BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110012536 


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 an Officer Evaluation Report (OER) be removed from his permanent record or masked.  He also requests consideration by a Special Selection Board (SSB) under the rules for the 2011 Chaplain Major Board.

2.  He states there are administrative and substantive errors on his OER for the rating period 2 January 2004 through 1 January 2005.  The original OER signed by him and his rating chain was lost and replaced by an erroneous OER.

3.  The applicant provides:

* a self-authored memorandum to the Army Human Resources Command (AHRC)
* a DA Form 2823 (Sworn Statement)
* the OER he signed
* the OER that was placed in his record
* a Certification of Evaluation Reports
* Military Personnel (MILPER) Message Number 11-062
* records pertaining to the Fiscal Year 2011 Chaplains Promotion Selection Board for major (MAJ)

CONSIDERATION OF EVIDENCE:

1.  After periods of enlisted service in the Regular Army and Army National Guard and commissioned service in the U.S. Army Reserve (USAR), effective 23 March 2002 the applicant was appointed as a chaplain in the USAR.  Since his appointment, he has served as a member of a Troop Program Unit and on active duty.  He was promoted to captain (CPT) effective 2 June 2004, and he is currently serving on active duty.

2.  His record includes an annual OER for the period ending 1 January 2005 (OER 1) showing he was evaluated as the battalion chaplain while deployed in Iraq with the 1st Battalion, 153d Infantry Regiment, an Arkansas Army National Guard unit.  

   a.  Part 1o ([Command] Code) shows the entry "NG."  
   
   b.  Part II (Authentication) shows the form was signed by his rater, the battalion executive officer, on 12 January 2005, and his senior rater, the battalion commander, on 15 January 2005.  The blocks designated for an intermediate rater's identifying information and signature are blank.  The space provided for the applicant's signature shows the entry "Soldier not avail."  

   c.  Part IV (Performance Evaluation - Professionalism (Rater)) shows his rater put an "X" in the box for "yes" for all items except item IVd, which shows an "X" in the box for "NA."  His rater also placed an "X" in the boxes for Motivating, Planning, and Developing.  
   
   d.  In Part V (Performance and Potential Evaluation (Rater)), his rater placed an "X" in the box for "Satisfactory Performance, Promote."  
   
   e.  Part Vc (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses.  For Army competitive category CPT through [lieutenant colonel], also indicate a potential career field for future service) shows the following statement:  "[The applicant's] performance for this rating period has been sterling.  He provides quality spiritual support and religious services to the soldiers in the battalion.  He strives to be a team player and understands the complexities of the pluralistic deployment.  Exceptional potential.  Promote with his peers and maintain in the Army Reserve."
   
   f.  Part VI (Intermediate Rater) is blank.
   
   g.  In Part VIIa (Evaluate the Rater Officer's Promotion Potential to the Next Higher Rank), his senior rater placed an "X" in the box for "Fully Qualified" and indicated he was the senior rater for six officers in the applicant's grade.  In Part VIIc (Comment on Performance/Potential), his senior rater did not comment on why the applicant had not signed the form.

3.  He provides an OER for the period ending 1 January 2005 (OER 2) that he states is the original document.  OER 2 was signed on 10 January 2005 by his rater, an intermediate rater (the brigade chaplain), his senior rater, and the applicant.  In addition to being signed by an intermediate rater and the applicant, the form shows other differences from OER 1.

	a.  In Part IV, his rater placed an "X" in the boxes for Communicating, Executing, and Learning, and in Part IVd, placed an "X" in the box for "Yes."

	b.  In Part VII, his senior rater indicated he was the senior rater for one officer in the applicant's grade.

4.  He provides a notarized DA Form 2823 initialed by the officer listed as the intermediate rater on OER 2.  The officer stated he confirmed OER 2 is the original document and that his comments were mistakenly placed in Part Vc instead of Part VI.  

5.  He provides a Certification of Evaluation Reports, dated 4 May 2011.  Attached to the certification is a list of his OERs dating back to 1999.  The list shows three attempts were made to file his OER for the period ending 1 January 2005.  OERs received by Headquarters, Department of the Army (HQDA) on 6 and 22 February 2006 were rejected.  An OER received by HQDA on 24 March 2006 was accepted.  

6.  He provides documentation showing he was considered but not selected for promotion to MAJ by the fiscal year (FY) 2011 Chaplains Promotion Selection Board.

7.  In his memorandum to AHRC, he states, in pertinent part, he was available to sign OER 1 for almost 90 days as his unit did not redeploy back to the U.S. until the first week of March 2005.  He also states his senior rater was the senior rater for five company commanders and a staff officer who were CPTs, but OER 2 indicated his senior rater was the senior rater for one CPT.  

8.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the policies and tasks for the Officer Evaluation Reporting System.  

   a.  The regulation stated Part Io would show the code for rated officer's major command as provided in Table 3-5.  A note for Table 3-5 states the codes provided in Army Regulation 680-29 (Military Personnel, Organization, and Type of Transaction Codes), paragraph 2-4, will be used except for those commands listed in the table.  The code for USAR officers is "AR."
   b.  The regulation stated if the rated officer was unavailable, unable, or failed to sign the DA Form 67–9 for any reason, the senior rater would either resolve the problem or explain why in DA Form 67–9, Part VIIc.  The report would not be delayed because it lacked the rated officer’s signature.  However, if the report was adverse or contained derogatory information concerning the rated officer and the rated officer had not signed the report, the report was required to be referred to the rated officer. 
   
	c.  The regulation required the senior rater to enter in Part VIIa the total number of Army officers he currently senior rates in that grade, separated by component.  
   
   d.  Appendix C provided guidance for evaluation of chaplains.  It states, in pertinent part, there will be a chaplain and a non-chaplain in the rating chain, when possible.  When a chaplain is not in the rating chain a senior chaplain familiar with the rated chaplain’s performance (if available) may be designated as intermediate rater.

9.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) currently prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.  This regulation incorporates the policies and procedures formerly provided in Army Regulation 623-105.  

   a.  Paragraph 3-39 provides the basic rules applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by HQDA, and included in the official record of a rated Soldier 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.  Once accepted for filing in an officer’s record, requests that a report be altered, withdrawn, or replaced with another report will not be honored.
   
   b.  Chapter 6 of the ERS regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-7 outlines policies and states, in pertinent part, that evaluation reports accepted by HQDA and included in the official record of a rated Soldier are 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, as outlined in paragraph 3-39.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states 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 paragraphs 3-39 and 6-7 will 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.

10.  Army Regulation 600-8-29 (Officer Promotions) states a Special Selection Board (SSB) may be convened under Title 10, U.S. Code, section 268 (10 USC 628) to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:  
	(a)  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required).
	(b)  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or 
	(c)  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant has requested that OER 1 be removed from his record or masked.  

2.  The evidence of record shows OER 1 contains material errors that should be corrected. 

3.  OER 1 does not accurately show his major command, shows he was not available to sign the form, and omits the intermediate rater information.  OER 2, though it does not accurately show his major command, does include his intermediate rater's identifying information and signature.  Further, in a sworn statement, the intermediate rater indicates the comments in Part Vc of both versions of the OER are his comments, not those of the rater as one might assume from reading the form.  

4.  The governing regulation states there will be a chaplain and a non-chaplain in the rating chain, when possible.  OER 2 shows this was the case, but OER 1 shows no chaplain in his rating chain. 

5.  Of note is the evidence showing the OER in question was received at HQDA more than a year after the end of the rating period and that the OER was prepared while the applicant and his rating chain were deployed.  It seems OER 2 may have been lost and later replaced by OER 1.  

6.  OER 2 indicates his senior rater was the senior rater for one CPT.  It would be rare that an infantry battalion commander would senior rate only one CPT.  It appears the number shown on OER 1 is accurate.   

7.  The applicant has provided clear and convincing evidence showing OER 1 contains material error.  It would be appropriate to:

	a.  replace OER 1 with OER 2; and 

	b.  correct OER 2 by: 

* changing Part Io to read "AR" 
* moving the comments in Part Vc to Part VI
* amending Part VIIa to show his senior rater senior rated 6 CPTs

8.  Following these corrections, it would be appropriate to place his record before an SSB for reconsideration for promotion to MAJ under the rules for the FY 2011 Chaplains Promotion Selection Board.

BOARD VOTE:

___x__  ___x_____  ___x_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  replacing OER 1 with OER 2; 

	b.  correcting OER 2 by: 
* changing Part Io to read "AR" 
* moving the comments in Part Vc to Part VI
* amending Part VIIa to show his senior rater senior rated 6 CPTs

	c.  after these corrections have been made, submitting his record to an SSB for reconsideration for promotion to MAJ under the rules for the FY 2011 Chaplains Promotion Selection Board.




      _______ _  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)                                         AR20110012536





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ABCMR Record of Proceedings (cont)                                         AR20110012536



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