IN THE CASE OF:	

		BOARD DATE:	      21 January 2009

		DOCKET NUMBER:  AR20080014506 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the period from 18 June 2004 through 11 June 2005 [herein referred to as the contested OER].  He also requests that he be reconsidered for promotion by the 2006 and the 2007 Chaplain Lieutenant Colonel (LTC) promotion selection board.

2.  The applicant states that the contested OER was forwarded to the Human Resources Command (HRC) without him ever seeing it.  He found the contested OER by surprise online on or about 23 September 2005 on his Official Personnel Military File (OMPF).  Prior to this time, he was repeatedly told the contested OER was simply in process and he would receive the contested OER and counseling at some point in the future.  He states that he never received a copy of the contested OER nor did he receive any type of counseling from anyone in his chain of command.  He states that there was initially one error in Part IIe (Signature of Rated Officer), three errors in Part VII (Senior Rater), and one error in Part Vc of the contested OER.  He states that one error was corrected in Part VII through the interventions of the Group Adjutant with HRC and the line in Section Vc was eliminated.  He further states that Part VII still has two factual errors in it.  The errors are "Though new to the SOF community,…" and "Rated officer not available for signature."  He states that this was actually his second Special Operations Forces (SOF) tour and he was fully available for signature.  He would like these two items to be replaced or removed from Part VII of the contested OER.  

3.  The applicant provides a copy of the contested OER and a Corrected Copy of the contested OER.

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service, the applicant was appointed as a Reserve second lieutenant on 21 August 1988.  He entered active service on 28 December 1990.  

2.  The applicant received OERs during the periods 16 January 1997 through 29 June 1997, 30 June 1997 through 30 September 1997, and 1 October 1997 through 10 June 1998.  These reports show he was assigned to Headquarters Support Company, 1st Battalion, 7th Special Forces Group (Airborne), Fort Bragg, North Carolina and his principal duty position was Battalion Chaplain.  Part III (Duty Description) shows he was chaplain for a Special Forces Battalion composed of a Headquarters and Headquarters Detachment (HHD), a Support Company, and three Special Forces Companies engaged in operations other than war through Latin America.  

3.  The applicant was promoted to the rank of major on 3 December 1999.  He served in Afghanistan from 3 April 2005 to 20 May 2005.

4.  The contested OER is an 11-month change of rater OER for the period 18 June 2004 through 11 June 2005.  He was assigned to Headquarters and Headquarters Company, 1st Special Forces Group (Airborne), Fort Lewis, Washington and his principal duty position was Special Forces Group Chaplain.  His rater was LTC R_____ J________ and his senior rater was Colonel R_____
T_____, Jr.  Part Im (Rated Officer Copy) of the contested OER shows a copy was forwarded to the officer on "19 May 2005."  His chain of command signed the contested OER on 19 August 2005.  

5.  The applicant's signature is not included in Part IIe of the contested OER.

6.  In Part Va, the rater rated the applicant's performance and potential as "outstanding performance."  The rater commented, in part, "Unlimited potential; select for promotion ahead of peers and for early attendance to SSC."  All comments were highly laudatory.  

7.  Part Vc includes the entry "Officer would best serve the Army in OPCF/18."



8.  In Part VIIa, the senior rater rated the applicant's promotion potential as "best qualified."  The senior rater commented, in part, "An officer with unlimited potential, select N__ for below the zone promotion to LTC and SSC."  All comments were highly laudatory.

9.  Part VIIc includes the entries "Though new to the SOF community,…" and "Rated officer not available for signature."  

10.  A Corrected Copy of the contested OER from HRC, dated 17 October 2005, shows the entry in Part Vc was deleted.  

11.  The applicant retired from active service on 30 November 2007 and he was placed on the retired list on the following date.  

12.  Army Regulation 623-105 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.  

13.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a Special Selection Board (SSB) may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the contested OER was forwarded to HRC without him seeing the report and that he did not receive counseling from anyone in his chain of command.  He also contended that he was fully available for signature.

2.  The contested OER indicates that a copy of the report was forwarded to the applicant on "19 May 2005."  It appears that this date may be an error because the chain of command did not sign the report until 18 August 2005.  The applicant's signature is not included in Part IIe.  

3.  The senior rater commented in Part VIIc that "Rated officer not available for signature."  

4.  It cannot be determined whether the applicant was unavailable, unable, or failed to sign the contested OER.  Therefore, there is insufficient evidence on which to base correction of the contested OER regarding the applicant's signature in Part IIe.

5.  It is noted that the senior rater commented in Part VIIc of the contested OER that "Though new to the SOF community,…"  However, the applicant received three OERs which indicate he performed duties as a Battalion Chaplain with the 7th Special Forces Group at Fort Bragg, North Carolina.

6.  Based on the evidence of record, it appears that the applicant previously performed duties within a Special Forces Group.  Therefore, it would be appropriate to amend Part VIIc of the contested OER by deleting the entry "Though new to the SOF community,…" 

7.  The applicant's request to be reconsidered for promotion by the 2006 and 2007 Chaplain LTC promotion selection board is considered.  However, he does not meet the requirements for reconsideration by a SSB as outlined in Army Regulation 600-8-29.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x____  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that the contested OER of the individual concerned be corrected by deleting the entry "Though new to the SOF community,…" from Part VIIc.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the contested OER by deleting the entry "Rated officer not available for signature." 




      _______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)                                         AR20080014506





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014506



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1