IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100019879 


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 amendment of his DA Form 67-8 (U.S. Army Officer Evaluation Report (OER)) for the period 16 October 1992 through 19 July 1993.
 
2.  The applicant states, in effect:

* the OER had a deadly effect on the advancement of his military career
* the rater was pressured by the senior rater to write the report 
* prejudice and unprofessional behavior was the main reason
* the report was based on him canceling an operational exercise

3.  The applicant provided a notarized statement from the rater.

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.  After prior enlisted service, on 31 January 1975, the applicant was appointed as a warrant officer one in the Regular Army.  On 30 June 1994, the applicant was honorably retired.  The DD Form 214 (Certificate of Release from Active Duty) he was issued confirms he completed a total of 30 years, 6 months, and
26 days of total active service with no time lost.

3.  During the month of August 1993 the applicant received a change-of-rater OER which covered 9 months of rated time from 16 October 1992 through 19 July 1993, while serving as a Property Book/Supply Maintenance Officer.  His rater was the Chief, Materiel Management Center and his senior rater was the Deputy Chief of Staff, Logistics.  The OER shows the following entries:

a.  Part IIa (Authentication), the date block reflects "Undated"

   b.  Part IIIa (Duty Description - Principal Duty Title), reflects "Property Book/Supply Maintenance Officer"

	c.  Part IIIc (Refer to Part IIIa DA Form 67-8), reflects "… Responsible for supervising 60 warrant officers and enlisted personnel…."

   d.  Part IV (Performance Evaluation - Professional Development), block 8 (Displays sound judgment), reflects the entry "2" [on a scale of 1-5 with "1" being "High Degree"]

   e.  Part Vc (Comments on Specific Aspects of Performance) reflects, "MW4 (applicant's name) is a dogmatic officer, who has not only responded to the relentless operational demands of SOF units committed in low intensive conflict spectrum, but also finds time to mentor and assist Soldiers in need.  He assigned a female Soldier with a disability to overcome bureaucratic obstacles and secure a medical retirement.  Under his leadership MMC Soldiers serviced the SOF customer and trained to standard in METL/common tasks.  He also provided joint service professional development training for his warrant officers.  Highlights of his accomplishments include:  executed an aggressive lateral transfer program; strengthened property accountability of 140 thousand end items (valued at over 20 billion dollars); planned conversion of the automated property book TACCS/SPBSR (BTOS) system to desktop/SPBSR (MSDOS) systems; and significantly improved the EOH/ER readiness posture of USASOC units.  MW4 (applicant's name) provided thorough, detailed and timely MACOM asset shortage information and analysis to J4 USSOCOM and DA ARSTAF for 


resourcing decisions by CINC USSOCOM, CG AMC and RETROEUR Task Force.  MW4 (applicant's name) overbearing nature has diminished his relationship with people and overall effectiveness."

	f.  Part Vd (This Officer's Potential for Promotion to the Next Higher Grade is:), the rater placed an "X" in the "Promote with contemporaries" block and entered the following remarks in Part Ve (Comments on Potential), "Assign to a logistics staff position at any level."

	g. Part VIIa (Senior Rater - Potential Evaluation), the senior rater (SR) placed an "X" in top block.  He also placed an "X" in the "Yes" block indicating that a completed OER support form was received with this report and considered in his evaluation and review.

	h.  The SR rated him as "Above Center of Mass" and entered in Part VIIc (Comments), "MWO (applicant's name) has supported this command to the utmost.  He has modernized our property accounting capability, disciplined our unit control of equipment and devoted endless hours toward the advancement and profession development of his subordinates.  He is a demanding leader, who knows how to obtain excellence in everything he does and everything his section does.  Select for soonest promotion opportunity to MW5.  Officer refuses to sign this OER."

4.  The contested OER was signed by senior rater on 20 August 1993.  On 
18 October 1993, the OER was referred to the applicant.

5.  On 19 October 1993, the applicant acknowledged receipt of the OER and in pertinent part made the following comment:

…. The referred OER dated 921016-930719 is simply an unprofessional act on the part of my rater, LTC S----- E. S-----, Jr.  The negative comments are retaliation for a visit that I had with LTG J.T. S----, the Commanding General of Special Operations Command.  I briefed the Commanding General on property accountability problems within his command (LTG S----)….

6.  There is no indication in the record that the applicant requested a commander's inquiry or that he appealed the contested OER to the Oficer Special Review Board.

7.  The applicant submitted a self-authored supplementary statement, which states, in effect:


	a.  The incident surrounding the OER was due to a directive from the Department of the Army USSOCOM to cancel an operational exercise which had been requested by the Deputy Chief of Staff, Logistics who was his senior rater. 

   b.  The rater and the senior rater were both on temporary duty (TDY) at the time the request came down from the Department of the Army (DA).

   c.  He was the senior military person on duty at the time of the request and he was instructed to submit a Disposition Form (DF) canceling the exercise.  He processed the DF and forwarded it to his rater and senior rater explaining what had happened.  Upon return from TDY the senior rater was extremely upset over the fact that he canceled his operation. 

   d.  He called him in and asked him why he cancelled the operation.  He explained to him what had happened and informed him he had been instructed to submit the DF to DA due to lack of funds needed to support the operation and that the request could be resubmitted at a later date.  He further states the senior rater did not accept his explanation and proceeded to curse him out.

	e.  He requested an appointment with the Commanding General, Headquarters, USASOC.  When he explained to the general what had taken place he states the general concluded his actions were appropriate, professional, and not in any way out of line.  The general informed him he would look into the matter and discuss the issue with his senior rater.  Therefore, this is why he believes he received the negative OER.

8.  In a 16 July 2010 notarized statement from the rater, he states, in effect, the following items should be corrected:

   a.  In part IIa, the date block reflects "Undated"; however, it should be changed to reflect "20 August 1993";

   b.  In part IIIa, the block reflects "Property Book/Supply Maintenance Officer"; however, it should be changed to reflect "Property Book/Supply Management Officer";

   c.  In part IIIc, the block reflects "…. Responsible for supervising 60 warrant officers and enlisted personnel…." should reflect "…. Responsible for supervising 60 warrant officers and 200 plus enlisted personnel….";

   d.  In part IV, block 8, it reflects "2"; however, it should be changed to reflect "1";

   e.  In part Vc, the block should be changed to read:  "MW4 (applicant's name) is a stellar performer and extremely skillful officer who has not only responded to the relentless operational demands of SOF units committed in the low intensive conflict spectrum, but also finds time to mentor and assist any of the 200 plus enlisted Soldiers under his supervisory control.  He personally assisted a Soldier with a disability to overcome a bureaucratic obstacle and secure a medical retirement.  Under his leadership at MMC Soldiers serviced the SF customers around the globe and trained to standard in METL/Common Tasks.  He also provided joint service professional development training for all his assigned warrant officers.  Highlights of his accomplishments:  wrote one of the best supply External Standard Operational Procedures ever to exist in SOCOM.  All commanders praised this document; S-4s and supply personnel throughout the MACOM.  Executed an aggressive lateral transfer program; strengthened the property accountability of 140 thousand end items (valued at over 20 billion dollars); planned conversion of the automated property book TACCS/SPBSR (BTOS) system to desktop/SPBSR (MSDOS) system; and significantly improved the EOH/ER readiness posture of USASOC units.  MW4 (applicant's name) provided thorough, detailed, and timely MACOM asset shortage information and analysis to J4 USSOCOM and DA ARSTAFF for resource decisions by CINC USSOCOM, CG AMC and RETROEUR task Force.  His high personal standards, meticulous attention to detail, infectious enthusiasm, and strong desire for excellence attested to his superior performance through the superb results obtained in his area of responsibility.  MW4 (applicant's name) is one of the finest military officers that I have ever had the opportunity and privilege to serve with during my active duty years.  I strongly recommend that MW4 (applicant's name) be advanced to the grade of CW5"; and

   f.  In Part Vd, the rater placed an "X" in the "Promote with contemporaries" block; however, it should be changed to reflect "Promote ahead of contemporaries."

9.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, prescribes the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System.  It also provides guidance regarding redress programs, including command inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, DA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper designated rating officials, and to 


represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

10.  Army Regulation 623-105, chapter 6, contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.

11.  Army Regulation 623-105, paragraph 6-10, 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 establishes clearly and convincingly 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 administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be amended.

2.  Although the applicant provides a statement from his former rater, that statement alone is not sufficient to overcome the burden of proof that the contested OER is inaccurate or unjust.  It was prepared more than 15 years after the OER was prepared and appears to be based on retrospective thinking.

3.  As a result, there is an insufficient evidentiary basis to support a conclusion that the evaluation rendered in the OER in question did not simply represent the considered opinion and objective judgment of the rating officials at the time of preparation.

4.  There is no evidence in the available record and the applicant has not provided any evidence to show that his rating officials did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. Furthermore, he did not provide compelling evidence to overcome the presumption of regularity with regard to the evaluation by his rating officials.
5.  There is no evidence to show the applicant attempted to appeal this OER in a timely manner.  By regulation, to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.  The applicant's arguments fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

6.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify correcting the referred OER.  Therefore, there is no basis for removing or amending it.

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)                                         AR20100019879



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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