IN THE CASE OF:	  

		BOARD DATE:	        22 September 2009

		DOCKET NUMBER:  AR20090011181 


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 that Officer Evaluation Reports (OERs) for the periods ending on 29 May 2005 and 4 October 2005 be removed from his Official Military Personnel File (OMPF).  He also requests, in effect, a promotion to major.

2.  The applicant states that he believes the two OERs, that were supposed to be one annual OER, were written out of retaliation for leaving the U.S. Army Reserve (USAR) system and returning back to active duty Army.  He contends that the OER dates fall out of the 3-year tolerance; however, the date the OERs were actually completed and given to him was 26 July 2006 which puts him within tolerance.  Coupled with the late submission of the OERs to the Human Resources Command (HRC) was a 15-month deployment to Iraq as a company commander.  

3.  In a statement, dated 10 May 2009, the applicant states that he is appealing the contested OERs under the provisions of Army Regulation 623-3 (Evaluation Reporting System), chapter 6 and he acknowledges that he is aware of the time limit under this regulation.  However, he points out  that there are several key issues that should be taken into account.  He states the OERs in question were submitted 13 months after the rating period which put him behind the appeal process, that the OERs should have been one annual OER due to he was only assigned to the unit for 15 months, and that neither his job title nor Lieutenant Colonel M's  job title changed in the 15 months.  He indicates that Lieutenant Colonel P was not eligible to rate him because he was not in the unit until July 2005 but he rated him from May to October 2005 and his annual should have been completed before Lieutenant Colonel P arrived.  He contends that when he finally received the OER, 10 months after transferring to Fort Polk, Louisiana, he was unaware that he could appeal the rating.  Additionally, he was then in command of a Brigade Support Medical Company preparing for deployment in Iraq.  

4.  The applicant points out that his first Major's board met in 2007, that the results were issued while he was in Iraq, and that he made several attempts to query the reason for non-selection for promotion from Iraq.  He was sent his board file which is exactly what is contained in his OMPF.  He contends that he prepared for his second Major's board from Iraq (2008 board) and that having received only Above Center of Mass ratings for his 24 months in command including combat on his second deployment in Iraq, he figured he would get picked up on the next board but he was wrong and was passed over again.  He claims that after consulting several mentors and supervisors the consensus was the potential discriminators contained in the Active Guard Reserve (AGR) OER.  The same month he learned he could appeal the promotion board results he contacted HRC, St. Louis, Missouri in January 2009 immediately after returning from Iraq.  He goes on to state that the subsequent delays from January 2009 until the present resulted from tracking down testimony that could support his appeal.  Based upon the time he actually received his OER (27 July 2006) until now, he would fall within tolerance allowed for appeals in the regulations.  The 
13 month delay in submitting his OERs is merely reflective of the environment he left and was beyond his control.              

5.  The applicant further states that the AGR OERs were written in retaliation for leaving the AGR and Lieutenant Colonel M's personal dislike for him.  He requests to be promoted to major as he would have been if the malicious OERs were not in his file.  He contends that he was passed over for major twice and is currently Selective Continuation (SELCON) because of these OERs.  He indicates that he has never, in 22 years, had any adverse administrative actions while serving on active Marines, USAR, AGR, and currently active Army.  He indicates that all of his OERs, except his 15 months on AGR, were excellent.  Before the Department of Army masking, they were marked Above Center of Mass by the senior rater with narrative that reflect that opinion.  He claims that he served in various capacities as an officer to include 24 months in command with part of that command completed in Iraq 2007/2008.  He has served two tours in Iraq and he has two awards of the Bronze Star Medal along with a variety of other awards for his performance.  In his 2 March 2009 appeal to the Commander, HRC, St. Louis, Missouri, the applicant states that there is an administrative discrepancy on the second contested OER, Lieutenant Colonel M appears as Colonel M.  He contends that he was still a Lieutenant Colonel during his 15 months with the 399th Combat Support Hospital.         

6.  The applicant provides 35 enclosures outlined in his Table of Contents in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Having prior active and inactive service in the U.S. Marine Corps, the applicant enlisted in the USAR.  He was appointed a second lieutenant in the USAR on 16 August 1997.  He was promoted to first lieutenant on 16 August 1999 and promoted to captain on 11 July 2004.  On an unknown, date the applicant entered active duty in an AGR status.  

2.  A DA Form 67-9 (OER) for the period 24 February 2004 through 11 July 2004 shows the applicant was rated “Outstanding Performance, Must Promote” in Part Va (Evaluate the Rated Officer’s Performance During the Rating Period and Higher Potential for Promotion) by his rater.  He was rated "Center of Mass" in Part VIIb (Potential Compared with Officers Senior Rated in Same Grade (Overprinted by DA [Department of Army])).  

3.  The first contested OER is a 9-month change of rater OER covering the period 11 July 2004 through 29 May 2005 for duties as a Health Services Materiel Officer with the 399th Forward Combat Hospital in Massachusetts.  This OER was authenticated by the rater (Lieutenant Colonel M), the senior rater, and the applicant on 29 May 2005.  The OER was mailed to the applicant on 26 July 2006.      

4.  This contested OER shows the applicant was rated “Satisfactory Performance, Promote” in Part Va by his rater.  He was rated "Fully Qualified" in Part VIIa (Senior Rater/Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  The entry "NO BOX CHECK" was entered in Part VIIb on this OER.  

5.  The second contested OER is a 5-month change of duty OER covering the period 30 May 2005 through 4 October 2005 for duties as a Health Services Materiel Officer with the 399th Forward Combat Hospital in Massachusetts.  This OER was authenticated by the rater (Lieutenant Colonel P), the senior rater (Colonel M), and the applicant on 4 October 2005.  The OER was mailed to the applicant on 26 July 2006.     

6.  This contested OER shows the applicant was rated "Satisfactory Performance, Promote" in Part VA by his rater.  He was rated "Fully Qualified" in Part VIIa by his senior rater.  The entry "NO BOX CHECK" was entered in Part VIIb on this OER.  

7.  The applicant was appointed a captain in the Regular Army in the Medical Service Corps on 13 December 2005.  His date of rank for captain was adjusted to 16 October 2000.   

8.  The applicant’s four subsequent DA Forms 67-9 show he was rated “Outstanding Performance, Must Promote” in Part Va.  The entry "NO BOX CHECK" was entered in Part VIIb on these OERs.  

9.  On 11 December 2008, the applicant was notified that a selection board convened to consider twice non-selected captains for continuation on active duty, that the board recommended him for selective continuation for an additional 
3 years in his present grade, and that the Secretary of the Army approved the recommendation.  On an unknown date, the applicant accepted the 3-year SELCON status.

10.  On 2 March 2009, the applicant appealed the OERs to the Commander, HRC, St. Louis, Missouri.  On 11 March 2009, the applicant was notified by letter that his appeal for the OER (30 May 2005 through 4 October 2005) was returned without action by HRC for failing to submit his appeal within three years of the OER's "through" date.

11.  In support of his claim, the applicant provided three statements of support from subordinates he supervised during the period July 2004 to October 2005.  He provided two character reference letters from a colonel and lieutenant colonel who spoke of his performance from October 2005 to April 2007.  He also provided a character reference letter from a first sergeant who has known him for 2 years.    

12.  A review of the applicant’s OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the OERs in question.  

13.  A review of Lieutenant Colonel P's OMPF on the iPERMS contained an OER for the period covering 1 June 2005 through 30 April 2006 which shows he was assigned to the 399th Combat Support Hospital in Massachusetts as the Hospital Logistics Officer.   

14.  A review of Colonel M's OMPF on the iPERMS contained an OER for the period covering 1 April 2005 through 5 February 2006 which shows his date of rank for colonel is 28 October 2005.   



15.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an OER will be filed in the performance section of the OMPF.

16.  Army Regulation 623-3 prescribes the policies for completing Army evaluation reports for officers and noncommissioned officers.  Paragraph 2-7(6) of this regulation states that a senior rater who has been selected for promotion and who is in an authorized position for the new grade will be considered to be serving in the new grade.  The symbol "P" will be put next to their current grade on the applicable evaluation form.  Paragraph 2-7a(7) of this regulation states that senior raters who have been selected for promotion but are not in a position authorized for the new grade will be considered to be serving in their current grades.  The symbol "P" will not be put next to their current grades on the applicable evaluation form.   

17.  Paragraph 3-9 (Rater assessments) of Army Regulation 623-3 states that Part V of the DA Form 67-9 will be an assessment of performance and potential.  Performance evaluations are assessments on how well the rated officer met duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.  Potential evaluations are performance-based assessments of the rated officer’s ability, compared with that of their contemporaries, which the senior rater rates or will rate to perform in positions of greater responsibilities in higher grades.  Assessment of potential applies to all officers, regardless of their opportunity to be selected for higher positions or grades, and ignores such factors as impending release from active duty or retirement; this assessment is continually changing and is reserved for Headquarters Department of the Army.  Paragraph 3-11 of this regulation states, in pertinent part, that Part VIIb will not be completed on major generals, captains, lieutenants, chief warrant fives, chief warrant twos, warrant officer ones, and a Headquarters, Department of Army electronically generated label that states "No Box Check" will be placed over the boxes in Part VIIb. 

18.  Paragraph 3-37f(2) of Army Regulation 623-3 states that rated Soldiers will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test and height and weight data; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.
 
19.  Paragraph 3-39 (Modification to previously submitted reports) of Army Regulation 623-3 states that an evaluation report accepted by Headquarters Department of the Army and included in the official record of a rated Soldier 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.

20.  Paragraph 6-7 (Policies) of Army Regulation 623-3 states that an evaluation report accepted for inclusion in the official record of a rated Soldier’s Official Military Personnel File is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.

21.  Paragraph 6-11 (Burden of proof and type of evidence) of Army Regulation 623-3 states, in pertinent part, that the burden of proof in appealing an OER rests with the applicant.  According, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  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.  Evidence of record shows the applicant signed the OER covering the period 11 July 2004 through 29 May 2005 on 29  May 2005.  He signed the OER covering the period 30 May 2005 through 4 October 2005 on 4 October 2005.  Per the governing regulation, the rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test and height and weight data; and that the rated Soldier has seen the completed report.     

2.  Although the applicant contends that Lieutenant Colonel P was not eligible to rate him because he was not in the unit until July 2005, Lieutenant Colonel P's OER for the period covering 1 June 2005 through 30 April 2006 shows he was assigned to the 399th Combat Support Hospital in Massachusetts as the Hospital Logistics Officer.  Therefore, it appears the applicant properly received the change of rater OER for the period 11 July 2004 through 29 May 2005 instead of an annual OER for the period 11 July 2004 through 10 July 2005.  Lieutenant Colonel P then had sufficient time to rate him on the second contested OER, the change of duty OER for the period 30 May 2005 through 4 October 2005.  It is acknowledged that the ending period (29 May 2005)/beginning period (30 May 2005) of the two OERs indicate a possibility that the dates may be two days off; however, the possible (not proven) error is not significant enough to invalidate either of the OERs based on rating period alone.

3.  The evidence of record supports the applicant's contention that Colonel M's rank is incorrect on his OER covering the period 30 May 2005 through 4 October 2005.  It appears he was promoted to colonel on 28 October 2005 and the governing regulation states that senior raters who have been selected for promotion but are not in a position authorized for the new grade will be considered to be serving in their current grades.  Nevertheless, the applicant has failed to demonstrate any undue harm or injustice as a result of the incorrect rank on this OER.  

4.  The applicant's remaining contentions and allegations raised in regard to the contested OERs were carefully considered.  However, the contested OERs were prepared by the properly designated rating officials and are properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that they were improperly prepared or filed.

5.  The applicant has not provided sufficient evidence to show the OERs did not represent the considered opinion and the objective judgment of the raters and senior raters at the time of preparation.  Therefore, there is an insufficient basis for granting the applicant’s requests. 

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)                                         AR20090011181





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ABCMR Record of Proceedings (cont)                                         AR20090011181



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