IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100019265 


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 his DA Form 67-9 (Officer Evaluation Report (OER)), covering the rated period 2 August 2005 through 1 August 2006 (hereafter referred to as the contested OER), from his records.  He further requests, should the Board approve his request for removal of the contested OER, referral to a special selection board (SSB) for promotion consideration to captain (CPT).

2.  The applicant states:

	a.  Allegations made in Part V (Performance and Potential Evaluation (Rater)) of the contested OER, regarding his attendance at the C-12 Fixed Wing Transition Course, were proven to be false by a previously convened investigation board.

	b.  Comments in Part V related to his failure to take the Army Physical Fitness Test (APFT) are also untrue as he participated in and successfully passed the battalion's APFT in March 2006.

	c.  The contested OER negatively impacted his consideration before the Fiscal Year (FY) 2009 CPT Promotion Board, resulting in him being passed-over.

	d.  He made numerous attempts to have the contested OER expunged from his records.

3.  The applicant provides:

* a diploma from Flight Safety International for completion of the Fixed Wing Multi-Engine Qualification Course, dated 16 June 2006 
* a DA Form 1059 (Service School Academic Evaluation Report (AER)) for the Fixed Wing Multi-Engine Qualification Course 007-2006, dated
20 June 2006 
* two memoranda of support, dated 25 and 27 April 2007
* a DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 29 June 2007 (5 pages) 
* the contested OER
* four OERs with ending periods of 20040505, 20050801, 20090413, and 20100413

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s records show, after previous enlisted and warrant officer service, he was appointed as a Reserve Commissioned Officer of the Army, in the rank of second lieutenant, and he executed an oath of office on 2 August 2004.  He was subsequently assigned to Headquarters and Headquarters Company, 8th Battalion, 229th Aviation Regiment, a Troop Program Unit (TPU) of the U.S. Army Reserve.  On 1 August 2006, he was promoted to first lieutenant (1LT).

3.  On 27 March 2006, he entered the Fixed Wing Multi-Engine Qualification Course.  On 19 June 2006, he successfully completed and graduated from the course.

4.  On 17 January 2007, he received an "Annual" OER, which covered a
12-month period of rated time from 2 August 2005 through 1 August 2006, for his duties as an S-3 Liaison Officer.  His rater was a Major (MAJ) and his senior rater (SR) was a Lieutenant Colonel (LTC).  The contested OER shows the rating officials signed it on 17 January 2007.  It also shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Character-Army Values), the rater placed an "X" in the "No" block for "Honor," "Integrity," "Selfless Service," and "Duty."

	b.  In Part IVb(1) (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions-Attributes), the rater placed an "X" in the "No" block for "Physical."

	c.  In Part IVb(3) (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions-Actions-Influencing), the rater placed an "X" in the "No" block for "Decision Making."

	d.  In Part IVc (APFT), the rater left the test status and date blank.

	e.  In Part V (Performance and Potential Evaluation (Rater)), the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks in Part V:

      (1)  In part Vb, the rater entered:  "[Applicant] Rescheduled Training (RST) the majority of his Battle Assemblies (BA) this rating period, therefore I was not able to counsel [Applicant] and he had little to be evaluated on.  [Applicant] enrolled in the C-12 transition without authorization from his chain of command and tried to cover it up.  He also had the brigade pay for the school under the false pretense that he was attending the AH-64D Longbow course even though he was already qualified in that aircraft.  When it was discovered that he was enrolled in the C-12 transition without authorization, he was ordered by his battalion commander to disenroll.  [Applicant] did not disenroll from the school.  [Applicant] did not take an APFT this rating period failing to meet FM 21-20 standards therefore I cannot recommend this officer for promotion due to lack of compliance with Army physical fitness standards. [Applicant] has zero potential in the Army.  With his behavior, this Soldier cannot be trusted for further positions or responsibility."  

      (2)  In part Vc, the rater entered: "Zero potential for promotion."

	f.  In Part VII (SR), the SR did not rate the applicant, and entered the following remarks in Part VIIc:

I am unable to evaluate the rated officer because I have not been the senior rater for the required number of days.  [Applicant] was not available for signature due to time and distance considerations.

5.  There is no documentation in the available records to indicate the contested OER was referred to him for acknowledgement and/or comments, with an appropriate suspense date for return.  In Part IId (Authentication) of the contested OER, a handwritten "X" identifies the contested OER as a referred report, and another handwritten "X" in the "NO" block identifies the absence of any comments.  [Applicant] did not sign or date the report.    

6.  On 28 August 2006, he was released from his TPU assignment and voluntarily transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).

7.  On 29 June 2007, he appeared before an investigative board of officers, identified by the Appointing Authority as a Flying Evaluation Board (FEB), convened at Fort Rucker, AL.  The board's core findings answered three distinct questions related to determining whether sufficient cause existed to remove him from aviation service:

	a.  "Did [Applicant] cover up the fact that he was in the fixed-wing course to his chain of command?"  The board responded in the negative.  The board acknowledged numerous administrative errors in this case, but did not see any clear evidence [Applicant] intentionally lied to his chain of command or covered up the fact he was in the course.

	b.  "Did he stay in and complete the course after he was clearly ordered to get out of the course?"  The board responded in the negative.  [Applicant] was ordered to remain in the course by his academic chain of command, but ordered to leave by his unit chain of command.  The board acknowledged a failure, on the part of the unit chain of command, to properly process his dismissal packet prior to the end of the course.

	c.  "Is this a pattern of performance or behavior?"  The board responded in the negative.  The board viewed this instance as an isolated incident; therefore, not sufficient to warrant removal from aviation service.  The board noted [Applicant's] past record of performance, including performance in combat operations.

	d.  The board concluded by recommending [Applicant] for retention in the aviation community, stating "[Applicant] has the ability and potential to be an asset as an officer in Army Aviation; it is in the best interest of the Army to keep him in aviation service."

8.  On 12 July 2007, the Investigative Board Appointing Authority approved the board's recommendations of 29 June 2007, released him from non-medical suspension imposed by his former TPU chain of command, and released him for re-integration into a Aircrew Training Program and the continuation of flight duties.

9.  On 1 November 2007, he submitted a request to the ABCMR for removal of the contested OER for false allegations.  On 30 January 2008, the ABCMR filed his application without action or prejudice, and informed him in writing of his need to fully exhaust his administrative remedies prior to applying to the ABCMR for relief.  

10.  On 4 November 2008, the Fiscal Year (FY) 2009, Reserve Component (RC), Captain (CPT), Army National Guard of the United States (ARNGUS), Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR NON-AGR), Army Promotion List (APL) Competitive Categories Promotion Selection Board convened to select eligible First Lieutenants (1LT) for promotion to CPT.  He was not selected by this board.

11.  On 19 November 2009, he submitted an appeal of the contested OER to the U.S. Army Human Resources Command (AHRC), St. Louis, MO.  On
16 December 2009, he was notified by AHRC his OER appeal would not be considered because his application was submitted after the 3-year statute of limitations provided for by the appropriate Army Regulation.

12.  On 3 November 2009, the FY 2010, RC, CPT, ARNGUS, AR AGR and AR NON-AGR, APL Competitive Categories Promotion Selection Board convened to select eligible 1LT for promotion to CPT.  He was not selected by this board.

13.  On 22 December 2009, the contested OER was placed in his official military personnel file (OMPF).

14.  There is no documentation in the available records to indicate the contested OER was referred to him, in writing, as specified in the applicable Army regulation.

15.  There is no documentation in the available records, nor has he provided any documentation, to indicate he took an APFT during the rating period covered by the contested OER.

16.  He provides:

	a.  A third-party memorandum from CPT S----, his schoolhouse commander during his attendance at the fixed-wing course, wherein he clarifies his role as the commander, vis-à-vis student eliminations.  CPT S---- states his support for [Applicant] and asserts that [Applicant's] chain of command failed to properly disenroll him from the course prior to graduation 
and he, as the commander, counseled [Applicant] to remain in the course until all paperwork was received.

	b.  A third-party memorandum from MAJ L--------, the National Guard/Army Reserve Senior Liaison Officer at Fort Rucker, wherein he states his knowledge of the events surrounding [Applicant's] attendance at the fixed-wing course, his enrollment in the Army Training Requirements and Resource System (ATRRS), and the 244th Aviation Brigade's approval of his attendance, based on their decision to publish orders for the course. 

17.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS), which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander inquiries and appeals.

	a.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	b.  Paragraph 3-23 stipulates, in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.

	c.  Paragraph 3-34 stipulates, in relevant part, any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA.

	d.  Paragraph 3-36a states, in relevant part, the SR will place an "X" in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in Part IId.

	e.  Paragraph 3-36b stipulates, in pertinent part, the rated Soldier may comment if they believe that the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/AER; rating officials may not rebut rated Soldier's referral comments.  Extraneous or voluminous material, material already contained in the Soldier's file and enclosures or attachments are not normally in the rated Soldier's best interest; and they, therefore, will be avoided.  Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER/AER is forwarded to DA.

	f.  Paragraph 3-36c stipulates, in pertinent part, the rated Soldier's comments do not constitute an appeal.  Appeals are processed separately as outlined in Chapter 6. Likewise, the rated Soldier's comments do not constitute a request for a Commander's Inquiry.  Such a request will be submitted separately.

	g.  Paragraph 3-36d stipulates, in pertinent part, if the senior rater decides that the comments provide significant new facts about the rated Soldier's performance and that they could affect the rated Soldier's evaluation, they may refer them to the other rating officials.  They, in turn, may reconsider their evaluations.  The SR or rater will not pressure or influence them.  Any rating official who elects to raise their evaluation of the rated Solder as a result of this action may do so.  However, the evaluation may not be lowered because of the rated Soldier's comments.  If the evaluation report is changed but still requires referral, the report will again be referred to the rated Soldier for acknowledgment and new comments. Only the latest acknowledgment and comments (if submitted) will be forwarded to HQDA.

	h.  Paragraph 3-36e stipulates, in pertinent part, when the rated officer is unavailable to sign an evaluation report for any reason and the report must be referred it will be referred in writing to the rated officer.  The rated officer will be given a reasonable suspense to respond.
	i.  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and 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.

	j.  Paragraph 6-7 states, in pertinent part, an evaluation report, accepted by DA and included in the official record of an officer, is presumed to:

		(1)  be administratively correct;

		(2)  have been prepared by the properly designated rating officials; and

		(3)  represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	k.  Paragraph 6-11 provides, in pertinent part, 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 establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-7 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 administrative error or factual inaccuracy.

18.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve and Army National Guard officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required civilian and/or military schooling.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential, and his rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  In his narrative portion of the contested OER, the rater makes three assertions regarding the applicant:

	a.  he enrolled in the course without authorization from his chain of command; 

	b.  he disobeyed an order from his battalion commander to disenroll from the course; and

	c.  he did not take an APFT during the rating period.

2.  With regards to the first assertion, the Senior Liaison Officer substantiated he was properly placed in ATRRS and he was issued orders for course attendance by his brigade S-3.  With regards to the second assertion, the FEB substantiated he followed the guidance of his academic chain of command, who instructed him to remain in the course pending receipt of all necessary paperwork needed to properly disenroll a student; his unit failed to complete the necessary paperwork required for disenrollment.  With regards to the third assertion, there is no evidence in the available record to substantiate whether or not he took an APFT during the rating period.

3.  There is no evidence the contested OER was properly referred to the applicant for review and comments.

4.  The provisions of Army Regulation 623-3 provide, in pertinent part, for the deletion or amendment of a report, when the appellant is able to produce evidence that establishes clearly and convincingly that action is warranted to correct an injustice.  The evidence provided supports a conclusion that the manner in which the contested OER was rendered created an insurmountable injustice in this case.

5.  As such, the applicant is entitled to correction of his record to remove the contested report for the period 2 August 2005 through 1 August 2006.

6.  The contested OER was not added to his OMPF until after the convene date of the FY2009 and FY2010 CPT promotion selection boards.  Accordingly, his records did not contain a material error when reviewed for promotion by these boards; therefore, he is not eligible for promotion reconsideration by a SSB under either the 2009 or 2010 criteria.

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 contested OER, covering the rated period 2 August 2005 through    1 August 2006, from his records and replacing it with a statement identifying the time period as non-rated. 

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 granting a SSB for promotion reconsideration to CPT under either the 2009 or 2010 criteria.



      _________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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20100019265



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