IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20110001987 


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 Army requests, through a court remand from the U.S. Court of Federal Claims, reconsideration of an earlier Army Board for Correction of Military Records (ABCMR) request for correction of the applicant's military records to remove the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 December 2003 to 22 June 2004, removal of nonreferral documents pertaining to the 2005 and 2006 unit vacancy promotion boards, removal of nonselect documentation for the 2007 and 2008 Department of the Army (DA) Mandatory Promotion Board for Major, promotion consideration with a date of rank as if promoted by the 27 September 2005 U.S. Army Reserve Component Unit Vacancy Board, and a letter of nonrated time for the period covered by the OER listed above.

2.  The Army requests reconsideration of the ABCMR's prior denial in light of a DA Form 5500-R (Body Fat Content Worksheet) indicating the applicant passed an Army Physical Fitness Test (APFT) and his OER for the period 1 December 2003-22 June 2004 was in error.

3.  The remand includes a copy of a DA Form 5500-R, dated 9 June 2004, showing he was in compliance with Army standards.

4.  On 16 February 2011, subsequent to the remand, the applicant e-mailed the U.S. Attorney with additional information concerning the DA Form 5500-R.  In it the applicant contends that the DA Form 5500-R reviewed by the Officer Special Review Board (OSRB) should not have been taken into account because the APFT actually occurred in July 2004 after the close-out date of the OER at issue despite the date of 9 June 2004.

5.  On 17 February 2011, the applicant moved the U.S. Court of Federal Claims to reconsider the order to remand the case to the ABCMR for further consideration.  In essence, the applicant asked the court to rescind the remand and consider his case in light of the evidence – including new evidence concerning the DA Form 5500-R.  On 23 February 2011, the court denied the applicant's motion, meaning the remand order remained in place and the ABCMR will reconsider its prior denial in light of the DA Form 5500-R attached to the original remand order.

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 AR200800016454 on 25 June 2009.

2.  On 3 February 2011, the U.S. Federal Court of Claims directed that the Board reconsider its decision in this case in light of new evidence presented by the applicant (ABCMR Docket Number AR20100018533).

3.  The contested report was a change of rater report for 7 months of rated time while he was serving in the position of International Law Officer in Iraq.  The contested report shows the rating officials signed the report on 1 July 2004 and that the applicant refused to sign the report.  [The version of the contested report reviewed in this case is the "corrected version" after amendments directed by the OSRB were implemented.]

4.  Part IIIc (Significant Duties and Responsibilities) contains the entry:

International law officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq.  Responsible for providing technical expertise, staff advice and planning assistance to the support command.  Conducts assessments of government resources and systems and determines how these may impact civil-military operations.  Coordinates with administrators and representatives from the Coalition Provisional Authority to support the commander's objectives.  Identifies legal systems, agencies, services, personnel, resources, and laws to determine the effectiveness of legal systems and their impact on civil-military operations.

5.  Part IVc (APFT/Height/Weight) contains the entry "Height:  69 
Weight:  202  NO."

6.  Part V (Performance and Potential Evaluation – Rater) of the contested report shows the rater placed an "X" in the "Unsatisfactory Performance" block.  In Part Vb (Comment on Specific Aspects of Performance), the rater noted the applicant was an intellectually-gifted officer who possesses a good understanding of government processes which made him a useful asset to the battalion.  The rater further noted the applicant required some assistance and at times repeated guidance and was eventually removed from an assigned project.  The rater stated the applicant possessed a disposition to act independently of the chain of command and should not be advanced.  The rater concluded his rating by stating the applicant was flagged for not being in compliance with the standards of Army Regulation 600-9 (The Army Weight Control Program) and that the applicant was unable to take the APFT during the rating period because of his deployment for combat/contingency operations.

7.  Part VII (Senior Rater) of the contested report shows the senior rater placed an "X" in the "Do Not Promote" block.

8.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows the applicant was rated in the "Below Center of Mass Do Not Retain" block.

9.  Part VIIc (Comment on Performance/Potential) of the contested report shows the senior rater noted the applicant's performance was less than satisfactory.  The senior rater continued that "Given two high profile tasks, he needed constant supervision and the planning and execution of the division NGO conference would not have been done if it had been left to the applicant.  The senior rater further stated the applicant ignored orders to coordinate the effort and was subsequently relieved of his duties and given a letter of reprimand.  The senior rater also stated the applicant had difficulty distinguishing the duties of legal assistance to unit Soldiers and providing legal assistance to the command, attempting both simultaneously, clearly stepping outside his assigned duties.  The senior rater concluded his evaluation by stating, "Given his inability to follow orders and the requirement for constant supervision, do not retain in the United States Army."

10.  The contested report was referred to the applicant on 22 August 2004 and the applicant did not provide rebuttal comments.  The referral memorandum contained a suspense date of "23 August 2004."

11.  On 15 January 2008, the OSRB reviewed the applicant's appeal and directed that administrative changes be made to the contested OER.  However, the OSRB determined the administrative changes did not warrant promotion reconsideration.

12.  On 25 June 2009, the Board considered his appeal in Docket Number AR20080016454 and, after reviewing the OER as corrected by the OSRB, the Board determined:

* the OER had been provided to the applicant on two occasions for the opportunity to rebut, which he elected not to do
* the applicant had not provided any evidence showing the OER contained anything other than the considered opinions and objective judgment of the rating officials at the time of preparation
* the applicant had not provided sufficient evidence to show his rating chain was incorrect
* there was no evidence showing the actual ratings were flawed, in error, or factually incorrect
* there was no evidence showing the nonreferral documents for the 2005 and 2006 unit vacancy boards were inaccurate or unjust
* there was no evidence showing the nonselect documentation for the 2007 and 2008 DA Mandatory Promotion Boards for Major was inaccurate
* there was no basis for granting the applicant's request for promotion consideration to major based on the correction of administrative errors in the OER by the OSRB

13.  Records show the applicant's records were considered by a special selection board in April 2010 under the 2006 criteria and on 24 August 2010 a memorandum was dispatched to the applicant informing him he was not selected for promotion.

14.  The Board again reconsidered his appeal through a court remand in Docket Number AR20100018533 based on numerous documents submitted by the applicant and on 26 August 2010 the Board determined the applicant failed to show through the documents presented and the available evidence of record that the Board's determination in the earlier case was flawed or resulted in error or injustice.

15.  The document now provided by the applicant which has not been previously reviewed by the Board shows he met the height and weight standards during the period covered by the contested OER.  However, the contested OER reflects the entry "NO" in Part IVc.  Additionally, in Part Vb the last sentence indicates "Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations."

16.  A review of the applicant's OER history shows he received a referred report for the period covering 3 June 2000-2 June 2001 due to failing the APFT.  The applicant did not submit comments on that report as well.

17.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the OER system.  It provides that an OER accepted by Headquarters, DA, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER 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 at the time the OER was prepared.  It also provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Each report must stand alone.

18.  Army Regulation 623-3 also states the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent error or inaccuracy is warranted.

19.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides the policies and procedures for convening special selection boards.  It provides that special selection boards are formed to prevent an injustice to officers or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined as one or more errors of such a nature that, in the judgment of the reviewing official or reviewing body, caused an individual's nonselection by a promotion board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  Headquarters, DA, will normally not determine that a material error existed if the administrative error was immaterial; if the officer exercising reasonable diligence, could have discovered the error or omission; or if the officer could have taken timely corrective action by notifying officials at Headquarters, DA, of the error and providing any relevant documentation.

DISCUSSION AND CONCLUSIONS:

1.  The new evidence provided by the applicant clearly shows the contested OER contains an administrative error in Part IVc which contains the entry "NO" indicating he did not meet the height and weight standards for his age.  Accordingly, that entry should be changed to reflect an entry of "YES" and the last sentence in Part Vb, "Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations," should be deleted.

2.  However, the administrative correction of Part IVc does not serve to show the contested report did not show the considered opinions and objective judgment of the rating officials concerning other aspects of the applicant's performance at the time of preparation.

3.  It is also noted that the administrative error was an error that could have and should have been discovered by the applicant at the time the report was referred to him or at least shortly thereafter and he failed to exercise due diligence in that matter.

4.  Notwithstanding his lack of due diligence, the administrative error on the contested report would have no more effect on his consideration by selection boards than his previous referred report indicating he failed the APFT.  Further, the remaining comments by the rater and senior rater appear to be justified and supported.  Given those ratings, along with a review of the applicant's overall record, it is concluded that the removal or change of the APFT entry would not have changed the outcome of the applicant's promotion nonselection.

5.  Accordingly, there appears to be no basis to grant his request for removal of the contested OER or promotion reconsideration by a special selection board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X_____  ____X____  ___X_____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant partial amendment of the ABCMR's decision in Docket Number AR20080016454, dated 25 June 2009.  As a result, the Board recommends that all DA records of the individual concerned be corrected by deleting the "NO" entry in Part IVc of the OER ending 22 June 2004 and replacing it with entry "YES" and the last sentence in Part Vb, "Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations," should be deleted.
2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the contested OER from his official records and promotion reconsideration by a special selection board.



      __________XXX_______________
                 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)                                         AR20110001987



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ABCMR Record of Proceedings (cont)                                         AR20110001987



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