IN THE CASE OF:	  

		BOARD DATE:	        14 JULY 2009

		DOCKET NUMBER:  AR20090002613 


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 or masking of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 2 June 2001 through 8 March 2002 (hereafter referred to as the contested OER) from his records.

2.  The applicant states that the contested OER contains two substantive inaccuracies which are the two out-of-line box checks by both the rater and senior rater.  He adds that his branch reviewed his file and advised him that the contested OER was the reason for his non-selection for promotion to major.

3.  The applicant provides a copy of the contested OER; a copy of his Officer Record Brief (ORB), dated 4 February 2009; his OER appeal memorandum, dated 13 January 2008; an OER appeal supporting statement from his former senior rater, dated 24 November 2008; an OER appeal supporting statement from a former senior rater, dated 12 January 2009; and an OER appeal supporting statement from his current battalion commander, dated 13 January 2008 [sic], 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.  With prior enlisted service, the applicant’s records show he was appointed as a Signal Corps second lieutenant in the U.S. Army Reserve with concurrent call to active duty and executed an oath of office on 6 June 1998.  He subsequently entered active duty, completed several military training courses, served in various command and staff positions, and was promoted to first lieutenant on 13 January 2000 and captain on 1 February 2002.

3.  The applicant’s records further show that he was assigned to Headquarters and Headquarters Battery, 3d Battalion, 4th Air Defense Artillery Regiment, 82d Airborne Division, Fort Bragg, NC.

4.  During the month of March 2002, the applicant received the contested OER, a change of rater OER which covered 9 months of rated time from 2 June 2001 through 3 March 2002 for the applicant's duties while serving as the Battalion Signal Officer.  His rater was a major (MAJ) and his senior rater was a lieutenant colonel.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "Yes" block for all seven values; he did not mark any "No" entries.

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the “Yes” block as appropriate; he did not mark any "No" entries.

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance-Promote" block and entered appropriate comments in Part Vb; he did not enter any negative or substandard comments.

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block and entered appropriate comments; he did not enter any negative or substandard comments.

5.  The contested OER was processed at the U.S. Army Human Resources Command (HRC) on 18 March 2002.  There is no indication that the applicant appealed this OER within the time frame authorized by Army Regulation 623-105 (Officer Evaluation Reporting System).
6.  On 13 January 2009, the applicant submitted an appeal of the contested OER based on substantive inaccuracy.  Upon receipt at HRC, the Chief of the OER Appeals and Corrections Branch forwarded the OER and supporting evidence to the Officer Special Review Board (OSRB).  The Chief of the Branch further indicated that the applicant was one-time non-select for promotion to MAJ and, therefore, was a priority 2 appeal.

7.  On 25 February 2009, the OSRB notified the applicant by letter that his appeal was returned without action because it was not submitted within 3 years of the through date of the report.  The OSRB further notified the applicant that a careful review of the issues he provided did not constitute exceptional justification to warrant an exception to process his appeal outside the 3-year from through date window.

8.  On 13 January 2009, the applicant submitted a DD Form 149 (Application for Correction of Military Records under the Provisions of Title 10, U.S. Code, Section 1552) to the ABCMR.  He provided the contested OER as well as statements from his former senior rater, current battalion commander, and a former senior rater of a subsequent OER with his DD Form 149 as follows:

9.  In his memorandum, dated 13 January 2009, the applicant states that the blocks checked by his rater for performance/potential and by his senior rater for promotion potential are out of line, that the rater and senior rater did not accurately reflect his performance, and that the entire OER was rather used as a counseling tool.  He adds that he was a young officer at the time and, although technically and tactically proficient, he was still learning and growing.  He also provides the following statements in support of his argument:

	a.  In a statement, dated 24 November 2008, the applicant's former senior rater states that the contested OER was symbolic of the applicant's challenge at the time in leadership skill sets only and that it was intended to send the applicant a message to "buck-up" in order to be successful in his ambitions to lead Soldiers.  After reviewing the applicant's manner of performance since then, the contested OER appears to have achieved its intent.

	b.  In a statement, dated 12 January 2009, one of the applicant's former senior raters also comments on the applicant's performance during a subsequent rating period and describes that performance as amazing.

	c.  In a statement, dated 13 January [2009], the applicant's former battalion commander provides an overview of the applicant's excellent leadership skills, superior technical and tactical competence, and high degree of professionalism.  He also states that the applicant is ready to be a field grade officer today.
10.  Army Regulation 623-105, 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 and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

11.  Paragraph 3-57 of Army Regulation 623-105 provided the basic rule applicable to modifications of previously submitted reports.  It stated, 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, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated 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 been known or verified when the report was prepared.

12.  Chapter 6 of Army Regulation 623-105 contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals and paragraph 6-10 outlined 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 Army Regulation 623-105 contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated, 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.

14.  Paragraph 3-39b of Army regulation 623-3 (Evaluation Reporting System), currently in effect, states requests that an evaluation report in a Soldier's official military personnel file (OMPF) be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF:  (1) statements from rating officials that they underestimated the rated Soldier; (2) statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; (3) requests that ratings be revised; (4) statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential (therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report); (5) statements from rating officials claiming OERs were improperly sequenced from the field to HQDA or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be removed or masked.

2.  There is no evidence, and the applicant has provided none, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  Although the applicant provided several letters of support from his former senior rater and others, the authors did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation of the applicant at the time.

3.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.  The applicant’s arguments provided in this case address his dissatisfaction with rating and the impact the contested report may have had on his promotion to MAJ; but fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.


4.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing or masking the contested OER.  Therefore, there is no basis for removing or masking 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.



      ___________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)                                         AR20090002613



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ABCMR Record of Proceedings (cont)                                         AR20090002613



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