IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090007349 


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:

	a.  the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 9 March 2003 through 8 March 2004 (hereafter referred to as the first contested OER) and the DA Form 67-9 covering the rated period 9 March 2004 through 7 January 2005 (hereafter referred as the second contested OER) be completely removed from his records and replaced by documentation that, in effect, show these periods as non-rated time; and

	b.  the OERs he has received for the last two years be modified to reflect his rank as that of a lieutenant colonel (LTC).

2.  The applicant states that the first contested OER contained the incorrect rating officials.  He adds that both contested OERs appear to have been thrown together at the same time and falsified to make it appear that they were completed in a timely manner.   He also adds that the contested OERs were mishandled and failed to meet regulations.  He further states that the OERs were never referred to him and he was not afforded the opportunity to acknowledge and/or comment on the OERs.

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

	a.  an undated 9-page self-authored statement; 

	b.  copies of the contested OERs; 

	c.  copies of Orders 188-183, 055-548, and 019-060 issued by the Adjutant General's Department, Ohio Army National Guard (OHARNG), on 27 September 2002, 5 March 2003, and 28 January 2005, respectively; 

	d.  copy of a DA Form 4856 (Developmental Counseling Form), dated 10 January 2004; 

	e.  copies of two OER referral memoranda, dated 17 November 2005;

	f.  an undated statement from the Worthington Post Office, Columbus, OH;

	g.  copies of certified mail receipts;

	h.  an incapacitation pay memorandum, dated 3 February 2004; 

	i.  copies of various medical documents, dated on miscellaneous dates in 2004; and 

	j.  a copy of his DA Form 2-1 (Personnel Qualification Record).

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 U.S. Army Reserve (USAR) and executed an oath of office on 23 August 1988. He subsequently entered active duty on 5 November 1988, completed the Infantry Officer Basic Course, and was reassigned to Germany.  He was promoted to first lieutenant on 5 November 1990 and to captain (CPT) on 1 April 1993.  

3.  On 12 September 2000, by memorandum, the U.S. Total Army Personnel Command, Alexandria, VA, notified the applicant that he was considered for promotion by the Fiscal Year 2000 (FY00) Major (MAJ) Army Competitive Category Promotion Board but was not among those selected.  This memorandum also notified him that since this was his second non-selection for promotion, he would be separated from active duty. 

4.  On 1 March 2001, the applicant was honorably released from active duty.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 12 years, 3 months, and 27 days of creditable active service.

5.  On 9 March 2001, the applicant was appointed as a CPT in the OHARNG and executed an oath of office on the same date.  He was subsequently assigned to Headquarters, 73rd Troop Command, Columbus.

6.  On 16 July 2002, by letter, the U.S. Total Army Personnel Command, St. Louis, MO, notified the applicant that he was considered by the FY02 Reserve Components Selection Board (RCSB) for promotion to MAJ but was not selected. 

7.  On 19 September 2002, the applicant was involved in a motor vehicle accident when his vehicle was struck by another.

8.  On 27 September 2002, the applicant was ordered to active duty for special work (ADSW) from 1 October 2002 to 28 March 2003.  His period of active duty was later amended on 5 March 2003 to show an end date of 30 September 2003. 

9.  On 7 August 2003, the applicant was considered for promotion to MAJ by the FY03 RCSB and was selected with a date of rank as 4 April 2003.  However, he requested and was authorized a delay of promotion for a period of one year from 4 April 2003 to 4 April 2004.

10.  On 10 January 2004, the applicant was counseled by the unit S-3 regarding his obligations to provide his unit with the required medical documentation in order for his unit to properly manage his incapacitation pay and his pending medical review board.  

11.  There is no indication in the applicant's records that he was promoted to LTC.  

12.  On 5 May 2004 the applicant received an "Annual" OER, which covered a  12-month period of rated time from 9 March 2003 through 8 March 2004, for his 


duties serving as an Assistant S-2, Headquarters, 73rd Troop Command, OHARNG, Columbus.  His rater was a MAJ and his senior rater was an LTC.  This contested OER shows the rating officials signed it on 5 May 2004.  It also shows the following entries:

	a.  In Part IVb(1) (Performance Evaluation-Professionalism-Leader Attributes), the rater placed an "X" in the "No" block for "Physical" and in Part IVc (Army Physical Fitness Test (APFT)), the rater placed the word "Profile" and left the date of the profile blank; 

	b.  In Part V (Performance and Potential Evaluation), the rater placed an “X” in the “Satisfactory Performance-Promote” block and entered the following remarks in Part Vb:

During this rating period, [Applicant] performed his duties as the Assistant S2 as directed and monitored.  [Applicant] assisted in the management of the security clearance process for the brigade.  [Applicant] was unable to perform for some periods due to medical condition which excluded him from attending scheduled training.  [Applicant] was unable to take the APFT this rating period due to his medical condition.  [Applicant's] medical condition is limiting his performance and potential and must be corrected as quickly as possible.

	c.  In Part VII (Senior Rater), the senior rater placed an “X” in the “Do Not Promote” block and entered the following remarks in Part Vc (pertinent part):

[Applicant] marginally performed his duties as the Assistant S2 and then only with specific guidance and supervision.  He states that his medical condition limits his ability to perform any duties for any length of time.  He noted that he must attend his medical therapy at mid-morning and mid- afternoon; although he has documentation directing therapy, he could not provide any that directed therapy at specific times.  He was counseled verbally and in writing to provide all medical documentation so we would prepare his packet for the medical review board.  He has been exceptionally slow or totally non-responsive in providing the necessary documents.  As a senior captain, he has not been forthright at all in getting this situation rectified and continues to show bad judgment by missing numerous appointments the S1 section set up for him.  He lacks potential for future assignments in the OHARNG. 

13.  On 2 February 2005, the applicant received a "Transfer to another component" OER which covered a 10-month rating period from 9 March 2004 through 7 January 2005, for his duties serving as an Assistant S-2, 
Headquarters, 73rd Troop Command, OHARNG, Columbus.  His rater was the same MAJ and his senior rater was the same LTC.  This contested OER shows the rating officials signed it on 2 February 2005.  It also shows the following entries:

	a.  In Part IVb(1) (Performance Evaluation-Professionalism-Leader Attributes), the rater placed an "X" in the "No" block for "Physical" and in Part IVc (APFT), the rater placed the word "Profile" and left the date of the profile blank; 

	b.  In Part V (Performance and Potential Evaluation), the rater placed an “X” in the “Other” block and entered the following remarks in Part Vb:

During this rating period, [Applicant] performed his duties as the brigade Assistant S2 satisfactorily.  [Applicant] was unable to take the APFT due to a continuing medical condition.  This medical condition also inhibited [Applicant's] ability to perform some scheduled training.  [Applicant] was responsible for the management of security clearances for the brigade and performed satisfactorily.  He also satisfactorily produced and managed the S2/3 section work-plans for the current training year.  On a couple of occasions [Applicant] used his medical condition to benefit himself when no evidence existed to warrant his actions.  He had a requirement that physical therapy be conducted twice a day; however, there was no evidence that indicated when it was to be done.  [Applicant] insisted he must do therapy mid-morning and mid-afternoon at his residence, which basically meant he could not attend drill due to the driving distance.  [Applicant] has a medical condition that was just recently rectified that inhibited his ability to perform his duties and take the Army Physical Fitness Test.  [Applicant's] potential for future assignments is severely hampered by his medical condition and his failure to cooperate with the unit in resolving his situation.

	c.  In Part VII (Senior Rater), the senior rater placed an “X” in the “Do Not Promote” block and entered the following remarks in Part Vc:

[Applicant] refused to provide medical documentation despite being asked to do so on numerous times.  He claimed his physical therapy had to be done mid-morning and mid-afternoon which prohibited him from performing his duties.  Upon further investigation, however, his doctor advised that those times were arbitrary and in fact were chosen by the [Applicant] himself.  He showed exceptionally poor judgment by missing numerous scheduled appointments until we assigned another Soldier to escort him to ensure he arrived at the appointed time at the designated place.  Quite simply, [Applicant] used his medical condition to his own 
benefit until a board actually found him medically fit, at which time he opted to go to the IRR (Individual Ready Reserve).  He has no potential for future service in the OHARNG.

14.  On 7 January 2005, the applicant was released from the ARNG and transferred to the USAR Control Group (Reinforcement).

15.  On 17 November 2005, by memorandum mailed to the applicant by certified mail, the two contested OERs were referred to the applicant for acknowledgement and/or comments with a suspense date of 18 December 2005.  However, there is no indication in the applicant's records that he acknowledged receipt of the mail and/or submitted a statement in his own behalf.

16.  The two contested OERs were processed and placed in the applicant's official military personnel file (OMPF) on 21 February 2006.

17.  On 14 August 2008, the applicant submitted an appeal of the contested OERs based on incorrect and inaccurate statements made by his rater and senior rater.  However, on 15 December 2008, 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.

18.  The applicant submitted a statement from the Manager Customer Service, Worthington Post Office which stated it appeared the certified mail receipt that was supposedly mailed to the appellant was not entered into the postal service system or processed for delivery.   

19.  The applicant submitted copies of his incapacitation pay memorandum and physician's statement indicating that he was incapacitated from 13 September 2003 to 19 February 2004. 

20.  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.  

21.  Army Regulation 623-105 states that reports with negative remarks about the rated officer's values or leader attributes/skills/actions in a rating official's narrative evaluations, contains a rating of "no" in Part IV, a rating of unsatisfactory performance in Part V, or do not promote in Part V or VII, or a comment to that effect by any rating official, or a report with any negative comments in any of the narrative portions of an evaluation report, will be referred to the rated office by the senior rater for acknowledgement and comment before the report is forwarded to HQDA.  It notes when the rated officer is unavailable to sign an evaluation report for any reason and the report must be referred it will be referred in writing to the rated officer.  

22.  The rated officer will be given a reasonable suspense to respond.  The same regulation defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions. 

23.  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. 

24.  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. 

25.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OERs should be removed from his records. 

2.  The evidence of record shows that the contested OERs contained comments that the applicant perceived to contain incorrect, inaccurate, and derogatory errors and/or injustices.  However, there is no evidence and the applicant has not provided compelling evidence which shows the contested OERs are substantively inaccurate and do not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  It is the manner of how the contested OERs were processed that gives this applicant a basis for his complaint.

3.  The evidence of record shows that the first contested OER was signed by the rater and senior rater on 5 May 2004 and that the second contested OER was signed by the rater and senior rater on 2 February 2005.  The evidence of record also shows that both OERs were filed at the same time in the applicant's OMPF on 21 February 2006, over a year after the applicant was separated from the ARNG.





4.  The two OER referral memoranda, dated 17 November 2005 with a suspense date of 18 December 2005, were dated ten months after the applicant was separated from the ARNG.  The statement from the Manager Customer Service, Worthington Post Office, states it appears the certified mail receipt that was supposedly mailed to the applicant was not entered into the postal service system or processed for delivery.  This evidence provided by the applicant gives the impression that the two evaluation reports in question were not properly referred to him.

5.  Nevertheless, the referral memoranda were placed in his OMPF on 21 February 2006.  A reasonably prudent officer would have reviewed his/her records at least annually and noticed the contested OERs well before August 2008, the date the applicant appealed the contested OERs.  Had he done so, he would have also noticed the referral memoranda and responded to his rating officials with comments or been able to appeal the OERs in a timely manner.  He did not do so.

6.  The provisions of Army Regulation 623-105 provide, in pertinent part, for the deletion or amendment of a report, when the appellant is able to produce evidence that establishes clearly and convincingly that action is warranted to correct an injustice.  Notwithstanding the letter from the Post Office, the evidence provided does not support a conclusion that the manner in which the two referred reports were rendered created an insurmountable injustice in this case.

7.  With respect to correcting the applicant's last two OERs to show his rank as that of an LTC, there is no evidence in the applicant's records and the applicant did not provide any evidence that shows he was promoted to LTC.  

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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20090007349



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