BOARD DATE:	  24 August 2010

		DOCKET NUMBER:  AR20100007671 


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:

The applicant defers to his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's earlier request for correction of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period from 18 June 2004 through 11 June 2005.

2.  Counsel states the applicant is presenting new and relevant evidence that rebuts the presumption of regularity of the processing and submission of the subject OER.

	a.  The applicant contends that the errors in processing and submitting the subject OER constitute material error that caused his non-selection for promotion to lieutenant colonel, pay grade O-5.

	b.  The applicant contends that his records should be placed before a special selection board (SSB) for promotion consideration.

	c.  The applicant provides a memorandum, dated 17 June 2009, that describes the material administrative irregularities and errors from which the injustice flowed, resulting in his non-selection for promotion.

	d.  The applicant further requests reconsideration for eliminating the words in Part VIIc, "Rated officer not available for signature."

	e.  The applicant requests that the subject OER be redacted from his record should his request for an SSB be granted due to the irregularities that condemn the subject OER.

3.  Counsel states the applicant contends that:

	a.  He was never counseled in regard to the subject OER or on any aspect of the reporting period; therefore, he was never able to correct the errors that still remain in the subject OER.

	b.  Because he was not afforded counseling, his rater, intermediate rater, and senior rater were not apprised that the subject OER was a "board OER" for the applicant.

	c.  The words, "Officer would best serve the Army in OPCF/18" were officiously removed from Part Vc of the subject OER.

	d.  Only one of the two factual errors was directed to be removed, that being the words, "Though new to the SOF [special operations forces] community."  However, it was not removed.

	e.  The other factual error, that of his not being available for signature, was not directed by the Board for removal.

	f.  The subject OER failed to mention the applicant's combat service despite proof of that service in his record.

	g.  The words, "Rated officer not available for signature," were typed in without the knowledge of the applicant or the senior rater, to whom this false assertion was attributed.

	h.  The flaws in the subject OER caused obvious inconsistencies between the applicant's official photograph and the Officer Record Brief (ORB) that went before the 2006 lieutenant colonel promotion board.

4.  The purpose of the applicant's request is to return to active duty as a chaplain.  He contends that the removal of these errors will make him highly competitive for promotion.  Given the needs of the Army and his SOF background, he would likely be able to return to his duties.

5.  Counsel provides copies of a memorandum from the Equal Opportunity Program manager, U.S. Army Special Operations Command, Fort Bragg, North Carolina, dated 17 June 2009, and a memorandum from the Director, Army Board for Correction of Military Records (ABCMR), dated 23 January 2009, in support of the applicant's request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080014506 on 21 January 2009.

2.  The original Record of Proceedings determined that partial relief was warranted.  Accordingly, the Board determined the subject OER should be corrected to delete from Part VIIc the statement, "Though new to the SOF community."  The Board also determined the evidence as presented was insufficient to warrant the deletion from Part VIIc the statement, "Rated officer not available for signature."  The applicant's request to be reconsidered for promotion by an SSB under the promotion criteria for 2006 and 2007 was denied because he did not meet the regulatory requirements for such consideration.

3.  The applicant provided a letter, dated 17 June 2009, apparently written by the individual who was the adjutant in the applicant's unit at the time the subject OER was processed.  The author states, in essence, that the applicant was on leave in the local area at the time the subject OER was prepared.  Rather than call him in to sign the report or wait until he returned from leave, the officer-in-charge elected to type in the statement, "Soldier not available for signature."

4.  The DA Form 67-9, effective 11 June 2005, currently filed in the applicant's official military personnel file shows that Part Vc is blank and the words, "Though new to the SOF community," have been removed from Part VIIc.

5.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for preparing, processing, and using the OER.  The version in effect at the time provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The version in effect at the time and the current version state that the burden of proof in appealing an OER rests with the applicant.  Accordingly, 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.

6.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER was processed without him seeing the report and that he did not receive counseling from anyone in his chain of command.  He also contends that he was fully available for signature and that the senior rater did not know that the added statement was entered on the subject OER.  He further contends that the flaws on his OER caused material error that resulted in his non-selection for promotion.

2.  Other than the uncorroborated statement of the applicant, there is no evidence showing the applicant was not properly counseled by his rater and/or senior rater during the rating period in question.

3.  The applicant's contention that the statement in Part Vc of the subject OER was "officiously removed" is unsupported by any evidence other than his statement.

4.  The applicant's contention that his combat service is not mentioned in the subject report is not true.  Part Vb clearly states that he served in Afghanistan and made multiple trips to fire bases and provided support for coalition forces.

5.  The applicant's contention that the senior rater did not know that a statement was added to Part VIIc indicating the applicant was not available to sign the report is unsupported by any other corroborating evidence.

6.  The applicant's argument that he was available to sign the subject report is not entirely correct.  The evidence clearly shows he was on leave at the time, which means he was not present for duty.  While the chain of command could have canceled his leave for the purpose of making him available to sign the report or wait for him to return to duty, there was no obligation to do so.

7.  The applicant's argument that the "flaws" in the subject OER resulted in material error in his records that went before the promotion board are without merit.  Accordingly, there is no basis for an SSB.

8.  The applicant did not identify what he called "obvious discrepancies" between his ORB and his official photograph which were caused by the subject OER.  Furthermore, a review of the two documents failed to find any such discrepancies.

9.  In view of the above, the applicant's request should be denied.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080014506, dated 21 January 2009.



      __________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)                                         AR20100007671



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)