IN THE CASE OF:
BOARD DATE: 24 May 2011
DOCKET NUMBER: AR20100024104
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 17 March 2007 through 16 March 2008 from his official military personnel file (OMPF).
2. The applicant states the Army Board for Correction of Military Records (ABCMR) misinterpreted the rules pertaining to senior rater (SR) qualifications. He states the ABCMR's misinterpretation of Army Regulation 623-3 (Evaluation Reporting System) is an obvious error. He quotes paragraph 2-7a(2) of Army Regulation 623-3. He states the minimum 60 consecutive day requirement as it pertains to SR responsibilities and qualifications has been incorrectly interpreted by human resource professionals for years. He states the proper interpretation is the SR must be present 60 consecutive days without absence or a break during the rating period. He states his SR was not present 60 consecutive days during his rating period as required by the regulation. Therefore, he did not qualify to perform SR duties during his rating period.
3. The applicant provides:
* one page from Army Regulation 623-3
* ABCMR Docket AR20090020850, dated 12 August 2010, with all previously submitted evidence
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 ABCMR in Docket Number AR20090020850, on 12 August 2010.
2. The applicant's contention that the ABCMR and other human resources personnel misinterpreted Army Regulation 623-3 is a new argument that requires reconsideration of his case.
3. On 14 September 2007, Colonel (COL) (Promotable) (P) W____ assumed command of the 13th Support Command (Expeditionary) (SC (E)) and became the applicant's SR.
4. The applicant provided a timeline of events for COL (P) W____'s whereabouts during the period he was senior rating him:
* 14 September 2007 - assumed command
* late October 2007 through 30 November 2007 - temporary duty (TDY) in conjunction with leave
* 7 December 2007 - present for holiday party
* 27 January 2008 through 8 March 2008 - TDY
5. On 28 March 2008, the applicant began to out-process for his permanent change of station.
6. A memorandum from Headquarters, 13th SC (E), dated 27 January 2008, shows COL T____ assumed temporary command of the 13th SC (E) for the period 27 January 2008 through 8 March 2008 due to COL (P) W____ being TDY.
7. On 8 March 2008, COL (P) W____ returned from TDY. The applicant indicated he had an interview with COL (P) W____ upon COL (P) W____'s return from TDY.
8. A DA Form 137-2 shows the applicant out-processed from Fort Hood on 14 March 2008.
9. On 11 April 2008, he received the contested OER for the period 17 March 2007 through 16 March 2008. COL (P) W____ is shown as his SR for this report.
10. Army Regulation 623-3 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 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.
11. Paragraph 2-7a(2) of Army Regulation 623-3 states, "The senior rater will be a supervisor above all other rating officials in the rated Soldier's chain of command or supervisory chain. The senior rater will be the immediate supervisor of the rater and designated as the rated Soldier's senior rater for a minimum period of 60 consecutive days." The regulation states that in order "to render an objective evaluation, rating officials will use all opportunities to observe and gather information on the rated Soldier's individual performance."
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that everyone but him is misinterpreting Army Regulation 623-3. After quoting the regulation and providing a copy of paragraph 2-7a(2), he still insists the SR must be present for 60 consecutive days. However, there is no mention of leave or periods of TDY in the rules for designating an SR in Army Regulation 623-3. It merely states the SR will be designated as the rated Soldier's SR for a minimum period of 60 consecutive days.
2. The evidence clearly shows COL (P) W____ was designated his SR for a period of more than 60 consecutive days.
3. The applicant has failed to provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OER. Therefore, the applicant has failed to meet the burden of proof to justify 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 to amend the decision of the ABCMR set forth in Docket Number AR20090020850, dated 12 August 2010.
__________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) AR20100024104
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