IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20110020705 


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 officer evaluation report (OER) for the period 20020612-20021115 (12 June 2002-15 November 2002) from his official military personnel file (OMPF).

2.  The applicant states:

* it's a complete lie
* it could not be more incorrect
* it doesn't reflect any point in his career
* his chain of command was facing allegations of misconduct as a result of multiple fratricides
* he provided evidence to investigators and was retaliated against

3.  The applicant provides:

* a copy of his 20 September 2004 OER appeal
* his complete OER history

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 


Military Records to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant is a chief warrant officer four (CW4) serving in military occupational specialty 140E (Patriot Systems Technician).

3.  The applicant received a referred change-of-rater OER while serving as a Patriot missile system technician in Battery C, 5th Battalion, 52nd Air Defense Artillery, Fort Bliss, TX, during the period 12 June 2002 through 15 November 2002.  His rater was the battery commander, a captain (CPT); his intermediate rater was the battalion executive officer (XO), a major (MAJ); and his senior rater (SR) was the battalion commander, a lieutenant colonel (LTC).

4.  The OER shows the following rater entries in Part IV (PERFORMANCE EVALUATION – PROFESSIONALISM):

	a.  In Part IVa (ARMY VALUES), the rater placed an "X" in the "No" block for:

* a.1.  Honor – Adherence to the Army's publicly declared code of values
* a.2.  Integrity – Possesses high personal moral standards; honest in word and [deed]
* a.3.  Courage – Manifests physical and moral bravery
* a.4.  Loyalty – Bears true faith and allegiance to the U.S. Constitution, the Army, the unit, and the Soldier
* a.7.  Duty – Fulfills professional, legal, and moral obligations

	b.  In Part IVb (LEADER ATTRIBUTES/SKILLS/ACTIONS), the rater placed an "X" in the "No" block for:

* b.1.  (ATTRIBUTES – FUNDAMENTAL QUALITIES AND CHARACTERISTICS):

* Mental – Possesses desire, will, initiative, and discipline
* Physical – Maintains appropriate level of physical fitness and military bearing
* Emotional – Displays self-control; calm under pressure


* b.2.  (SKILLS – COMPETENCE):

* Conceptual – Demonstrates sound judgment, critical/creative thinking, moral reasoning

* b.3.  (ACTIONS – LEADERSHIP):

* Communicating – Displays good oral, written, and listening skills for individuals/groups
* Decision-Making – Employs sound judgment, logical reasoning and uses resources wisely
* Executing – Shows tactical proficiency, meets mission standards, and takes care of people/resources
* Building – Spends time and resources improving teams, groups and units; fosters ethical climate

	c.  In Part IVc (ARMY PHYSICAL FITNESS TEST (APFT)), the rater indicated "FAIL" for an APFT taken in November 2002.  Height and weight measurements were not recorded.

5.  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 "Unsatisfactory Performance, Do Not Promote" block and entered the following comments in Part Vb (COMMENT ON SPECIFIC ASPECTS OF THE PERFORMANCE AND POTENTIAL FOR PROMOTION):

[Applicant's] overall performance has been less than satisfactory.  As the Battery System Tech expert, his contribution is without remarkable significance and minimal impact.  He coordinated with external agencies for the system upgrade for the Radar Set, ECS, three Launching Stations and the Battery Maintenance Center with minimal NMC time.  As the Battery Motor Officer, [Applicant] maintained a system readiness rate of 94%.  He supervised the conventional maintenance program for the battery fleet to maintain a readiness rate of 96%.  He also managed to sustain the PLL zero balance to 3% or less.  Under his supervision, he ensured timely AOAPs and TMDEs were submitted, resulting in zero delinquents.  a1, a4.  As an officer and key leader in the unit he demonstrated substandard leadership coupled with insubordinate conduct.  a2, a7, b2.  Officer continually submitted poor administrative products through inaccurate reporting and untimely suspenses.  He displayed a carefree attitude in the execution of his duties despite numerous verbal 


and written counseling efforts.  a4, b3.  As a leader he was disloyal to his Chain of Command and the unit.  He haphazardly handled equipment resulting in [loss] of equipment accountability and carelessly lent out unit equipment against higher directives and without informing the Chain of Command.  b1, b2, b3.  Officer does have the technical and tactical expertise to perform his duties, however he lacks self-discipline and the professional maturity to execute his duties in fulfilling the unit's mission.  b3.  [Applicant] exercised poor [judgment] which adversely impacted his leadership [credibility] as well as the good order and discipline of the unit.  He discredited the officer corps and created a hostile work environment in the unit.  He clearly does not exhibit the potential for positions nor rank with increased responsibilities.  He requires very detailed guidance and close supervision to complete tasks.  a3, b1.  [Applicant] is not [in accordance with] [Army Regulation] 600-9 for failing his Record APFT and failing to weigh in after the APFT.

6.  In Part VI (INTERMEDIATE RATER), the battalion XO entered, "Extremely Competent Officer."

7.  In Part VIIa (SENIOR RATER – EVALUATE THE RATED OFFICER'S PROMOTION POTENTIAL TO THE NEXT HIGHER GRADE), the SR placed an "X" in the "Do Not Promote" block, rated the applicant as "Below Center of Mass – Do Not Retain" in Part VIIb (POTENTIAL COMPARED WITH OFFICERS SENIOR RATED IN THE SAME GRADE), and entered the following comments in Part VIIc (COMMENT ON PERFORMANCE/POTENTIAL):

[Applicant's] performance over the last five months is the worst I have ever experienced or witnessed of any officer in 17 years of service.  His poor duty performance cannot be attributed to a young officer who is fighting his way through a military apprenticeship as a CW2.  His only moments of success are on tasks which are heavily supervised and closely monitored.  He clearly demonstrates an apathetic attitude and marginal skill set which combine into a potentially hazardous combination.  Do not promote or retain.  He has no potential for future service.

8.  The SR recommended three future assignments for the applicant:  "Battery Motor Officer," "Logistics Readiness Center," and "Battalion Readiness Center."

9.  The signatures for all parties are shown as 030516 (16 May 2003).  It was subsequently posted to the applicant's OMPF.


10.  The applicant rebutted his OER in a 3 May 2003 memorandum.  His basic argument was:

* he departed his unit on permanent change of station orders, yet he remained in the Fort Bliss area for 22 days
* he frequently checked with his old unit to see if his OER was ready; it wasn't
* he received the OER for review and signature 6 months after the through date
* the APFT data was incorrect; he took and passed the APFT and the height/weight requirement; the unit would not give him his DA Form 705 (APFT Scorecard)
* the rater's negative comments do not comport with his quantifiable accomplishments
* the intermediate rater's comment stands in stark contrast to the comments by the rater and SR
* the SR said he had no potential for future service, yet recommended him for positions calling for ranks higher than CW2

11.  On 20 September 2004, the applicant appealed the OER to the Officer Special Review Board (OSRB) under the provisions of Army Regulation 623-105 (Officer Evaluation Reporting System).  The appeal was based on substantive inaccuracy in that the report did not properly reflect his duty performance and potential.  He alleged the report was written as retaliation because:

* he filed a complaint with the battalion chain of command "that could have had severe repercussions on the Battery Commander's command"
* he requested that the Fort Bliss Inspector General investigate the unit's command climate
* he volunteered information to investigators concerning a fratricide incident in the battalion during Operation Iraqi Freedom

12.  On 13 January 2006, the U.S. Army Human Resources Command, Alexandria, VA notified the applicant the OSRB denied his appeal and request to remove the OER from his OMPF.

13.  The applicant's OER record shows he assumed his duties as a Patriot missile system technician with Battery C, 5th Battalion, 52nd Air Defense Artillery, on 27 June 2000.  At that time, Battery C and the 5th Battalion had different commanders from the ones who rendered the referred OER.  The applicant received two OER's from the original chain of command.


	a.  The OER for the period 20000627-20010626 (27 June 2000-26 June 2001) was an exceptional report with the SR rating his performance as "top 10%" and "Above Center of Mass."

	b.  The OER for the period 20010627-20020611 (27 June 2001-11 June 2002) was slightly less favorable, with the SR rating him as "Center of Mass."

	c.  The SR also made the following statement, "Driven by a tremendously strong desire to excel, he is willing to articulate his views and opinions.  [Applicant] could benefit from additional time with Soldiers and junior leaders to further the breadth of his professional development."

14.  As evidence, the applicant submitted the same packet of documents he submitted to the OSRB for his OER appeal.  The packet contains, in addition to all of his OER's:

	a.  A memorandum written by the applicant, dated 29 September 2004, wherein he complains about the battery commander, her leadership deficiencies, and her overweight condition.  He explains incidents following which he was reprimanded by the battery commander.  He states he gave information to investigators concerning the shoot down of a British Royal Air Force Tornado in March 2003 and a U.S. Navy F-18 on 2 April 2003 by a 5th Battalion, 52nd Air Defense Artillery, Patriot missile battery.

	b.  An email message from a CW4 who worked with the applicant after the period of the referred report, dated 2 April 2004, attests to the applicant's outstanding performance.

	c.  A memorandum from the staff sergeant (SSG) administrator of the record APFT on 29 October 2002, dated 5 April 2004, states the applicant passed the APFT and weighed 213 pounds at 74 1/4 inches tall.  His body fat content was within limits at 22.13%.  A DA Form 705 provided by the applicant reflects he failed a record APFT administered on 15 November 2002.

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

	a.  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.

	b.  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 firsthand the appellant's performance as well as interactions with rating officials.

	c.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of his OER for the period 20020612-20021115 (12 June 2002-15 November 2002) from his OMPF.

2.  The applicant spent 23 months with Battery C, 5th Battalion, 52nd Air Defense Artillery, under a different battery and battalion chain of command than that which rendered the referred OER.  He received two favorable OER's during that 
23-month period; however, in the second report, the battalion commander was less effusive about the applicant's performance and potential.  In the second report, he lowered the applicant's rating compared with officers senior rated in the same grade from "Above Center of Mass" to "Center of Mass" and alluded to the applicant's "willing[ness] to articulate his views and opinions" and his need for "additional time with Soldiers and junior leaders to further the breadth of his professional development."  This indicates the applicant may have become opinionated and argumentative, and may have displayed shortcomings.

3.  The applicant received the referred report for 5 months of duty performance under a new chain of command.  From the documents submitted by the applicant it is readily apparent that he did not get along with the new chain of command who viewed his behavior as disloyal, insubordinate, and unacceptable.  It was incumbent upon the applicant to get along with and support his new chain of command.  From the evidence of record, it appears he took the opposite approach, openly clashing with his leadership.

4.  The applicant has not offered any evidence to show substantive inaccuracy in the preparation of his referred OER.  The applicant's argument to this Board is the same as his argument to the OSRB; it did not measure up then, and it does not measure up now.  The applicant's appeal to the OSRB was denied based on insufficient evidence of record or evidence provided by the applicant to show the report was in error or unjust.  Based on the presumption of regularity, the report represents the considered opinion and objective judgment of the rating officials at the time of its preparation.  The applicant has not overcome his burden of proof to show error, injustice, or inequity.

5.  The lone exception to the above is the administrative information concerning his APFT in Part IVc.  He has provided a memorandum from a SSG who administered Battery C's record APFT on 29 October 2002.  That memorandum states the applicant passed the APFT and the height/weight requirements.  This information should be corrected on the referred OER.

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 amending Part IVc of his OER for the period 20020612-20021115 to show:

* APFT:  PASS
* DATE:  OCT 2002
* HEIGHT:  74 1/4
* WEIGHT:  213  YES

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 removing the report 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)                                         AR20110020705



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ABCMR Record of Proceedings (cont)                                         AR20110020705



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