IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011 

		DOCKET NUMBER:  AR20100030060


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 from his official military record a change of rater Officer Evaluation Report (OER) covering the period 14 January through 18 December 2009.

2.  The applicant states:

	a.  the OER contains derogatory language, unproven accusations, and outright misrepresentations from his rating chain;

	b.  his senior rater made a material misstatement in his OER by checking the "Yes" box in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), signifying that he had reviewed his OER support form during the rating period when he did not;

	c.  his rating chain did not perform the required counseling or use the support form for reference during his rating and in the preparation of his OER, and they were not his proper raters;

	d.  the comments in Part V (Performance and Potential Evaluation (Rater)) and VII (Senior Rater) of the OER violate Army Regulation 623-3 (Evaluation Reporting System), paragraphs 3-21 through 3-23 because they contain prohibited a narrative and unproven derogatory information;

	e.  his senior rater failed to ensure accurate preparation of his OER;


	f.  his OER would result in an injustice to an individual in the Army;

	g.  the regulations governing the OER process are clear even to him and state all rating officials will use DA Form 67-9-1 (Officer Evaluation Report Support Form;

	h.  while he bears some responsibility for not preparing a DA Form 67-9-1, the fact remains that he was never asked by his rater or senior rater to complete a form nor was he provided a copy;

	i.  his senior rater could have checked the "No" block signifying that he had not reviewed the support form and provided an explanation, but he did not and this serious misstatement casts doubt on any other rating block, evaluation, or comment made by him or the rater;

	j.  his senior rater violated DA Pamphlet (PAM) 623-3, paragraph 3-21, which states "rating officials will convey a precise but detailed evaluation to convey a meaningful description of an officer's performance and potential.  In this manner, both Army selection boards and career managers are given the needed information on which to base a decision";

	k.  his OER contains brief statements which are prohibited by paragraph 3-22 of DA PAM 623-3 and they were never substantiated by negative counseling statements;

	l.  based on the information contained in his OER, it appears that his rating chain was focused on one alleged event without delving into specifics;

	m.  while the regulation allows for "verified derogatory information," his raters are simply making an allegation when speaking of his errors;

	n.  he was never the subject of an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation or any criminal investigation;

	o.  because his rating officials used unspecific and unproven derogatory language and failed to adequately explain or support his performance evaluation, the language in Part V and Part VI (Intermediate Rater) of his OER violate Army Regulation 623-3 and DA PAM 623-3;

	p.  his senior rater disregarded his responsibility when he failed to ensure that his rating was realistic and allowed his rater to sabotage his career;


	q.  he was always a stellar performer as shown in his previous two OERs;

	r.  his friend died in a maintenance test flight during the rating period in question, which is probably understandable, and he was given the opportunity to honorably leave the troop;

	s.  with his rater's support, he chose to stay on as his maintenance officer because of the bond with the Soldiers and the bond that was shared in memory of his friend;

	t.  his rater resented the fact that the Soldier's looked to him for guidance and leadership and not the rater;

	u.  his rater's negativity subsequently came into the troop and into his OER; and

	v.  neither his interest nor the Army's interest is served by the OER in question.

3.  The applicant provides the following evidence:

	a.  Memorandum for Army Board for Correction of Military Records (ABCMR), dated 2 December 2010;

	b.  Memorandum for Army Special Review Board (ASRB), dated 29 October 2010;

	c. Undated character reference from the Commander, Delta Troop, 2d Squadron,6th Cavalry Regiment;

	d.  Self-authored Memorandum for Record (MFR), dated 2 December 2010;

	e.  Memorandum for Commander, Army Human Resources Command, dated 22 February 2010;

	f.  Email correspondence from an Army official regarding his OER Support Form;

	g.  OER for the period 14 January 2009 through 18 December 2009;

	h.  OER for the period 16 April 2008 through 14 January 2009;

	i.  OER for the period 1 January 2007 through 15 April 2007;
	j.  Letter of Recommendation dated 14 November 2009;

	k.  MFR dated 10 February 2010;

	l.  "Commander's Coin" from the 25th Combat Aviation Brigade;

	m.  Permanent Order 083-003, dated 24 March 2009, awarding him the Army Achievement Medal;

	n.  DA Form 4037 (Officer Record Brief); and

	o.  DA Form 2823 (Sworn Statement), dated 9 March 2010.

CONSIDERATION OF EVIDENCE:

1.  As of the date of his appeal, the applicant was serving in the Regular Army in the rank of chief warrant officer three (CW3).

2.  On 20 January 2010, the applicant received a referred OER for the period 14 January 2009 through 18 December 2009.  Part IV (Performance Evaluation – Professionalism) on the OER pertains to character.  In Part IVa (Army Values), block 5 (Respect:  Promotes dignity, consideration, fairness & EO), his rater marked the "No" block.  In Part IVb (Leader Attributes/Skills/ Actions) the rater marked "No" in block 3 (Emotional – Displays self-control; calm under pressure).

3.  In Part Va the rater marked the block "Satisfactory Performance, Promote."  In Part Vb (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9 and Part IVa, b, and Part Vb, DA Form 67-9-1), the rater commented "Substandard performance by a senior warrant officer.  CW3 ____'s strong work ethic and tireless maintenance efforts were routinely undermined by his lack of adherence to military discipline and error in judgment.  The rater also commented "his unwillingness to support the command and be a leader consistently undermined the success of the troop as well as his credibility."  The rater further commented that "despite the maintenance success, his unprofessional interpersonal dealings with the other Soldiers within the troop led to a breakdown in good order and discipline, and his gross error in judgment negated his previous performance.

4.  In Part VIIa the applicant marked the "Yes" block for the question "A completed DA Form 67-9-1 was received with this report and considered in his evaluation and review."

5.  In Part VIIc (Comment on Performance/Potential) the senior rater stated his "performance during the rating period has been substandard for an officer of his rank and experience level."  He stated that the applicant's "success as a maintenance test pilot was overshadowed by his lack of professionalism and a significant error in judgment."  The senior rater stated "Promote once he demonstrates the behavior and discipline expected of a senior warrant officer."  He was rated below center of mass.

6.  The reason for submission of the OER was due to a change of rater and the applicant electronically signed Part II -  Authentication (Rated officer's signature verifies officer has seen completed OER Parts I – VII and the admin data is correct) on 20 January 2010.

7.  On 30 September 2010, the ASRB denied the applicant's appeal for removal of the OER from his record.

8.  The applicant submits a memorandum for the ABCMR, dated 2 December 2010, identifying supporting letters he was attaching to his application from his squadron commander at the time of the OER, his last troop commander, and an MFR that he contends he kept to show the command climate. He states:

* the ASRB did not receive his MFR or the supporting letters that he now submits
* he has been and continues to be a professional, strong, and positive asset to the U.S. Army
* he has always performed and carried himself in a manner that has demanded respect and in a way that others would want to follow out of mere respect
* he served his country with honor, has lost many friends in the global war on terror, and has deployed twice to Iraq
* his supporting appeal packet and letters help show how this one event should not negatively mark the career of a dedicated Soldier

9.  The memorandum for the ASRB the applicant submits, dated 29 October 2010, is authored by Headquarters, 25th Infantry Division, Deputy Chief of Staff for Operations (Rear). In the memorandum, the Deputy Chief of Staff for Operations speaks to the applicant's duty performance, dedication, focus, and character while he was assigned to the 2nd Squadron, 6th Cavalry Regiment.  

10.  He submits an undated letter from the Commander, Delta Troop, 2nd Squadron, 6th Cavalry Regiment, who states that while the applicant was under his command from March 2010 to September 2010, he was able to coach, teach, and mentor his subordinate Soldiers.  He took extra time to ensure his Soldiers understood the tasks they were to perform and they performed them in a safe manner.  He would spend tireless days assisting fellow maintenance test pilots of the Air Cavalry Troops ensuring that the combat power was maximized.  He conducted himself professionally and still managed to keep the work environment relaxed during high up-tempo combat operations.  He showed focus, resolve, and took the time to show him techniques that improved his ability to diagnose and troubleshoot aircraft as a maintenance test pilot.  He showed himself to be a valuable member of the team and an asset in the future that he will truly miss.

11.  The self-authored MFR the applicant submits is dated 2 December 2010.  In the MFR he contends substantial errors in his OER which warrant full or partial relief.  He contends:

* improper rating officials and failure to follow rating and administrative functions
* no comments to support a below center of mass rating
* his platoon leader was relieved during the rating period for an aircraft incident that was not under his control
* three platoon leaders were dismissed during his rater's command
* his rater allowed the first sergeant to use his position in an unprofessional manner
* his commander showed clear inabilities to assume command and control
* his commander had clear personal issues, and along with the first sergeant, used "this event" and the OER in a vindictive manner
* he took on a closer relationship with the maintenance team than the Army allows
* he called the team members by their first names and he had one party for them in memory of his friend's, the other maintenance test pilot's, death

12.  In the MFR he goes on to make allegations of impropriety against other Soldiers and others Soldiers' family members.  He also refers to the ratings that other Soldiers may have received and the lack of command and control in his troop and in his chain of command.

13.  The applicant submits email from one Staff Judge Advocate (SJA) to another SJA attempting to locate a copy of his OER Support Form.  He submits his OERs for the periods 16 April 2008 through 14 January 2009 and 1 January 2007 through 15 April 2007.  Both are change of rater OERs.  He was rated outstanding, best qualified, and above center of mass in both OERs.

14.  He submits a letter of reprimand, dated 14 November 2009 and an MFR, dated 10 February 2010, from individuals who served with him attesting to his competence, honesty, self-discipline, judgment, loyalty, morality, fitness dedication, dependability, and diligence.

15.  The applicant submits Permanent Order 083-003 awarding him the Army Achievement Medal for the period 20 February 2009 through 1 March 2009, and his DA Form 4037.  He submits a DA Form 2823 reiterating the contentions he made in previously-mentioned documents and in his application to this Board.

16.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 67-9 (OER).
 
	a.  Paragraph 2-2 states that rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location.  They will be established by name, given effective dates, published, and distributed manually or electronically to each rated officer, NCO, and civilian member of the rating chain.  Any changes to rating chains will also be published and distributed as required.  No changes may be retroactive.

	b.  Paragraph 2-15 states the senior rater (OER/NCOER) is the senior rating official in the military rating chain or as officially designated by the academic institution (AER).  Senor raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards.  Senor raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3.

	c.  Paragraph 3-4 describes the support form communication process.  Paragraph 3-4f states the DA Form 67-9-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate.  The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain.  The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer, if applicable and then back to the rated individual.  

	d.  Paragraph 3-4g states that although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

	e.  Paragraph 3-11 states that the senior rater's evaluation is made by comparing the rated officer's performance and potential with all other officers of the same grade the senior rater has rated or will rate.  

	f.  Paragraph 3-20a states that each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.

	g.  Paragraph 3-23 states 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 Headquarters, Department of the Army (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.

	h.  Paragraph 3-34 states 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. 

	i.  Paragraph 6-7 states that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

	j.  Paragraph 6-7h(1)(3) states that the rated Soldier's authentication in Part II of a DA Form 67-9 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances.  The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

17.  DA Pamphlet 623-3 prescribes the procedures for completing evaluation reports that support the ERS.  Paragraph 6-1c(2) states appealing an evaluation report on the sole basis of a self-authored statement of disagreement will not be successful.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  He has submitted insufficient evidence to show that the comments made in the OER in question by his rater and his senior rater are erroneous or unjust.

3.  He signed his OER verifying that the rating officials named in Part II are those established as the rating chain.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  Further, the applicant acknowledged the rating chain was his supervisory chain while he was detached from his unit, so there was nothing unusual about the rating chain's composition.

4.  There is no evidence showing that the applicant's senior rater intended to make a false representation when he marked the Yes block in Part VIIa on his OER as he contends.  At best, it could be considered a minor administrative error which does not amount to an error sufficient enough to remove the OER from his official record.  As previously stated, correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

5.  The comments made in Part V and VII of his OER by his rater and senior rater clearly provides their observations of the applicant's performance, discipline, and judgment during the rating period.  The comments made are not prohibited as he contends and the fact that he believes the comments made on the OER in question are too brief, is not a justification for its removal.

6.  The question in this case is whether or not the comments made by the applicant's rater and senior rater properly reflect his performance during the rating period.  While they may be considered as derogatory, he has not shown that the comments contained therein are false.  In the numerous documents that he submitted, he seldom makes reference to the incident(s) that caused him to receive the referred OER.  The applicant acknowledges his rating chain identified an error on his part, which he alleges was unverified.  However, he has not identified the "error" to which his rating chain referred, nor has he presented evidence to show the error was unverified.  He does refer to a party that he gave for the maintenance team and he states that he and the team took on a closer relationship than the Army allows.  These actions alone would be considered as fraternization which is not authorized under Army regulations.  

7.  The applicant contends he was never counseled regarding his OER.  He also contends he never completed a support form; therefore, one could not have been considered in the review of his case.  He has not proven either of these contentions.  The email he submits shows one SJA requesting the applicant's support form from another SJA.  The email does not specify whether his support form was ever obtained.  That being said, in accordance with the applicable regulation, failure to comply with any or all support form requirements will not constitute the sole grounds for successful appeal of an evaluation report.

8.  The applicant was a CW3 in the U.S. Army and the referred OER was not the first OER he ever received.  Once he realized that he had not been counseled he had an obligation to speak with his rater(s) regarding his failure to be counseled. There is no evidence that he made any attempt to be counseled.  As he previously stated, he bears some responsibility for not preparing his own support form, regardless of whether or not he was asked to do so.

9.  The applicant makes allegations of impropriety against other Soldiers and others Soldiers' family members.  He also refers to the ratings that other Soldiers may have received and the lack of command and control in his troop and in his chain of command.  Neither of these allegations, nor the ratings of other Soldiers, pertains to the incident(s) which led to his referred OER.  

10.  It is clear that the applicant disagrees with the comments made by his rater and senior rater on his referred OER.  However, his disagreement is not a basis for granting the requested relief.

11.   In view of the foregoing, his request should be denied.

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)                                         AR20100013875



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ABCMR Record of Proceedings (cont)                                         AR20100030060



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