IN THE CASE OF:	  

		BOARD DATE:  1 May 2012

		DOCKET NUMBER:  AR20120001451 


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 Evaluations Reports (OER) covering the periods 7 November 2003-6 November 2004 and 7 November 2004-14 March 2005 be corrected to show his rater rated his performance as "Outstanding Performance - Must Promote" and his senior rater rated his promotion potential as "Best Qualified."

2.  The applicant states these OER's were completed without his knowledge and they were illegally and fraudulently signed.  He was not in the United States at the time he supposedly signed the 2004 OER, 2 years after the end of the reporting period.  The OER's should have been marked in the far left blocks "Outstanding Performance Must Promote" and "Best Qualified" to match the verbal write-ups.  The errors were discovered by his Aviation Branch manager who stated they could not make corrections due to the lapse of time.

3.  The applicant provides copies of five OER's, an Academic Evaluation Report, citations for the Army Commendation Medal and Air Medal, and a letter of appreciation.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned an Army Reserve officer on 16 August 1996 with transfer to the Army National Guard effective 10 January 1997.


2.  He was promoted to first lieutenant effective 12 February 1999, captain 18 December 2001, and major 7 August 2006. 

3.  The applicant was ordered to active duty in support of Operation Iraqi Freedom for the period from 18 December 2003 through 27 February 2005 and on 15 March 2005 under Army Guard/Reserve (AGR) Title 10 orders.

4.  The dates in part 1 of the 2003 - 2004 OER (on both the copy provided and the copy in his official recode) show lines that appear consistent with some type of correction being made and are recorded as two years after the end of the period covered.  

5.  Both contested OER's were prepared by the same rater and senior rater and on both, his performance is shown as "Satisfactory Performance, Promote" and his senior rater promotion potential as "Fully Qualified." 

6.  On the contested OER's his rater used the terms "preformed his duties very well", "was very helpful", "prepared for future assignments", and "promote with peers."  His senior rated utilized the terms preformed "very well", "very tactically and technically proficient", and "promote when eligible."

7.  On the other three OER's provided by the applicant, all prepared for periods after the contested OER's, his rater rated his performance as "Outstanding Performance - Must Promote" and his senior rater rated his promotion potential as "Best Qualified."  The terms used on these OER's were "promote immediately", "flawless in all aspects", "a sterling example", "outstanding performance", and "absolutely brilliant officer."  His senior rater utilized the terms "one of the top five percent of all captains I have ever rated", "performs flawlessly", "outstanding asset", and "promote immediately."

8.  The copies of the OER's provided by the applicant match the copies currently in his official record and there is no explanation of the "corrections" on the 2003 - 2004 OER of record.

9.  Army Regulation 623-105 (Officer Evaluation Reporting System) sets forth the policies and procedures for the Officer Evaluation Reporting System.  It states: 

	a.  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.

	b.  In preparing their comments, rating officials will convey a precise but detailed evaluation to convey a meaningful description of an officer’s performance and potential.
	c.  Rated Soldiers will always be the last individual to sign the evaluation.  The rated Soldier’s signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height 
and weight data; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.

	d.  To facilitate the rated Soldier signing the evaluation report after its completion and signature by the rating officials, the evaluation report may be signed and dated by each individual in the rating chain up to 14 days prior to the THRU date of the report.

	e.  An OER will be forwarded to reach HQDA no later than 90 days after the ending day of the report.  

	f.  An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	g.  Requests that an evaluation report in a Soldier’s OMPF be altered, withdrawn, or replaced with another report will not be honored except when information that was unknown or unverified when the report was prepared is brought to light or verified and this information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

	h.  Appeals of OER's must 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.

	i.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clear and convincing evidence of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

	j.  For a claim of inaccuracy or injustice of a substantive type, evidence should include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.

DISCUSSION AND CONCLUSIONS:

1.  The only indication of an alteration of the 7 November 2003 - 6 November 2004 OER is in the dates of signatures.  The modified dates shown on the form are two years after the end of the rating period and well beyond the normal submission time frames.  

2.  There is no indication that the actual evaluation portion of this OER was modified and the verbiage utilized is consistent with the next OER prepared by the same rater and senior rater.  Further the applicant's signature appears consistent with his signature on other forms. 

3.  The record does not contain and the applicant has not provided any evidence that his rater and senior rated intended to rate him higher than is currently shown on the two OER's in question.  

4.  Further, the verbiage utilized in the narrative portion appears consistent with a performance evaluation of "Satisfactory Performance, Promote" and a promotion potential of "Fully Qualified" determination.

5.  The applicant has not provided any evidence of a strong and compelling nature that establishes clear and convincing argument to show that the evaluations should have been rated higher than currently shown.

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)                                         AR20120001451





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ABCMR Record of Proceedings (cont)                                         AR20120001451



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