BOARD DATE:	  February 18, 2010

		DOCKET NUMBER:  AR20090009241 


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 of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 21 October 2004 through 20 October 2005 (hereafter referred to as the contested OER) from his records.

2.  The applicant defers his statement to counsel.

3.  The applicant submits additional documentary evidence through counsel.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests removal of the contested OER from the applicant's records; consideration of the applicant for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB); and consideration of the applicant for continuation on active duty in the event he is not selected for promotion to LTC.

2.  Counsel's 10-page brief provides a background of the contested OER and argues the following points:

	a.  The applicant now has a letter from another officer who served in the same unit that was not provided in his appeal to the Army Special Review Board (ASRB);

	b.  The applicant's previous OERs that show he was commended in the area of communication and other areas in other evaluation reports; and 

	c.  The rater failed to carry out his responsibilities in counseling the applicant.

3.  Counsel provides in support of the applicant's request, a copy of the contested OER; a copy of the ASRB Record of Proceedings, dated 28 February 2008; copies of the applicant's other OERs for the periods 1 May 2006 through 15 March 2007, 20 November 2000 through 17 February 2001, 10 March 2002 through 23 August 2002, 24 August 2002 through 31 May 2003, and 1 June 2003 through 31 May 2004; an email from the U.S. Army Human Resources Command (USAHRC), St. Louis, MO, dated 13 June 2008; a copy of the applicant's DA Form 67-9-1 (Officer Evaluation Report Support Form), dated
15 July 2005; a 19 February 2009 Army Times newspaper article entitled "Passed-over majors to be considered for retention"; and a copy of Orders
C-06-811378, issued by USAHRC-St. Louis on 12 June 2008.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show he was appointed as a second lieutenant (2LT) in the U.S. Army Reserve (USAR) and he executed a DA Form 71 (Oath of Office – Military Personnel) on 29 May 1982.  He completed the Quartermaster Officer Basic Course as well as several other training courses, served in various staff positions, and he attained the rank of captain (CPT) on 24 May 1991.

2.  On 8 July 2001, the applicant entered active duty in an Active Guard Reserve (AGR) status.  He was subsequently promoted to major (MAJ) on 28 October 2000.  He was assigned to Headquarters and Headquarters Company, 85th Division (Training Support), Arlington Heights, IL.

3.  During the month of October 2005 the applicant received an annual OER (the contested OER) which covered 7 months of rated time from 21 October 2004 through 20 October 2005 for his duties as a logistics officer.  His rater was a colonel (COL) (Division Assistant Chief of Staff, G-4) and his senior rater was also a COL (Chief of Staff). The OER shows the following entries:

	a.  In Part IVb(3) (Performance Evaluation-Actions (Leadership)) the rater placed an "X" in the "No" block for "Communicating."

	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 (Comment on specific aspects of the performance and potential for promotion) he entered the following comments:


[Applicant's] performance during this rating period has been marginal.  While [Applicant] is a dedicated, fit officer who is easy to work with, he lacks necessary experience, knowledge, and skill sets to be an effective officer.  He has accomplished all of his assigned duties, but often required more direction and guidance than should be required by a MAJ in the U.S. Army.  [Applicant] has not demonstrated the necessary leadership or communication skills required to be an effective leader.  His limited leadership skills were noted by the brigade commander he supported at the NTC [National Training Center] and his written reports required much rewriting.  [Applicant] should be assigned to TPU [Troop Program Unit] units in order to increase his experience levels to gain valuable leadership skills and experiences.  Until such time as [Applicant] can demonstrate viable military leadership skills, knowledge and abilities, he should not be considered for promotion.

	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 in VIIc (Comment on performance/potential) he entered the following comments:

[Applicant] has demonstrated limited potential for advancement.  [Applicant's] lack of experience limits his abilities and he requires greater experience to be an effective field grade officer.  His performance to date has been unremarkable.  [Applicant] needs to greatly increase his leadership, communication, and organizational skills if he wishes to become competitive for promotion.

4.  The contested OER was referred to the applicant on 6 January 2006.  The applicant acknowledged receipt on 8 January 2006 and he submitted a rebuttal statement on 10 January 2006 in which he stated that the report failed to meet the criteria of being objective and comprehensive.

5.  The contested OER was signed by the rater, senior rater, and rated officer (applicant) on 30 January 2006.  It was received and processed by the appropriate Personnel Services Battalion on 30 January 2006 and processed at the USAHRC-St. Louis, MO, on 7 February 2006.

6.  On 21 September 2006, the applicant requested voluntary release from active duty due to personal hardship (death in the immediate family).

7.  On 28 April 2007, the applicant was honorably released from active duty in the rank of MAJ by reason of hardship.  He was transferred to the USAR Control Group (Reinforcement).
8.  On 28 February 2008, in response to the applicant's appeal of the contested OER, the Officer Special Review Board (OSRB) notified the applicant by memorandum that the evidence presented did not clearly and convincingly establish that the presumption of regularity should not be applied to the contested report or that action was warranted to correct a material error, inaccuracy, or injustice.  Accordingly, his appeal was denied.

9.  On 12 June 2008, the applicant was transferred to the Retired Reserve by reason of non-selection for promotion.

10.  The applicant provides the following documents: 

	a.  A statement from an officer who served in the same unit and section as the applicant.  The officer states that she had an opportunity to review the applicant's written work during the rating period and she disagrees with the rater's comments that the applicant's written reports required much rewriting.  She also states that in all the time she had a working relationship with the applicant, she saw him produce well-researched, professional-quality written work that required little editing.

	b.  Copies of selected OERs prior to and subsequent to the contested report that show he was commended on numerous occasions for the quality and usefulness of his staff work and written reports.

	c.  Copies of two OER support forms.

	d.  A copy of a newspaper article regarding consideration of passed-over MAJs for retention.

11.  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.  It states, in pertinent part that the rated individual has considerable responsibility in the evaluation process.  He/she will periodically evaluate their own performance and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments, and final evaluation and discuss the duty description and performance objectives with the rater. The DA Form 67-9-1 provides an opportunity for the rated officer, rater, and intermediate rater to communicate with the senior rater.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an OER.

12.  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 (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.

13.  Army Regulation 623-105, chapter 6, 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 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. 

14.  Army Regulation 623-105, paragraph 6-10, 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 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.

15.  Army Regulation 135-155 (Promotion of Commissioned Officer and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the Army National Guard (ARNG) and of commissioned and warrant officers (WO) of the USAR.  Paragraph 3-19 provides for promotion reconsideration boards and states that officers and warrant officers, who have either failed of selection for promotion or who were erroneously not considered for promotion through administrative error, may be reconsidered for promotion by an SSB.  Paragraph 3-19e states that in order to find a material error, the Office of Promotions must make a determination that there is a fair risk that one or more of the following circumstances was responsible:  (1)  The record erroneously reflected that an officer was ineligible for selection for educational or other reasons when in fact the officer was eligible for selection when the records were submitted to the original board for consideration; (2)  One or more of the evaluation reports seen by the board were later deleted from an officer's OMPF; (3)  One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer's OMPF;
(4)  One or more existing evaluation reports as seen by the board in an officer's OMPF were later modified; (5)  Another person's adverse document had been filed in an officer's OMPF and was seen by the board; (6)  An adverse document, required to be removed from an officer's OMPF as of the convening date of the board, was seen by the board; (7)  The Silver Star or higher award was missing from an officer's OMPF; or (8)  An officer's military or civilian educational level, including board certification level for AMEDD officers, as constituted in the officer's record (as seen by the board) was incorrect.

16.  Army Regulation 135–155 specifies that officers in the grade of MAJ who have failed selection for promotion to LTC a second time will be removed from active status, unless subsequently placed on a promotion list, selected for continuation, or retained in the Ready Reserve with 18 or more but less than 20 qualifying years of service for retired pay.

17.  Army Regulation 135-155 also specifies that, subject to the needs of the Army, officers pending separation because of having twice failed to be selected for promotion to LTC, may be selectively continued on the Reserve Active Status List in their present grade.  The Secretary of the Army (SA) may direct a SELCON (Selective Continuation) board to consider officers for continuation when required by the needs of the Reserve of the Army.  A SELCON board must recommend officers for continuation and the SA must approve the recommendation before officers may be continued for 3 years from the approval date of the SELCON board.  The SA may adjust the period of selective continuation.  An officer not selected by a SELCON board will be discharged.  SELCON boards are announced by message together with criteria for requesting consideration. 




DISCUSSION AND CONCLUSIONS:

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

2.  In October 2005, the rating officials rendered an annual 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 applicant's dedication and ease to work with, as well as his lack of necessary experience, knowledge, and skill sets to be an effective officer.  The rater stated that the applicant accomplished all of his assigned duties, but often required more direction and guidance than should be required by his grade.

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 a letter from another officer who worked in the same office, the author was not in his chain of command and she was not privy to the guidance and/or expectations between the rated officer and the rating officials.  Additionally, the author 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 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 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.

6.  With respect to the applicant’s request to re-board his promotion file, this can be accomplished through the SSB process.  However, there is no evidence that the applicant’s file contained a material error that led to his non-selection for promotion to LTC.  Therefore, there is no basis to reconsider the applicant’s promotion file by an SSB.
7.  With respect to his selective continuation, the evidence of record shows the applicant voluntarily requested a release from active duty for personal reasons (hardship) and that his request was honored by the Army.  He was then considered for promotion but he was not selected.  He was ultimately removed from active status by reason of non-selection and transferred to the Retired Reserve.  Implicit in the Army's promotion system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the promotion system are widely known, specific information on promotion and SELCON boards is widely published in official publications.  The applicant knew, or should have known, that based on his second non-selection he would be separated unless selected for continuation.  He also has not satisfactorily shown that he was prevented from requesting and receiving consideration by a SELCON board prior to his discharge from the USAR.

8.  Based on the foregoing, 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)                                         AR20090009241



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ABCMR Record of Proceedings (cont)                                         AR20090009241



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