BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20090020850 


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 an officer evaluation report (OER), covering the period 17 March 2007 through 16 March 2008, from his official military personnel file on the integrated Personnel Electronic Records Management System (iPERMS) and reconsideration by a special selection board (SSB) for promotion to colonel (COL) under the Fiscal Year 2009 (FY09) criteria.

2.  The applicant states:

* the senior rater (SR) of the contested OER did not meet 60 consecutive days required to perform SR duties
* the OER should be changed from an annual report to a permanent change of station (PCS) or change-of-rater (CR) report
* the SR did not accurately reflect his performance during the rating period
* the wording of the OER was changed after his counseling with the SR

3.  The applicant states, in effect, that the SR was in the command for 5 months and was absent most of the time.  The SR rendered a mediocre report which could potentially end his 27-year career.  In fact, the SR only knew him for a few months, which did not give him the opportunity to rate his performance objectively.

4.  His OER was completed in January 2008.  The applicant states he had a face-to-face interview with the SR in March 2008.  During the interview, the SR said he would take care of the applicant and led him to believe that he would receive an above-center-of-mass (ACOM) rating on his OER.  The applicant states that if the SR was going to give him a center-of-mass (COM) rating OER, it was not indicated during the counseling session.  The applicant states the SR did not intend to give him an ACOM OER, even though he knew the OER would go before the FY09 COL Promotion Board.

5.  The applicant states that while deployed in combat he received an ACOM OER on his previous OER as opposed to getting a COM at his home station.  The applicant states he went from an outstanding combat Soldier to an average one at home.

6.  The applicant provides:

* a 1-page insert from Army Regulation 623-3 (Evaluation Reporting System)
* a timeline depicting the SR absences
* Headquarters, III Corps and Fort Hood, Orders L352-075, dated 18 December 2007
* a memorandum from Headquarters, 13th Sustainment Command (SC) (Expeditionary) (E), dated 27 January 2008
* Headquarters and Headquarters Company (HHC), 13th SC(E), Permanent Orders 037-02, dated 6 February 2008
* a DA Form 137-2 (Installation Clearance Record), dated 14 March 2008
* Headquarters, III Corps and Fort Hood, Orders L155-048, dated 3 June 2008
* a DA Form 1059 (Service School Academic Evaluation Report), dated 13 June 2008
* a National Defense University Joint Forces Staff College certificate, dated 13 June 2008
* a memorandum from U.S. Army Human Resources Command (HRC), dated 6 October 2009
* three OER's for the periods ending 16 March 2007, 16 March 2008, and 13 June 2009
* three letters of support from former fellow Soldiers who served with the applicant while assigned to the 13th SC(E)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active duty in the Regular Army as a lieutenant colonel (LTC).

2.  On 16 March 2007, while serving as the Assistant Chief of Staff (ACofS), G-1, 13th SC(E), Fort Hood, the applicant received a senior rater-option OER for the period 2 April 2006 through 16 March 2007.  He received an ACOM evaluation from Brigadier General T____.

3.  On 14 September 2007, COL (Promotable) (P) W____ assumed command of the 13th SC(E) and became the applicant's SR.

4.  The applicant provided a timeline of events for COL(P) W____'s whereabouts during the period he was senior rating him:

* 14 September 2007 - assumed command
* late October 2007 through 30 November 2007 - temporary duty (TDY) in conjunction with leave
* 7 December 2007 - present for holiday party
* 27 January 2008 through 8 March 2008 - TDY

5.  On 28 March 2008, the applicant began to out-process for his PCS.

6.  A memorandum from Headquarters, 13th SC(E), dated 27 January 2008, shows that COL T____ assumed temporary command of the 13th SC(E) for the period 27 January 2008 through 8 March 2008 due to COL(P) W____ being TDY.

7.  On 8 March 2008, COL(P) W____ returned from TDY.  The applicant indicated he had an interview with COL(P) W____  upon COL(P) W____'s return from TDY.

8.  A DA Form 137-2 shows the applicant out-processed from Fort Hood on 14 March 2008.

9.  On 11 April 2008, the applicant received the contested OER that covered the period 17 March 2007 through 16 March 2008.

10.  In Part V (Performance and Potential Evaluation - Rater) of the contested report, the rater placed the applicant in the first box (Outstanding Performance, Must Promote).  The rater provided favorable supporting comments that concluded with the comment in potential for promotion:  "Already performing at the next level.  Promote to colonel now.  A dedicated officer with unlimited potential."

11.  In Part VIIa (Promotion Potential) the SR placed the applicant in the first box (Best Qualified).  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) the applicant received a COM evaluation.  The SR profile shows at that time the SR had rated a total of five LTC's.

12.  The SR provided favorable supporting comments in Part VIIc (Comment on Performance/Potential) that included "[applicant] has turned in a stellar performance as the G-1 and is one of the top performing LTC's in this formation.  He has worked tirelessly to fill our deployers and within 90 days of our own redeployment, [applicant] significantly increased one of our deployment brigade's strength from 80 percent to 95 percent.  Steady and methodical, [applicant] ensured the command remained filled in critical positions upon redeployment, and has laid the foundation to ensure personnel backfill prior to our next MRX and deployment.  [Applicant] is one of the most technically competent officers I have served with and always provides sound advice that is easily executable.  Promote to COL now and send to senior service college at first opportunity."  The SR listed three future assignments in Part VIId as "Major Army Command G-1; Commandant, Adjutant General School; Commander, U.S. Army Personnel Command."

13.  On 13 August 2008, the applicant appealed the contested OER to the Army Special Review Board (ASRB).  In his appeal, the applicant contended:

* SR on the contested OER did not meet the minimum requirement of 60 days
* OER should have been a PCS OER instead of an annual report
* OER did not reflect his performance as the ACofS during the rating period
* three future assignments were in conflict with the OER

14.  By unanimous vote, the ASRB determined the overall merits of this case did not warrant the relief requested.  The ASRB stated:

* the applicant did not provide a clear timeline identifying that the SR did not execute his SR duties for 60 consecutive days
* the applicant relinquished his duties as the G-1 on 28 February 2008, but did not depart for PCS to his next unit until March 2008.  This timeline supports an annual report
* there was no evidence that the performance comments on the report were anything other than the considered opinion of his SR
* there was no evidence presented that shows the appellant was not best suited for the three future assignments on the report

15.  The ASRB determined 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, inaccuracy, or injustice.

16.  The applicant provided three letters of support from former fellow Soldiers who served with him while assigned to the 13th SC(E).  The authors stated, in effect, that on various occasions COL(P) W____ went TDY after assuming command in September 2007.  After the holiday period of December 2007 COL(P) W____  went on extended TDY from January 2008 through March 2008, and during this TDY COL T____ assumed temporary command of the 13th SC(E).

17.  Army Regulation 623-3 states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the appellant.

18.  Paragraph 2-7a(2) of Army Regulation 623-3 stipulates, "The SR will be a supervisor above all other rating officials in the rated Soldier's chain of command or supervisory chain.  The SR will be the immediate supervisor of the rater and designated as the rated Soldier's SR for a minimum period of 60 consecutive days."  The regulation states that in order "to render an objective evaluation, rating officials will use all opportunities to observe and gather information on the rated Soldier's individual performance.

19.  Paragraph 6-7f of Army Regulation 623-3 states an appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

20.  Paragraph 6-7h(1)(3) of Army Regulation 623-3 states that the rated Soldier's authentication in Part II of a DA Form 67-9 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

21.  Paragraph 3-2i of Army Regulation 623-3 states that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards and career managers can make intelligent decisions.

22.  Paragraph 3-11a of Army Regulation 623-3 states that the SR will make an assessment of the rated officer's potential in comparison with all officers of the same grade.  This assessment should be based on officers the SR has senior rated or has currently in his/her SR population.  This potential is evaluated in terms of the majority of officers in the population.  If the potential assessment is consistent with the majority of officers in that grade, the SR will "X" the COM box. 
If the rated officer's potential exceeds that of the majority of officers in the SR's population, the SR will "X" the ACOM/COM block.  (The intent is for the senior rater to use this box to identify their upper third in each grade)  However, in order to maintain a credible profile, the SR must have less than 50 percent of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a Headquarters, Department of the Army(HQDA), COM label.

23.  Paragraph 6-11d of Army Regulation 623-3 states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe first-hand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a commander's or commandant's inquiry may provide support for an appeal request.

24.  Paragraph 6-13c(2) of Army Regulation 623-3 states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

25.  Table 2-7 of DA Pamphlet 623-3 states that based on the rated officer's duty performance and demonstrated potential, the SR will list three future assignments, focusing on the next 3-5 years for which the rated officer is best suited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the SR of the contested OER did not meet the minimum 60 days required to perform SR duties and provides a timeline of the SR's comings and goings.  The timeline is irrelevant; the only dates that are important are the date of the SR's assumption of command, 14 September 2007, and the through date of the contested OER, 16 March 2008.  The SR was designated as such for 185 days; he met the requirements of the regulation.

2.  Direct observation of a rated officer is but one method for accomplishing an evaluation.  Equally important are reports and inspections as indicators of how the rated officer is performing.  That the applicant had limited face-to-face time with his SR is not an issue in the contested report.  The applicant was known to the SR by the work he did and the results he accomplished.

3.  The applicant contends that the contested OER for the period 17 March 2007 through 16 March 2008 should be changed from an annual report to a PCS or CR report.  The applicant's DA Form 137-2 shows his final day for out-processing from Fort Hood was 14 March 2008, which was prior to the through date of the OER.  Therefore, his OER should be changed to show the through date as 14 March 2008 and the type of report to read "04 PCS."

4.  The applicant's outstanding performance throughout his career is noted.  However, the fact that the contested OER is inconsistent with the other ACOM reports he previously received, albeit from the same rater, has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, "stands alone."

5.  The contested OER is not a referred report; both the rater and SR inserted highly favorable comments, and he was recommended for promotion to COL ahead of his peers.  His contention that the contested report should be removed from his records and that he be reconsidered for COL by an SSB does not invalidate the contested OER.  There is insufficient evidence to show his non-selection for COL was attributed to this particular OER.  Promotion boards are not required to divulge the reason for a member's non-selection.  The applicant could not possibly know if the contested OER led to his non-selection.  Further, no substantive error exists in the applicant's OER that would support referring his record to an SSB for promotion reconsideration.

6.  There is no evidence that the performance comments on the report were anything other than the considered opinion of his SR.  The fact that the applicant felt he should have had a different performance rating is not sufficient to impeach the SR's assessment of his performance.

7.  The applicant contends that the contested OER was changed after his counseling with the SR from an ACOM to COM OER.  However, it cannot be determined what the SR's intention was at the time of his interview with the applicant or whether he was to receive an ACOM OER.  However, it appears the SR had a small-population SR profile of five LTC's at the time of his rating and he may have had no choice but to place the applicant in the COM or create a "misfire" on his SR profile.  However, the SR was under no obligation to rate the applicant as ACOM.  Furthermore, it is possible that HQDA changed the ACOM rating to a COM rating.

8.  In order to justify deletion or amendment of an evaluation report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  After a comprehensive review of the evidence in the applicant's official record, his contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant failed to show, by clear and convincing evidence that his OER contained a material error, inaccuracy, or injustice.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ____x___  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

* deleting "02 Annual" from Part Ih (Reason for Submission) of the contested OER
* adding "04 PCS" to Part Ih of the contested OER

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the OER covering the period 17 March 2007 through 16 March 2008 from iPERMS and an SSB for promotion reconsideration.



      _____________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)                                         AR20090020850



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ABCMR Record of Proceedings (cont)                                         AR20090020850



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