IN THE CASE OF:	  

		BOARD DATE:	  23 April 2009

		DOCKET NUMBER:  AR20080019425 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 1 October 2003 through 1 September 2004 (hereafter referred to as the contested OER) be completely removed from his records and replaced by an OER by a different rater and a different senior rater. 

2.  The applicant states that the contested OER, which was partially corrected through an appeal to the Officer Special Review Board (OSRB), still has incorrect and unsubstantiated information and is based in part on personal prejudice.  He adds that these inaccuracies affect all major sections of the OER, including the rater and senior rater comments.  

3.  The applicant provides a copy of the contested OER; a copy of a memorandum, dated 19 September 2008, regarding his appeal to the OSRB; a copy of the ORB's responses to him, dated 30 November 2007; a copy of the corrected OER; a copy of a memorandum, dated 11 December 2008, regarding his second appeal to the OSRB; a copy of his Personnel Qualification Record, dated 28 August 2008; a copy of his DA Form 2-1 (Personnel Qualification Record); a copy of his original rebuttal of the contested OER; copies of two previously-submitted statements of support, dated 31 January 2007 and            15 October 2007; and copies of previous OERs for the periods 20001201-20011130, 20011201-20020930, 20021001-20030930, 20040902-20050901, 20060902-20070901, and 20070902-20080331 in support of his request.



CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a second lieutenant in the North Carolina Army National Guard (NCARNG) on 27 June 1988.  He subsequently completed the Engineer Officer Basic Course and was assigned to the 505th Engineer Battalion, 30th Engineer Brigade, Wilkesboro, NC.  He completed several military training courses, served in various command and staff positions, and was promoted to first lieutenant on 21 May 1991 and captain on 28 March 1995.

2.  On 1 December 2000, the applicant was reassigned to the U.S. Joint Forces Command, Suffolk, VA.  He was promoted to major on 4 January 2001 and was subsequently reassigned to the ARNG Element, U.S. Joint Forces Command (USJFCOM), Norfolk, VA, as a Joint Combat Engineer on 1 December 2001. 

3.  On 1 September 2004, the applicant was released from his assignment to the ARNG Element, USJFCOM, and was reassigned to the Joint Forces Headquarters, NCARNG.  In connection with this reassignment, the applicant received a “Reassignment” OER which covered 8 months of rated time, from 1 October 2003 through 1 September 2004, for his duties serving as a joint combat engineer at the ARNG Element, USJFCOM.  His rater was a lieutenant colonel (LTC) and his senior rater, a colonel (COL).  The contested OER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an “X” in the “No” blocks for “Honor,” “Integrity,” and “Duty”; 

	b.  In Part V (Performance and Potential Evaluation), the rater placed an “X” in the “Unsatisfactory Performance-Do Not Promote” block and entered the following remarks in Part Vb:

[Applicant] will benefit from returning to a traditional unit where he can receive professional leadership and supervision from senior leaders.  He needs to continue to develop the Army values honesty, integrity, and duty.  [Applicant] knowingly filed fraudulent travel documents and DA Form 1380.  He also had difficulty following proper administrative procedures in regards to his rescheduled drills and his APRT (Army Physical Readiness Test).  Duty at Joint Forces Command requires officers to perform at the highest level of competence and professionalism.  [Applicant] was not able to perform to this high standard in all of the areas expected of him while assigned to this command.  He should remain in the military; recommend assigning him to non-leadership.  

	c.  In Part VII (Senior Rater), the senior rater placed an “X” in the “Do Not Promote” block and entered the following remarks in Part Vc (pertinent part):

During counseling with his rater and myself, and later during an interview with the Joint Readiness Unit Commander, [Applicant] admitted filing the documents and that he knew the documents were fraudulent.  [Applicant] offered no satisfactory explanation for his actions except to admit doing it.  [Applicant] also failed to take the scheduled make-up APRT and had to be ordered to take it at a later date.  Additionally, [Applicant] failed to follow proper procedures for rescheduling drills and was evasive in his email communications on the subject.  [Applicant] shows little potential for continued satisfactory service.  Should he stay in the military, recommend assigning him to non-leadership, non-primary staff positions.

4.  On 1 August 2005, the contested OER was referred to the applicant for acknowledgement and/or comments.  He subsequently acknowledged receipt and submitted a statement on his own behalf.  In his statement, the applicant stated that:

	a.  he did not fail to follow proper procedure with respect to rescheduling a drill and that although his senior rater neither approved nor disapproved his request to reschedule the drill, his actual commander approved it;

	b.  he did not submit a fraudulent claim for pay/travel.  He simply attempted to balance USJFCOM policies with those of the NCARNG as the two were at odds; 

	c.  he missed the APFT during drill month to attend his brother’s wedding and he did not have the proper gear the following month; and

	d.  his senior rater felt his power was threatened and went on a witch hunt and/or a power trip culminating in the contested OER.

5.  The contested OER was processed at U. S. Army Human Resources Command - St. Louis on 23 November 2005.  

6.  On 9 April 2007, the applicant submitted an appeal of the contested OER based on unjust and inaccurate statements made by his senior rater.  Upon receipt at the National Guard Bureau, the Chief, Personnel Division forwarded the OER and supporting evidence to the OSRB on 11 April 2007.  The Chief, Personnel Division, further indicated that the applicant was a one-time non-select for promotion to lieutenant colonel and therefore had a priority 2.

7.  On 30 November 2007, by memorandum, the OSRB notified the applicant that his appeal was partially approved and that the NGB was directed to make the following changes to the contested OER:

	a.  in Part V(b), the rater narrative, remove the sentences “[Applicant] knowingly filed fraudulent travel documents and DA Form 1380 records.  He also had difficulty following proper administrative procedures in regards to his rescheduled drills and taking the APRT at the proper time”; and inserting the following sentence in place of the material removed “[Applicant] admitted to filing a fraudulent travel claim”;

	b.  in Part VII(c), the senior rater narrative, remove the entire narrative, and insert the following narrative “[Applicant] is a bright officer who would normally do well at any assigned task.  During this rating period, however, he unfortunately chose to tarnish his service by filing a fraudulent travel document, and admitting it to both his rater and myself.  During an interview with the Joint Reserve Unit Commander, [Applicant] admitted to filing the document and that he knew it was fraudulent.  [Applicant] shows little potential for continued satisfactory service.  Should he stay in the military, recommend assigning him to non-leadership, non-primary staff positions”; and 

	c.  file the appeal documentation in the restricted portion of his Official Military Personnel File (OMPF).

8.  On 19 July 2008, by memorandum, the Chief of Personnel Division, NGB, notified the applicant that administrative action was taken to correct his records as stipulated by the OSRB’s decision.

9.  On 19 September 2008, by memorandum to the NGB, the applicant requested reconsideration of his previous appeal to remove the contested OER from his records, and on 11 December 2008, the NGB forwarded his request to the Army Board for Correction of Military Records.

10.  In his self-authored memorandum, dated 19 September 2008, the applicant states the following:

	a.  his appeal is a substantive appeal based on his belief that the evaluation was personal in nature, inaccurate, incomplete, and is based on partial information and assumptions;

	b.  the OER was not submitted within the time period required by regulation and it arrived a year after the close-out date; 

	c.  his senior rater based the OER largely on one incident which he had no responsibility or authority over (the scheduled drill); 

	d.  he could not have filed a fraudulent voucher and admit to doing so.  His senior rater was either confused about the issue or misrepresented the facts; and

	e.  the travel voucher his senior rater alluded to was done before the rating period began and was only done after he (the applicant) consulted with four subject matter experts.  However, his senior rater based his own suspicions, assumptions, and prejudice based on his (the senior rater) personal displeasure with him (the applicant).

11.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown, or unverified when the report 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 be known or verified when the report was prepared.  

12.  Chapter 6 contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 states, in pertinent part, that an evaluation report accepted by DA 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 


13.  Paragraph 6-10 of the same regulation contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  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 applicant contends that the contested and partially-corrected OER should be removed. 

2.  The evidence of record shows that the contested OER contained comments that the applicant perceived to contain alleged errors and injustices.  Accordingly, he appealed the OER to the OSRB and was granted partial relief.  However, the applicant still believes that the evaluation was personal in nature, inaccurate, incomplete, and is based on partial information and assumptions.

3.  There is no evidence and the applicant has provided none, other than his disagreement, to show the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  The applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of the contested OER.  Therefore, there is no basis for removal of 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 that 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)                                         AR20080019425





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019425



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1