IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090011012 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 10 June 2001 through 9 March 2002 (hereafter referred to as the contested OER) be completely removed from his records.

2.  The applicant states that the contested OER was not closed out until after a subsequent period had closed; that the contested OER was late and that the delay was prejudicial; and that the contested OER was a reprisal for a complaint he submitted to the Inspector General.

3.  The applicant provides a copy of the contested OER; a self-authored supplemental statement, dated 10 June 2009; a copy of a Department of the Army Inspector General (DAIG) Assistance Division Report of Investigation (ROI), dated 8 September 2006; a copy of a memorandum to his Task Force commander, dated 25 May 2002; and copies of several electronic mail (email) messages in support of his request.

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 an infantry second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 20 June 1987.  He subsequently completed several military training courses and served in various staff and/or leadership positions.

3.  On 17 March 1993, the applicant was appointed as a first lieutenant in the Indiana Army National Guard (INARNG) and executed an oath of office on the same date.  He again served in various staff and/or leadership positions and was honorably discharged on 17 June 1996 and transferred to the USAR Control Group (Individual Ready Reserve).

4.  The applicant's records further show he was promoted to captain in the USAR on 2 November 1996.  He was subsequently assigned to the 448th Civil Affairs Battalion, Fort Lewis, WA.  Additionally, on 27 July 2001, his earlier request for a branch transfer from infantry to civil affairs was approved.  He was also promoted to major (MAJ) on 15 August 2001.

5.  During the month of March 2002 the applicant received the contested OER, a change-of-rater OER which covered 9 months of rated time from 10 June 2001 through 9 March 2002 while serving as a Direct Support Team Chief.  His rater was a MAJ, Detachment Commander; his intermediate rater was also a MAJ, battalion commander; and his senior rater was a colonel, brigade commander.  The contested OER shows the following entries: , dated 25 May 2002,

	a.  In Part IVa (Performance Evaluation - Professionalism, Character, Army Values) the rater placed an "X" in the "No" block for "Loyalty" and "Selfless Service";

	b.  In Part IVb (Performance Evaluation - Professionalism, Leader Attributes/Skills/Actions, Skills) the rater placed an "X" in the "No" block for "Interpersonal";

	c.  In Part IVb (Performance Evaluation - Professionalism, Leader Attributes/Skills/Actions, Actions) the rater placed an "X" in the "No" block for "Motivating," "Planning," and "Executing";

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following remarks in Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion):

[Applicant] is an average performer.  Upon assuming command, I noticed that [Applicant] was not really active in developing his subordinates or taking the initiative in assigned tasks.  After some counseling outlining these concerns, [Applicant] did attempt to keep me informed and be more involved in his subordinates' development.  When he was selected to deploy on the Stabilization Force (SFOR) 13B rotation, [Applicant] stated he was going to retire and could not deploy.  He informed the Battalion Commander and myself he did not realize the unit had such high operational tempo and could not afford to take the time away from his graduate education.  [Applicant] then asked to participate in the SFOR deployment, due to financial problems.  He then deployed to Mission Readiness Exercise (MRE) 02-03 as a team leader.  During this exercise, there were a number of complaints from the Division G5, the OCs and his team members.  [Applicant] did not integrate well with the Task Force, was abrasive with the OCs and ignored his subordinates advice.  The OCs recommended that [Applicant] not deploy on SFOR 13B.  The OCs and the Division G5 did state that [Applicant] demonstrated good briefing capabilities.  Overall the JRTC mission was a success.  [Applicant] usually works to arrive at a satisfactory conclusion of an assigned task, albeit at his own pace.  [Applicant] simply lacks initiative and seems to be more concerned about his own welfare than of his subordinates.  His leadership skills must improve if he is to be successful.  Although a satisfactory performer, he sometimes becomes complacent and requires a reminder to be more cognizant of getting a task accomplished in a timely manner.  [Applicant] did complete the Civil Affairs Advanced Course.  [Applicant] should deploy on SFOR 13B, work on interpersonal skills, and be more open to constructive criticism.  Once leadership skills improve, then reevaluate for possibility of promotion potential.

	d.  In Part Vc (Identify Any Unique Professional Skills or Areas of Expertise of Value to the Army that This Officer Possesses) the rater entered the following remarks:

[Applicant] brings years of Infantry experience to the Battalion.  He just needs to learn to put that experience to good use and to be able to incorporate this in training for his subordinates.  Once this is accomplished he may be a more rounded leader.

	e.  In Part VI (Intermediate Rater) the applicant's intermediate rater entered the following remarks:

Concur with rater's comments.  [Applicant's] performance was average at best.  Comments from the Joint Readiness Training Center adjunct (CA USAR) cadre, along with his enlisted team members, raise concerns about his ability to properly lead, train, and care for his subordinates.  Simply put, he does not demonstrate the interpersonal and leadership skills expected of a field grade officer.  [Applicant] is no doubt capable of performing at a higher level.  However, he must take this action on his own.  Only then can he perform civil affairs tasks to standard as he has done in the past.  He will get this opportunity during SFOR 13B.

	f.  In Part VII (Senior Rater) the senior rater placed an "X" in the "Do Not Promote" block, indicated that he senior rated 77 officers in this grade and placed another "X" in the "Yes" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.  He rated him as a "Below Center of Mass" and entered the following remarks in Part VIIc (Comment on Performance/Potential):

[Applicant] clearly places his own interests above those of his soldiers, the unit and the Army as evidenced by his indecisiveness and his questionable performance during the Mission Readiness Exercise.  His personal situation dictates his interest and dedication to the unit.  [Applicant] simply does not demonstrate the level of proficiency expected of a seasoned field grade officer.  He also has great difficulty with the most important aspect of supporting a WARTRACE client, the integration of civil affairs support to the Active Component.  As a result, he must work extra hard to restore the reputation with the 25th Infantry Division (Light) division and brigade staffs.  Deploying [Applicant] on Civil Affairs Rotation 13B (Stabilization Force) to Bosnia-Herzegovina will provide him with the necessary level of Civil Affairs tactical and operational experience required to take this officer to an appropriate level of proficiency.

6.  The contested OER was signed by his rater, intermediate rater, and senior rater on 25 October 2002.  It was marked as a referred report and indicates that the applicant elected not to submit any comments.  He signed it on 18 November 2002.  The contested OER was processed by his servicing personnel office on 20 November 2002 and was processed at the U.S. Army Human Resources Command, St. Louis, MO, on 21 March 2003.

7.  There is no indication in the record that the applicant requested a commander's inquiry or that he appealed the contested OER to the Army Special Review Board.

8.  The applicant submitted a self-authored supplementary statement, a copy of a DAIG ROI (enclosed), a copy of a memorandum, and several email messages in support of his request as follows:

	a.  In his supplementary statement, the applicant states that he deployed with the battalion to Bosnia on 17 March 2002 and that his deployment date is important since the through date of the contested OER is 9 March 2002 and he did not receive it until 18 November 2002.  It contains information that clearly occurred during deployment or was influenced by the DAIG investigation that he requested during the deployment but after the reporting period.  He adds that his rating officials attempted to give him an adverse OER with a through date of 8 August 2002 but the OER was never filed in his official military personnel file.  The rating official subsequently issued the contested OER.  He then gives a background summary related to his unit, the mentality of certain members of the unit, flow of information, conflicting orders, lack of support, and concerns about fraternization between a certain officer and an enlisted member.  He also states that the OER was tardy and substantially prejudicial and that if there were any problems regarding his performance, they should have been corrected prior to the deployment.  The contested OER was a reprisal and that his chain of command waited until after the deployment was completed to write the OER so that the DAIG would not consider it in its investigation.

	b.  A copy of a redacted DAIG ROI that shows the applicant reported seven allegations on 25 June 2002, none of which was substantiated by the DAIG.  It is noted, however, that the ROI substantiated an issue that is not relevant to the applicant's case.

	c.  A copy of a memorandum, dated 25 May 2002, from the applicant to his battalion commander alleging an inappropriate relationship between one of his sergeants and an officer.

	d.  Several email messages, dated in 2002, discussing the allegation of fraternization between the sergeant and the officer.

9.  Army Regulation 623-105 (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.  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation 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 (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 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 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.  Paragraph 6, Army Regulation 623-105, 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 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.

11.  Paragraph 6-10, 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 stated, 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.  The evidence of record shows that in 2002 the rating officials rendered a tardy 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 contested OER was referred to the applicant as required by the applicable regulation in affect at the time; however, the applicant elected not to submit any comments.

3.  There is no evidence and the applicant has provided none to show that his rater, intermediate 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 redacted ROI, the allegations were irrelevant to his case and were not substantiated by the DAIG.  He did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation by his rating officials.

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 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 the contested OER.  Therefore, there is no basis for removing it.

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.



      _________________________
                 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)                                         AR20090011012



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ABCMR Record of Proceedings (cont)                                         AR20090011012



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