IN THE CASE OF:	  

		BOARD DATE:	  2 June 2011

		DOCKET NUMBER:  AR20110003340 


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 Part V (Performance and Potential Evaluation (Rater)) and Part VII (Senior Rater) of his Officer Evaluation Report (OER) for the rating period 28 July 2006 through "2" (i.e., 27) July 2007.

2.  The applicant states:

* He believes his performance during the rating period was satisfactory and he is fully qualified for promotion to the next higher grade
* His performance was evaluated with unrealistic expectations, unnecessary duress, and resulted in his rating officials not having objective judgments
* His most significant accomplishment was the credentialing of Iraqi journalists which was unprecedented and resulted in enhanced relations
* Change in leadership at the division level changed expectations to an unrealistic level in public affairs from his brigade leadership
* He was expected to increase media opportunities and was counseled on these expectations only once before being relieved of his duties
* Up until then, his accomplishments were satisfactory
* His work during the rating period for both of his division public affairs officers (PAO) was exemplary and recognized as positive
* This showed he was fully capable and that unrealistic expectations resulted in an inaccurate and unjust evaluation of his performance and potential

3.  The applicant provides an OER for the rating period 28 July 2006 through 27 July 2007 and two statements of support.
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was appointed as a second lieutenant in the U.S. Army Reserve and executed an oath of office on 30 May 1992.  He served in staff and leadership positions, as a Field Artillery (FA) officer, and attained the rank of major (MAJ), Regular Army, on 1 May 2003.  

3.  He was assigned to Headquarters and Headquarters Company (HHC), 4th Brigade Combat Team (BCT), 25th Infantry Division, Fort Richardson, AK and he served in Iraq with this unit as the BCT PAO from 28 July 2006 to 27 July 2007.

4.  During the month of August 2007, the applicant received the contested OER, an annual OER which covered 12 months of rated time from 28 July 2006 through 27 July 2007 for his duties while serving as the brigade PAO.  His rater was a lieutenant colonel (LTC) and his senior rater was a colonel (COL).  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation - Professionalism - Values), the rater placed an "X" in the "Yes" block for all seven values.

	b.  In Part IVb (Performance Evaluation – Professionalism - Leader Attributes/
Skills/Actions), the rater placed an "X" in all of the "Yes" blocks."

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered comments in Part Vb as follows:

[Applicant's] performance was mediocre and inconsistent.  On occasion he demonstrated the ability to perform well but generally failed to accomplish the routine requirements of the BCT PAO.  His most 
significant contribution was coordinating the credentialing of approximately 25 Iraqi journalists into the recognized press corps which allowed them access to Iraqi Army and police units as they conducted combat operations.  He supervised the production of seven bimonthly newsletters and six monthly command videos.  He supervised the production of numerous press releases and stories.  He coordinated and supervised the execution of multiple press conferences with both media in Alaska and in Iraq which promoted the BCT's successes and partnership with Iraqi Army and police units.  Often, however, the products he and his subordinates prepared contained numerous errors that had to be corrected before release.  He often failed to meet suspenses and routinely had to be reminded to complete assigned tasks.  [Applicant] demonstrates the potential to continue service in his current rank.

	d.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" block, rated him as "Below Center Mass," and entered the following comments:

[Applicant's] performance simply did not meet the minimal acceptable standard of a field grade officer.  He failed to accomplish routine tasks and required continuous and close supervision.  I cannot in good conscience recommend him for promotion.  

5.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates he did not provide any comments.  On 21 August 2007, the OER was signed by rating officials, and the applicant, and processed at the U.S. Army Human Resources Command (HRC).  The OER is currently filed on the performance section of the applicant's official military personnel file (OMPF).

6.  Since the receipt of the contested OER his accomplishments are as follows;

* Received a Center of Mass OER from "27" July 2007 through 25 May 2008 wherein the same rater and senior rater rated him "Satisfactory Performance, Promote" and "Best Qualified" respectively
* Received the Army Commendation Medal for meritorious service while serving as the 4th BCT, 25th Infantry Division PAO from 28 June 2006 to 27 May 2008
* Received a Center of Mass OER from 26 May 2008 through 6 January 2009 as a Public Affairs Observer/Trainer, Fort Leavenworth, KS
* Received a Center of Mass OER from 7 January 2009 through 18 October 2009 as a Public Affairs Observer/Trainer, Fort Leavenworth, KS
* Received an Above Center of Mass OER from 19 October 2009 through 13 April 2010 as a Public Affairs Observer/Trainer, Fort Leavenworth, KS

7.  On 14 July 2009, HRC notified the applicant that as a twice non-selected MAJ he had been selected for continuation on active duty and, unless he declined continuation, he would be continued on active duty.  On 22 July 2009, the applicant acknowledged receipt of his selective continuation and accepted it.

8.  The applicant provides two statements of support from a LTC and a COL assigned as a division PAO and multi-national forces PAO respectively.  The officers stated they observed the performance of the applicant in Iraq from March to July 2007 and during that time unrealistic public affairs expectations and intense pressure was put upon the BCT PAOs.  Each stated they observed many other BCT PAOs and assessed the applicant as one of the most insightful, fully capable PAOs and felt he was unjustly rated.

9.  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, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-36 states when an OER is referred to a Soldier, the rated Soldier may comment if they believe that the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier’s referral comments.

	c.  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	d.  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 the presumption of regularity will not be applied to the report under consideration, and 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 or 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. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends Part V and Part VII of the contested OER should be removed from his records.

2.  The evidence of record shows the applicant received a referred OER that stated his performance was mediocre, inconsistent, did not meet minimal acceptable standards, and he required continuous supervision.  In addition, he was given credit for his most significant accomplishment of the credentialing of Iraqi journalists.  The focus of the OER was on the quality of his work and his failure to meet suspenses.  Accordingly, the OER was referred to him.

3.  One of the steps in the redress system is the referral process including a Soldier’s opportunity to comment on the referred OER.  The record reflects he declined to comment on the referred OER.  Additionally, there is no evidence in the record that he requested a commander’s inquiry as provided in Chapter 6 of Army Regulation 623-3.  

4.  The contested OER appears to be correct.  There is no evidence, and the applicant has provided none, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  

5.  The applicant’s arguments provided in this case address his dissatisfaction with his rating.  However, he failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  In view of the foregoing evidence, he is not entitled to the requested relief.

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)                                         AR20110003340





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ABCMR Record of Proceedings (cont)                                         AR20110003340



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