IN THE CASE OF:	  

		BOARD DATE:	  16 June 2011

		DOCKET NUMBER:  AR20110000254 


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 of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 8 January 2008 through 7 January 2009 (hereafter referred to as the contested OER) from his records and replacing it with a new OER that reflects the correct senior rater and senior rater comments.

2.  The applicant states the senior rater was improperly identified by the rater and he subsequently received recommendations from both the Commander's Inquiry and the Army Special Review Board (ASRB) that support replacing the contested OER.

3.  The applicant provides his OER appeal, dated 21 January 2010, and the ASRB Record of Proceedings, dated 12 August 2010.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a major in the U.S. Army Reserve assigned to the 96th Military Police Battalion.

2.  He received an annual OER for the period 8 January 2008 through 7 January 2009.  The report is signed by his rater and senior rater on 16 and 27 March 2009, respectively, and by himself on 10 August 2009.  The OER was profiled by the U.S. Army Human Resources Command (HRC) on 17 August 2009.

3.  Part II (Authentication) of the contested OER shows his senior rater as Colonel (COL) C____ A. B____.  Part VII (Senior Rater) shows he received the following ratings for promotion potential and potential compared with officers senior rated in same grade:

* Best Qualified
* Center of Mass

4.  On 7 August 2009, the applicant requested a commander's inquiry citing:

* improperly designated rating officials
* lack of objectivity or fairness by rating official
* the senior rater failed to provide a support form
* to determine if the senior rater and rater examined entries on the report to ensure objectivity and fairness were maintained

5.  On 14 August 2009, an investigating officer was appointed to conduct a Commander's Inquiry and on 12 September 2009 he found that:

* the senior rater was improperly designated
* the rater was objective and fair
* the senior rater did not provide his support form to the rated officer
* the rater and senior rater did examine entries on the report to ensure objectivity and fairness were maintained

6.  In addition, the investigating officer found that after the applicant received his OER, he contacted COL S____ L. H____ and asked him to be his senior rater.  COL S____ L. H____ initially agreed but later declined after finding out COL C____ A. B____ had already completed the report.  The investigating officer recommended COL (Retired) C____ A. B____ be removed as senior rater and replaced by COL (Retired) S____ L. H____.

7.  On 30 September 2009, the Commander, Headquarters, 63rd Regional Readiness Command, Los Alamitos, CA, directed the original senior rater be notified that he had been improperly designated based on the Commander's Inquiry.  Further, the correct senior rater, COL (Retired) S____ L. H____ was directed to complete the OER.

8.  The memorandum cited Army Regulation 623-3 (Evaluation Reporting System), chapter 6, table 6-1, step 3, as the authority for this correction which states, " If an error, violation of the regulation, or wrongdoing has occurred and the evaluation has not been forwarded to Headquarters, Department of the Army (HQDA), the commander will return the evaluation with the inquiry results to the senior rater or reviewer as applicable.  The commander or commandant will ask that the report be corrected to account for matters revealed in the inquiry.  This will be done with regard for the restrictions on command authority and influence.  When the report has been corrected, it will be sent to HQDA with no reference to the action taken by the commander or commandant (for example, the OER, NCOER, or AER only is forwarded); the results of the inquiry remain with the commander.

9.  The applicant provides a corrected copy of his contested OER which shows his senior rater as COL S____ L. H____ and the following entries in Part VII:

* Best Qualified
* Above Center of Mass

10.  The applicant appealed the contested OER to HRC on 21 January 2010.  He contends the Commander's Inquiry confirmed that the contested OER was incorrectly submitted with both administrative and substantive errors.  There is no record of a response from HRC in his official military personnel file (OMPF).

11.  Subsequently, the applicant applied to the ASRB requesting the contested OER be removed and replaced with the report showing his correct senior rater and new senior rater comments.  The ASRB found that the rating chain was invalid and granted partial relief.  The board directed the current entries from the senior rater be removed and replaced with "senior rater not qualified."  Further, promotion reconsideration was not warranted as a result of this action.

12.  A review of his OMPF shows his OER for the period 8 January 2008 through 7 January 2009 reflects the ASRB recommendations.

13.  Army Regulation 623-3 (Evaluation Reporting System):

	a.  prescribes the officer evaluation function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS);

	b.  provides guidance regarding redress programs, including Commander's Inquiries and appeals;

	c.  paragraph 3-39 provides the basic rule applicable to modifications of previously submitted reports.  It states that an evaluation report accepted by HQDA 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.  Further, requests for 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 be known or verified when the report was prepared; and

	d.  table 6-1 (Steps in Conducting a Commander's Inquiry), step 5, states that for reports already forwarded to HQDA which contain errors or are in violation of this regulation, the commander will forward the results of the inquiry to HQDA with sufficient documentation, such as a report and statements, to justify the conclusion.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from his records and replaced with a reconstructed OER that depicts the proper rating chain.

2.  Although the contested OER was neither adverse nor referred, a Commander's Inquiry found the senior rater was improperly designated.  As a result, the approval authority directed the senior rater portion of the contested OER be completed by COL S____ L. H____, the correct senior rater.  However, this action was taken after the report had already been forwarded to HQDA.  Regulatory guidance states for reports already forwarded to HQDA, commanders will only forward the results of the inquiry and supporting documentation to justify the conclusion.  The guidance to have the report completed by the correct senior rater was in contradiction to regulatory guidance.

3.  Subsequently, he applied to the ASRB for relief.  The ASRB found the rating chain was improperly designated and directed the contested OER be corrected to show the senior rater was not qualified to rate the applicant.  His OMPF contains the corrected OER.  The ASRB corrected the contested OER to show the senior rater was not qualified to evaluate the officer and that course of action was proper, equitable, and in accordance with the governing regulation.

4.  Further, the Commander's Inquiry specifically states the applicant asked COL S____ L. H____ to be his senior rater after he received the contested OER and the level of interaction between COL S____ L. H____ and the applicant that would allow him to render a report is unclear.  Therefore, it would be improper for COL S____ L. H____ to complete the report under these circumstances.
5.  In view of the above, 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 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)                                         AR20110000254



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ABCMR Record of Proceedings (cont)                                         AR20110000254



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