BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110012315 


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, his DA Form 67-9 (Officer Evaluation Report (OER)), for the period 13 September 2006 through 12 September 2007 (hereafter referred to as the contested OER) be removed from his Official Military Personnel File (OMPF).  He also requests issuance of a second command OER.  

2.  He states:

	a.  the contested OER should have been a referred report due to the negative comments in Part VIIc (Comment on Performance/Potential).

   b.  the contested OER should have been marked as a referred report in Part IId (This is a referred report, do you wish to make comments?), but it wasn't.  

	c.  he wasn't given a second command OER even though he changed command on 8 December 2007.

	d.  he wasn't given the opportunity to attach any comments related to his rating under the provisions of Army Regulation 623-3 (Evaluation Reporting System (ERS)).

	e.  the Human Resources Command (HRC) also failed to reject the contested OER as being incorrectly administered.  These two oversights infringed upon his right to a fair and unbiased evaluation.  

3.  He provides an OER appeal memorandum, dated 19 April 2011, and five OERs, including the contested OER. 

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving on active duty in the Regular Army in the rank of captain (CPT)/O-3. 

2.  The applicant was appointed as a Reserve commissioned officer on 14 August 1998 in the rank of second lieutenant.  He was ordered to active duty on 3 August 1999.  

3.  He was promoted to first lieutenant on 4 August 2000 and to CPT on 1 September 2002.

4.  The contested report is an annual OER covering the period 13 September 2006 through 12 September 2007.  This report indicates he was rated as a Battery Commander of Headquarters and Headquarters Battery (HHB) of a fires battalion assigned to a brigade combat team in the 3rd Infantry Division.  

5.  The contested OER indicates:

	a.  the rater digitally signed the report on 12 November 2007.

	b.  the senior rater digitally signed the report on 15 November 2007.

	c.  the applicant digitally signed the report on 25 November 2007.  

	d.  it was not a referred report in Part IId.

	e.  in Part VIIa and c (Senior Rater (SR) – Comment on Performance/Potential), the SR assessed the applicant as "Fully Qualified" and made the following comments:

	"[The applicant's] performance during this rating period has been average.  He currently ranks in the bottom third of the company/battery/troop commanders in the Brigade Combat Team.  [The applicant] failed to establish and properly supervise an adequate Command Supply Discipline program in HHB during his command.  He did lead Headquarters Battery through a very tough and effective training program that clearly set the conditions for the battery’s success during combat operations in support of OIF V.  Select [the applicant] for promotion to Major with his peers if the needs of the Army require and schedule him for ILE (Intermediate – Level Education).  He possesses adequate potential for future service."

6.  A review of the performance section of the applicant's OMPF on the interactive Personnel Electronic Records Management System revealed a copy of the contested OER.  

7.  On 19 April 2011, the applicant submitted an appeal of the contested report to HRC-Fort Knox.  

8.  On 18 May 2011, the applicant's appeal to HRC-Fort Knox was returned without action.  The letter states that under the provisions of Army Regulation 623-3 substantive evaluation report appeals must be submitted within 3 years of the through date of the report.  Since his appeal was not received within three years, he was advised to apply to this Board.

9.  The applicant received an OER upon his permanent change of station which covered the period from 13 September 2007 through 23 July 2008.  This OER was rendered by a different rater and SR and the applicant's principal duty title was "Assistant S3."  

10.  The applicant provided three other evaluation reports for the periods ending 12 September 2006, 20 June 2009, and 20 June 2010 which indicate he was consistently rated as "Best Qualified" with recommendations for promotion to major.

11.  References:

   a.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9 (OER).  

   (1)  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, counseling forms, and as explained in DA Pamphlet 623-3.  Consideration will be given to the following:  (a) the relative experience of the rated officer; (b) the efforts made by the rated officer; and (c) the results that could be reasonably expected given the time and 


resources available.  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.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

   (2)  Paragraph 2-10 states the rated individual is the subject of the 
evaluation and has considerable responsibility in the evaluation process.  Normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  Nonrated periods are not included in this 90-day period (see DA Pamphlet 623-3, tables 2-1 and 
3-1). 

   (3)  Paragraph 3-34 stipulates 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 it is sent to Headquarters, Department of the Army.

   (4)  Paragraph 3-36a states the SR will place an “X” in the appropriate box 
in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an “X” in the appropriate box in Part IId.  

		(5)  Paragraph 3-39 states 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.  To justify deletion or amendment of a report, the Soldier must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the Soldier.

	b.  DA Pamphlet 623-3 prescribes the procedures for completing evaluation reports that support the ERS.  

		(1)  Paragraph 2-4, Table 2-1 (Administrative Data) states the period covered is the period extending from the day after the "THRU" date of the last report to the date of the event causing the report to be written.  

   (2)  Paragraph 2-5, Table 2-2 (Authentication OER instructions) states the 
rated officer will sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the Army Physical Fitness Test and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I-VII.  This action increases administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.  If the report is adverse or contains derogatory information concerning the rated officer and the rated officer has not signed the report, the report must be referred to the rated officer in Part IId.

   c.  Army Regulation 600-8-104 (Military Personnel Information Management/ 
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records. Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by, among other agencies, the Army Board for Correction of Military Records and Department of the Army Suitability Evaluation Board.
   
   d.  Table 2-1 of Army Regulation 600-8-104 states an OER will be filed in the performance section of the OMPF and case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should have been a referred report due to the negative comments in Part VIIc.  However, the contested OER shows the applicant authenticated the report with his digital signature on 25 November 2007, verifying the accuracy of the administrative data.  

2.  He also contends the contested OER should have been marked as a referred report in Part IId and he wasn't given the opportunity to attach any comments related to his rating.  It appears the senior rater and HRC did not believe the comments to be derogatory.  The senior rater in fact rated the applicant as "fully qualified."  Nevertheless, even if the applicant believed the comments to be derogatory and even though the report was not referred and he was not given an opportunity to respond by making a selection in part IId, the absence of a referral memorandum alone would not invalidate the report or constitute a harmful error.  The applicant could have exercised his due process with an instant appeal.  

3.  The applicant has not provided evidence of a clear and convincing nature that the ratings and comments listed on the contested report are inaccurate and unjust and/or not consistent with his demonstrated performance of duty during the rating period.  Therefore, the applicant has not provided any evidence that would have changed the rating officials' comments at the time the report was rendered.

4.  The contested OER appeal is properly filed in the applicant's military personnel records in accordance with the governing regulation.

5.  In the absence of more compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

6.  The applicant contends he wasn't given a second command OER even though he changed command on 8 December 2007.  Guidance in Army Regulation 623-3 noted a Soldier would have to complete 90 calendar days in the same position under the same rater to be eligible for an evaluation report.  There are no exceptions just because an officer is in a command position.  In view of the fact the "THRU" date of his previous OER was 12 September 2007, he did not meet this minimum rating period as of 8 December 2007.  Therefore, he is not entitled to a second "command" OER for the period 13 September through 8 December 2007.  

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)                                         AR20110012315





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110012315



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1