IN THE CASE OF:	  

		BOARD DATE:	         27 May 2009

		DOCKET NUMBER:  AR20090005620 


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, that the Officer Evaluation Report (OER) covering the period 13 July 2007 through 25 April 2008 [hereafter referred to as the contested report], received while serving in the rank of chief warrant officer two, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the contested report was administered incorrectly and is unjust.  The applicant contends he received the unjust OER due to his estranged wife harassing his chain of command in an effort to leave him and take their children.  The applicant further states he is now divorced and has custody of his children.  Additionally, the applicant contends the OER was administered incorrectly due to the rater's failure to properly counsel him.

3.  The applicant provides a copy of the contested report, a rebuttal statement, and a copy of the OER for the period 26 April 2008 through 12 November 2008, in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was a prior enlisted Soldier and that he was appointed a warrant officer on 14 June 2005.  

2.  The contested report was a change of rater report for a period of 10 months where he was rated in the position of an AH-64D Pilot. 

3.  Part IIe (Signature of Rated Officer) of the contested report shows the applicant authenticated the report on 21 April 2008.

4.  Part IVa (Army Values) of the contested report shows that an "X" was placed in the "No" block of Duty.

5.  Part IVb (Leader Attributes/Skills/Actions) of the contested report shows that an "X" was placed in each of the "Yes" blocks and that "X" was placed in the "Physical, Technical, Tactical, Communicating, Developing, and Learning" blocks. 

6.  Part V (Performance and Potential Evaluation) of the contested report shows the rater placed an "X" in the "Satisfactory Performance, Promote" block.  In Part Vb (Comment on Specific Aspects of Performance), the rater noted that the applicant performed adequately until a decline in performance of the last four months of the rating period.  The rater continued with a summarization statement "his actions were overshadowed by personal challenges highlighted in a commander's inquiry that required the chain of command to secure financial means to return his dependants (sic) home from Korea."

7.  Part VII (Senior Rater) of the contested report shows the senior rater placed an "X" in the "Fully Qualified" block.  

8.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows the "No" box is checked.

9.  Part VIIc (Comment on Performance/Potential) of the contested report shows the senior rater provided generally positive comments.  The senior rater concluded that the chain of command had to become routinely involved in dependent visitation and financial support.

10.  On 25 April 2008, the applicant provided a two-page memorandum in response to a referral of the contested report.  The applicant essentially stated that he had always been professional on the job and that he had always fulfilled his legal and moral obligations to his family.  The applicant continued that his estranged former wife was angry and complained repeatedly to his commander.  The applicant concluded that he was not allowed to submit a support form and was not counseled during the entire rating period.

11.  The applicant's record shows that on 28 November 2008, the applicant was honorably discharged under the provisions of Army Regulation 600-8-24 (Officer 
Transfer and Discharges), paragraph 4-2a and 4-24a(2), by reason of unacceptable conduct.  He completed a total of 12 years, 4 months, and 20 days of creditable active service with no lost time.

12.  There is no evidence in the available records which indicate the applicant received any counseling during the period of the contested report.

13.  Paragraph 3-2g and 3-2h of Army Regulation 632-3 (Officer Evaluation Reporting System) indicate that rating officials must prepare reports that are honest, fair, accurate and complete showing the achievements and failures of the rated officers.  

14.  Paragraph 3-6 of Army Regulation 623-3 sets forth the rater responsibilities. The rater has the obligation to notify the rated officer under their supervision from the beginning and throughout the rating period on their performance with face-to-face counseling and periodic written follow-ups.  The rater is obligated to make a fair and honest evaluation(s) of the rated officer under their supervision.

15.  Paragraph 3-19b(2) of Army Regulation 623-3 states, in pertinent part, that the rater will place an "X" in either the "yes" or "no" box for each attribute/skill/
action.  Comments may be provided on these strengths or any other leadership attribute/skill/actions in Part Vb.  

16.  Paragraphs 3-57 and 6-6a of Army Regulation 623-3 states 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, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

17.  Paragraph 6-10 of Army Regulation 623-3 states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION AND CONCLUSIONS:

1.   The applicant contends that the contested report should be removed from his record due to administrative and substantive errors. 

2.  Evaluation reports accepted and placed in official military records are presumed to be administratively correct, to have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgments of rating officials at the time the report is rendered.

3.  There is no evidence in the available records which indicates the applicant received any written counseling during the period of the contested report.  However, a lack of counseling does not constitute a "fatal flaw" or material error invalidating the presumption of regularity with respect to the contested report.  

4.  The applicant has not provided clear and compelling evidence which shows that the ratings on the contested report were in error or that they were not considered opinions and objective judgments of the rating officials at the time the report was rendered.  As a result, there is no basis to grant the relief requested.  Additionally, there is no evidence in the available records and the applicant has provided no evidence showing the contested report was inaccurate, unjust, or otherwise flawed.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  __X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are sufficient 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)                                         AR20090005620



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ABCMR Record of Proceedings (cont)                                         AR20090005620



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