IN THE CASE OF:	  

		BOARD DATE:	          9 September 2009

		DOCKET NUMBER:  AR20090014193 


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, removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 2 January 2006 through 30 November 2006 (hereafter referred to as the contested OER) from his records and declaring this period as nonrated time. 

2.  The applicant also requests the rated period from 2 January 2005 to 1 January 2006 be declared as nonrated time.  

3.  The applicant further requests promotion to captain (CPT) effective November 2007.  In the alternative, he requests promotion to CPT effective November 2008.  In the alternative, he requests: 

	a.  selective continuation to facilitate appearance before a special selection board (SSB) under the provisions of Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers).  In the alternative, he requests;

	b.  if his mandatory retirement date (MRD) has taken effect prior to the Board’s decision, he requests reinstatement as a CPT.  In the alternative, he requests reinstatement as a first lieutenant (1LT) with a corrected Official Military Personnel File (OMPF).

4.  The applicant states that the many comments on the contested OER violate Army Regulation 623-3 (Evaluation Reporting System); that the tasks required following the commander’s inquiry were not performed; that the rating chain changes were not properly briefed to the applicant; that the Officer Management Branch’s failures reduced his chances for promotion; and that his rating officials established a pattern of disregard for regulations. 

5.  The applicant provides a Table of Exhibits that includes extracts of various Army regulations and/or messages, copies of the contested and other OERs; findings of the commander’s inquiry; and other related documents, in support of his request.

CONSIDERATION OF EVIDENCE: 

1.  Having had prior service in the Regular Army, the applicant’s records show he was appointed as an Aviation second lieutenant in the Nevada Army National Guard (NVARNG) and executed an oath of office on 9 August 2002.  He subsequently entered active duty and completed several aviation military training courses.  He was assigned to Company D, 113th Aviation, NVARNG, Reno, NV, as a section leader, and was promoted to 1LT on 12 August 2004.  

2.  The applicant’s OMPF contains a copy of his first OER for the period from 27 February 2004 through 1 January 2005 for his duties as a Section Leader while assigned to Company D, 113th Aviation, NVARNG, Reno, NV.  His rater was his company commander, CPT Cxxxx, and his senior rater was his battalion commander, lieutenant colonel (LTC) Hxxxxxxxxx.  The OER was signed by the rating officials as well as the applicant on 1 May 2005.  

3.  Prior to this first OER being processed at the U. S Army Human Resources Command - St. Louis (HRC-STL), the applicant requested a commander's inquiry on 25 June 2006 alleging that LTC Hxxxxxxxxx was not in his rating chain as the battalion commander at anytime during this rating period and should not have senior rated him.  The investigation officer’s (IO) conclusion was that the applicant’s assertion of an invalid rating scheme was correct.  He further stated that although all members of the valid rating scheme were still active in the NVARNG, he did not believe rewriting the entire OER would provide a reasonable assurance of objectivity and recommended the existing OER be masked in the applicant’s OMPF.  This OER was processed at HRC-STL on     29 June 2007. 

4.  On 2 January 2005, the applicant was ordered to active duty as a member of his ARNG unit in support of Operation Enduring Freedom and subsequently served in Afghanistan from 10 March 2005 to 10 March 2006.  He was honorably released from active duty to the control of his ARNG unit on 8 April 2006. 

5.  During the month of January 2006, the applicant received his second OER, an annual report which covered 12 months of rated time, from 2 January 2005 through 1 January 2006, for his duties as a section leader.  His rater was CPT Lxxxx, the platoon leader, and his senior rater was a MAJ Cxxxx, the company commander.  This OER was processed at HRC-STL on 19 March 2009.

6.  During the month of December 2006, the applicant received a third OER, the contested OER, a senior rater option report which covered 10 months of rated time, from 2 January 2006 through 30 November 2006, for his duties as a flight platoon section leader.  His rater was a MAJ Cxxxx and his senior rater was LTC Hxxxxxxxxx.  The OER shows the following entries:

	a.  In Part IVa(4) and (6) (Performance Evaluation-Professionalism-Character-Army values), the rater placed an "X" in the "No" block for "Loyalty" and "Duty";

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

	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, he entered the following comments:

Part IVa.4. Loyalty: [Applicant] indicated his disgust with Company and specific individuals within.  In addition, enlisted members had approached the leadership indicating conversations and comments from [Applicant] indicating the same subject.  Part IVb.2. Conceptual: Did not demonstrate sound judgment or moral reasoning in the act of cutting off his aviator wings in theater of war and continue wearing the uniform around the company area.  Once confronted about this action, simply stated no regulation exists to the contrary.  Part IVa.7. Duty: [Applicant] refused to ground himself after indicating to the command that he may not be in the right frame of mind to conduct combat aviation operations.  After explaining to [Applicant] that self-grounding is completely acceptable under the conditions, he still refused to initiate a DA Form 4186.  As Commander, I had doubt and serious reservation in his abilities to conduct safe flight within theater.  Part IVb.3.5. Executing: Did not meet mission standard by being removed from the Aviation Task Force planning cell and was removed as Flight Platoon Leader after 3 months time.  Removed [Applicant] from AO in Kandahar and moved to Bagram Air Base with a duty of watching 4 static CH-47 helicopters on the ramp and await transfer of helicopters and self to Fort Lewis, WA, by C-17 for demobilization. 
	d.  In Part Ve (Comment on Potential For Promotion), the rater entered the following comments:  "Do not recommend this officer for promotion or any leadership position at this time.  This officer needs to make the decision if military service is in his best interest"; and

	e.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block and entered the entered the following comments:

[Applicant] has had a difficult time fitting into his unit.  He has demonstrated a low degree of leadership skills to his chain of command and his actions have alienated him with the formal and informal leaders of the unit.  [Applicant] has no difficulty in physically performing the aviator tasks and missions assigned and has completed all annual requirements allowed by the constrained resources of his redeploying unit.  [Applicant] has cultivated a wealth of interpersonal difficulties within the unit that will be difficult to professionally recover from and cannot be mitigated by any words from him when an overwhelming recent history of poor choices and actions are fresh in the minds of his chain of command and fellow Soldiers. 

7.  The contested OER was signed by the rating officials in May 2007 and was referred to the applicant on 17 May 2007.  The applicant submitted a rebuttal on 31 May 2007.  He alleged that the OER contained various errors in that it lacked mandatory supporting documentation; that he was not informed of the rating official change from the last rating period; that the contested OER contained events that occurred before or after the rating period; and that the rater and senior rater made no reference to his positive contributions.  The contested OER was processed at HRC-STL on 21 June 2007.  

8.  On 10 June 2007, the applicant requested a commander’s inquiry.  Accordingly, an IO reviewed documentary evidence and interviewed personnel to include the applicant, his rater, and his senior rater.  The IO made the following findings and recommendations:

	a.  with respect to the rating official change, the IO found no evidence of a documented rating scheme prior to or during the contested OER; therefore, the change in the rating official could not be confirmed;

	b.  with respect to the rating officials’ failure to communicate their expectations to the applicant, the IO determined that although the applicant was aware of the performance expectations via verbal counseling, there was no record of written counseling;  
	c.  with respect to referencing on the contested OER events that occurred outside the rating period, the IO determined that the "No" ratings on the front of the contested OER reference events that happened during the unit’s deployment and could not have occurred during the rating period;

	d.  with respect to crediting the applicant with a specific tasking, the IO indicated that the argument is subjective in nature and is outside the scope of his inquiry; 

	e.  with respect to not receiving a fair and honest evaluation, the IO determined that this determination was essentially outside the scope of this inquiry; and

	f.  the IO recommended the entire OER be masked in the applicant’s OMPF and stated that it was unclear if the rating chain was obvious to the applicant; that there was no record of formal counseling; and that the majority of the comments by the rater related to events that occurred outside the rating period.  

9.  On 22 February 2008, the results of the Fiscal Year 2007 (FY07) CPT Reserve Components Selection Board (RCSB) that convened on 6 November 2007 were released.  The applicant was considered for promotion but was not selected. 

10.  On 25 February 2008, the applicant submitted an appeal of the contested OER.  Upon receipt at the National Guard Bureau, the Chief, Personnel Division, forwarded the OER and supporting evidence to the Army Special Review Board (ASRB).  The Chief, Personnel Division, further indicated that the applicant had a second priority, indicating that he was one-time non-select for promotion to CPT.

11.  On 15 January 2009, the ASRB denied the applicant’s appeal as the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, error, or injustice. 

12.  On 12 March 2009, the results of the FY08 CPT RCSB that convened on 4 November 2008 were released.  The applicant was considered for promotion but was not selected. 

13.  It appears that the applicant was discharged from the ARNG on 30 June 2009.  However, a copy of his discharge orders and/or National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) is not available for review with this case.
14.  On 13 August 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 the ABCMR.  He provided the same argument and/or documentary evidence as previously submitted to the ASRB. 

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).  It also provided guidance regarding redress programs including commander inquiries and appeals. 

16.  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, 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.

17.  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.  It 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. 

18.  Army Regulation 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official. 

19.  Army Regulation 623-3, effective 15 January 2006, is the current regulation that prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System (ERS).  Paragraph 3-39b of this regulation states that requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF:  (1) statements from rating officials that they underestimated the rated Soldier; (2) statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; (3) requests that ratings be revised; (4) statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential (therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report); (5) statements from rating officials claiming OERs were improperly sequenced from the field to HQDA or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal.

20.  Army Regulation 135-155 prescribes policy and procedures used for selecting and promoting commissioned officers (other than commissioned warrant officers) of the ARNG and of commissioned and warrant officers of the USAR.  This regulation also specifies that in order to be promoted to CPT an individual must have completed a minimum of 2 years as a 1LT or a maximum of 5 years of time in grade.  Section III provides guidance on dates of promotion and states, in pertinent part, that the effective date and date of promotion of unit officers will be no earlier than the approval date of the board, the date of Senate confirmation (if required), or the date the officer is assigned to a position authorized the higher grade, whichever is later. 
21.  Army Regulation 135-155 specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

22.  Title 10, U. S. Code, section 14504 provides that a first lieutenant of the reserve active-status list who has failed selection for promotion to the next higher grade for the second time and whose name is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.

23.  Department of the Army Pamphlet 600-3 is intended as a professional development guide for individual officers.  In pertinent part, it states officers in many respects are ultimately their own career managers.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be removed from his records and that the rated period should be declared non-rated; he also contends that the rated period from 2 January 2005 to 1 January 2006 should also be declared as non-rated.  He further contends that he should be promoted to CPT under the 2007 or 2008 criteria and in the alternative, he should remain in the ARNG to facilitate his appearance before an SSB or, in the alternative, if his MRD has taken effect prior to the Board’s decision, he contends that he should be reinstated either as a CPT or as a 1LT with a corrected OMPF.

2.  With respect to the applicant’s contention that the period from 2 January 2005 to 1 January 2006, should be declared as non-rated time, during the month of January 2006, the applicant received an annual OER which covered 12 months of rated time, from 2 January 2005 through 1 January 2006 for his duties as a section leader.  This OER appears to be administratively correct and reflected 

the rater’s and senior rater’s performance and potential evaluation of the applicant.  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.  Therefore, there is no reason to remove this OER and replace it with a memorandum of non-rated time. 

3.  With respect to the rating chain, the evidence of record shows that the applicant was a flight platoon section leader and 1LT in an aviation battalion.  It is unclear whether a rating scheme was published and if so whether it was maintained by the battalion S-1 (although there is no regulatory requirement to keep rating schemes).  Nevertheless, in what appears to be an honest attempt to provide the applicant with the appropriate rating officials that mirrored his chain of command, the contested OER shows that the company commander was designated as the rater and the battalion commander was designated as the senior rater.  This rating chain appears to be valid and corresponded as closely as practicable to the chain of command or supervision.

4.  With respect to the contested OER containing comments related to events outside the rating period and contrary to the IO's findings, the evidence of record shows that the applicant served in Afghanistan from 10 March 2005 to 10 March 2006.  The contested OER covered the rating period from 2 January 2006 through 30 November 2006.  It is unclear which events occurred during the applicant's portion of the deployment that is not covered by the contested OER vice those events that occurred outside the rating period but are covered by the contested OER.  Nevertheless, the overlap of the applicant's deployment and the rating period clearly allows his rating officials to address events that occurred during his deployment.

5.  With respect to lack of counseling, the evidence of record shows that the applicant’s senior rater marked the "Yes" block in Part VIIa, indicating that a completed OER support form was received with this report and considered in the senior rater’s evaluation and review with this report.  This form provides an opportunity for the rated individual, rater, intermediate rater (if applicable), and senior rater to communicate.  

6.  Nevertheless, the applicant was a 1LT with several years experience as a prior enlisted member and noncommissioned officer, and was responsible for the direct supervision of all warrant officers and enlisted members within the flight platoon section at the time the contested OER was rendered.  He should have been intimately familiar with the evaluation process and the need to be actively involved in that process.  If the rater failed to complete face-to-face counseling or provide feedback regarding duty performance, the applicant should have sought counseling and feedback.  One cannot argue after the fact that the rater failed in his responsibilities when he himself took no active role in his own evaluation process.  Additionally, the lack of formal counseling does not invalidate the OER.

7.  With respect to the contested OER for the period from 2 January 2006 through 30 November 2006, the evidence of record shows that the contested OER contained comments that the applicant perceived to contain alleged errors and injustices and brought such concerns to the commander’s attention.  Accordingly, he requested a commander’s inquiry.  The IO determined that there were some inconsistencies and recommended the entire OER be masked in the applicant’s OMPF.  It is noted that "masking" is usually performed with individual words, sentences, or paragraphs.  Entire OERs are not masked; they are altered or removed.  

8.  There is no evidence and the applicant has not provided sufficient evidence that shows that the rater and senior rater did not comply with the regulatory requirements of evaluating the applicant in a fair and unbiased manner.  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 of the contested OER.

9.  With respect to the applicant’s promotion to CPT, there is no evidence that the applicant was selected for promotion to CPT by the 2007 or the 2008 RCSB promotion boards. 

10.  With respect to his separation, by regulation, a 1LT who failed selection for promotion to the next higher grade for the second time and whose names is not on a list of officers recommended for promotion to the next higher grade shall be separated not later than the first day of the seventh month after the month in which the President approves the report of the board which considered the officer for the second time.  It appears that the applicant was discharged from the ARNG on 30 June 2009; however, his official records are void of his separation orders and/or his NGB Form 22.

11.  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 CPT.  Therefore, there is no basis to reconsider the applicant’s promotion file by an SSB.




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)                                         AR20090014193





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ABCMR Record of Proceedings (cont)                                         AR20090014193



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