IN THE CASE OF:	 

		BOARD DATE:	23 June 2011

		DOCKET NUMBER:  AR20110004808


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 correction of his records by removing the 
DA Form 67-9 (Officer Evaluation Report (OER)) for the period 29 March 2007 through 10 December 2007.

2.  The applicant states in his application and in his OER appeal that he received the OER at the time of his departure from the Miami Recruiting Battalion.  Immediately following his departure he was assigned to a unit that was set to deploy in 45 days.  He took 30 days of leave and he submitted a Commander's Inquiry (CI) during that time that was returned without action.  Before he had the opportunity to pursue further action, he was deployed, became gravely ill, and was medically evacuated from the theater.  For the last couple of years he has been battling diabetes and maintaining his current duties in the 8th Theater Sustainment Command.  He is now stable and able to focus on things that he could not in the last 2 1/2 years.

3.  The basis of his appeal is substantive inaccuracy.

	a.  He received two OER's from the same rater.  The initial OER covered the period 29 March 2006 through 28 March 2007.  The second report covers the period 29 March 2007 through 10 December 2007.  He claims there are administrative and substantive discrepancies in the second report that should result in the report being removed from his records.

	b.  He never received any formal or informal counseling from his rater or senior rater.

4.  The applicant provides the following in support of his application:

* Tab A – his OER for the period 29 March 2007 through 10 December 2007
* Tab B – his OER for the period 29 March 2006 through 28 March 2007
* Tab C – his Officer Record Brief
* Tab D – a 4-page transcript of grades from Troy State University
* Tab E – a memorandum requesting a CI, dated 28 January 2008
* Tab F – memoranda from Major (MAJ) S____ R. M____ and Staff Sergeant (SSG) T____ A. T____.

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was an active duty MAJ.

2.  The applicant received an OER for the period 29 March 2006 through 28 March 2007.  His rater was the battalion commander, a lieutenant colonel (LTC)/O-5, and his senior rater was the deputy brigade commander, a colonel (COL)/O-6.  This report shows the following entries:

	a.  In Part lVb3 (Actions (Leadership)) the rater placed an "X" in each "yes" block and an "X" in item 2 (Decision Making), item 4 (Planning), and item 5 (Executing), as best describing the applicant.

	b.  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) an "X" is placed in the box Outstanding Performance, Must Promote and Part Vb (Comment on Specific Aspects of the Performance) shows the comments:  "…recently volunteered to run both the S3 shop and S1 shop when personnel shortages hindered the unit's readiness….[Applicant] has taken on all challenges regardless of the difficulty of the task, always giving a 110%.  His passion for ensuring things are done correctly and to standard are second to none."

	c.  Part Vc (Comment on Potential for Promotion) shows the comment:  "Send to resident [intermediate level education] now; clearly a must selection to LTC [lieutenant colonel]."

	d.  In Part VII-Senior Rater an "X" is placed in the Best Qualified box.

3.  The applicant received an OER for the period 29 March 2007 through 10 December 2007.  The rater and senior rater were the same as the previous report.  This report shows the following entries:

	a.  in Part lVb3 the rater placed an "X" in each "yes" block and an "X" in item 6 (Assessing), item 8 (Building), and item 9 (Learning), as best describing the applicant.

	b.  in Part Va, an "X" is placed in the Satisfactory Performance, Must Promote box and there are no comments that he continued to volunteer to run both the S3 shop and S1 shop when personnel shortages hindered the unit's readiness.

	c.  Part Vc shows the comment:  "Promote with peers."

	d.  In Part VII-Senior Rater an "X" is placed in the Fully Qualified box.

4.  The applicant claims the marks and comments in the second OER show a lesser performance and he received no counseling from either of the rating officials.

5.  On 28 January 2008, he requested that the Commander, U.S. Army 2d Recruiting Brigade conduct a CI into the OER covering the period 29 March 2007 through 12 December 2007.  He states the request was returned without action.

6.  A memorandum from the U.S. Army Human Resources Command Appeals and Corrections Section returned his OER appeal without action because it was not filed within 3 years.

7.  The applicant provided memoranda from two co-workers:

	a.  The memorandum from MAJ S____ R. M____ attests that the applicant served as both the battalion S1 and S3 while MAJ S____ R. M____ was the executive officer for the battalion from December 2005 to July 2007.  The memorandum also states the applicant's rater (LTC D____ S. K____) did not communicate command direction and the applicant was not included in battalion command and staff meetings or any field grade officers' huddles.

	b.  The memorandum from SSG T____ A. T____ states she was the battalion S1 noncommissioned officer in charge and observed the applicant performing duties as the officer in charge (OIC) of the battalion S1 and S3.  She states the applicant was an outstanding OIC and she observed that he was wrongfully treated by his rater.

8.  Army Regulation 623-3 (Evaluating Reporting System) governs OER's and the OER appeal process.

	a.  Paragraphs 3-39 and 6-7 provide that an OER accepted by Headquarters, Department of the Army (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 opinion and objective judgment of the rating officials at the time of preparation.  Any appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	b.  Paragraph 6-11 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 material error or inaccuracy is warranted.  The evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  For a substantive claim of inaccuracy or injustice, evidence will include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe first-hand the appellant's performance as well as interactions with rating officials.

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to removal of the OER for the period 29 March 2007 through 12 December 2007.

2.  The applicant has not shown the contested OER to be invalid.  The report represented the considered opinion and objective judgment of the rating officials at the time of its preparation.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.

3.  The third party memoranda of support from co-workers were reviewed.  While these memoranda do not paint a positive picture of the rater and the command climate he fostered, they do not provide specific details sufficient to justify removal of the OER from the applicant's records.

4.  In order to justify the removal of the OER, the applicant needed to provide evidence of a strong and compelling nature that clearly and convincingly overcomes the presumption of regularity which applies to every OER accepted by HQDA for filing.  The applicant failed to do so; therefore, there is no basis for granting the applicant's request.

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)                                         AR20100011951



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ABCMR Record of Proceedings (cont)                                         AR20110004808



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