IN THE CASE OF:	 

		BOARD DATE:	13 September 2011

		DOCKET NUMBER:  AR20110012092


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 the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 6 November 2006 through 26 February 2007 be removed from his official military personnel file (OMPF).

2.  The applicant states that the OER contains derogatory comments and was not referred to him as required by Army regulations.  His appeal of the report was denied by the Officer Special Review Board (OSRB) on 27 August 2010.  It is unfair, unjust, and a denial of due process guaranteed by Army regulations because the OER contains comments by the rater that are derogatory and negative and was not referred to him as required by Army regulations.

3.  The applicant provides copies of the OER, his denied appeal with the enclosures, a 2 August 2007 email note, and a 6 December 2010 memorandum. 

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was an active duty lieutenant colonel (LTC).  During the period of the OER he was a major serving as a Behavior Health Officer for a brigade combat team deployed to Iraq.

2.  The applicant received an OER for the period 6 November 2006 through 
26 February 2007.  His rater was the battalion commander, a LTC, and his senior rater was the brigade commander, a colonel (COL).  This report shows entries which the applicant claims are derogatory and negative.  The specific entries are in:
	a.  Part VIIc where the senior rater states:  “Assign to Medical Treatment Facilities to best utilize his deployment experience while providing a  more stable environment.”  

	b.  the rater’s comments in Part Vb:  “He is best in a stable environment."

	c.  the rater's comments in Part Vc:  "Assign to Medical Treatment Facilities.”  

3.  In his OER appeal, the applicant stated that four days before he departed his unit his rater informed him she was redeploying him to the U.S. for “medical reasons.”  He had obstructive sleep apnea and the rater stated she could not use him in a deployed environment because he used a continuous positive airway pressure (CPAC) machine at night to improve his sleep.  The applicant claimed this was a “ruse.”

4.  The applicant stated he received the OER three months after he departed the unit.  He immediately contacted the rater and senior rater regarding the negative comments.  The rater responded by email telling him:  “You were counseled by Major (MAJ E____ [the company commander] and had an office call with myself.  The only time your mild depression was taken into account by me was in not taking action on reports on inappropriate and comments [sic] made by yourself.”

5.  In support of his application he provides:

	a.   an email from his personnel manager at the Army Human Resources Command (AHRC) informing him that that an OER containing derogatory information had been posted to his records.  As he was not given the opportunity to sign or see the report it would merit a request for an appeal should he choose to pursue it.

	b.  a 6 December 2010 memorandum from the Force Health Protection Officer (U.S. Central Command) stating that he had served at AHRC as a career manager in the Medical Service Corps for almost three years.  He reviewed thousands of OERs and the comments in question on the OER were negative and the report should have been referred to the applicant for comment in accordance with the Army regulations.

6.  The applicant stated the comments in the report weree unfair, unjust and he was denied due process as the OER should have been considered as a referred report.  The OER should have been referred to him for his comments and those comments posted to his OMPF with the report.

7.  The Army Special Review Board denied the applicant’s appeal of the OER on 23 September 2010.   The record of proceedings (ROP) concludes the applicant did not provide clear and compelling evidence that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was prepared.  Additionally, the applicant did not show that he was prejudiced by the failure to refer what he perceives to be a referred report.  

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

	a.  Paragraph 3–34 provides that any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA. 

	b.  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.

	c.  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 contends the OER he received for the period 6 November 2006 through 26 February 2007 should be removed from this OMPF.  He claims the OER contains derogatory comments and was not referred to him as required by Army regulations.  His appeal of the report was denied by the Army Special Review Board on 27 August 2010. 

2.  The applicant has not provided clear and compelling evidence that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was prepared.  Additionally, the applicant did not show that he was prejudiced by the failure to refer what he perceives to be a referred report.  

3.  He contends the comments in question are derogatory.  They may not be as positive and laudatory as the applicant expected, but they are not derogatory.  The rater and senior rater recommended he be assigned to Medical Treatment Facilities in a stable environment.  The applicant has not provided any evidence to show he is better suited for other assignments.  

4.  The third-party memoranda of support were reviewed.  While these do indicate that in the opinion of the personnel manager the OER should have been referred the applicant, they do not provide specific details sufficient to justify removal of the OER from the applicant's records.  In addition, the OER was accepted by HQDA for filing by an office that reviews thousands of OERs.  That office has the authority to return OERs when it believes regulatory guidance was not followed (such as when an OER should have been referred but was not), and it is noted that HQDA did not find the comments to be so derogatory that the OER had to be returned for referral.  

5.  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)                                         AR20110012092



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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