IN THE CASE OF:	  

		BOARD DATE:	  17 November 2011

		DOCKET NUMBER:  AR20110018823 


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:

* removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 17 August 2007 through 30 April 2008 [hereafter referred to as the contested OER] from his official military personnel file (OMPF)
* consideration by a special selection board (SSB) for promotion to chief warrant officer three (CW3) and retroactive advancement to CW3

2.  The applicant states:

* he was not provided with an opportunity to submit a rebuttal and the contested OER was based on a personal opinion of an ongoing investigation
* the contested report contains negative information and should have been a referred OER
* the investigation was not completed prior to submitting the contested OER; it was completed in January 2009 and he received a local letter of reprimand
* he was told this OER was a "bump in the road" and he could easily overcome it
* he did not understand the referral or the redress process and no one mentored him regarding how to deal with a negative OER
* it is an injustice to blacken his file with exaggerated comments
* had the OER been rendered after the investigation was completed, it would have shown a stellar performance
* he has been twice not selected for promotion and he now risks discharge
* his other OER's clearly show his true performance and potential

3.  The applicant provides the contested OER as well as multiple OER's from 5 November 2005 through 1 April 2011, a notification of separation due to non-selection for promotion, and a statement of support.

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service from 16 February 1995 to 11 July 2005 culminating in the rank/pay grade of sergeant first class/E-7, the applicant was appointed as a Reserve warrant officer and executed an oath of office on 12 July 2005.  He held military occupational specialty 353T (Signal and Electronic Warfare Equipment Repair Technician).

2.  He served with the 2nd Infantry Division in Korea from November 2005 through November 2006.  He was promoted to chief warrant officer two (CW2) on 12 July 2007 and he was reassigned to Company B, 224th Military Intelligence (MI) Battalion, Hunter Army Airfield, GA, in August 2007.

3.  During the month of April 2008, he received the contested report – a change-of-rater OER which covered 8 months of rated time from 17 August 2007 through 30 April 2008 – for his duties as the "Intelligence and Electronic Warfare (IEW) Technician" while assigned to Company B, 224th MI Battalion.  His rater was the platoon leader, First Lieutenant D____ J. S____, his intermediate rater was the company commander, Captain R____ R. H____; and his senior rater was the battalion commander, Lieutenant Colonel S____ J. M____.  The OER shows the following entries:

	a.  In Part IV (Performance Evaluation –Professionalism), the rater checked the "Yes" blocks for all seven Army values and the "Yes" block for the appropriate attributes, skills, and actions.

	b.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance – Promote" block and entered the following comments:

[Applicant] served as the battalion's senior technical advisor for the testing and fielding of the Guardrail Ground Baseline (GGB), which changed the way that Guardrail units conduct operations in theater. 
[Applicant] worked closely with his platoon and numerous contracting company representatives to ensure unforeseen issues were quickly identified and resolved, and that the chain of command was constantly informed on the new system's progress.  His diligence paid off as GGB 1.0 deployed 4 days ahead of schedule.  In addition, as Unit Movement Officer, [Applicant] was charged with ensuring the successful deployment of an INSCOM [Intelligence and Security Command] directed capabilities-based rotation.  The endeavor was seamless and professional throughout including strategic movements and forward site plans.  His efforts continued to pay off as he led the way on the testing and fielding of GGB 2.0 intended to allow any Guardrail unit to deploy anywhere at any time in support of [Department of Defense] requirements.  Despite his achievements as the IEW OIC [officer in charge], he allowed and facilitated the disposition of government equipment at an unapproved facility leaving his integrity as a commissioned officer in question.

	c.  In Part Vc (Comment on Potential for Promotion), the rater entered the comments "Great potential.  Send to warrant officer advanced course.  Promote to CW3 with peers."

	d.  In Part VI (Intermediate Rater), the intermediate rater entered the following comments:

Notable performance by [applicant].  As the Unit Movement Officer, [Applicant] deployed to Iraq to oversee the movement of over 500,000 pounds of equipment by air, ensuring everything was properly received with 100-percent accountability.  [Applicant] supervised the setup and the integration of the GGB 1.0 within 30 days of its fielding while demonstrating the ability to plan, organize, and follow through on multiple complex tasks simultaneously and always with outstanding results.  His actions allowed the battalion to provide time-sensitive and precise intelligence that saved Soldiers' lives.  Promote with peers to CW3.

	e.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Capable" block and a second "X" in the "Yes" block to indicate he senior-rated four officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review. 
The senior rater listed three future assignments for which the applicant was best suited and entered the following comments in Part VIIc (Comment on Performance/Potential):

Satisfactory performance by an otherwise outstanding officer.  [Applicant] was responsible for the success of the first capabilities-based rotation directed by INSCOM to Operation Iraqi Freedom.  His direct planning of air movements followed by the quick setup of his platoon's equipment enabled us to assume our combat mission 4 days ahead of schedule.  [Applicant] consistently mentored superiors and subordinates on Guardrail systems and associated components, greatly enhancing awareness of system capabilities and limitations while providing critical insight to ensure successful fielding of GGB.  His lack of supply management and discipline led to the wrongful disposition of government property while he was the senior officer in the platoon.

4.  The OER was digitally signed by his rater and intermediate rater on 16 July 2008, by his senior rater on 18 July 2008, and by him on 20 July 2008.  It was processed by the U.S. Army Human Resources Command (HRC) on 14 October 2008.

5.  His official records do not contain and he did not submit a copy of the alleged incomplete investigation or the resultant local reprimand.  However, he submitted several OER's before and after the contested OER and a letter of support from an officer who was the rear detachment commander at the time.  This officer states the alleged investigation was completed in January 2009.  He further states the applicant was an exemplary officer who performed his duties flawlessly and that he learned from his past decision.

6.  The applicant appealed the contested OER to HRC, but his appeal was not considered because it was not submitted within 3 years of the through date as required by the applicable regulation.

7.  On 31 August 2011, he was notified that he was considered for promotion to CW3 by the 2010 promotion selection board, but he was not selected.  He was also notified that he must be separated by March 2012 since this was his second non-selection.

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  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 Department of the Army Pamphlet 623-3 (Evaluation Reporting System).

	b.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	c.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	d.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

	e.  Paragraph 3-34 (Referred Reports) states the following types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, Department of the Army (HQDA):

* a relief for cause report submitted under the provisions of paragraph 3-58
* any report with negative remarks about the rated officer's values or leader attributes/skills/actions in the rater's narrative evaluation or a rating of "No" in these items
* any report with an entry of failing the Army Physical Fitness Test or non-compliance with Army weight standards
* any report with a performance and potential evaluation in Part Va of "Unsatisfactory Performance – Do Not Promote" or narrative comments to that effect from any rating official
* any report with a performance and potential evaluation in Part Va of "Other" where the required explanation has derogatory information
* any report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa
* any report with a promotion potential evaluation of "Other" in Part VIIa where the required explanation has derogatory information
* any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb
* any report with negative comments in Parts Vb, Vc, VI, or VIIc

9.  Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states SSB's may be convened to consider or reconsider commissioned officers for promotion when HQDA discovers one or more of the following:  (1) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the Temporary Disability Retired List and who have since been placed on the Active Duty List (SSB required); (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or (3) the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

10.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he received a local letter of reprimand for an alleged investigation that is not available for review with this case.  It appears that shortly thereafter, he received the contested change-of-rater OER on 30 April 2008.  None of his rating officials mentions the investigation; however, both the rater and senior rater mention the applicant's "wrongful disposition of government property."

	a.  Although his rater rated his performance as "Satisfactory Performance – Promote," the rater made negative comments in Part Vb when he stated that "despite his achievements as the IEW OIC, he allowed and facilitated the disposition of government equipment at an unapproved facility leaving his integrity as a commissioned officer in question."

	b.  Although his senior rater rated his promotion potential as "Fully Qualified," he too made negative comments in Part VIIc when he stated that "his lack of supply management and discipline led to the wrongful disposition of government property while he was the senior officer in the platoon."

	c.  By regulation, any report with negative comments in Part Vb and/or VIIc must be referred to the rated officer for acknowledgement and comment before the OER is sent to HQDA for processing.  The referral process would have required placement of an "X" in Part IId (Authentication) to indicate the OER is a referred OER and to allow the rated officer to make comments if he or she so desired.  Additionally, the OER would have been given to the rated officer for comments if that rated officer believed the rating or remarks were incorrect.

	d.  It is unclear when or why the applicant was investigated, but it is clear his rating officials made negative comments in their ratings.  It is also unclear if the applicant was provided with an opportunity to submit comments to his rating officials and that his rating officials considered his rebuttal but forgot to place an "X" in Part IId.  It is further and equally unclear if the applicant was denied the opportunity to comment on this OER.  Any doubt should be ruled in his favor.  The referral process does not appear to have happened in the applicant's case.  He was essentially denied due process.

	f.  The remainder of the contested OER is positive.  In fact, both the rater and senior rater provided favorable comments and he was recommended for promotion with his peers.  Therefore, removal of the negative comments contained in the rater's and senior rater's blocks of this OER appears to be appropriate.

2.  With respect to the SSB and/or promotion issue, when considering an officer's potential for promotion, selection boards consider various factors such as OER's, assignments, training, education, and other factors.  It is speculative for the applicant to believe this OER led to his non-selection.  Nevertheless, the negative comments in the contested OER constitute a material error in that these comments could have caused his non-selection by a promotion board and that had such error(s) been corrected at the time he was considered, a reasonable chance would have resulted that he would have been recommended for promotion.  Therefore, he should be entitled to an SSB for promotion consideration to CW3.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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

	a.  deleting the portion of the rater's comments that state, "Despite his achievements as the IEW OIC, he allowed and facilitated the disposition of government equipment at an unapproved facility leaving his integrity as a commissioned officer in question," from Part Va of the DA Form 67-9 for the period 17 August 2007 through 30 April 2008;

	b.  deleting the portion of the senior rater's comments that state, "His lack of supply management and discipline led to the wrongful disposition of government property while he was the senior officer in the platoon," from Part VIIc of the DA Form 67-9 for the period 17 August 2007 through 30 April 2008;

	c.  following the deletion of the negative comments, his records be submitted to an SSB for promotion consideration to CW3 under the 2010 and 2011-year criteria and:

		(1)  if selected, his records be further corrected by showing he was promoted to CW3 on his date of eligibility, as determined by appropriate Departmental officials, provided he was otherwise qualified and met all other prerequisites for promotion, and

		(2)  if not selected, the applicant be so notified.


2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removal of the contested OER from his OMPF.



      ____________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)                                         AR20110018823



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ABCMR Record of Proceedings (cont)                                         AR20110018823



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