IN THE CASE OF:	  

		BOARD DATE:	      28  July 2009

		DOCKET NUMBER:  AR20090005627 


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 16 September 2003 through 27 January 2004 (hereafter referred to as the contested OER) from his Official Military Personnel File (OMPF).  In the alternative the applicant requests the contested OER be transferred to the restricted section of his OMPF.

2.  The applicant states that the contested OER contains administrative and substantive errors, specifically as follows:

	a.  the senior rater's adverse comment in the narrative to recommend an unfavorable personnel action in the form of a General Officer Memorandum of Reprimand (GOMOR) after the rating period violates the intent of the regulation;

	b.  he was presented with a signed but undated copy of the contested OER by fax instead of having a face to face discussion and review of the contested OER with the senior rater; 

	c.  the rater was not in the loop as far as the type of OER rendered, a change of rater OER versus a relief for cause OER, as the decision regarding the type of OER was made by the senior rater.  Additionally, the senior rater contradicts himself with respect to the type of OER rendered; 

	d.  the from date of the contested OER is incorrect and the period covered by the contested OER did not account for the non-rated months; and

	e.  the senior rater also contradicted himself in that he did not want to prejudge him yet he post-judged him and instead of addressing the applicant's actual performance, he focused on the substandard performance with respect to the jobs and positions the applicant should receive in the future.

3.  The applicant provides the following additional documentary evidence in support of his request:

	a.  copies of the contested OER, corrected OER (corrected by the Officer Special Review Board (OSRB)), faxed OER, and hand-carried OER;

	b.  copies of his subsequent OERs from 2004 to 2008;

	c.  copies of various miscellaneous certificates for awards, badges, training, and/or schools, dated on various dates throughout his service;

	d.  copies of nine character reference letters, statements of support, and/or statements of confidence by various individuals, dated on various dates;

	e.  a copy of his spouse's statement, dated 31 March 2004, submitted as an enclosure to his rebuttal of the GOMOR;

	f.  copies of three DA Forms 31 (Request and Authority for Leave), dated on various dates; and 

	g.  a copy of the OSRB's decision, dated 14 September 2006.

CONSIDERATION OF EVIDENCE: 

1.  With prior enlisted service, the applicant’s records show he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 13 May 1988.  He subsequently completed the aviation officer basic course, served in various assignments in an Active Guard Reserve (AGR) status, and was promoted through the ranks to captain in May 1995 and major (MAJ) in September 2002.  He was also rebranched into the Civil Affairs Branch.

2.  The applicant’s records further show that prior to receiving the contested OER, the applicant was assigned to the Special Operations Command in Korea and upon his departure from Korea he received a change of rater OER for the period 1 April 2003 through 15 September 2003.  

3.  The applicant's records also show he was assigned to the Special Operations Command, Joint Forces Command, Norfolk, VA, as a Psychological Operations Observer and Trainer (PSYOP O/T) during the period of the contested OER.  

4.  During the month of January 2004, the applicant received a change of rater OER (the contested OER) which covered 4 months of rated time, from
16 September 2003 through 27 January 2004.  His rater was a lieutenant colonel (LTC) and his senior rater was a colonel (COL).  The OER shows the following entries:

	a.  in Part IVa(2) (Performance Evaluation-Professionalism-Army Values), the rater placed an "X" in the "No" block for "Integrity"; 

	b.  in Part IVb(3) (Performance Evaluation-Professionalism-Actions), the rater placed an "X" in the “No” block for "Decision Making";

	c.  in Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block and in Part Vb (Comments), he entered the following comments:

"[Applicant] was assigned to the Training Directorate, Special Operations Command, Joint Forces Command, for 4 months.  During that short period, [Applicant] began the process to become a vetted Observer/Trainer on the SOCJFCOM Special Operations Forces Joint Training Team.  Due to a non-work related incident, [Applicant's] assignment was terminated and his security clearance suspended pending formal investigation.  As a result of this, he was reassigned to an administrative position within JFCOM that does not require a security clearance.  The findings of the investigation indicate extremely poor judgment on the part of the [Applicant], and have called into question his integrity.  I do not recommend this officer be retained on active duty."

	d.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Yes" block, indicating that a completed DA Form 67-9-1 was received with this report and considered in his evaluation and review, and he further placed an "X" in the "Do Not Promote" block and entered the following comments:

"[Applicant] was terminated from his position on the SOCJFCOM Special Operations Forces Joint Training Team due to an incident that caused me to initiate an AR 15-6 investigation.  As a result of this investigation, I plan to recommend a General Officer Memorandum of Reprimand be placed in [Applicant's] official personnel file.  His 
performance in this command was substandard and not fully evaluated due to this circumstance.  I do not recommend [Applicant] be retained on active duty."

10.  The contested OER was stamped with the date "Apr 23 2004" next to the rater's and senior rater's signatures and was signed and dated on 6 May 2004 by the applicant.  It was processed at the U.S. Army Human Resources Command (USAHRC), Alexandria, VA on 19 May 2004.  

11.  On 2 June 2005, the applicant submitted an appeal of the contested OER.  Upon receipt at HRC - Alexandria, on 27 June 2005, the OSRB conducted a thorough analysis of the applicant's issues and concluded that there was not sufficiently convincing evidence the contested OER contained any administrative errors requiring correction or that the report was unfair and prejudicial.  It also concluded that there was sufficiently convincing evidence the OER was substantively correct and adequately portrayed the applicant's demonstrated performance and potential, except for the senior rater's comments with regard to the GOMOR.  The OSRB further recommended denial of the applicant's appeal, removal of the GOMOR comment from the contested OER, and the filing of the appeal in the restricted portion of the applicant's OMPF.

12.  On 14 September 2006, by memorandum, the OSRB notified the applicant that the evidence he submitted did not justify the withdrawal of the contested OER; however, the sentence that states "As a result of this investigation, I plan to recommend a General Officer Memorandum of Reprimand be placed in [Applicant's] official personnel file" be removed.  Accordingly, a corrected OER replaced the contested OER on his OMPF.

13.  On 6 March 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 this Board.  He provided documents, statements, letters, and memoranda, dated on various dates, by various individuals as follows:

	a.  in a letter of support, dated 24 July 2007, a U.S. Navy captain states that he was the applicant's commander from October 2006 to July 2007 and observed the applicant as a leader and Soldier on a daily basis.  He adds that he is unaware of any shortfalls regarding the applicant's professional and/or personal conduct and describes him as the epitome of the Army's core values;

	b.  in a letter of support, dated 5 March 2009, a U.S. Army War College COL states that he served with the applicant from October 2007 to October 2008 and observed his performance on a daily basis.  He describes his conduct and professionalism as above reproach;
	c.  in a letter of confidence, dated 13 April 2004, a U.S. Navy commander states that the applicant was assigned to him in January 2004 pending the resolution of alleged improprieties he committed.  He remarks positively on the applicant's professional attitude, work ethics, and motivation, and chronicles two of the projects the applicant completed while under his command;

	d.  in a supporting statement, dated 29 October 2004, the former SOCJFCOM Director of Operations, an LTC, states that he observed the applicant several times weekly and helped him study and prepare for his job as an O/T.  The LTC also states that he believes the contested OER was based strictly on an adverse administration action that was non-work related.  Nevertheless, the LTC states that he has full confidence in the applicant's abilities to perform and accomplish assigned missions;

	e.  in an undated supporting statement, a former SOCJFCOM O/T, a master sergeant (MSG), states that he observed the applicant daily during his certification process.  The MSG adds that despite being given only three months to complete the certification, the applicant completed two thirds of that process in one month.  The MSG also states that he witnessed the Director comment on the applicant's progress in the certification process;

	f.  in a supporting statement, dated 4 October 2004, the former deputy director, J7, states that he served in that position from November 2002 to February 2004 and observed the applicant during the rating period on a daily basis.  He describes the applicant as a focused young officer who knew what was expected of him and that he completed most of the certification process in a short period of time;

	g.  in a letter of confidence, one of the applicant's former supervisors, a COL, states that he is aware of the applicant's impropriety and the command's proposed and taken actions with respect to the impropriety and that he still has confidence in the applicant's ability to perform and place the mission first.  The COL further describes the applicant's sense of responsibility, devotion to duty, and outstanding service;

	h.  in a statement of support, dated 4 April 2004, the Director of Civil - Military Operations, U.S. Army, Pacific, a LTC, states that he is aware of the actions taken against the applicant for improprieties.  Nevertheless, due to his professional relationship with the applicant, he has an unconditional trust and confidence in his ability to execute the mission at hand.  He adds that the applicant acknowledged the mistakes he made and has been penalized for those mistakes; however, it is time to move on so he may continue to provide outstanding, quality work for the Soldier;
	i.  in an undated statement, the applicant's former sponsor at SOCJFCOM states that he served in the same unit during the rated period and observed the applicant daily.  He further comments on the applicant's outstanding accomplishment during the certification process.  He further states that during his tenure in the command, it was perceived that the senior rater blatantly used his position to undermine his subordinates and frequently and publicly berated and embarrassed certain members, such as AGR Soldiers, which displayed favoritism to the troops; and

	j.  in her statement, dated 31 March 2004, the applicant's spouse states that despite his mistakes, she loves and supports her husband and forgives him.

14.  The applicant also submitted copies of his DA Forms 31 that show he took leave and/or permissive temporary duty from 15 September 2003 to 18 September 2003 (4 days), 19 September 2003 to 26 September 2003
(8 days), and 30 September 2003 to 9 October 2003 (10 days).

15.  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 (OES) and Officer Evaluation Reporting System (OERS).

16. Paragraph 3-16 of Army Regulation 623-105 provides the guidance for completion of Part I (Administrative Data) of the OER.  It states, in pertinent part, that nonrated periods are determined by the status of the rated officer.  There are three distinct types of nonrated periods.  They are:

   a.  Periods, regardless of the number of days, between the date an officer departs one duty position and begins performance in a new duty position. In the example in (1) above, 1 July to 25 July would be a nonrated period.

   b.  Periods, regardless of the number of days, spent performing in a duty position during which the rated officer or the rater does not meet the minimum time requirements for a report to be rendered.  This includes periods spent at school for which an academic evaluation report is not required.

   c.  Periods totaling 30 or more consecutive days that occur during the rating period and that are spent in one or more of the following ways:

   (1)  Ordinary leave.
   (2)  AWOL.
   (3)  In the hospital.
   (4)  Convalescence leave.
   (5)  In confinement.
   (6)  Under arrest.
   (7)  On permissive TDY.
   (8)  On temporary duty (TDY) or special duty (SD) serving as a member of 
a DA Selection Board or a court-martial.
   (9)  On TDY or SD attending a course of instruction scheduled for less 
than 60 calendar days.
   (10)  Attendance at Combined Arms Service and Staff School (CAS3).

17.  Paragraph 3-17 of Army Regulation 623-105 provides the basic instructions for completing Part II (Authentication) of the OER.  It states, in pertinent part, that each rating official signs and dates the report before sending it to the next rating official for HQDA.  Their signatures verify all entries on the form at the time of their respective signatures.  The date entered will not be prior to the "Thru" date or the date of any preceding rating official's signature.  The rated officer should sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated officer's signature verifies the accuracy of the administrative data in Part I (except block m [Rated Officer Copy], the rating officials in Part II, the APFT and height and weight date in Part IVc, and that the rater officer has seen the completed OER, Parts I-VIII.  This action increases administrative accuracy of the OER since the rater officer is most familiar with and interested in this information.  

18.  Paragraph 3-57 of Army Regulation 623-105 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 been known or verified when the report was prepared.

19.  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. 

20.  The OER regulation further stipulates that statements from rating officials are also acceptable to support an appeal if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

21.  Paragraph 6-10 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 clearly and convincingly establishes 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 or alternatively transferred to the restricted section of his OMPF.

2.  With respect to the applicant’s specific issues:

	a.  with respect to the GOMOR, in its review of his original appeal, the OSRB corrected the contested OER by removing the statement regarding the GOMOR. Therefore, this is no longer an issue.  

   b.  with respect to the signatures and dates, while the governing regulation requires rating officials to sign and date the OER, it is a common practice for rating officials to sign but not date the OER and for personnel service centers to stamp-date the final and completed OER for processing at USAHRC.  In this case, the senior rater presented the OER to the applicant who acknowledged, signed, and dated the OER, and further indicated that he did not wish to respond to this OER as a referred OER;

   c.  with respect to the type of OER rendered, the evidence of record shows that the rating period was more than 90 days; therefore, a change of rater was the appropriate.  Additionally, a relief for cause OER is not affected by time and changing the contested OER to a relief for cause, even if substantiated, would make the OER more adverse;	

   d.  with respect to the beginning date of the OER, the governing regulation requires the beginning date of the evaluation period to start on the day or month following the ending date or month of the most recent evaluation period.  Since the applicant’s previous OER in Korea ended on 15 September 2003, the new rating period must begin on 16 September 2003, which is correctly shown on the contested OER;

	e.  with respect to the non-rated codes, the applicant’s submitted leave forms do not indicate he was in leave status for a period of 30 or more days; therefore, there is no requirement to place a code in the non-rated codes block of the contested OER; 

	f.  the applicant’s subsequent OERs, duties, assignments, and/or accomplishments have no impact on the contested OER as they occurred outside the rating period; and

	g.  the various character reference letters and statements of support are noted; they clearly speak highly of the applicant.  However, none of the authors was a member of the applicant’s rating chain or in a position to render an evaluation of the applicant’s performance at the time of the contested OER.  

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 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.

4.  By regulation, to support removal or amendment of a report, there must be evidence that clearly and convincingly establishes 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 the rating and the impact the contested report 
may have had on his promotion to MAJ; but fails 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 masking the contested OER.  Therefore, there is no basis for granting the applicant's requested relief.

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)                                         AR20090005627



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ABCMR Record of Proceedings (cont)                                         AR20090005627



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