DOCKET NUMBER:  AR20090002084 


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 removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 15 January 2004 through 14 January 2005 (hereafter referred to as the contested OER) from his records and replacing it with a new OER that reflects the correct duty performance as a battalion commander instead of a training officer.

2.  The applicant states, in effect, that the OER was completed very late and included the wrong duty description.  Thus, most of the OER was in error, including the principal duty title, significant duties and responsibilities, and performance and potential evaluations by the rater and senior rater.  During the period covered by the contested OER, he should have been rated as a battalion commander rather than a training officer.

3.  The applicant provides a self-authored statement, dated 9 February 2009; a copy of an OER appeal memorandum to the Chief, National Guard Bureau (NGB), dated 7 December 2008; a copy of the contested OER; a copy of his DA Form 2-1 (Personnel Qualification Record); copies of two memoranda from his former rater and former senior rater, dated 21 October 2008; copies of Orders 081-003 and Orders 141-005, issued by the State of Nevada Military Department, Office of The Adjutant General, Carson City, Nevada, on 22 March 2002 and 21 May 2005, respectively; a copy of a proposed OER to replace the contested OER; a copy of his DA Form 67-9-1 (Officer Evaluation Report Support Form); and a copy of a memorandum, subject:  Request for a Commanders Inquiry, dated 13 November 2008, in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show he was appointed as a second lieutenant in the Regular Army (RA) and executed an oath of office on 28 May 1986.  He subsequently served in various command and staff positions as a military intelligence (MI) officer and was honorably discharged in the rank of captain (CPT) on 19 May 1996.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 9 years, 11 months, and 22 days of creditable active service.

3.  On 20 May 1996, the applicant was appointed as an MI CPT in the U.S. Army Reserve (USAR) and was subsequently promoted to major (MAJ) on 31 October 1997.  

4.  On 5 August 1998, the applicant was appointed as an MI MAJ in the Nevada Army National Guard (NVARNG) and executed an oath of office on the same date.  His records show that he assumed command of the 1st Battalion, 421st Regional Training Institute (RTI), Reno, NV, on 25 March 2002 and was promoted to lieutenant colonel (LTC) on 3 May 2002.

5.  The applicant’s OERs for the periods prior/subsequent to the contested OER were processed as follows:

	a.  a "Change of Duty" OER from 1 October 2001 through 31 May 2002, signed by his rating officials and himself on 16 August 2004; profiled at the U.S. Army Human Resources Command (USAHRC) on 13 January 2005; 

	b.  an "Annual" OER from 1 June 2002 through 31 May 2003, as a battalion commander, signed by his rating officials and himself on 6 April 2005; profiled at USAHRC on 19 May 2005;

	c.  a "Change of Rater" OER from 1 June 2003 through 14 January 2004, as a Battalion commander, signed by his rating officials and himself on 25 August 2004; profiled at USAHRC on 1 September 2004; 

	d.  the contested OER, an "Annual" OER from 15 January 2004 through      14 January 2005, as a training officer, signed by his rating officials only on        17 May 2007; profiled at USAHRC on 21 May 2007; and

	e.  an "Annual" OER from 15 January 2005 to 14 January 2006, as a training officer, signed by his rating officials and himself on 29 November 2006; profiled at USAHRC on 3 December 2006.

6.  On 21 May 2005, the Office of The Adjutant General, NVARNG, issued Orders 141-005, directing the applicant’s reassignment from his position as a battalion commander to the position of a training officer, effective 27 June 2005. 

7.  On 6 December 2005, by memorandum, the applicant was notified that he would be considered by the Fiscal Year 2006 (FY06) Department of the Army (DA) Reserve Components Selection Board (RCSB) for promotion to colonel (COL) which was scheduled to convene on 11 July 2006.  He was also informed of the procedure to review his promotion consideration file (PCF).

8.  On 24 October 2006, by memorandum, the applicant was notified that he was considered for promotion to COL by the FY06 RCSB, but was not selected. 

9.  On 17 May 2007 the applicant received an "Annual" OER, which covered a 12-month period of rated time from 15 January 2004 through 14 January 2005, for his duties serving as a training officer, Directorate of Training, Joint Forces Headquarters, NVARNG, Carson City, Nevada.  His rater was a COL and his senior rater was a brigadier general (BG).  This contested OER shows the rating officials signed the report on 17 May 2007.  It also shows the following entries:

	a.  Part III(a) (Duty Description-Principal Duty Title) shows the entry "Training Officer" and Part III(b) (Duty Description-Position AOC (Area of Concentration)) shows the entry "59AOO";

	b.  In Part V (Performance and Potential Evaluation), the rater placed an "X" in the "Outstanding Performance-Must promote" block and entered comments related to his performance as a training officer in Part Vb; and


	c.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Best Qualified" block and entered comments related to his performance as a training officer in Part Vc.

10.  The applicant's records also show that he was considered for promotion to COL by the FY07 RCSB, but was not selected. 

11.  The applicant submitted a copy of an unsigned memorandum, dated 13 November 2008, in which he requested a commander’s inquiry related to the contested OER, to look into potential administrative errors with respect to his duty description, duties and responsibilities, and specific aspects of his performance including comments by his senior rater.  However, there is no indication in his records that his request was signed, submitted, and/or processed.  

12.  On 7 December 2008, by memorandum to the NGB, the applicant submitted an appeal of the contested OER based on significant administrative errors made by his rater and senior rater.  He argued that the OER contained the wrong duty position and that significant portions of the rater’s and senior rater’s comments were inaccurate.  He also attached two statements by his rater and senior rater and a corrected OER as follows:

	a.  in a statement, dated 21 October 2008, the rater acknowledges the administrative errors and states that the applicant was a battalion commander during the period covered by the contested OER and that the contested OER submitted to USAHRC reflected his subsequent position as a State training officer.  The rater adds that rating the applicant in the wrong position may have had a negative impact on his ability to get promoted as his promotion packet did not contain this critical OER; 

	b.  in a statement, dated 21 October 2008, the applicant’s senior rater, now retired, also acknowledges the administrative error and states that the submitted OER reflected the applicant’s subsequent position as the State training officer.  He adds that in haste, the applicant was erroneously rated in the wrong position and did not contain his signature.  Additionally, this may have had a negative impact on his ability to get promoted as the contested OER did not reflect
12 months of rated time as a battalion commander; 

	c.  the rating officials submitted a corrected OER (but no signature dates) that shows the applicant as a battalion commander and reflects his performance and/or potential as such. 


13.  On 3 February 2009, by letter, the Army Special Review Boards (ASRB) notified the applicant that his appeal was returned without action because it was not submitted within 3 years of the through date of the report and that the ASRB further determined that exceptional justification did not exist in his case.

14.  Army Regulation 623-105 (Officer Evaluation Reporting System) 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 for 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.  

15.  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.  The same regulation states substantive appeals will be submitted within three years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned 
warrant officers) of the ARNG and of commissioned and warrant officers of the USAR.  Chapter 3 outlines board schedules and procedures.  Paragraph 3-19 of the promotions regulation contains guidance on promotion reconsideration boards.  It states that in order to find a material error, the Office of Promotions must make a determination that there is a fair risk that, among other reasons, 
one or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's promotion file.  

17.  Paragraph 3-20 of the same regulation contains guidance on information provided to special selection boards (SSB).  It states that a promotion reconsideration board will consider the record of the officer as it should have been considered by the original board.  Commissioned officers considered by a mandatory promotion board on or after 1 October 1996 will be considered by an SSB.  The record of officers being reconsidered by an SSB will be compared with a sampling of those officers of the same competitive category who were recommended and who were not recommended for promotion by the original mandatory Reserve of the Army selection board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be removed from his records and replaced with a reconstructed OER that properly evaluates him as a battalion commander.

2.  The evidence of record shows that the applicant performed duties as a battalion commander from 25 March 2002 through 27 June 2005.  During his tenure, he received an "Annual" OER from 1 June 2002 through 31 May 2003, and a "Change of Rater" OER from 1 June 2003 through 14 January 2004, as a battalion commander.  His next OER, the contested OER, should have also rated his performance and potential as a battalion commander; however, in haste, his rating officials erroneously rated him as a training officer.  

3.  On the one hand, a reasonably prudent officer would have reviewed his records at least annually and noticed that an OER for the period 15 January 2004 through 14 January 2005 was not in his records, especially after he was notified on 6 December 2005 of his upcoming promotion board.  On the other hand, the applicant should not be penalized for the failure of his rating officials to render an administratively and substantively accurate OER that accurately reflects his performance or potential.


4.  Although the contested OER was neither adverse nor referred, it contained incorrect and inaccurate errors and/or injustices.  At a much later date, his rating officials recognized the administrative error and reconstructed his OER to accurately reflect his performance and potential as a battalion commander.  Therefore, in the interest of justice, the applicant should be granted relief in the form of removing the contested OER that rated him as a training officer and replacing it with the correct OER that rated him as a battalion commander (and showing the OER was signed on 21 October 2008 by the rating officials and the applicant). 

5.  The evidence of record also shows that the applicant was considered for promotion to COL by the FY07 RCSB but was not selected.  The absence of an OER that should have correctly rated him as a battalion commander may have affected the decision to select or non-select him for promotion.  Therefore, in the interest of justice and equity, it would be appropriate to also grant the applicant relief in the form of promotion consideration to COL by an SSB under the 2007 promotion criteria.

BOARD VOTE:

____x___  ____x___  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the contested OER covering the rated period 15 January 2004 through 14 January 2005 from his records and replacing it with a new OER that reflects the correct duty performance as a battalion commander (and showing the OER was signed on 21 October 2008 by the rating officials and the applicant); and 

	b.  submitting the applicant’s records to a duly constituted SSB for consideration for promotion to colonel under the 2007 COL promotion selection board criteria;
   c.   if selected for promotion, his records be further corrected by promoting him to colonel based on his assigned promotion sequence number with the 
appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes; and

   d.  if not selected, the applicant be so notified.



      __________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)                                         AR20090002084



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