BOARD DATE:	  14 June 2012

		DOCKET NUMBER:  AR20120005030 


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 her Officer Evaluation Report (OER) for the period from 20070202 to 20070823 (hereafter referred to as the contested OER) from her official military personnel file (OMPF).

2.  The applicant states during the period of the contested OER Captain R_____y appointed Mr. W____n (GG-14) as her rater in a faxed counseling statement on 1 March 2007.  The counseling statement states Mr. W____n would have supervisory authority, conduct all developmental counseling, and be responsible for writing her OER.  Captain R_____y generated a change of rater (CR) OER based on his permanent change of station.  However, he was not her rater, per the counseling statement, and no CR OER was authorized.  The first time she was notified of a change was when she received the contested OER in the mail for signature in September 2007.  Mr. W____n was her first line supervisor who had full oversight and command and control of the Fort Bliss Field Office and was present and available to rate her.  She authenticated Part II of the contested OER but did not recall the specifics of the counseling dated 1 March 2007 until she recently noticed the statement while reviewing her personal records related to the contested OER.

3.  The applicant provides:

* the contested OER
* memorandum for referral of the contested OER
* undated statement signed by Captain R_____y and the applicant
* memorandum, dated 15 January 2012, from CW4 K______a to Human Resources Command (HRC)
* memorandum, dated 23 January 2012, from Mr. W____n to HRC
* her appeal, dated 30 January 2012, of the contested OER to HRC
* memorandum, dated 7 February 2012, from HRC to the applicant

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) 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.  She was appointed a warrant officer one on 27 May 2005.  She had previously served 11 years, 3 months, and 5 days of active service in an enlisted status.

3.  Her OER for the period 20060225 to 20070224, an annual report, shows Captain R_____y as her rater and Lieutenant Colonel S_______g as her senior rater.

4.  The contested OER covers the period from 20070225 to 20070823 and the reason for submission was CR.  Her rater was Captain R_____y and her senior rater was Lieutenant Colonel S_______g.  The contested OER was a referred report and the applicant did not submit comments.

5.  She signed the contested OER on 24 August 2007 confirming the rating officials named in Part II were those established as the rating chain.

6.  An undated statement, signed by Captain R______y and the applicant, states Mr. W____n was to be given full oversight and command and control of the Fort Bliss Field Office.  According to the statement Mr. W____n was to have supervisory authority, would conduct all developmental counseling, and be responsible for writing her OER.  

7.  In the memorandum, dated 15 January 2012, CW4 K______a stated he was informed by the chain of command that Mr. W____n would be placed as Special Agent in Charge of both the White Sands Field Office and the Fort Bliss Field Office.  He states to the best of his recollection there was a published rating scheme listing both his and the applicant's rater as Mr. W____n.  A copy of this rating scheme was not available for review.

8.  In a memorandum, dated 23 January 2012, Mr. W____n stated during the period of the contested OER he served as the White Sands Field Office Supervisory Special Agent in Charge and was appointed the applicant's rater by Captain R_____y.  He did not provide an OER to her for the period because Captain R_____y provided a CR OER.

9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant 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 1-4(b)(4) states that commanders at all levels will ensure that rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by name, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any
changes to rating chains will also be published and distributed.  No changes may be retroactive.

	c.  Paragraph 2–2 states commanders will establish and file rating chains in accordance with locally developed procedures and Army and DOD regulations. Rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location.  They will be established by name, given effective dates, published, and distributed manually or electronically to each rated officer, NCO, and civilian member of the rating chain.  Any changes to rating chain will also be published and distributed as required.  No changes may be retroactive.

	d.  Table 2-2 (Rating chain development and maintenance) shows the battalion commander, brigade S1 or administrative officer, by Component, will coordinate with the commander, establish a by-name rating chain for officers or NCOs assigned, attached, on temporary duty (TDY), or on special duty to the unit. Identify all rating officials, to include dual supervisors and/or supplementary reviewers, for each rated Soldier.  Include the date on which each rating official was designated.

	e.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	f.  Paragraph 6-7h(3) states that the rated Soldier’s authentication in Part II of a DA Form 67–9 or DA Form 2166–8 verifies the information in Part I.  It also confirms that 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.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

	g.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

DISCUSSION AND CONCLUSIONS:

1.  She contends Mr. W____n was her rater and not Captain R_____y.   However, she has not submitted any evidence of the rating chain that was established or changed during the period of the contested OER.

2.  The undated statement signed by her and Captain R_____y was noted.  However, based on Table 2-2 of Army Regulation 623-3, it was the battalion commander who was to have established the rating chain identifying all rating officials for each rated Soldier.  There is no authority for a rater to further delegate the responsibilities once designated a Soldier's rater.  Therefore, the undated statement is not a change to her rating chain and when he was transferred, Captain R_____y would have been required to submit a CR report on all Soldiers for whom he was assigned as the rater.

3.  When the applicant signed the contested OER on 24 August 2007, she verified the accuracy of the administrative data in Part I and the rating officials in Part II.  This action is intended to increase administrative accuracy of the report since the rated individual is most familiar with and interested in this information.

4.  The applicant has failed to provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OER.  Therefore, the applicant has failed to meet the burden of proof to justify removal of the contested OER.

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)                                         AR20120005030



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005030



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1