IN THE CASE OF:	  

		BOARD DATE: 19 November 2009

		DOCKET NUMBER:  AR20090019468 


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 "Change of Rater" DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 1 January 2005 through 17 June 2005 be amended to become a "Referred OER," that he be afforded the opportunity to submit rebuttal comments, and that his rebuttal comments be appended to the OER on his Official Military Personnel File (OMPF).

2.  The applicant states that there were two independent opinions from officials at the Evaluation Reports Branch, U.S. Army Human Resources Command (USAHRC), Alexandria, VA, acknowledging that the senior rater comments for this report were clearly of such a character that the report should have been rendered as a referred report.  Both officials opined that this action should normally be coordinated with officials at the USAHRC, Appeals and Corrections Branch, who declined to entertain the recommended action.  Additionally, his appeal to the Officer Special Review Board (OSRB) was also denied.  The applicant also states that the failure of the Senior Rater to refer this OER to him denied him the protection provided by the regulation.

3.  The applicant provides a copy of the contested OER; copies of emails, dated 3 and 4 October 2008, from USAHRC officials, as well as several emails, dated on various dates, to numerous officials; a copy of his original appeal memorandum, dated 14 April 2006, to USAHRC; a copy of a memorandum, dated 13 April 2006, from his legal advisor; a copy of the G-1 Special Review Board memorandum, dated 7 September 2006; a copy of a second 
memorandum of appeal to USAHRC, dated 31 August 2008; a copy of USAHRC’s response memorandum, dated 1 October 2008; and a copy of the OSRB’s memorandum, dated 3 December 2008, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Having had prior service, the applicant’s records show he was appointed as a Field Artillery (FA) second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) with concurrent call to active duty.  He executed an Oath of Office on
23 May 1998.  He subsequently entered active duty, completed several military training courses, and served in various command and staff positions.  He was promoted to first lieutenant (1LT)/O-2 on 30 November 1999 and to captain (CPT)/O-3 on 1 December 2001.

2.  The applicant served as the battery commander of A Battery, 1st Battalion, 30th FA, Fort Sill, OK, from 4 June 2004 until 17 June 2005.  In January 2005, the unit conducted a periodic, or cyclic, inventory of command property.  This inventory uncovered a large number of discrepancies, so the unit sought an extension in order to complete a 100 percent inventory.  Some of the discrepancies occurred because property was not placed immediately on the unit's property book.  In March 2005, a newly-assigned supply sergeant completed the inventory and discovered property discrepancies totaling $7,700,000.  Many of these discrepancies resulted from poor recordkeeping of property transactions with the battalion supply office.  The supply sergeant simply could not find a large volume of supply documentation.  The unit ultimately accounted for all but $80,695.67 worth of property.  The missing property included computer and multimedia equipment, televisions, radio systems, and navigation systems.

3.  On 22 July 2005, the battalion commander appointed a Financial Liability Officer (FLO) to investigate the property loss.  During his investigation, the FLO interviewed the individuals who were still at Fort Sill and had some connection to the unit’s supply system, including the supply sergeant, supply officer, and a member of the Consolidated Property Book Office (CPBO).  The sergeant stated that he found the battery’s supply system in a state of confusion and cited a number of reasons for the problem.  A former supply clerk had thrown out the hand receipts used to track accountability of the unit’s property.  Accountability documents were scattered in people’s desks and not placed in the proper filing system.  The warehouse was packed with equipment that needed to be turned in. Past supply personnel could not perform their jobs because of extra duties or details.  The applicant admitted to the FLO that the sergeant’s recitation of the state of the supply system was a “fair assessment.”  The applicant explained that 
he was short personnel and all of his accountability documentation had been lost. He attempted to recreate the hand receipts when they disappeared in the fall of 2004.  The applicant claimed to have performed his periodic inventories and found no discrepancies.  The applicant explained that he added new property to his property book at the completion of these inventories.  A witness from the CPBO stated that their office did not receive any of the required periodic inventories from the applicant’s battery from January 2005 through May of 2005.

4.  On 29 September 2005, the FLO found that a total of $80,695.67 of property could not be accounted for and recommended the applicant be held pecuniarily liable in the amount of $4,586.70.  The FLO found that the Battery lacked proper property accountability systems and had no record of sub-hand receipts assigning responsibility to individual users for the lost property.  On 20 October 2005, the applicant submitted a rebuttal to the FLO’s findings and recommendation.  The applicant argued that the FLO failed to conduct a thorough investigation because he did not interview former supply personnel for explanations as to the missing property and lack of property accountability records.  On 14 February 2006, the applicant’s commander concurred with the FLO.  On 27 March 2006, the applicant requested reconsideration of the financial assessment, which the commander denied on 22 June 2006.  Thereafter, the approving authority assessed the applicant's liability as recommended by the FLO.

5.  Meanwhile, during the month of July 2005, the applicant received a change of rater OER which covered 6 months of rated time, from 1 January 2005 through 17 June 2005, for his duties serving as the "Battery Commander."  His Rater was a lieutenant colonel (LTC)/O-5, his battalion commander; and his Senior Rater was a colonel (COL)/O-6, his regimental commander.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Army Values), the Rater placed an "X" in the "Yes" blocks for all values.

	b.  In Part IVb (Performance Evaluation-Professionalism-Leadership Attributes/Skills/Actions), the Rater placed an "X" in the "Yes" block for all applicable entries.

	c.  In Part Va (Performance and Potential Evaluation (Rater)), the Rater placed an "X" in the "Outstanding Performance-Must Promote" block and in Part Vb, he entered positive comments.

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Best Qualified" block and entered the following comments in Part VIIb (Comments on Performance and Potential):

"[Applicant] commanded his battery in an admirable manner.  His battery had a complex mission and a very high OPTEMPO.  Under [Applicant’s] leadership, the battery accomplished all mission requirements.  There was, however, a significant loss of property accountability within the battery, resulting in U.S. Government property lost.  [Applicant] has a potential to serve well at higher ranks.  Promote to Major [MAJ]."

6.  The change of rater OER was signed by the rating officials and the applicant on 29 July 2005 and it was processed at USAHRC, Alexandria on 19 August 2005. 

7.  On 14 April 2006, the applicant submitted an appeal of the change of rater OER in accordance with Army Regulation 623-105 (Officer Evaluation Reporting System) for substantive inaccuracy.  He states that he initiated a Financial Liability Investigation of Property Loss (FLIPL) on 16 June 2005 in the course of a change of command inventory.  The FLO did not render his initial findings until 29 September 2005.  The Senior Rater had no basis to make the comments on the OER which had a through date of 17 June 2005 prior to the conclusion of the FLIPL.   With this appeal, he provided a statement from his legal advisor who indicated that numerous equipment turn-ins were not being reported to the end user command hand receipt as a result of organizational changes.  Additionally, the property recovered during the course of an investigation substantiated the applicant’s arguments that there had been no loss to the Government.

8.  On 7 September 2006, by memorandum, an official at the G1 OSRB notified the applicant that his request was returned without action since he did not provide substantial evidence of a clear and convincing manner for the board to consider his appeal.  The official added that the applicant requested an investigation into the losses discovered during a joint inventory on 1 June 2005.  The change of command occurred on 17 June 2005 and the OER was signed on 29 July 2005.  On 29 September 2005, the FLO determined that the unit had lost $80,695.67 and recommended the applicant be held pecuniarily liable for one month’s pay of $4,586.70.  The approving authority (and senior rater) approved the recommendation on 16 February 2006.  The facts did not define the suspected losses on either 17 June 2005 or 29 July 2005; only the actual losses on 29 July 2005.  The Senior Rater’s statements clearly indicated that there was a loss of property accountability.  Although the investigation closed after the rating period, rating officials can use the information that had been confirmed in advance of its completion.

9.  On 10 July 2007, the Army Board for Correction of Military Records (ABCMR) denied the applicant relief with respect to his petition that he be relieved from all financial responsibility for the loss of Government property totaling $4,586.70 and that the garnished monies be refunded.

10.  On 31 August 2008, the applicant submitted a second appeal of the change of rater OER to USAHRC, Alexandria, to remove the OER due to his non-selection for promotion to MAJ.

11.  On 1 October 2008, by memorandum, the Chief, OER Appeals and Corrections Branch, USAHRC, Alexandria, notified the applicant that his new appeal did not contain clear and convincing evidence and, as such, no corrective action could be taken.

12.  On 4 October 2008, by email, an official at the USAHRC, Evaluations Reports Branch, Alexandria, opined that "The sentence in the senior rater’s narrative regarding loss of property accountability should have resulted in the report being referred to the rated officer by the senior rater for acknowledgement and comment, if desired.  Since this did not happen (the applicant) can submit rebuttal comments on his behalf to be included with his OER on his OMPF."

13.  On 9 October 2008, by memorandum to USAHRC, Alexandria, the applicant requested the Chief, OER Appeals and Corrections Branch, address his specific arguments or requests for relief.

14.  On 20 October 2008, the applicant submitted another appeal to USAHRC, Alexandria.  His request was subsequently forwarded to the OSRB (renamed as Army Special Review Board or ASRB) for reconsideration.

15.  On 3 December 2008, by memorandum, an ASRB official notified the applicant that in the absence of new substantive evidence, there was no basis for the ASRB to reconsider the applicant's this case.

16.  On 3 December 2008, another official at the USAHRC Evaluation Systems Office opined that the change of rater OER should have been a referred report.

17.  Army Regulation 623-105 (Officer Evaluation Reporting System [OERS]), 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 the OERS.  It also provided guidance regarding redress programs, including commander inquiries and appeals.

18.  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, and 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.

19.  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. 

20.  Paragraph 6-10 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the change of rater OER should be changed to a referred OER.

2.  In July 2005, the rating officials rendered a 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 Senior Rater addressed the fact that there was significant loss of property during the rating period.  The applicant failed to ensure that a proper or complete system of property accountability existed in his unit.  Although the investigation was completed after the rating period, the senior rater had a legal and moral responsibility to report information that had been confirmed ahead of completion of this investigation.  Regardless of whether the applicant believed that the senior rater's actions were unusual, it does not change the fact that property in his battery was lost during the rating period.

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.  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 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 fails to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

4.  Based on the applicable regulations, the change of rater OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing or redacting the change of rater OER.  Therefore, there is no basis for changing this OER to a referred report, or removing or redacting the same report.

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)                                         AR20090019468



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ABCMR Record of Proceedings (cont)                                         AR20090019468



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