IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110019451 


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 that the Officer Evaluation Report (OER) ending on 
10 June 2006 be removed from his Official Military Personnel File (OMPF) and that the period be declared non-rated time. 

2.  The applicant states that his rater was ineligible to rate him because he (the applicant) outranked his rater in date of rank (DOR).  He goes on to state his DOR was 19 July 2000 and his rater’s DOR was 7 October 2000, which made him ineligible in accordance with Army Regulation 623-105, paragraph 2-4d.  He further states his rater’s rating does not coincide with his write-up and the senior rater’s (SR's) evaluation does not coincide with the rater’s evaluation.  He continues by stating that upon receipt of the OER he was informed that he could not appeal the OER because his rater was in an O-5 position; however, he was subsequently informed he could appeal.  Unfortunately, his subsequent assignments prevented him from appealing the contested report in a timely manner.  

3.  The applicant provides a copy of the contested OER, copies of his appeal efforts, and copies of his subsequent assignment orders.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant upon graduation from Officer Candidate School on 18 April 1986 and he continued to serve until he was honorably released from active duty in the rank of captain on 1 August 1995, under the Early Release Special Separation Benefit Program.  He had served 9 years, 9 months, and 17 days of active service and was transferred to the USAR Control Group (Reinforcement).

2.  He was promoted to the rank of major on 19 July 2000 and on 30 March 2001 he was ordered to active duty for a period of 3 years.  He has continued to serve on active duty through successive tours.

3.  On 21 July 2006, while assigned to Afghanistan, he received an annual OER evaluating him as a brigade logistics officer (S4) during the period 11 June 2005 to 10 June 2006.

4.  In Part Va, under Performance and Potential Evaluation, the applicant’s rater gave the applicant a “Satisfactory Performance – Promote" rating and indicated that the applicant was recommended for promotion when his potential for higher levels of responsibility was displayed.

5.  In part VII, his SR, a colonel, rated the applicant as “Fully Qualified” and indicated that while all missions were accomplished, the applicant required extensive assistance and supervision from the rater and the deputy commander in the execution of his duties.  His performance was not on par with his peers or other staff officers of his grade.  He further stated that the applicant has the potential to become a good staff officer but needs to concentrate on his duties and increase his attention to detail.  The report was not considered an adverse report and as such was not referred to the applicant. 

6.  The applicant’s rater was a promotable major in a lieutenant colonel (LTC) position and his DOR was 7 October 2000.  His rater was promoted to the rank of LTC on 1 July 2006.

7.  The applicant was transferred to Fort McPherson, Georgia and was promoted to the rank of LTC on 30 September 2006.

8.  Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  Paragraph 
3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports. Each report must stand alone.

9.  Paragraph 9-7 of that regulation also states that 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 error or inaccuracy is warranted.

10.  Paragraph 2-4d provides that the rater must be senior to the rated officer in grade or date of rank.  Exceptions to this rule provide that an officer who is selected for promotion and who is in an authorized position for his or her new grade may rate any officer he or she supervises if after the rater’s promotion he or she will be senior to the rated officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested OER should be voided because he outranked the rater by DOR has been noted and appears to lack merit.  His rater was a promotable major in an LTC position and in accordance with the governing regulation met all of the requirements to rate the applicant.

2.  The rater was actually serving as an LTC when the OER was prepared, was promoted to LTC on 1 July 2006, and the applicant was not promoted to the rank of LTC until 3 months later. 

3.  While the applicant has not provided any specifics as to why he does not believe the ratings and comments on the contested report do not coincide, the ratings and comments of the rating chain appear on the surface to be consistent with each other.

4.  Accordingly, the contested report appears to represent a fair, objective, and valid appraisal of his demonstrated performance and potential by his rating officials during the period in question.  Therefore, there appears to be no basis for removing it from his records.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  _____X__  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1. 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.

2.  The Board wants the applicant and all others concerned to know that this action in no way diminishes the sacrifices made by the applicant in service to the United States during the Global War on Terrorism.  The applicant and all Americans should be justifiably proud of his service in arms.




      _______ _   __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)                                         AR20110019451





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ABCMR Record of Proceedings (cont)                                         AR20110019451



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