IN THE CASE OF:	  

		BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100011951


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 correction of his records by:

* removing a referred DA Form 67-9 (Officer Evaluation Report (OER))
* placing his records before a special selection board (SSB)

2.  The applicant states he was the Deputy Provost Marshal (DPM) for the U.S. Army Corps of Engineers (USACE).  His rater was the USACE Provost Marshal (PM) and his senior rater was the Commanding General (CG).  He received a referred OER for the period 20070621 through 20080620 because of his "involvement with the USACE IG [Inspector General] concerning apparent unprofessional activities and perceptions by others of his [rater's] questionable relationship with [female] noncommissioned officers as well as other issues not commendable to his [rater's] rank or position."  Specifically, he states:

	a.  with the exception of the period of the referred OER, he never received any negative comments or evaluations from 2001 to 2009.  After he went to the IG and to his rater's superiors with concerns about his rater's conduct, his rater became upset with him and sought retaliation.

	b.  his rater worked hard to discredit him by:

* seeking information from his doctor to show he [applicant] was mentally and emotionally unstable


* seeking financial documents to show he violated regulations pertaining reimbursement for housing
* interviewing his rental manager

   c.  his rater did not properly counsel him during the rating period in violation of Army Regulation 623-3 (Evaluation Reporting System).  If there had been problems or issues with his duty performance, they were never brought to his attention.  If he [applicant] had known he was going to receive an adverse OER, he would have created a "paper trail" to cover himself.  By him not creating a "paper trail" is proof nothing was ever said to him about alleged shortcomings.

	d.  his rater was jealous of him because:

* he was well respected by all
* he was better educated, having a PhD
* he was a combat veteran and his rater was not
* wherever his rater went throughout the world, he would hear the applicant's name in praise

e.  his rater defamed him by:

* slandering him to senior leadership and co-workers
* dispatching libelous emails to the USACE Chief of Staff alleging he [applicant] was unstable and a threat to the entire office
* incorrectly and illegally relating that he had been apprehended by U.S. Army Criminal Investigation Command (USACIDC, also known as CID), and he would not be coming back to work

3.  The applicant provides:

* in Tab A - his DD Form 149 (Application for Correction of Military Record)
* in Tab B - a 36-page memorandum detailing the situation which led to the imposition of the subject OER
* in Tab C - a copy of the Record of Proceedings by the Army Special Review Board (ASRB)
* in Tab D - 3 copies of his OER for the period 20080621 through 20090322
* in Tab E - a copy of his OER appeal packet to the ASRB [NOTE: Tab I of the appeal packet is identified as the response to his request for a Commander's Inquiry (CI); this document is NOT provided]


CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired U.S. Army Reserve (USAR) lieutenant colonel (LTC/O-5).  From on or about January 2003 to on or about March 2009, he served on active duty as the USACE DPM.

2.  On or about 22 January 2008, the USACE PM recommended approval of the applicant's 1-year mobilization extension request to begin on 22 March 2008.  However, the applicant was instructed that the extension was the last one he would receive, not because of job performance, but because it was in his and the Army's best interest for him to move on to a new assignment.

3.  The applicant received a referred OER for the period 21 June 2007 through 20 June 2008.  His rater was the USACE PM, a colonel (COL/O-6), and his senior rater was the USACE CG, a lieutenant general (LTG/O-9).

4.  The OER shows the following entries:

	a.  In Parts IVa(2) and (6) (Performance Evaluation - Army Values), the rater placed an "X" in the "No" block for "Integrity" and "Selfless-Service."

	b.  In Part IVb1(3) (Performance Evaluation - Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Emotional."

	c.  In Part IVb3(1) (Performance Evaluation - Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Communicating."

	d.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance - Promote" block and in Part Vb, he entered the following comments in part:

Not so complimentary, as a Soldier and leader LTC [applicant] has exhibited below satisfactory standards.  His sometimes often disruptive behavior has been contrary to the good order one expects by a senior officer and that for which subordinates may seek to emulate.  His service to USACE and the Army during this mobilization should be commended however continuation of service is not recommended.  LTC [applicant's] potential is very limited.

	e.  In Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Qualified" block, rated the applicant as "Center of Mass" in Part VIIb, and entered the following comments in Part VIIc:
[Applicant] performed satisfactory...his actions significantly contributed to success….  [H]e is a capable officer…willingly accepts responsibility…volunteered to serve as a mobilized reserve officer in support of the GWOT [Global War on Terrorism].

5.  The OER was digitally signed by the rater on 24 June 2008 and by the senior rater on 9 August 2008.  The applicant digitally signed the OER on 27 August 2008.  It was subsequently posted to his official record 31 January 2009.

6.  The applicant rebutted the referred OER on 27 August 2008 alleging:

* he did not receive performance counseling
* his rater created a hostile work environment
* retaliation for his involvement in an investigation

7.  On 4 September 2008, he requested the USACE CG conduct a CI into the referred OER.  On 15 October 2008, the USACE CG notified the applicant that after reviewing the request for a CI, he found no violations of regulation under the provisions of Army Regulation 623-3 and found the rater's ratings and comments to be just.  The CG determined no changes to the OER were necessary, nor was it necessary to conduct a CI since the USACE IG had investigated the issues raised by the applicant in a report completed in August 2008.  [NOTE:  the IG report is not available for review].

8.  On 21 January 2009, the applicant submitted an OER appeal to the ASRB.  The ASRB found:

* the applicant's rights were protected and the OER was properly processed in accordance with Army Regulation 623-3
* there was no proof the rater failed to counsel the applicant
* the USACE IG completed an investigation into the matter, which the USACE CG determined adequately addressed all issues
* there was no evidence of retaliation

On 11 June 2009, the ASRB denied the applicant's appeal of the referred OER.

9.  The applicant provided numerous letters of support from co-workers.  These letters generally attest to his good character and professionalism.  Many commented directly about the statements made by the applicant's rater in the referred report, stating those statements do not describe the individual they know.


10.  Army Regulation 623-3 governs OERs and the OER appeal process.

	a.  Paragraphs 3-39 and 6-7 provide that an OER accepted by 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 opinion and objective judgment of the rating officials at the time of preparation.  Any 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.

	b.  Paragraph 6-11 states the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  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 firsthand the appellant's performance as well as interactions with rating officials [emphasis added].

	c.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual or anyone authorized access to the report.  The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to removal of the OER for the period 21 June 2007 through 20 June 2008 and promotion reconsideration to colonel by an SSB.

2.  The applicant alleges the referred report was the result of personal animus by his rater after he (applicant) reported his rater's alleged misconduct to the IG, an act which caused his rater to retaliate against him in numerous ways, including the subject OER.

3.  The applicant's senior rater, the USACE CG, considered the applicant's arguments and reviewed a USACE IG report in deciding whether or not to conduct an inquiry.  It was his determination the OER was correct as written and no CI was required.

4.  The third party letters of support from co-workers were reviewed.  None of these letters were written from the standpoint of firsthand knowledge of the relationship between the applicant and his rater.  While these letters question the accuracy of the rater's negative comments, none address a specific incident or event which may have precipitated those comments.

5.  The applicant has not shown the contested OER to be invalid.  The applicant's argument to this Board is the same as his argument to the ASRB; it did not measure up then, and it does not measure up now.  The applicant’s appeal to the ASRB was denied based on insufficient evidence of record or evidence provided by the applicant to show the report was in error or unjust.  Based on the presumption of regularity the report represented the considered opinion and objective judgment of the rating officials at the time of its preparation.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.

6.  In order to justify the removal of the referred OER, the applicant needed to provide evidence of a strong and compelling nature that clearly and convincingly overcomes the presumption of regularity which applies to every OER accepted by HQDA for filing.  The applicant has failed to do so; therefore, there is no basis for granting the applicant's request.

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)                                         AR20100011951



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ABCMR Record of Proceedings (cont)                                         AR20100011951



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