IN THE CASE OF:	  

		BOARD DATE:  7 June 2012

		DOCKET NUMBER:  AR20110021310 


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 correction of his Officer Evaluation Report (OER) covering the period 1 March 2002 through 20 January 2003 to show in Part VIIa (Senior Rater) that the senior rater evaluated his promotion potential to the next higher grade as "best qualified" instead of "fully qualified."

2.  The applicant states the senior rater portion of the OER was erroneously checked as "fully qualified" by the processing technician.  He contends that the senior rater intended to select the block "best qualified."  He continues that he noticed the error after receiving a final copy and since then has been working to get it corrected with his local personnel office.

3.  The applicant provides two copies of the subject OER, memoranda from the Wyoming Army National Guard (WYARNG) to the National Guard Bureau (NGB) pertaining to his OER appeal to the Army Special Review Board (ASRB), and a letter from the ASRB.

CONSIDERATION OF EVIDENCE:

1.  At the time of this application, the applicant was serving in the WYARNG in the rank of major.  He was promoted to lieutenant colonel on 16 March 2012 and is currently serving with the WYARNG in that rank.

2.  Records show he received a change of rater OER for 10 months of rated time from 1 March 2002 through 20 January 2003 for his duties as a company commander.  The OER shows in Part VIIa the senior rater placed an "X" in the "fully qualified" block.  The rater, senior rater, and the applicant signed the OER on 16 October 2003.

3.  The OER was processed and was filed in the performance section of his Official Military Personnel File (OMPF).

4.  In a memorandum addressed to the Chief, NGB, dated 9 October 2006, his senior rater at the time he received the subject OER, a brigadier general now retired, indicated that as the senior rater he reviewed the OER with the substantive error in Part VIIa.  The substantive error is that the "fully qualified" is marked instead of his recommendation of "best qualified."  He initially selected "best qualified" for the applicant but the OER was mailed to NGB without the correction.  It was not until the applicant received his copy that he noticed the error had not been corrected and had been processed through NGB.  The senior rater also stated that the OER was sent for a Commanders Inquiry based solely on the uncorrected error and after review of the substantive error, he would like to ask the Appeals Board for approval to correct the error.

5.  On 24 May 2008, the applicant submitted an OER appeal to the ASRB.  The ASRB indicated that in accordance with Army Regulation 623-105 (Officer Evaluation Reporting System), all appeals on reports prepared on the DA Form 67-9 (OER) must be submitted within three years of the completion date.  Failure to submit an appeal within this time frame may be excused only if the applicant provides exceptional justification to warrant the exception.  The ASRB concluded that the applicant failed to provide any justification that warranted an exception to the three-year timelines policy and as result, his request was returned without action.  The applicant was advised to apply to this Board for consideration.  

6.  He provided a second copy of the subject OER which was pen and ink changed to show the senior rater selected the "best qualified" block in Part VIIa.

7.  Army Regulation 623-3 (Personnel Evaluation - Evaluating Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.  This regulation states in:

	a.  Paragraph 3-39 that 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 appellant.

	b.  Paragraph 3-39b requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated
individual's OMPF:

		(1) Statements from rating officials that they underestimated the rated Soldier.

		(2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did.

		(3) Requests that ratings be revised.

		(4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.

8.  DA Pamphlet 623-3 (Evaluation Reporting System), paragraph 6-2b(3) states that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his OER covering the period 1 March 2002 through 
20 January 2003 should be corrected because his senior rater intended to rate him as "best qualified" instead of "fully qualified."

2.  The rater, senior rater, and the applicant signed the subject OER on 
16 October 2003, verifying the accuracy of the data contained in the OER.
3.  The senior rater provided a statement, dated almost three years after the subject OER was authenticated, indicating he did not intend to rate the applicant the way he did.  Given the available evidence, the senior rater recommendations are considered retrospective thinking which does not invalidate the ratings on the OER.

4.  The applicant has not provided sufficient evidence to show that the OER was not processed in accordance with applicable laws and regulations or that the report was inaccurate, unjust, or otherwise flawed.

5.  Based on the foregoing, there is no basis to grant the requested relief.

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)                                         AR20110021310



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ABCMR Record of Proceedings (cont)                                         AR20110021310



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