IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100014380 


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 Officer Evaluation Report (OER) and all related documents for the period 6 July 2006 thru 22 April 2007, hereafter referred to as the referred OER, be removed from his Official Military Personnel File (OMPF).

2.  The applicant states:

   a.  he appealed the referred OER under the provisions of chapter 6, Army Regulation 623-3 (Evaluating Reporting System).

	b.  He is a retired Army National Guard Officer and he has no pending personnel actions; this is a third priority appeal.  

3.  He requests that the referred OER be removed from his OMPF for the following reasons:
	
   a.  According to Army Regulation 623-3, paragraph 3-36b "rating officials may not rebut the Soldier's referral comments."  The senior rater not only rebutted his referral comments but the senior rater's 28 July 2007 rebuttal comments were wrongfully filed in his OMPF; and 

	b.  He was denied due process because the senior rater's rebuttal comments constitute extremely negative information in his OMPF.  He was never given the opportunity to rebut, respond to, or comment upon the senior rater's 28 July 2007 memorandum nor was he provided an opportunity to be heard or file a response in his OMPF addressing the 28 July 2007 memorandum.  
4.  He provides:

   a.  The referred OER for the rating period 6 July 2006 thru 22 April 2007;
   
   b.  A copy of his response to the referred OER, dated 22 June 2007;
   
   c.  A memorandum from the Deputy Commander, Third Army, U.S. Army Central Coalition Forces Land Component, dated 28 July 2007, Subject:  Response to Rebuttal of OER, Rating Period 6 July 2006 thru 22 April 2007; and 
   
   d.  A copy of a memorandum from the applicant, for the Chief, National Guard Bureau, Army National Guard Readiness Center, ATTN:  Appeal Section, Arlington, VA, dated 30 March 2010, Subject:  OER Appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired Army National Guard lieutenant colonel with a date of rank and effective date of 18 March 2005.

2.  During the period 6 July 2006 thru 22 April 2007, he was assigned as a lieutenant colonel in the Arkansas Army National Guard and he served as the battalion commander of the 3rd Battalion, 297th Infantry Regiment, Camp Buehring, Kuwait.

3.  On 22 April 2007, he was relieved of his command and a Relief-for-Cause OER was initiated which covered 10 months of rated time.  His rater was a Colonel, Area Support Group (ASG) Commander, and his senior rater was a Major General, Deputy Commanding General (DCG).  The OER contains the following entries:

	a.  in Part IVa(1) (Performance Evaluation - Professionalism-Army Values), the rater placed an "X" in the "No" block for "Duty"; 

	b.  in Part IVb(2) (Performance Evaluation - Professionalism-Skills), the rater placed an "X" in the “No” block for "Interpersonal"; 

	c.  in Part IVb(3) (Performance Evaluation - Professionalism-Actions), the rater placed an "X" in the “No” blocks for "Decision Making," "Developing," and "Building";

	d.  in Part Va (Performance and Potential Evaluation), the rater placed an "X" in the " Unsatisfactory Performance – Do Not Promote" block and in Part Vb (Comments), he entered the following comments:
"A competent and proficient Officer in many respects.  His leadership philosophy was based on Shoot, Move, and Communicate; time honored imperatives and combat operations.  However, he often failed to exercise his command authority and responsibilities in an appropriate manner.  This is evidenced by various incidents of misconduct in the execution of command, poor judgment, and inability to complete assigned tasks.  Although these incidents are partly attributable to the remarkable geographical, social, and ethnic diversity inherent in the Alaska National Guard, his "my way or the highway" approach to implementing his vision resulted in personal isolation.  In the end, his Soldiers lost confidence in his leadership.  As his commander, I also lost confidence that he would exercise command in a manner consistent with my guidance or intent and I relieved him.  It must be pointed out however, that during the difficult time when he was suspended from his duty, he always conducted himself with the professionalism and dignity required of a commissioned officer.  He was assigned duties as the U.S. Army Central (USARCENT) Liaison to the Office of Military Cooperation-Kuwait and performed in an excellent fashion, earning praise from the DCG, USARCENT."

	e.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "YES" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Support Form) was received with this report and considered in his evaluation and review. An "X" was also placed in the "Do Not Promote" block and the following comments were entered:

"He was relieved for cause.  His battalion staff, subordinate unit commanders, and enlisted Soldiers lost confidence in his ability to command due to his poor judgment and inability to complete assigned duties.  Equally important, senior commanders lost confidence in his ability to lead his outfit in accordance with mission requirements while promoting the best interest of his Soldiers and their readiness to operate as a team.  He has valuable staff skills and will be retained on our staff but has no potential for further advancement."

4.  The referred OER was electronically date stamped "20070307" next to the rater's signature.  The senior rater's signature is electronically date stamped "20070728."  The applicant's signature is date stamped "20070730."  The applicant also indicated he was attaching comments to the referred report.  

5.  On 28 July 2007, the senior rating official responded to the applicant's referral comments and made additional negative comments. 

6.  The subject OER was subsequently processed by the U.S. Army Human Resources Command (USAHRC), Alexandria, VA.

7.  On 30 March 2010, the applicant forwarded an OER appeal to the Chief,  National Guard Bureau (NGB), ARNG Readiness Center, ATTN:  Appeals Section, Arlington, VA, Subject:  OER Appeal.  On 22 April 2010, the NGB returned the applicant's appeal without action.  He was advised that the Special Review Board only processed appeals for Soldiers in an active duty status.  He was advised he must appeal to this Board, because he was retired as of 
31 January 2008.

8.  The applicant stated in his appeal to the NGB that he was appealing the referred OER under the provisions of Army Regulation 623-3 on the basis of administrative and substantive error, specifically:

   a.  It is unfair and unjust for the senior rater to imply that as a lieutenant colonel, he should "never again" be given a leadership position with subordinate Soldiers entrusted to his care.  He states it is one thing for the senior rater to relieve him from command as an infantry battalion commander in combat because of his loss of confidence; but it is fundamentally unfair and unjust for the senior rater to be allowed to insert into his OMPF the dramatic and unchallenged assertion that he should never again function as a commissioned officer.  
   
   b.  The senior rater's rebuttal comments are substantively inaccurate because he stated that to keep the record straight contrary to the rater's insinuation in paragraph 13 of the OER where he alludes to “My command of an Infantry Battalion was entrusted into a rear environment surrounded by non-combat arms commanders.  In fact, he was relieved by combat arms commanders who have, themselves, led troops in combat."  The senior rater misunderstood and misinterpreted this very statement he rebuts.  
   
   c.  According to Army Regulation 623-3, paragraph 3-36b "rating officials may not rebut the Soldier's referral comments."  The senior rater not only rebutted his referral comments but the senior rater's 28 July 2007 rebuttal comments were wrongfully filed in his OMPF.
   
   d.  The senior rater's rebuttal comments constitute extremely negative information in his record and he was not given an opportunity to rebut, respond to, or comment upon the senior rater's 28 July 2007 memorandum.  Nor was he provided an opportunity to be heard or file a response in his OMPF addressing the 28 July 2007 memorandum which was an egregious denial of due process.

   e.  The senior rater's comment that he "should never again be entrusted with the safekeeping of our greatest treasure—the sons and daughters of our Nation" is profoundly more negative than anything the senior rater wrote in his OER and the comments are unfair and unjust.

9.  Army Regulation 623-3, in effect at that time, contains the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-36b states that the rated Soldier may make comment if they believe the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation of the OER.  Rating officials may not rebut the rated Soldier's referral comments.  Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER is forwarded to the Department of the Army.

10.  Army Regulation 623-3 also 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 clearly and convincingly establishes 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 an administrative error or factual inaccuracy.

11.  A report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in Part IV, DA Form 67-9 (Officer Evaluation Report).  

12.  The following specific instructions apply to completing a relief report:

* the potential evaluation in Part Va, DA Form 67-9, must reflect "Do not promote" or "Other"
* the report will identify the rating official who directed the relief who will clearly explain the reason for relief in his or her narrative portion of the DA Form 67-9



DISCUSSION AND CONCLUSIONS:

1.  The applicant was the Battalion Commander, 3rd Battalion, 297th Infantry Regiment, Camp Buehring, Kuwait; he was rated by the ASG commander and senior rated by the DCG.  

2.  He was relieved of his duties as battalion commander by his senior rater and issued a referred OER.  His rated time is shown as 10 months.  He forwarded his comments to his rating official.  The senior rating official rebutted the applicant's comments. 

3.  The subject OER has been accepted by Headquarters, Department of the Army, and it is included in the applicant's official record.  Therefore, it is presumed 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.  However, rating officials may not rebut the rated Soldier's referral comments.  Therefore, his record should be corrected by removing the memorandum dated 28 July 2007, Subject:  Response to Rebuttal of OER, Rating Period 6 July 2006 thru 22 April 2007 from the applicant's record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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 removing the senior rater's memorandum, dated 28 July 2007, Subject Response to Rebuttal Officer Evaluation Report, Rating Period 6 July 2006 thru 22 April 2007 from the applicant's record.




2.  The Board further determined that 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 for the period 6 July 2006 thru 22 April 2007.  




      _______ _   _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)                                         AR20100014380



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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