IN THE CASE OF:	  

		BOARD DATE:	  19 July 2011

		DOCKET NUMBER:  AR20110001925 


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 26 May 2009 through 12 January 2010 (hereafter referred to as the contested OER) from his official military personnel file (OMPF).

2.  The applicant states the contested OER contains substantive fraud.  The administrative data is inaccurate and the content from the job description to the achievements and rating chain are all fabricated.  The contested OER also contains procedural fraud with respect to the rater's qualification, lack of support form, backdating, and overall processing.  He also states:

* he was not informed of any job description
* he never performed any duties besides separation-related activities
* he never met with his rater
* he did not complete the achievements listed
* the only duties he completed were medical, dental, and administrative data related to his retirement
* he departed on 13 January 2010, but the OER was processed in June 2010, nearly 180 days after he departed the unit
* the OER was processed by the U.S. Army Human Resources Command (HRC) on 29 September 2010, nearly 9 months after his active duty file was closed
* the U.S. Army Training and Doctrine Command Inspector General (IG) believed retiring officers had no substantive or procedural rights to prevent the processing of an OER

3.  The applicant provides:

* Orders 229-0502 (retirement orders)
* DA Form 137-2 (Installation Clearance Record)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Forms 31 (Request and Authority for Leave)
* DA Form 67-9 (contested OER)
* email exchange with various individuals

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired colonel (COL) who was initially appointed and entered active duty as a commissioned officer on 24 August 1984.  He served in a variety of stateside and overseas assignment as an aviation officer.

2.  In May 2007, he was assigned as a brigade commander, 1st Aviation Brigade, Fort Rucker, AL.  He received two annual OER's from 25 May 2007 through 24 May 2008 and 25 May 2008 through 24 May 2009.  In each case, his rater was the Deputy Commanding General (DCG), U.S. Army Aviation Center of Excellence (USAACE), and his senior rater was the CG, USAACE.

3.  In May 2008, he was reassigned to Company B, 1st Battalion, 13th Aviation Regiment, 1st Aviation Brigade, as a Special Assistant to the Director of Concepts and Requirements Division (CRD).

4.  On 17 August 2009 subsequent to his request for voluntary retirement, the U.S. Installation Management Command, Fort Rucker, AL, published Orders 229-0502 ordering his retirement effective 30 April 2010.

5.  His DA Form 137-2 shows his departure date was 14 January 2010 and the DA Forms 31 he submitted show he was authorized permissive temporary duty (PTDY) from 14 January 2010 to 2 February 2010 and transition leave from 15 February 2010 to 30 April 2010.

6.  He was honorably retired on 30 April 2010 and placed on the Retired List in the grade of COL on 1 May 2010.

7.  The contested report is a retirement OER which covered 7 months of rated time from 26 May 2009 through 12 January 2010 for his duties serving as the "Special Assistant to the Director of CRD" while assigned to Company B, 1st Battalion, 13th Aviation Regiment, 1st Aviation Brigade, Fort Rucker, AL.  His rater was Brigadier General K____ J. T____, DCG, USAACE, and his senior rater was Major General J____ O. B____ III, CG, USAACE.  The OER shows the following entries:

	a.  In Part Ij (Rated Months) and Part Ik (Nonrated Codes), the entries "7" and "Q (Lack of Rater Qualification), P (Patient)" are shown, respectively.

	b.  In Part IIIc (Significant Duties and Responsibilities), the following description is entered:

Special Assistant to the Director of Concepts and Requirements for the [USAACE].  Responsible for developing operational concepts, determining capability requirements, and shaping science and technology research for Army Aviation.  Develops, designs, and documents force structure for the current and future aviation force.  Serves as the 'user representative' in the force development/acquisition process for current and future Army Aviation platforms and related systems.  Directs the experimentation and analysis activities of the Air Maneuver Battle Lab.  Represents Army Aviation at numerous exercises, conferences, and integrated concept/process teams.  Responsible for a budget of over $5 million and equipment/property valued at over $25 million.

	c.  In Part IVa (Army Values) Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.

	d.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Outstanding Performance, Must Promote" block.

	e.  In Part Vb (Comment on Specific Aspects of the Performance), the rater entered the following comments:

Superior performance by an outstanding leader and trainer.  [Applicant] made a seamless transition and quickly adapted to the complexities of the capability development mission and excelled in all areas that he touched.  With his input, CRD yielded flawless results in over 80 combat development programs.  [Applicant's] initiative spanned the spectrum of Force Development/Structure, Future Concepts, Aircraft Survivability Equipment, Aviation Life Support Equipment, munitions, Aviation logistics, science and technology, and advanced modeling and simulation.  His contribution to these diverse initiatives was priceless.  A current APFT [Army Physical Fitness Test] is not available due to post-operative surgery recovery.

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

Unlimited potential.  Although he has chosen now to retire after 34 years of service, [Applicant] has demonstrated the potential to excel as a General Officer.  Continue to assign to most challenging positions to exploit his wide-ranging talents and experience.

	g.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Best Qualified" block and a second "X" in the "No" block to indicate he senior-rated 22 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was not received with this report and considered in his evaluation and review.  In Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant as "Center of Mass (COM)."  The senior rater listed three future assignments for which the applicant was best suited and entered the following comments in Part VIIc (Comment on Performance/Potential):

[Applicant] is a talented officer who excels given any task.  Superb initiative - he is a vital member of the team.  [Applicant] is a quick study who can be counted on to give timely and accurate reports and flawless and sage advice.  He has demonstrated General Officer potential and would excel at the next level.  Support form unavailable.  Officer is unavailable for signature.

8.  The OER was signed by his rater on 14 May 2010 and by his senior rater on 23 June 2010.  It was processed by HRC on 29 September 2010.

9.  He submitted exchange of emails with various officials, particularly the U.S. Army Training and Doctrine Command IG.  In the email exchange he was notified by his chain of command that an OER would be submitted.  However, he contended that he was not on the rating scheme and his chain of command did not have sufficient time to rate him in view of his regular leave, out-processing appointments, multiple surgeries, convalescent leave, dental appointments, attendance at the Army Career and Alumni Program briefing, and other reasons.

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

	a.  Paragraph 1-9 states 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 another pamphlet.

	b.  Paragraph 2-10b states normally a Soldier will complete 90 calendar days in the same position under the same rater to be eligible for an evaluation report.  Nonrated periods are not included in this 90-day period.

	c.  Paragraph 2-12 stipulates that raters will provide their support forms, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period; discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period; counsel the rated Soldier; advise the rated Soldier as to changes in his or her duty description and performance objectives, when needed, during the rating period; assess the performance of the rated Soldier using all reasonable means, to include personal contact, records, and reports, and the information provided by the rated officer on his or her DA Form 67-9-1 and/or DA Form 67-9-1a; review the applicable support forms at the end of the rating period and, as appropriate, provide more information about the job description or performance objectives to other rating officials for use in preparing their evaluations; verify the rated individual's APFT and height and weight data for entry on the evaluation report; and provide an objective and comprehensive evaluation of the rated Soldier's performance.

	d.  Paragraphs 3-20a and b state 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.  It will not remark on performance or incidents occurring before or after the period covered.

	e.  Paragraph 3-39 states 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.

	f.  Paragraph 3-47 states a report is mandatory when the rated officer is separated from active duty.  As an exception, retirement reports of less than 1 year will be rendered at the option of the rater or senior rater or when requested by the rated officer.

	g.  Paragraph 6-11a states 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.

11.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing Army evaluation reports for officers and noncommissioned officers.

	a.  Table 2-1 states the number of rated months is computed by counting the days on the calendar in the rating period and dividing by 30.  Do not use the "Period Covered" by the report, subtract all nonrated time.  If 15 or more days are left after dividing by 30, they will be counted as a whole month.  (For example, 130 days is 4 months and 10 days and is entered as 4 months; 140 days is 4 months and 20 days and is entered as 5 months).

	b.  Table 2-2 states the rated officer will sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the APFT and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I through VII.  This action increases administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  If the rated officer is unavailable, unable, or fails to sign the DA Form 67-9 for any reason, the senior rater will either resolve the problem or explain why in Part VIIc and the rated officer's signature is left blank.  The report will not be delayed because it lacks the rated officer's signature.

	c.  Table 2-3 states the significant duties and responsibilities section will be a succinct narrative, written in prose (not bullet) format.  The rater will describe in detail the rated officer's duties and responsibilities.  The narrative will include the number of personnel supervised, amount of resources under one's control, and scope of responsibilities.  Descriptions must be clear and concise and must emphasize specific functions required of the rated officer.  The rater should also note conditions peculiar to the assignment.

	d.  Table 2-9 provides for non-rated codes.  Code E applies to leave in excess of 30 days, code P applies to Soldiers in a patient status, and code Q applies to a lack of rater qualification.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from his OMPF.

2.  The applicant's last OER was through 25 May 2009.  Upon his retirement, his rating officials submitted a retirement OER for the period 26 May 2009 (one day after the through date of the previous OER) through 12 January 2010 (2 days prior to his departure on PTDY/leave).

	a.  The total rating period is 7 months and 19 days.  The OER shows 7 as the number of rated months and codes P and Q as non-rated codes.  In order to change the rated months and/or the non-rated codes, there must be documentary evidence such as leave in excess of 30 days, convalescent leave, or other documentary evidence to support a non-rating.

	b.  In order to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  The applicant did not provide any documentary evidence to show the rated period fell below this threshold.

3.  A retirement OER of less than 1 year is rendered at the option of the rater or senior rater or when requested by the rated officer.  The applicant was informed by his chain of command that an OER would be rendered.  His contention that his name was not on the rating scheme and/or that he did not submit a support form does not invalidate the contested OER.

	a.  The applicant was a senior officer at the time and had a considerable amount of responsibility to ensure the counseling occurred according to regulatory guidance.  The lack of counseling does not invalidate a report.

	b.  As a senior officer with over 30 years of service and having previously performed duties as a rater and a senior rater, he had a responsibility and an obligation to provide a support form.

4.  The contested OER is neither referred nor negative.  On the contrary, it is a positive OER; both the rater and senior rater provided favorable comments and he was recommended for promotion ahead of his peers.

5.  With respect to complying with the governing regulation, there is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

6.  Aside from his perceived dissatisfaction that someone of his caliber would receive a "COM" rating, the applicant did not provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OER.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify its removal.

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)                                         AR20110001925



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ABCMR Record of Proceedings (cont)                                         AR20110001925



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