BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100021473 


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, correction of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 14 December 2006 through 3 May 2007 (hereafter referred to as the contested OER), to:

   a. reinsert the original Senior Rater (SR) comments "Lieutenant Colonel (LTC) Rxxxx is in the top 5% of the 74 LTCs that I senior rate regardless of Branch" into Part VIIc (Senior Rater–Comment on Performance/Potential); and

   b. change the "Center of Mass (COM)" rating to "Above Center of Mass (ACOM)." 

2.  The applicant requests, as an alternative should the Board not favorably consider his first request, the contested OER be removed from his Official Military Personnel File (OMPF). 

3.  The applicant states his rater was involuntarily removed from duty, which necessitated the contested OER.  He states his rater was resentful that one of his subordinates reported him to higher headquarters.  He concludes by stating his rater did not render an objective rating of his performance.

4.  The applicant provides:

* his OER appeal packet sent to the Army Special Review Board (ASRB),  dated 20 October 2009, with enclosures (Annexes A-L)
* the ASRB's Record of Proceedings, dated 29 April 2010
* an e-mail exchange between the applicant and his Intermediate Rater (IR), Colonel (COL) Mxxxxxxx 
* a letter to the Army Board for Correction of Military Records (ABCMR) Board members, dated 27 August 2010, containing an item-by-item rebuttal to the ASRB Record of Proceedings

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he graduated from the United States Military Academy, West Point, NY, was appointed as a Field Artillery Branch second lieutenant, and entered the Regular Army on 27 May 1987.  He subsequently completed various military training courses, served in staff and command assignments within and outside the continental United States, and was promoted to LTC on 1 April 2004.  

2.  In July 2007, the applicant received the contested report, a change of rater OER which covered 5 months of rated time from 14 December 2006 through      3 May 2007, for the applicant's duties serving as the "Assistant Army Attaché" while assigned to the United States Defense Attaché Office, Bogota, Columbia.  His rater was the Defense/Army Attaché, COL Rxxxx, his IR was the Latin American Division Chief, COL Mxxxxxxx, and his SR was the Deputy Director for Human Intelligence, the Honorable Mr. Hxxxxxxxxx.  The OER shows the following entries:

	a.  In Parts IVa (Performance Evaluation–Professionalism–Army Values) and IVb (Performance Evaluation–Professionalism–Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.

	b.  In Part Va (Performance and Potential Evaluation–Evaluate the Rated Officer's Performance and Potential for Promotion), the rater placed an "X" in the "Outstanding Performance–Must Promote" block, and in Part Vb (Performance and Potential Evaluation–Comment on Specific Aspects of Performance), he entered the following comments:

[Applicant] is one of the best military attachés, in this, the second largest DAO [Defense Attaché Office] in DIA [Defense Intelligence Agency].  He produced the most valuable information reports.  [Applicant] wrote over 30 reports, and he received 44 evaluations on those reports.  Of those evaluations 12 were rated as "major significant" reports.  [Applicant] reported on various key aspects of the war in Columbia.  He was the first to report on Columbia's shift toward Campaign Plan Consolidation in their war against terrorism.  [Applicant] also reported on the use of chemical and biological warfare by terrorist groups against the Columbian Army.  As a FAO [Foreign Area Officer], his Spanish is second to none.  [Applicant] was the only person in uniform allowed to translate for the CJCS [Chairman, Joint Chiefs of Staff] visit.  [Applicant] continues to gain the trust and confidence of the Columbian Army.  He worked very closely with the Columbian Military Academy, that for the first time in three years will have a cadet in U.S. Military Academy.  Physically fit, [Applicant] set the example conducting his first airborne jump, 22 years after airborne school.  Easily the most traveled attaché throughout Columbia, [Applicant] often visited units in the field who had recent enemy contact.   

	c.  In Part Vc (Comment on Potential for Promotion), the rater entered the comment:

[Applicant] is an officer of unlimited potential.  Promote to Colonel and select for resident SSC [Senior Service College].

	d.  In Part VIIa (Senior Rater–Evaluate the Rated Officer's Promotion Potential), the SR placed an "X" in the "Best Qualified" block; placed a second "X" in the "Yes" block to indicate he senior-rated 74 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review; and rated the applicant as "COM."  He listed three future assignments for which the applicant was best suited: Military/Defense Attaché; politico-military officer in the JCS/J-5; and Military Assistance Group Commander.  The SR entered the following comments in VIIc (Comments on Performance/Potential): 

[Applicant] is one of the best Army attachés that I senior rate regardless of Branch.  He is without a doubt the right FAO to have in the most violent country in the Western Hemisphere.  [Applicant's] timely and clear reporting continues to have a positive impact on U.S. policy in Columbia.  Definitely select for Senior Service College.  A must for early promotion to Colonel. 

3.  The OER was signed by his rater, IR, SR, and the applicant, on 5 July 2007, and was processed at the U.S. Army Human Resources Command (HRC), Alexandria, VA, on 13 July 2007.

4.  On 7 November 2008, he requested a Commander's Inquiry (CI) into the circumstances surrounding the contested OER.  He states, in his request, that the CI should investigate the supposed lack of objectivity or fairness by rating officials under Army Regulation 623-3 (Evaluation Reporting System), paragraph 6-5a(3).  In his request for CI, he contends:

   a. his rater retaliated against him, for reporting the rater's alleged inappropriate personal relationship to his higher headquarters, by altering the SR language in his OER; 

   b. a previous version of the contested OER contained the comment "[Applicant] is in the top 5% of the 74 LTCs that I senior rate regardless of Branch," which he states clearly establishes him as ACOM; and

   c. the deletion of this comment, later changed to "[Applicant] is one of the best Army attachés that I senior rate regardless of Branch," led to his classification as COM, and ultimately, his non-selection for promotion to COL.   

5.  On 3 February 2009, the DIA Inspector General (IG) responded to his request for a CI.  The investigation concluded that his allegation of retaliation was unfounded.  It further determined, based on interviews conducted, his COM rating was based on duty performance during the rated period.  Finally, it determined the Order of Merit List (OML) used, during the rating period in question, showed he was not rated in the top third of his peer group and that factor alone was the basis for his COM rating.

6.  On 16 June 2009, he contacted the new DIA Director, whom he had previously worked with, and made a personal plea for assistance in re-opening the CI into the contested OER.  He based his request on new evidence:

   a. A Freedom of Information Act (FOIA) request for documents related to an investigation into his rater, which was denied by the DA Office of the IG (OIG), of which he contends the denial confirms there was a criminal aspect to the investigation, and that it was contemporaneous with the timeframe of the contested OER;

   b. An e-mail from an official, responsible for maintaining the OML, stating the applicant led all Army LTCs in the Latin American Division in IIR production during the rating period in question;

   c. Documentation showing the rater attempted to return to Columbia one month after his removal from duty.

7.  On 13 July 2009, the DIA Director responded to his request for a CI, determining the new evidence did not change the outcome of his initial CI.       

8.  On 20 October 2009, the applicant petitioned the ASRB for correction of the contested OER, or removal from his OMPF.  He stated that the appeal was based on substantive inaccuracy.  Specifically, he stated the rater was involuntarily removed from duty 8 months before his scheduled departure, the rater exercised a lack of objectivity due to the fact that he was removed from his duties, was the subject of a criminal investigation, and was reported by one of his subordinates to higher headquarters, and he [the applicant] was non-select for promotion to COL in November 2008.

9.  On 20 August 2009, the ASRB notified the applicant that the evidence presented did not establish 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.  Therefore, by unanimous vote, the Officer Special Review Board (OSRB) determined the overall merits of his case did not warrant the relief requested.

10.  On 27 August 2010, he submitted his application to the ABCMR.  He provided the same evidence he had previously submitted with his appeal to the ASRB as well as new evidence as follows:

   a. an e-mail exchange between the applicant and his IR, COL Mxxxxxxx, in which the applicant communicates to the IR his desire for an ACOM rating, and  

   b. a 5-page letter to the ABCMR members, wherein he rebuts several items of the ASRB Record of Proceedings.  The applicant's points are:

      (1) the rater was involuntarily removed from duty, which negatively affected his objectivity;

      (2) the rater was upset that one of his subordinates reported his personal relationship to his higher headquarters; 

      (3) there was a DIA OML in existence at the time the contested OER was completed, which he was unable to include in both his ASRB and ABCMR requests, but which he states proves he outperformed his peers;

      (4) because it was Command policy that SRs didn't typically meet with any rated Soldiers below the grade of O-6, the SR relied entirely on rater input when determining performance and potential ratings.

11.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  

   a. Paragraph 1-9 states that Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army (DA) Pamphlet 623-3.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  
   b. 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.  

   c. Paragraphs 6-3 and 6-4 state, in pertinent part, the primary purpose of a Commander's Inquiry 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 Headquarters, Department of the Army (HQDA).  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

   d. Paragraph 6-11a states, in pertinent part, the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his contested OER, covering the rating period          14 December 2006 through 3 May 2007, should be corrected to reflect an ACOM rating, or alternatively, be entirely removed from his OMPF.  

2.  His contention his rater retaliated against him, for reporting the rater's alleged inappropriate personal relationship to his higher headquarters, by recommending the SR use less-favorable language when evaluating his performance and/or potential, cannot be substantiated.  There is no clear and/or convincing evidence that underscores an effort, on the part of the rater, to do any injustice to the applicant, in the rating process or otherwise.  Additionally, there is no evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential, or that his rater and/or SR did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

3.  He contends the less-favorable language does not accurately reflect his performance during the rating period.  His letters of support, contained within his ASRB appeal packet, underscore his excellent performance and organizational value; however, they do not conclusively relate his performance as above that of his peers.

4.  He contends the less-favorable language, used in lieu of the originally intended more-favorable language, resulted in his COM rating and his non-selection for promotion to COL.  His contention that he was not selected for promotion, because of the contested report, does not invalidate the contested OER.  There is insufficient evidence to show that the alteration of a single sentence within the SR's rating was responsible for a negative shift in the SR's COM versus ACOM overall determination, or that his non-selection for promotion was attributed to this particular OER.  Promotion boards are not required to divulge the reason for a member’s non-selection.  He could not have possibly known that his non-selection was the result of the contested OER. 

5.  The contested OER is neither referred nor negative; on the contrary it is a favorable OER.  Nevertheless, the contested OER contained comments and/or markings that he perceived to contain alleged errors and/or injustices.  Accordingly, he appealed the OER to the ASRB but was denied relief.  However, he still believes that the evaluation is inaccurate and is not in compliance with the governing regulation. 

6.  There is no regulatory requirement, and the senior rater is under no obligation, to senior rate any officer within a population as an ACOM.  The senior rater profile, as the name indicates, belongs to the senior rater.  The senior rater makes an assessment of the rated officer’s potential in comparison with all officers of the same grade.  This assessment is based on officers the senior rater has senior rated or has currently in his/her senior rater population.  Nevertheless, the senior rater is under no obligation to senior rate any of the 32 officers in this case as ACOM. 
7.  In order to justify amendment or deletion of an evaluation 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.  

8.  After a comprehensive review of the evidence in his official record, his contentions and arguments, and the evidence submitted in support of his application, he has failed to show, by clear and convincing evidence, that his OER contained a material error, inaccuracy, or injustice.  Therefore, there is no basis for correction or removal of the contested OER.

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)                                         AR20090014696



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021473



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1