IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004833 


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, in effect, complete removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 6 August 2005 through 8 January 2006 (hereafter referred to as the contested OER) from his records and that a statement of non-rated time be issued in lieu of rating.

2.  The applicant states that the chain of command was unfair with respect to training and evaluating him in an objective manner from the start.  While he was on an approved 3-day leave, his chain of command gave all other pilots a copy of an examination with all the answers and then 2 days later conducted a no-notice examination that resulted in everyone passing the examination except him which resulted in placing him in a readiness level (RL) 3 (mission not ready) status.  He adds that the chain of command requested he undergo a complete train-up of all aviations tasks not related to the examination failure and that he completed the training within 54 days.  He also adds that a year or so later, the unit conducted the same exact no-notice examination but without giving any of the pilots a copy of the examination.  The final result was that he was the only pilot who passed the examination while all other pilots failed it.  Nevertheless, none of the pilots who failed was placed in an RL3 status, was counseled, or was required to undergo corrective training like he did.  He also states that he tried to reconcile the problems with the chain of command but it was clear that he would have been perceived as "rocking the boat" within the small aviation community.  He even considered requesting a commander's inquiry but felt it was futile as the command had already proven itself unjust.

3.  The applicant provides a statement, dated 4 March 2009, from another pilot; a witness statement, dated 20 February 2009, from an instructor pilot; a copy of the instructor pilot's OER for the period 8 January 2006 through 7 January 2007; copies of prior OERs; and a copy of his original appeal packet to the Officer Special Review Board (OSRB), dated 9 June 2006.

CONSIDERATION OF EVIDENCE:

1.  With prior enlisted service, the applicant’s records show he was appointed as a warrant officer in the U.S. Army Reserve (USAR) with a concurrent call to active duty and executed an oath of office on 13 February 1992.  He held military occupational specialty M155D (Pilot/Aviation Life Support Officer), completed several military training courses, and served in various staff and leadership positions.  He was promoted to chief warrant officer two on 13 February 1994 and was honorably released from active duty on 1 March 2001 and transferred to the USAR Control Group (Active Guard Reserve).

2.  The applicant’s records further show that he was assigned to Company C, 6th Battalion, 52nd Aviation Regiment, Fort Hood, TX.  He was promoted to chief warrant officer three on 13 February 2000.

3.  During the month of January 2006 the applicant received a change of rater OER which covered 5 months of rated time from 6 August 2005 through 8 January 2006 for the applicant's duties serving as a UC-35A Pilot.  His rater was a captain (the company commander) and his senior rater was a major (the battalion commander).  The OER shows the following entries:

	a.  In Part IVb(2) (Performance Evaluation-Attributes) the rater placed an "X" in the "No" block for "Tactical."

	b.  In Part Va (Performance and Potential Evaluation) the Rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block and in Part Vb he entered the following comments:

During this rating period [applicant] has had periods of satisfactory and unsatisfactory performance.  [Applicant] failed to show technical competency during a no-notice written examination and regressed to readiness level 3 status.  He then initially failed to show the proper motivation necessary to return him to an RL1 status.

	c.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed an "X" in the "Do Not Promote" block and entered the following comments in VIIe:
[Applicant] has not maintained his proficiency as an aviator.   He has relegated himself to a position where other unit members are carrying the load while he relearns aviation related subject matter.  Due to this situation, he is functioning at the level of a junior warrant officer and cannot be trusted for increased responsibility.  Do not promote.

4.  The contested OER was signed by the rater and senior rater on 28 May 2006 and by the applicant on 1 June 2006.  It was received and processed by the Personnel Services Battalion on 30 June 2006 and processed at the U.S. Army Human Resources Command, St. Louis, MO, on 2 August 2006.

5.  On 9 June 2006, the applicant submitted an appeal of the contested OER.  He argued that he recognizes that he is not without fault and accepts responsibility for not passing the no-notice written exam; however, the actions that followed the failure of the written test were generated through a strong negative personal bias created by a personality conflict.  The appellant states that prior to taking the written exam he was on scheduled leave and upon his return he was handed the written exam.  He offers that he received an unsatisfactory grade for the written exam and was immediately placed into RL3 for academic training.  He maintains that he was proactive in getting back to RL1.  He also submitted a memorandum, subject:  Referred OER Comment, in support of his request.

6.  On 24 March 2008, the OSRB notified the applicant by memorandum that the OSRB determined that the evidence presented was sufficient to grant him partial relief in that page 2 of his referred OER comments would be added to his OMPF.

7.  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 Army Board for Correction of Military Records.  In addition to the above argument, he provided two statements with his DD Form 149 as follows:

	a.  In a statement, dated 4 March 2009, an instructor pilot (now retired) states that when the applicant did not pass the no-notice examination, the company commander, in an unusual way, required him to undergo a complete aircraft qualification training program which he successfully completed in only 54 days. He adds that the chain of command knew the applicant was on leave prior to conducting the no-notice examination and consequently was not afforded the same study privileges that other pilots received.  He also states the unit conducted the same no-notice exam a year later and that the applicant passed while others did not.  He informed the chain of command of the disparity, yet the commander elected to do nothing.  The chain of command was essentially a tight group of social drinkers that was not extended to the applicant.
	b.  In a witness statement, dated 20 February 2009, an instructor pilot restates the same issues with the two no-notice examinations and opines that the applicant was not held to the same standards for written evaluations or training which is one example of the chain of command's bias against the applicant.

8.  Army Regulation 623-105 (Officer 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 and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

9.  Paragraph 3-57 of Army Regulation 623-105 provided 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 (DA), 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 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.

10.  Chapter 6 of Army Regulation 623-105 contained the policies and procedures pertaining to managing the OER redress program.  Section III contains 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 stated, 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. 

11.  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 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 OER should be removed from his records.

2.  In January 2006, the rating officials rendered a change of rater evaluation report on the applicant.   The OER addressed the applicant's achievements and his failures as required by the governing regulation.  The rating officials cited the fact that he failed the no-notice examination in their ratings.  The applicant, by his own admission, confirmed that he failed the no-notice written examination.  Regardless of whether he believed that the rater’s actions were unusual in ensuring that he was returned from RL3 to RL1 status, it does not change the fact that he failed the examination.

3.  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 two letters of support from seasoned instructor pilots, the authors did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation of the applicant by his rating officials.  The Board is not an investigative agency.  The applicant provides no evidence, such as from an Inspector General investigation, to verify that he was treated disparately. 

4.  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 and statements of support he provided in this case address his overall performance and the impact the contested report will have on his future, but fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

5.  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 redacting the contested OER.  Therefore, there is no basis for removing or redacting 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)                                         AR20090004833



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ABCMR Record of Proceedings (cont)                                         AR20090004833



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