BOARD DATE:	  23 June 2011

		DOCKET NUMBER:  AR20110003874 


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, in effect, removal of his original DA Form 67-9 (Officer Evaluation Report (OER)) for the period 21 August 2006 through 20 August 2007 from his interactive Personnel Electronic Records Management System (iPERMS) file and replaced with the newer version signed by his rater.

2.  The applicant states that his original OER has a substantive error as his rater and senior rater did not properly evaluate him.  He also states:

* his California Army National Guard (CAARNG) assignment was with the state's 09L (Interpreter/Translator) program which was overseen by Major H---- A----- who provides a letter of continuity for his replacement OER
* he was on Active Duty for Special Work (ADSW) at the Defense Language Institute (DLI), Presidio of Monterey, CA, where he worked for Major
V-- I----, U.S. Air Force, who provides a letter of continuity for that performance
* although the CAARNG requested they write his OER, he had never drilled with or met them
* he was always busy with the 09L program and the ADSW
* both his rater and senior stated they rated him as only "Satisfactory" and "Fully Qualified" because they had never met him or received anything from his ADSW or 09L supervisors
* when he contacted those supervisors they provided the statements of continuity


* the former rater apologized and offered to sign a new OER
* the former senior rater at first declined and then agreed to sign a revised OER
* the original OER was written without a support form

3.  The applicant further contends that despite exceeding the 3-year limitation, the revised OER should supplant the existing one because:

* it was actually 8 February 2009 before it was signed and 17 February 2009 before it was given to him to sign
* he was overseas at a forward deployed unit when he received the OER to sign
* he waited until he returned stateside in July 2010 to initiate an appeal
* it took him months to locate the individuals and receive their input and several more months to receive an answer from his former rater on how to proceed

4.  The applicant provides:

* a self-authored memorandum to the U.S. Army Human Resources Command (USAHRC), Fort Knox, KY, subject:  Evaluation Report Appeal (20060821-20070820) (applicant's name and social security number), dated 14 January 2011
* a 14 December 2010 memorandum from a Major I----, the Dean of Students at the Defense Language Institute/Foreign Language Center
* a 20 December 2010 Memorandum for Record from a Major A-----
* a suggested replacement OER signed by the original rater
* a memorandum from the Appeals and Correction Section, USAHRC, Fort Knox, advising him to apply to the Army Board for the Correction of Military Records (ABCMR) for resolution

CONSIDERATION OF EVIDENCE:

1.  The applicant, an ARNG captain with a date of rank of 17 September 2006, was at the time a member of Headquarters and Headquarters Support Company, 223rd Military Intelligence Battalion (Linguist), CAARNG.

2.  The applicant was evaluated for performing as the associate dean for the emerging language task force at the Defense Language Institute, Presidio of Monterey while on active duty from May to October 2007, and for his inactive duty activity in recruiting individuals with unique language skills.


3.  In Part V (Performance and Potential Evaluation), subparagraph a (Evaluate the rated officer's performance during the rating period and his/her potential for promotion) his rater, the battalion executive officer, marked the applicant in the "Satisfactory Performance, Promote" box.  In subparagraph b (Comment on specific aspects of the Performance), the rater noted the applicant's "Outstanding dual performance…CPT (applicant) excelled…as associate dean…[where] he skillfully transferred his operational experience… made significant changes…"  In his inactive duty function the applicant used,"…his knowledge to…prepare excellent recruiting briefs that ultimately enhanced the quality of the 09L program…masterfully used his interpersonal skills…to initiate recruitment of a handful of recruits that posses [sic] highly desirable languages…."

4.  In Part VII (Senior Rater), subparagraph a (Evaluate the rated officer's promotion potential to the next higher grade) his senior rater, the battalion commander, marked the applicant in the "Fully Qualified" box.  Subparagraph c (Comment on performance/potential) noted that the applicant "…had excelled in motivating and encouraging members of the Afghan community to join the Army.  The 09L Program has increased in strength under his leadership…."

5.  Documents submitted with the application are:

	a.  the 14 December 2010 memorandum from the former Dean of Students at the Defense Language Institute/Foreign Language Center which reports the applicant had participated in the program from May to September 2007, he had previously sent input for the subject OER but it was apparently never incorporated into his final evaluation report, and he describes the applicant's contributions to the program;

	b.  a 20 December 2010 Memorandum for Record from a Major A-----that indicates the writer was the applicant's supervisor while he was serving with the 09L program from August 2006 to May 2007 and recommends that the applicant be rated as "Outstanding Performance, Must Promote" and "Best Qualified."

	c.  the suggested substitute OER for the period ending 20 August 2007 is signed by his executive officer as the rater and marks the applicant in the "Outstanding Performance, Must Promote" box and provided essentially the same verbiage as the original.  The senior rater portion is marked in the "Best Qualified" block, but the report is unsigned by the senior rater.

6.  In the applicant's application he relates, "My former senior rater, LTC C----, refused to sign the new and suggested evaluation report as he stated to me that he believes that being marked as "Fully Qualified" on an evaluation report is deemed as a success in ones career, and therefore does agree to sign a new report."

7.  Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System.  It also provided guidance regarding redress programs including commander inquiries and appeals.  It states, in pertinent part that the rated individual has considerable responsibility in the evaluation process.  He/she will periodically evaluate their own performance and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments, and final evaluation and discuss the duty description and performance objectives with the rater. The DA Form 67-9-1 provides an opportunity for the rated officer, rater, and intermediate rater to communicate with the senior rater.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an OER.

8.  Paragraph 3-57 of Army Regulation 623-105 provided the basic rule applicable to modifications of previously submitted reports.  It stated, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (DA), 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.  It also stated that requests that 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 been known or verified when the report was prepared.

9.  Army Regulation 623-105, chapter 6, contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 stated, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; 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.


10.  Army Regulation 623-105, paragraph 6-10, contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that both his rater and senior rater stated they rated him as only "Satisfactory" and "Fully Qualified" because they had never met him or received anything from his ADSW or 09L supervisors and that when he contacted them, those supervisors provided statements of continuity.

2.  The applicant must accept the predominate responsibility for the fact that the rater and senior rated did not know him and that his project supervisors did not provide timely input for the OER.  They seemed willing enough to help him years after the fact.

3.  Numerous other considerations argue against changing the OER, which include:

	a.  the time delay in finishing the OER should have worked in the applicant's favor in that he had plenty of time to obtain the missing supervisors' reports;

	b.  if, as the applicant states the original OER was written without any support form, that is solely his own responsibility and such absence could and probably should have been taken as an indication of how unimportant the applicant thought the OER actually was;

   c.  it is irrelevant whether or not the applicant's supervisor at the Defense Language Institute/Foreign Language Center provided any input for the original OER when his doing so resulted in virtually no change in the rater's supporting comments provided in the proposed substitute OER; and

	d.  the applicant's assertion that his former senior rater refused to sign the new and suggested evaluation report since he believed being marked as "Fully Qualified" on an evaluation report is deemed a success in one's career.


4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110003874



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ABCMR Record of Proceedings (cont)                                         AR20110003874



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