BOARD DATE:	  7 July 2011

		DOCKET NUMBER:  AR20100022048 


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 reconsideration of his request to remove his officer evaluation report (OER) for the period ending on 8 January 2006 from his official military personnel file (OMPF).

2.  The applicant states, in effect, that he has collected new evidence never before seen in his case that will justify the removal of the OER from his OMPF.  He goes on to state that the issue in his case is one of standardization because he was not given the same material to study that the other pilots were given in advance of the “no-notice test” and he was the only one who failed and was required to undergo extensive training before being returned to readiness level 1.  However, a year later the same test was given without any advance materials being provided and he was the only one who passed.  However, the pilots who failed were not reduced to readiness level 3 nor were they required to undergo training as he was.  Accordingly, he believes that the OER was based on an unfair or negative bias by the chain of command.  He also states that by virtue of the fact that he was the only one who failed the test and was the only one not provided the answers should show that there was not a standard in place.  He continues by stating that he did not pursue relief through other channels at the time because he was afraid of reprisal from his chain of command which was and is prevalent in the small aviation community that he serves in.  Additionally, he states that he has provided four additional statements from credible individuals who all agree that his report was unjust and hopes that the Board will see the chain of command discriminated against him by holding him to a different standard.

3.  The applicant provides:

* A seven-page explanation of his application 
* A memorandum from the United States Army Reserve Command (USARC) Aviation Standardization Officer
* A memorandum from a standardization officer of the 11th Aviation Regiment
* A letter from the former facilities supervisor
* A memorandum from the succeeding battalion commander
* A memorandum from the standardization instructor pilot at the time
* A memorandum from one of the applicant’s fellow pilots and pilot in command
* A copy of his subsequent OER

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090004833, on 18 August 2009.

2.  During the month of January 2006 the applicant received a change of rater OER which covered 5 months of rated time from 6 August 2005 through 8 January 2006 for the applicant's duties serving as a UC-35A Pilot.  His rater was a captain (the company commander) and his senior rater was a major (the battalion commander).  The OER shows the following entries:

	a.  In Part IVb(2) (Performance Evaluation-Attributes) the rater placed an "X" in the "No" block for "Tactical."

	b.  In Part Va (Performance and Potential Evaluation) the Rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block and in Part Vb he entered the following comments:

During this rating period [applicant] has had periods of satisfactory and unsatisfactory performance.  [Applicant] failed to show technical competency during a no-notice written examination and regressed to readiness level 3 status.  He then initially failed to show the proper motivation necessary to return him to an RL1 status.

	c.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed an "X" in the "Do Not Promote" block and entered the following comments in VIIe:
[Applicant] has not maintained his proficiency as an aviator.   He has relegated himself to a position where other unit members are carrying the load while he relearns aviation related subject matter.  Due to this situation, he is functioning at the level of a junior warrant officer and cannot be trusted for increased responsibility.  Do not promote.

3.  The contested OER was signed by the rater and senior rater on 28 May 2006 and by the applicant on 1 June 2006.  It was received and processed by the Personnel Services Battalion on 30 June 2006 and processed at the U.S. Army Human Resources Command, St. Louis, MO, on 2 August 2006.

4.  A review of the applicant’s OMPF shows that the officer who was the applicant’s rater/commander on the contested OER also served as the applicant’s platoon leader/rater in the same unit and the applicant received maximum ratings from him in an OER ending on 29 March 2004.  The evidence of record also shows that the applicant’s rater made a permanent change of station to another duty assignment in June 2006 and another officer (a major) assumed command of the company.

5.  The memorandum provided by the USARC standardization officer provides his opinion in regards to the events that occurred and opines that the standards were not adhered to in the applicant’s case.  

6.  The statement from the 11th Aviation Regiment standardization officer is a third-party statement in which the officer opines that the commander’s actions of reducing the applicant to an RL3 status and to undergo training is clearly an example of negative bias.  He also states that he has experience firsthand about what occurs when a Soldier tries to do the “hard right thing” in a small aviation community.

7.  The memorandum from the former facility supervisor is a third-party statement based on information provided by the applicant who opines that he was aware of the retaliatory nature and inept leadership of the chain of command and he believes the applicant should be granted relief.

8.  The memorandum from the succeeding battalion commander indicates that he was appointed as the part-time acting commander of the battalion in September 2008 and full-time commander in June 2009.  He goes on to state that an inspection was conducted in March 2009 that revealed a low level of compliance with Army Aviation Standards throughout the unit.  He contends that any doubt should be afforded to the applicant.

9.  The memorandum from the Standardization Instructor Pilot at the time, who is now retired, indicates that he administered the No-Notice written exam on          11 November 2005 and was the only pilot to fail the test.  As a result the commander required him to undergo a complete aircraft qualification training program.  He goes on to state that he has never witnessed such extensive training for a no-notice written exam.  He also adds that the applicant was the only one who was not provided a copy of the test beforehand.  He further states that he administered another no-notice written exam on 4 January 2008, just over a year later, and the applicant was the only one who passed the test and yet the other officers were not required to undergo training.  He also opines that he believes that the chain of command was biased against the applicant and had he pursued the matter further he would have gotten nowhere with the matter.

10.  The memorandum from the instructor pilot who served with the applicant during the period of the contested report indicates he was in a position to directly observe the actions of the chain of command and to understand the issues surrounding this case.  He further states that he witnessed a grave injustice done to the applicant and negative bias toward him by the chain of command and he was reluctant to come forward with his testimony because he did not want to suffer the retribution for making the command look bad.  He also states that a year later when the next no-notice exam was given, he failed and yet he received an outstanding OER and was not counseled or required to retrain.

11.  The applicant was promoted to the rank of Chief Warrant Officer Four (CW4) on 7 May 2006.

12.  Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time, prescribed 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 and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals. 

13.  Army Regulation 623-105 contains the policies and procedures pertaining to managing the evaluation redress program.  In pertinent part, it outlines the burden of proof that must be met to support a successful evaluation report appeal.  It stipulates that the burden of proof rests with the appellant.  Accordingly, in order 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 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.

14.  Paragraph 3-57 of Army Regulation 623-105 provided the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (DA), and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also stated 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 when the report was prepared 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions and supporting documents have been noted and appear to lack merit.  While he contends that his rating chain was biased towards him he offers no explanation or rationale as to why his commanders would be biased towards him, especially given that he had worked for the same rater previously and had received a maximum rating.

2.  The applicant claims that he was held to a double standard because he was not provided the answers to a no-notice test as the other pilots were provided and because a year later he was the only one who passed the test and the pilots who failed the test were not required to undergo training as he was has been noted.  However, when the test was administered a year later, the company was under command of a new commander.

3.  While it cannot be determined why the commander made the determination that the applicant should undergo re-training in aviation skills, it was within his authority and discretion as an aviation commander to do.  The fact that the succeeding commander chose not to follow the same course a year later was also within his discretion.  In any event, because two different commanders chose different courses of action at different periods of time does not necessarily constitute a double standard.



4.  It is also noted that the senior rater also concurred with the rater in his evaluation of the applicant at the time and the applicant has not explained why two officers/commanders would have the same opinion of him if there was not something to support their appraisals, especially given the applicant’s previous ratings.  

5.  In any event, it would be inappropriate to second guess the opinions of the rating chain at the time, especially given the fact that the applicant did not seek redress of any kind at the time.

6.  While the applicant has provided numerous statements in support of his application which all opine that the applicant was treated unfairly, none of those individuals were in the chain of command or the applicant’s rating chain nor were they aware of the expectations of his rating chain.

7.  Accordingly, it appears that the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removing 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 to amend the decision of the ABCMR set forth in Docket Number AR20090004833, dated 18 August 2009.



      __________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)                                         AR20100022048





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ABCMR Record of Proceedings (cont)                                         AR20100022048



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