IN THE CASE OF:	  

		BOARD DATE:  3 January 2013

		DOCKET NUMBER:  AR20120005298 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 21 November 2007 through 24 September 2008 along with associated appeal documents be removed from his Army Military Human Resource Record (AMHRR).

2.  The applicant states the contested OER contains multiple administrative and substantive errors identified in the processing of the report.

3.  The applicant provides:

* Officer Record Brief (ORB)
* contested OER
* DA Form 1506 (Statement of Service) with Defense Finance and Accounting Service (DFAS) documents
* Military Personnel Message Number 10158, issued 10 June 2010
* Army Commendation Medal Certificate and associated DA Form 638 (Recommendation for Award), dated 6 November 2009
* Interactive Web Response System (IWRS) printout
* OER for the period 8 February 2007 through 20 November 2007
* Officer Special Review Board (OSRB) denial with allied documents, dated 21 February 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty), effective 4 May 2008
* DD Form 215 (Correction to DD Form 214), effective 19 September 2008


* Orders Number 016-500, dated 16 January 2008
* Orders 034-503, dated 3 February 2008
* Orders 228-107, dated 15 August 2008
* rebuttal statement, dated 8 March 2009
* DA Form 705 (Army Physical Fitness Test (APFT) Scorecard)

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.  The applicant is a member of the Alabama Army National Guard (ALARNG).  His date of rank to captain (CPT) is 21 August 2008.  The contested OER is a change of duty report which covered 10 months of rated time from 21 November 2007 through 24 September 2008 while performing duty as a Personnel Management Officer.  This OER does not show any nonrated periods and contains the following entries:

	a.  Part Ie (Branch) shows his branch as Logistics and Part If (Designated Specialties) shows his specialty as 90A (Multifunction Logistician).

	b.  Part IId (Referred Report) shows the senior rater placed an "X" in the block indicating the rater asked whether the rated officer wished to make comments to the referred report.  An "X" was placed in the block indicating comments were attached.

	c.  Part IVc (Performance Evaluation-Professionalism-APFT) shows he failed his APFT on 29 August 2008.

	d.  Part IVd (Officer Development) shows the rater placed an "X" in the "Yes" block to indicate developmental tasks were recorded on a DA Form 67-9-1 and quarterly follow-up counseling conducted.

	e.  Part Vb (Performance and Potential Evaluation) shows the rater discussed the applicant's active duty special for work (ADSW) tour and his performance as the Training Assistor and Region officer in charge during that tour.

	f.  Part Vd (Performance and Potential Evaluation) shows the rater stated the applicant would serve the Army best in functional specialty (FS)/92 (Quartermaster).

	g.  Part VIId (Senior Rater – List Three Future Assignments for which this Officer is Best Suited) shows the senior rater listed "Platoon Leader, Battalion S1, Battalion S4" and specified the rated officer "Would serve Army best in FS/92."

3.  The contested OER was signed by his rating officials on 3 March 2009 and 7 March 2009.  He signed the evaluation on 8 March 2009.

4.  The applicant provided a letter of referral, dated 1 April 2009, which shows his rater informed him that his OER was being referred due to his APFT failure.  He was required to acknowledge receipt of the referred OER and submit comments by 15 March 2009.

5.  The contested OER was received at the U.S. Army Human Resources Command (HRC) on 12 March 2009 and was filed in the performance section of his AMHRR on 20 October 2010.  The comments provided by the rated officer were not found in his AMHRR.

6.  On 21 June 2011, he submitted an appeal to the National Guard Bureau (NGB), Army National Guard Readiness Center, Arlington, VA.  He contended that his chain of command failed to render a required evaluation prior to his ADSW departure, the referred report did not include his comments when submitted to HRC, and the senior rater failed to provide a letter of referral as required by Army Regulation 623-3 (Evaluation Reporting System).  Further, he contended the report contained two substantive errors.  The first being that he was never counseled before, during, or after the rating period, and the second error was listing "Platoon Leader" as a future assignment without ever being given counseling to substantiate such a rating.

7.  On 21 February 2012, the OSRB denied his appeal.



8.  He provides his account of the inaccuracies and errors contained in the contested report:

	a.  The rated months are incorrect because he was not assigned to the Joint Forces Headquarters (JFHQ) until 7 January 2008; therefore, his rater, Major (MAJ) J____, could not have been his supervisor while he was assigned to another unit.  He provides JFHQ ALARNG Orders 016-500, dated 16 January 2008, which show he was assigned to the Personnel Management Office, JFHQ, Montgomery, AL, effective 7 January 2008.

	b.  He contends that he was not on active duty on 29 August 2008; therefore, the APFT date on his OER is in error.  Further, he was deployed at the time the OER was presented for signature and unable to verify the exact date he took his APFT.  He submits his APFT card which shows he failed a record APFT on 2 August 2008 and 29 August 2008.  In addition, he provides pay records and a statement of service which show he was not in a duty status on 29 August 2008.  His Bronze Star Medal Certificate and Enlisted Record Brief show he was deployed to Iraq from on or about 29 December 2008 to on or about 10 December 2009.

	c.  He did not receive an OER upon his release from ADSW as required by Army Regulation 623-3 (Evaluation Reporting System), paragraph 5-19d.  He provides a DD Form 214 which shows he was ordered to ADSW on 28 November 2007 and REFRAD on 4 May 2008.

	d.  He states his senior rater, Lieutenant Colonel (LTC) B____, failed to ask for his comments/feedback prior to submitting the report to USAHRC and the report was processed without his comments being attached.  Further, his rater initiated the letter of referral even though the regulation requires the senior rater to do so.  He further contends the lack of his senior rater's involvement prevented him from resolving issues at the time the OER was signed.  The applicant provides a copy of his original comments, dated 8 March 2009, which he submitted with the contested report upon his return to the unit.

	e.  He states the contested OER was delayed and not posted in his AMHRR in a timely manner.  He contacted his rater repeatedly to request his evaluation upon his departure from the unit in September 2008, but the report was not prepared and presented to him until March 2009 while he was deployed to Operation Iraqi Freedom.  This 6-month delay, not so much the deployment, prevented him from requesting a Commander's Inquiry in a timely manner.  The report was received at HRC on 12 March 2009, but apparently did not get posted in his AMHRR due to errors until 20 October 2010 as indicated by the interactive Personnel Electronic Records Management System.  He believes the contested OER was eventually posted to his AMHRR in conjunction with the Fiscal Year 2011 Promotion Selection Board.

	f.  He never received any type of counseling during the rating period.

	g.  His senior rater, LTC B____, never spoke to him or responded to email regarding the contested OER.

	h.  He contends that listing "Platoon Leader" in Part VIId as a future assignment is a substantive error because as a captain (CPT) with 2 years of time in grade a lieutenant position would not be a suitable future assignment, making the recommendation derogatory in nature.
   
	i.  The recommendation of FS/92 (Quartermaster) as a potential career field for future service in Part Vd and VIId is an issue.  He states that if he had been properly counseled by the rater or the senior rater they would have known his career field was Ordnance.

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

	a.  An OER accepted by Headquarters, Department of the Army (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.

	b.  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.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.

	c.  The rated individual is the subject of the evaluation and has considerable responsibility in the evaluation process.  As part of his/her role in the evaluation process the rated Soldier will ensure they receive a copy of their evaluations before they depart from a unit of assignment or military/civilian school of instruction.

	d.  Paragraph 3-34 states 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 it is sent to HQDA.

   e.  Paragraph 3-37 states all completed reports and authorized enclosures will be forwarded to the appropriate HQDA authority.  Evaluation reports will be forwarded to reach HQDA no later than 90 days after the ending day of the report.  The centralized selection, promotion, and school boards schedules will be closely monitored to ensure that eligible reports, both mandatory and optional, are forwarded to HQDA in sufficient time to be included in a Soldier's board file.

	f.  Paragraph 3-38 states the senior rater's letter of referral and the rated officer's acknowledgment and comments regarding a referred report will be attached when forwarding the report to HQDA.

	g.  Paragraph 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual or anyone authorized access to the report.  The primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

	h.  Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or NCO Corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

   i.  Paragraph 5-19d requires a report be submitted for any period of 30 or more continuous calendar days spent on active duty for training (ADT), active duty support (ADS), or ADSW, at NGB, State Headquarters, or other agency.  The preparing agency (unit where the duty was performed) and the rated individual are jointly responsible for ensuring that the evaluation has the correct nonrated code(s) annotated for any nonrated time that may have accrued during the report period.

	j.  Paragraph 6-7h(1)(3) states the rated Soldier's authentication in Part II of a DA Form 67-9 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances.

	k.  Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

10.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), in effect at the time, states that based on the rated officer's duty performance and demonstrated potential, the senior rater will list three future assignments, focusing on the next 3 to 5 years for which the rated officer is best suited in Part VIId.  There is no requirement that these future positions be progressive.

11.  Table 2-9 of this same publication lists the codes and reasons for nonrated periods for officer evaluations.  The code "I" is used to show periods an individual was in transit between duty stations. 

12.  The Officer Personnel Management System (OPMS) officer development model is shifting away from a model that described specific gates or assignments that an officer must serve in to progress successfully, to a model that focuses more on the quality and range of experience.  It states that officers should seek training and assignments outside one's normal branch or functional area and develop skills necessary to lead the Army of the future.

13.  Army Regulation 600-8-104 (AMHRR Management) governs the composition of the AMHRR and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the AMHRR.



DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the contested OER along with associated appeal documents be removed from his AMHRR based on numerous administrative and substantive errors.

2.  The evidence shows he received a change of duty OER covering the period 21 November 2007 through 24 September 2008.  This OER was referred to the applicant for comment due to failure of the APFT during the rating period.

3.  The applicant contends:

	a.  he was assigned to the JFHQ on 7 January 2008 and the evidence confirms his assignment date.  Therefore, the contested report should be amended to reflect an "in transit" status of 1 month and 16 days between the start of the report and his assignment to the organization.  As a result, this nonrated time should be deducted from the rated time shown in Part 1j of the report and the nonrated code "I" should be entered in Part 1k.

	b.  the date he failed his APFT is incorrectly shown as 29 August 2008 because he was not in a duty status on that day.  However, he provides an APFT card that clearly shows he failed a record APFT on 29 August 2008 which directly contradicts his argument.  Regulatory guidance states that his electronic signature is considered his verification that all administrative data on the report was correct.   Further, his APFT failure was the sole reason for the referred report and changing the date to show a different date that he failed his APFT would not change the disposition of the OER.  There is no basis to correct the date of his APFT.

	c.  the rating chain failed to provide a mandatory report upon his release from ADSW.  The evidence shows he served on ADSW for the period 28 November 2007 through 4 May 2008, which was a total of 5 months and 4 days and his contested OER contains favorable comments regarding his duties while performing ADSW.  The applicable regulation requires a report be prepared for any period of 30 continuous calendar days or more spent on ADT, ADS, or ADSW and this report would be prepared by his ADSW unit not his permanent organization.  Without rating schemes it is difficult to determine whether a mandatory report was required prior to his departure for ADSW but it can be presumed by his statement that MAJ J____ could not have been his rater prior to 7 January 2008 and that his chain of command at JFHQ did not have the 


required time prior to his departure to render a report.  Taking into consideration all the evidence it appears he met the regulatory requirement to be issued a mandatory report upon completion of his ADSW but as a senior CPT he bore equal responsibility to ensure he received this mandatory report upon completion of ADSW.  He failed to provide evidence to show he requested a report or was denied a report for his ADSW period.  Further, he does not identify the ADSW comments contained in the contested OER as erroneous or so it can be presumed that he considered the comments accurately reflected his duties and accomplishments during his ADSW assignment.  The contested report should be corrected to show that the 5 months and 16 days he was in an ADSW status was nonrated time with a reason code of "I" enter in Part 1k; however, the comments should remain as confirmation of his completion of duties.

	d.  the report was not referred to him by the senior rater and his comments were not included when the contested OER was forwarded to the HRC.  The available evidence provided by the applicant shows the report was referred by the rater rather than the senior rater as required by regulatory guidance. However, the applicant was aware of the basis for the referred report and he was afforded the opportunity to provide comments.  Unfortunately, his comments were not included, but neither the improper referral of the report by the rater nor the failure to include the rated officer comments constitute a substantive error or invalidates the report.  In order to satisfy the regulatory guidance, the original comments provided by the applicant should be included with the report now.

	e.  the delayed processing and posting of the report to his AMHRR prevented him from requesting a Commander's Inquiry in a timely manner.  Although it is unclear why the report ending 24 September 2008 was not signed until March 2009 and not posted on his AHMRR until 20 October 2010, a Commander's Inquiry was only one of several options available to the applicant to resolve the administrative and substantive errors he believes are contained in the contested report.  In fact, he appealed this evaluation citing the same reasons before this board and he was denied relief by the OSRB.  There remains no clear or convincing evidence to show an error or injustice was caused by the delay; therefore, no relief should be considered on this point.

	f.  he was never properly counseled by his rater or senior rater which led to him being recommended for future assignments in the Quartermaster career field rather within his Ordnance career field.  The lack of counseling alone is not grounds for an appeal.  He had an equal responsibility to ensure initial and quarterly counseling occurred.  As a senior CPT who has had multiple OER's in the past, he was aware or should have been aware of the counseling process 


mandated by the evaluation regulation.  In regards to his future assignment, there is no regulatory requirement to "only" recommend the officer for assignments within the officer's career field/FS.  In fact, the OPMS officer development model states officers should seek training and assignments outside one's normal branch or functional area and develop skills necessary to lead the Army of the future.

	g.  he contends that recommending a senior CPT for future assignment as a platoon leader represents a substantive error.  However, the regulatory guidance in effect at the time did not require the senior rater to ensure the future assignments were progressive.  As such there is no error on this point.

4.  By regulation, an OER that is 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 opinions and objective judgment of the rating officials at the time of preparation.  In order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the OER 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.

5.  With respect to non-compliance with the governing regulation, there is no evidence and the applicant has not provided sufficiently compelling evidence that shows either the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

6.  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify removing the OER from his AMHRR.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, other than minor administrative errors, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or an injustice that would warrant removal.

7.  In view of the above the contested OER should not be removed but should be corrected as indicated below.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending the contested OER covering the rated period 21 November 2007 through 24 September 2008 as follows:

	a.  adding the entry "3" to Part 1j to correctly reflect his rated time (10 months and 4 days minus 6 months and 20 days equals 3 months and 14 days);

	b.  entering the nonrated code of "I" in Part Ik; and

	c.  forwarding his OER comments relating to this report to HRC for filing on his AMHRR.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the removal of the contested OER and associated appeal documents.




      _______ _  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)                                         AR20120005298



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ABCMR Record of Proceedings (cont)                                         AR20120005298



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