvement in terms of balancing taking care of soldiers and meeting mission requirements, but with maturity and time he should have a successful career.”  Apparently because of those comments, the OER was referred to the applicant.

3.  On 26 April 2004, the applicant provided a three-paragraph response to      the OER.  Paragraph 1 stated, “This OER does not accurately reflect my performance during the rated period.  To prepare for war (OIF I), I pushed and trained my company strenuously, as sweat in peacetime saves blood in wartime. My rater, LTC Tracey S___, despite having approved my training plan, disagreed with my emphasis on wartime preparation; her stated emphasis was “soldiers first, mission always.”

4.  Paragraph 2 of the applicant’s response noted that his senior rater was unavailable during the rating time to provide a counterbalance to the disagreements between himself and the rater.  Subparagraphs 2a, 2b, and 2c were a recitation of facts concerning his unit’s achievements while under his command.  Paragraph 3 was his contact information.

5.  The applicant appealed the OER in June 2005.  He noted in his appeal that when he submitted his comments to the report he believed his comments to be objective and free of emotionalism.  Upon recent third-party review, he learned that his comments were not completely free of emotionalism and could have adversely affected past and future selection opportunities.

6.  The applicant provided three letters of support with his OER appeal.  Lieutenant Colonel S___ stated he was the one who advised the applicant to prepare comments.  He stated, “Unfortunately, (the applicant) submitted comments that are admittedly wrought with unnecessary emotionalism, but were never reviewed by a senior officer.”  Major T___ stated, “I fully support removing (the applicant’s) comments from the OER.  His comments are not free of emotionalism and could be detrimental to his future promotion opportunities.”  Colonel L___-H___ stated, “His comments could be detrimental to his future promotion opportunities as they are not free of subjectivity and are reflective of the stresses (the applicant) experienced while serving in a combat zone.”

7.  On 14 July 2005, the Officer Special Review Boards denied the applicant’s appeal.  

8.  On 31 December 2005, the applicant was honorably discharged by reason of nonselection for permanent promotion.  He apparently began to actively participate in the U. S. Army Reserve before he was officially appointed as a Reserve Commissioned Officer of the Army on 6 February 2007.

9.  Army Regulation 623-105, in effect at the time, established the policies and procedures for preparing, processing and using the OER.  The regulation 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 represent the considered opinion and objective judgment of the rating officials at the time of preparation.  

10.  Army Regulation 623-105 stated (and the current governing regulation also states) 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.

11.  Army Regulation 623-105, paragraph 3-32 of the version in effect at the time, listed the types of OERs that would be referred to the rated officer by the senior rater for acknowledgment and comment before they were sent to Headquarters, Department of the Army (HQDA).  Types of OERs that would be referred included any report with negative comments in Part Vb, VI, or VIIc.

12.  Army Regulation 623-105, paragraph 3-33 of the version in effect at the time, stated that when referral was required the senior rater would place an “x” in the appropriate box in Part IIe of the completed report.  The report would then be given to the rated officer for signature and placement of an “x” in the appropriate box in Part IIe.  The rated officer could comment if he or she believed that the rating or remarks were incorrect.  The comments must have been factual, concise, and limited to matters directly related to the evaluation on the OER.   The rated officer's comments did not constitute an appeal or a request for commander's inquiry.  If the senior rater decided that the comments provided significant new facts about the rated officer's performance and that they could affect the rated officer's evaluation, he or she could refer them to the other rating officials.  They, in turn, could reconsider their evaluations.  The senior rater would not pressure or influence them.  Acknowledgment(s) and comments would be forwarded to HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and the statements he provided with his OER appeal have been carefully considered.  However, his assertions appear to have no valid basis.  

2.  Far from making comments in his response to the referred OER that were “wrought with unnecessary emotionalism” his comments seem to have followed the guidance in the regulation exactly.  His comments were factual, concise, and limited to matters directly related to the evaluation on the OER:

      “This OER does not accurately reflect my performance during the rated period” -- directly related to the evaluation on the OER;
      
      “To prepare for war (OIF I), I pushed and trained my company strenuously, as sweat in peacetime saves blood in wartime” -- factual, he had a guiding philosophy behind his training methods (a philosophy that could have creditably come straight from General Patton or General Schwartzkopf); and 
      
      “My rater, LTC Tracey S___, despite having approved my training plan, disagreed with my emphasis on wartime preparation; her stated emphasis was soldiers first, mission always” – factual, he and his rater disagreed on his method of training.

3.  The comments in paragraph 2 of the applicant’s response also merely noted facts – a comment that his senior rater was unavailable during the rating time to provide a counterbalance to the disagreements between himself and the rater and a recitation of facts concerning his unit’s achievements while under his command.  

4.  In any case, it was the applicant’s option to provide comments or not.  A reasonably prudent officer should have realized that any comments he chose to make would have become a part of the official rating record.  Therefore, even if the applicant’s comments had been undeniably full of “emotionalism” his later change of heart would not be a basis for removing those comments from his records.

5.  Regrettably, there is insufficient evidence that would warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx____  ____xx__  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.




 _    ___xxxx   ____________
       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)                                         AR20080006920





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