IN THE CASE OF:	   

		BOARD DATE:	  17 April 2012

		DOCKET NUMBER:  AR20120004359 


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 change of duty Officer Evaluation Report (OER) covering the period 8 July through 12 October 2007 from his Official Military Personnel File (OMPF).  

2.  The applicant states the basis for his appeal is substantive inaccuracy in that both the rater and senior rater made derogatory remarks on incidents and performance that occurred before the rating period.  

3.  The applicant provides the following documents in support of the application:

* Self-Authored OER Appeal Memorandum, dated 28 February 2012
* Executive Summary Memorandum,15-6 Investigation, Unaccounted for Sensitive Items, dated 3 October 2007
* Contested OER
* OER Referral Memorandum, dated 24 October 2007

CONSIDERATION OF EVIDENCE:

1.  On 10 May 1997, the applicant as appointed a second lieutenant in the United States Army Reserve (USAR), and on 28 March 1998, he entered active duty in that status.  He was promoted to major on 1 February 2007.  


2.  On 6 November 2007, the applicant received a change of duty OER for the period 8 July through 12 October 2007, in which he was evaluated as the a company commander in Iraq.  The report was identified as a referred report in Part IId (Authentication).  The applicant was notified the OER was a referred report in Part IId and asked if he wished to make comments.  The applicant responded by checking the "Yes” block.

3.  In Part IV (Performance Evaluation) of the contested OER, the rater, who was the battalion commander, a lieutenant colonel, gave "Yes" responses to all Army Values and Leadership Attributes.  In Part V (Performance and Potential) of the contested report, the rater placed the applicant in block "Unsatisfactory Performance, Do Not Promote” block.  He commented that the applicant’s performance as the HHC company commander was unsatisfactory during the rating period.  He further stated the applicant’s lack of a command supply discipline program resulted in the loss of accountability of organizational and theater provided equipment.  It further indicated that at one point, several sensitive items were unaccounted for and not reconciled for several months until an investigating officer completed his investigation.  It further indicated the applicant signed several company inventories without ensuring all of his property was accounted for-clearly representing a false picture to his command and a failure to perform his duties as a company commander. 

4.  In Part VII (Senior Rater), the senior rater, who was the brigade commander, a colonel, placed the applicant in block "Do Not Promote” in Part VIIa (Promotion Potential).  The Senior Rater provided comments indicating the applicant’s inability to maintain accountability of his property was unexcusable.  He further stated due to the applicant’s negligence, his Task Force commander had to commit two captains and the Task Force XO and S-3 to establish accountability for his property while engaged in combat operations in Iraq.  The senior rater stated the applicant’s failure to accurately report the status of of his company’s sensitive items and organization property for 15 months was unacceptable.  

5.  On 24 October 2007, the applicant acknowledged receipt of the referred report.  He indicates that some of the derogatory comments were misleading, untrue, or refer to events outside of the prescribed rating period.  

6.  The applicant provides a Headquarters, Task Force 1-26 Memorandum, dated 3 October 2007, Subject:  EXSUM, 15-6 Investigation, Unaccounted for Sensitive Items, HHC 1026 IN.  It indicates that several items were identified as unaccounted for during the change of command inventory between the applicant and the incoming commander.  The investigation found the primary cause of the 


loss of accountability was a failure by the applicant to properly account for property when he assumed command.  The investigating officer recommended the applicant receive a locally filed memorandum of reprimand for dereliction of duty with respect to property accountability. 

7.  On 28 February 2012, the applicant appealed the OER in question based on substantive inaccuracy claiming both the rater and senior rater support their evaluations with comments referring to performance outside of the rating period.  

8.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commanders' inquiries and appeals.

9.  Paragraph 3-20 of the evaluation reporting system regulation provides evaluation parameters.  It 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. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. 

10.  Paragraph 3-39 of Army Regulation 623-3 provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that 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 to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

11.  Chapter 6 of Army Regulation 623-3 contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.

12.  Paragraph 6-11 of Army Regulation 623-3 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or 


amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the contested OER from his OMPF has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record indicates the applicant lost accountability for property as a result for not accounting for the property upon his assumption of command.  Accountability for this property was established and resolved through an investigative process that was completed on 3 October 2007, which was within the rating period.  Even though accountability may have been initially lost prior to the rating period, it remained lost throughout the rating period and thus the evaluation report comments do not appear to violate the intent of the regulation that evaluations be based on performance during the rating period. 

3.  Absent any evidence of record corroborating the applicant’s assertions that there was substantive error in his evaluation, the regulatory clear and compelling evidentiary standard of material error, inaccuracy, or injustice has not been satisfied in this case.  As a result, given it appears the evaluations were related directly to the applicant’s performance during the period covered by the contested OER, there is an insufficient evidentiary basis to support granting 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)                                         AR20120004359



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ABCMR Record of Proceedings (cont)                                         AR20120004359



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