IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100018784 


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, in effect, that his officer evaluation report (OER) for the period 30 April 2005 through 23 March 2006 be transferred to the restricted portion of his official military personnel file (OMPF).  In the alternative, he requests the senior rater (SR) portion of the report be masked.

2.  The applicant states the contested report had an improper SR.  He says he attempted to obtain a copy of his rating scheme when he received the contested OER from his unit, but the unit didn't have copies of superseded rating schemes.

3.  He provides the names of the senior members of his unit and of the interactions he had with those individuals, opining that the SR of the contested OER was improper.  He adds that the last sentence in the SR narrative is set apart and appears to be in a different font.  He was not given the opportunity to make comments on the contested OER.  He was unavailable to sign the report because he had a permanent change of station move on 23 March 2006.  He signed three blank OER forms before leaving the unit with the knowledge of the battalion executive officer and the battalion S-1.

4.  He continues that he has been attempting to have the contested OER moved to the restricted portion of his OMPF.  However, he continued to have his requests returned for additional information until he was finally told his request was outside the 3-year window.  Therefore, his request could not be processed by the Officer Special Review Board (OSRB).

5.  The applicant provides a memorandum from the U.S. Army Human Resources Command, dated 13 July 2010; email correspondence; a DA Form 67-9-1 (OER Support Form); a memorandum for record, dated 22 December 2009; copies of OER's; and a DA Form 31 (Request and Authority for Leave).

CONSIDERATION OF EVIDENCE:

1.  On 1 November 2005, the applicant was given a general officer memorandum of reprimand (GOMOR) for driving under the influence of alcohol on 13 August 2005 while serving as a captain in the Regular Army.  The applicant opted to not make a statement in his own behalf and the imposing authority directed that the GOMOR be filed in his OMPF.

2.  On 3 May 2006, the contested OER was forwarded to the applicant.  His rater was the Deputy Chief of Operations Support, GS-14, and his SR was the battalion commander, lieutenant colonel (LTC).  In the OER his rater was extremely laudatory, commending him on his duty performance, technical expertise, leadership abilities, interpersonal skills, and organizational and planning abilities.  However, the SR rated the applicant as "Do Not Promote," the lowest rating of a three-level rating system.  The SR said the applicant's "performance as a Strategic Planning Officer was overshadowed by his poor decision to drink and drive.  [The applicant] acknowledges his lapse in judgment and has expressed a desire to continue to serve in our Army.  Despite his poor judgment, [the applicant] has demonstrated the right mental attitude and tenacity for continued service.  Retain at current grade and consider for selective continuation."  The last sentence of the SR's narrative does not appear to be in a different font; however, it does not align with the end of the preceding sentence.  The block titled, "This is a referred report, do you wish to make comments?" is electronically marked indicating it was applicable to this OER.  The rated officer's response is electronically marked indicating he did not choose to make a comment.  All signatures are dated 3 May 2006 in the same hand.

3.  On 28 December 2006, the Department of the Army Suitability Evaluation Board (DASEB) approved the applicant's request to transfer his GOMOR from the performance section of his OMPF to the restricted portion.

4.  In an undated memorandum, the applicant appealed the SR portion of the contested OER.  On 17 October 2008, the OSRB considered and denied the applicant's request.  The OSRB determined the applicant signed the contested OER and his signature confirmed the rating chain was appropriate.  If he believed the rating chain was erroneous, he could have raised that issue at the time the OER was rendered and referred to him for comment.  The applicant had not offered any compelling evidence why he failed to do so.  The OSRB also noted that although the applicant's rater stated the LTC illegally inserted himself as the SR, the rater made no comment regarding why he permitted the OER to be submitted as prepared if, in fact, the LTC was not the applicant's appropriate SR.

5.  In its consideration of the applicant's request, the OSRB cited Army Regulation 623-105 (Officer Evaluation Reporting System) which 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 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.  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 applicant.

6.  That same regulation notes that the rated Soldier's authentication in Part II of the OER verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances.

7.  On 31 October 2010, the applicant was honorably retired for years of service.

DISCUSSION AND CONCLUSIONS:

1.  Contrary to the applicant's contentions, his request to alter the contested OER was considered and denied by the OSRB.

2.  The applicant has not provided any evidence which would show his rating scheme was improper.  While he believes that another individual should have been his SR, he has not provided any evidence to show his SR was in his rating scheme in violation of the regulation.

3.  In the absence of evidence to show the applicant or his rater contested the applicant's rating scheme when the contested OER was rendered, it must be presumed that the proper rating scheme authenticated that report.

4.  While the spacing in the SR's narrative is indicative that the sentence was added after the fact, the sentence added, "Retain at current grade and consider for selective continuation," was a positive statement.  The SR had already rated the applicant "Do Not Promote."  Therefore, the SR was indicating the applicant should be retained on active duty even though he did not believe the applicant should be promoted.  This could easily be an afterthought to assist the applicant's ability to complete his career and retire.  There is no evidence that, while an afterthought, the sentence was not entered on the OER prior to it being forwarded to the applicant.

5.  In view of the foregoing, 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 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)                                         AR20100018784



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ABCMR Record of Proceedings (cont)                                         AR20100018784



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