IN THE CASE OF:	 

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110021672


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 a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 14 March through 28 July 2009 from his Official Military Personnel File (OMPF)
* consideration for promotion by a special selection board (SSB)
* recall to active duty

2.  The applicant states the OER is unfair and inaccurate and should be removed from his OMPF because:

	a.  there was no face-to-face counseling accomplished during the first
30 days of the rating period, nor was a substitute employed;

	b.  there was no use of the DA Form 67-9-1a (Junior Officer Development Support Form);

	c.  the DA Form 67-9-1 (Officer Evaluation Report Support Form) was used improperly;

	d.  his rater was not qualified to rate him since he worked for the rater less than 90 days (the rater was only present at Fort Sill, OK for 48 days during the rating period);


	e.  he was never provided his superiors' support forms; 

	f.  the report contains derogatory information, but it was not referred to him; and

	g.  the report contains unverified derogatory information.

3.  The applicant provides:

* his DA Form 67-9
* his sworn statement in support of his appeal with five enclosures
* documents associated with an unsuccessful appeal to the U.S. Army Human Resources Command (HRC)

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army captain with prior enlisted service in the U.S. Marine Corps, was commissioned as a Chemical Corps officer and commenced active duty on 14 December 2000.  During the period of the OER he was a captain serving as a forward support company commander at Fort Sill, OK.

2.  The applicant received the contested OER for the period 14 March through  28 July 2009.  His rater was the battalion commander, a lieutenant colonel (LTC), and his senior rater was the brigade commander, a colonel (COL).

3.  The OER shows in:

	a.  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:

Unfortunately, [the applicant] experienced problems in the supply room accountability arena.  Due to his negligence in this area a significant amount of property is unaccounted for.  His failure to emphasize and supervise supply discipline and accountability is a black mark on his tenure as commander.  [The applicant] must improve his performance in this area if he is going to be an effective field-grade officer.

	b.  Part Vc (Comment on Potential for Promotion) the rater states:

[The applicant] does possess the potential to serve at higher levels.  However, he must improve in the supply accountability area before he becomes an effective field-grade officer.

	c.  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 eighteen officers of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in his evaluation.  He entered the following comments in Part VIIc (Comment on Performance/Potential):

However, [the applicant] failed to maintain proper accountability within his company, as significant amounts of property were unaccounted for during change of command inventories.  Despite these shortcomings [the applicant] does possess the potential to serve the Army at higher levels.

4.  On 8 April 2011, the applicant was notified he was not selected for promotion and, as a result, he would be required to separate from the Army.

5.  He was honorably discharged in November 2011 due to non-selection for promotion.  He completed 10 years, 10 months, and 18 days of net active service for the period covered by the DD Form 214 and 5 years, 2 months, and 28 days of total prior active service.

6.  In support of this application he provides:

	a.  a copy of the OER,

	b.  a sworn statement in which he states the OER should be immediately removed from his OMPF because:

		(1)  there was no face-to-face counseling accomplished during the first 
30 days of the rating period nor was a substitute employed; there was no use of the DA Form 67-9-1a; and the DA Form 67-9-1 was used improperly.  He states that at no time was a DA Form 67-9-1a prepared, discussed or used in preparation of the OER.  The only face-to-face conversation he had with his rater took place the day he signed the report, 27 July 2009.  His rater had asked him to prepare a DA Form 67-9-1 a week earlier and he did.  At no time did he and his rater discuss any aspects of a DA Form 67-9-1a and no developmental counseling was done.  His rater was not at Fort Sill until 10 June 2009, and he spent only 48 days on the ground prior to the report being rendered.  He did receive a few emails from his rater during the period but none of them constituted counseling of any kind.

		(2)  his rater was not qualified.  He states that Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-5 (Rules for designating a Rater) 
states the rater will be the person (immediate supervisor) in the rating chain who directs and is most responsible for the rated Soldier's performance.  The rater will be the immediate supervisor who monitors/observes the day-to-day performance of the rated individual and directs/guides the rated Soldier's participation in the organization's mission.  The rater will normally be the immediate supervisor for a minimum of 90 consecutive days.  His Battalion Commander was in Africa until 10 June 2009.  There were only 48 days from the rater's arrival at Fort Sill until the end of the report.  The person who monitored the applicant's day-to-day performance was the rear detachment commander.

		(3)  Army Regulation 623-3, paragraph 2-12, states the rater and senior rater will provide their support forms to the rated Soldier at the beginning of the rated period, but neither the rater nor the senior rater provided him with copies of their support forms.

		(4)  the report contains derogatory information and it was not referred to him.  Part Va, Part Vc, and Part VIIa each contain negative comments about him. The report was not referred to him for acknowledgement and comment as required by Army Regulation 623-3, paragraphs 3-34 and 3-36.

		(5)  the report contains unverified derogatory information.  Army Regulation 623-3, paragraph 3-20, states 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.  Paragraph 3-23 states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  Army Regulation 735-5 (Policies and Procedures for Property Accountability) provides the time constraints and other guidance concerning investigations into the loss of government property.

	c.  The applicant provides a copy of a 25 September 2011 email in which the investigating officer states the lost property (government vehicle) was found.

	d.  He provides copies of his Leave and Earnings Statements (LESs) that verify he was never charged any money for any alleged supply accountability issue.

	e.  He provides a copy of a 25 October 2011 email from the rater of the report, who states:

		(1)  he does not recall whether the DA Form 67-9-1a was completed and whether he provided the applicant with a copy of his support form.  He does 
recall he exchanged email with the applicant and talked to him on the phone once or twice.  He remembers he made it very clear what he expected of the applicant.

		(2)  he also recalls the applicant's performance of duty was satisfactory except in the area of property accountability.  Additionally, he states "A couple weeks before the original change of command date he (the applicant) came to me and told me he was missing property.  He asked me to delay his change of command date so he could attempt to account for this missing property.  I agreed and the change of command date was extended.  I soon learned that CPT J____'s unit had a significant amount of property unaccounted for.  This included a Heavy Expanded Mobility Tactical Truck (HEMMT) that was valued at over $100,000.  I directed him under no uncertain terms to find the property, or there would be consequences.  His unit did find some of the property.  However, most of it, including the HEMMT, remained unaccounted for.  As the situation developed I questioned CPT J____ and found out that the HEMMT had been on the Commander's 10% inventory for a previous month (either May 09 or June 09).  CPT J____ had signed the 10% inventory stating he had seen the HEMMT and that it was accounted for.  When I questioned him about this in July, he admitted that he hadn't seen the HEMMT, and had just signed the 10% inventory without physically seeing any of the property items on it (emphasis added).  Another major problem I discovered with CPT J____'s property accountability was that he did not sub-hand receipt the majority of his unit's property down to the end-user.  I gave CPT J____ until just prior to the change of command before we initiated a Financial Liability Investigation of Property Loss (FLIPL).  We actually had to execute two FLIPLs on the missing property because the HEMMT itself was over $100,000.  ...Several months after CPT J____'s departure, the FLIPL officer found the missing HEMTT in another motor pool on post....Thus, the FLIPL was cancelled.  This does not change the fact that CPT J____ had no idea where his property was, and that he stated in a 10% inventory that he had accounted for the HEMMT." 

		(3)  he finds it difficult to believe the applicant thought his rater was someone else.  Although he did not provide him with written guidance he did provide guidance on what to focus on and what was expected of him.  He also consulted with him on several issues.  He senior rated all of the applicant's lieutenants and the brigade rating scheme called for all company commanders to be rated by the battalion commanders.
	f.  The applicant provides a copy of a 22 October 2011 email from the senior rater of the report who states "[The applicant] received the report he deserved."
7.  On 30 April 2011, the applicant appealed to the Officer Special Review Board (OSRB) for removal of the contested OER from his OMPF.  The OSRB denied the applicant’s appeal on 11 July 2011.  The Record of Proceedings concluded the applicant did not provide sufficient evidence showing the contested report was inaccurate, unjust, or otherwise flawed.

8.  Army Regulation 623-3 governs OER's and the OER appeal process.  It states in:

	a.  Paragraph 3-4g "Although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report." 

	b.  Paragraph 3-5b "Correspondence and telephone conversations may be used as alternatives because of geographic separation, followed by face-to-face discussions between the rated individuals and the rater at the earliest opportunity."  

	c.  Paragraph 3–34 that any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA.

	d.  Paragraphs 3-39 and 6-7 that an OER accepted by 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.

	e.  Paragraph 6-7h(3) the rated Soldier’s authentication in Part II of a DA Form 67–9 verifies the information in Part I.  It also confirms the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the APFT performance and height and weight data entries made by the rater.

	f.  Paragraph 6-11 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.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe first-hand the appellant's performance as well as interactions with rating officials.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the OER he received for the period 14 March through 28 July 2009 should be removed from this OMPF, that he should be considered by an SSB, and that he should be recalled to active duty.  

2.  Concerning each of his specifications:: 

	a.  no face-to-face counseling accomplished during the first 30 days of the
rating period, nor was a substitute employed -- The governing regulation states in paragraph 3-5b "Correspondence and telephone conversations may be used as alternatives because of geographic separation, followed by face-to-face discussions between the rated individuals and the rater at the earliest opportunity."  

	b.  there was no use of the DA Form 67-9-1a, the DA Form 67-9-1 was used improperly, and  he was never provided his superiors' support forms --  The governing regulation states in paragraph 3-4g "Although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report." 

	c.  his rater was not qualified to rate him since he worked for the rater less than 90 days (the rater was only present at Fort Sill, OK for 48 days during the rating period).  There is no regulatory requirement that the rater be on the same installation as the ratee.  The evidence shows that the rater of the contested report exchanged email with the applicant and talked to him on the phone once or twice.  He remembers he made it very clear what he expected of the applicant.
He finds it difficult to believe the applicant thought his rater was someone else.  Although he did not provide him with written guidance he did provide guidance on what to focus on and what was expected of him.  He also consulted with him on several issues.  He senior rated all of the applicant's lieutenants and the brigade rating scheme called for all company commanders to be rated by the battalion commanders.
	d.  the report contains derogatory information, but it was not referred to him--  The rater checked the "Satisfactory Performance Promote" block and noted that   the applicant experienced problems in the supply accountability area .  He also noted in the Comment on Potential for Promotion item that the applicant must improve in the supply accountability area.  These ratings and comments are not necessarily derogatory.  The senior rater checked the "Fully Qualified" box and mentioned the applicant failed to maintain property accountability.  This rating and the comment are not necessarily derogatory.  Furthermore, the applicant provided no evidence that the comments were in any way invalid or unfair.  The rater's description of the change of command inventory processing and the recovery of the HEMMT months after the applicant's departure make it quite clear that the applicant know his shortcomings.

	e.  the report contains unverified derogatory information.  The contested report contains reference to a supply accountability problem that was verified.  The evidence shows applicant had , in fact, lost accountability for a government vehicle , and he admitted that he had signed the 10% inventory without physically seeing any of the property. 

3.  The applicant has not provided clear and compelling evidence that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was prepared.  

4.  In order to justify the removal of the OER, the applicant must provide evidence of a strong and compelling nature that clearly and convincingly overcomes the presumption of regularity which applies to every OER accepted by HQDA for filing; however, the applicant failed to do so.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's request.

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 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)                                         AR20110021672



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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