IN THE CASE OF:	  

		BOARD DATE:	  24 May 2012

		DOCKET NUMBER:  AR20120005319 


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 two Officer Evaluation Reports (OERs), covering the periods 28 October 2005 through 26 March 2006 (referred to as OER-1) and 24 March through 10 October 2006 (referred to as OER-2) from his Official Military Personnel File (OMPF) or their transfer to the restricted section of this file.

2.  The applicant states:

	a.  OER-1 was not a fair assessment of his performance;

	b.  the senior rater and he had personal issues which clouded the senior rater's judgment towards him and led to his unfair rating;

	c.  while his peers were corrected, mentored, verbally counseled and allowed to Soldier on for simple issues warranting minimal attention, he received formal written counseling for the same and was told he should have known better;

	d.  under command pressure, the rater was faced with the decision to protect himself or the applicant when he rewrote OER-1 less favorably and far cry from the original report;

	e.  he believes the rater was influenced by the senior rater to rewrite OER-1 and although he submitted a rebuttal to the report, it was still filed in his OMPF;

	f.  a new rater attempted to give him a fair evaluation and spoke up for him when the same senior rater attempted to down grade his subsequent report (OER-2);

	g.  although the senior rater acknowledged his improvements in the end, he still gave him an unfair evaluation on OER-2; and

	h.  while he received outstanding evaluations before and after the two reports in question, he has done everything possible to improve himself as an officer and asks removal of OER-1 and OER-2 from his OMPF or the transfer of these reports to the restricted portion of the OMPF.

3.  The applicant provides;

* Self-authored statement
* OER dated through 15 June 2005
* Memorandum for Record (self-authored)
* 3 award certificates
* Award order
* 3 certificates of training/diploma
* Officer Record Brief (ORB)
* Letter of Support

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he was appointed a Reserve commissioned officer in the rank of second lieutenant (2LT/O-1) and completed his oath of office on 10 May 2002.  He is currently serving on active duty as a captain (CPT/O-3), the rank he was promoted to on 1 January 2006.

2.  On 22 August 2006, while serving with B Company, 1st Battalion, 12th Cavalry Regiment, Ft Hood, Texas, the applicant received OER-1, which was a change of rater (CR) report.  This CR report evaluated him as a Platoon Leader, responsible for a 38 man mechanized infantry platoon capable of deploying worldwide at anytime.

3.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a CPT, evaluated the applicant as indicated:

	a.  Part IVa (Army Values) - checked the "Yes" block in response to every question; and

	b.  Part IVb (Leader Attributes/Skills/Actions) - checked the "Yes" block in response to every question except under "Actions (Leadership)" where he checked the "No" block in response to the question "Communicating (displays good oral and written, and listening skills for individuals/groups."

4.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the second block (Satisfactory Performance, Promote) and provided comments in Part Vb (Comments) that included the following:

* the applicant’s performance was adequate during the rating period
* the applicant could benefit from further training, specifically in arias of command and control, tactics, land navigation, and time management
* with time to mature and develop, focusing on communication skills, planning and time management, and attention to detail, the applicant will be suitable for positions of increased responsibility

5.  In Part VIIa (Promotion Potential) the SR, a lieutenant colonel (LTC), placed the applicant in the third block (Do Not Promote).  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the SR did not provide an evaluation.  The SR's supporting comments included:

* the applicant's performance was satisfactory and far below his peers
* the applicant conducted training events which were not conducted to standard
* the applicant's current technical and tactical proficiency was nowhere near the level of officers with like time in service
* do not send the applicant to the Career Course and post to command only after significant improvement in tactical and technical skills
* only consider for promotion after successful company command

6.  On 20 September 2007, the applicant submitted rebuttal comments to OER-1 indicating it was an unfair and biased assessment of his abilities as an officer.

7.  The applicant's OMPF fails to provide any indication that the applicant requested a commander's inquiry or appealed OER-1 to the Officer Special Review Board (OSRB).

8.  On 4 October 2007, while serving on active duty as a CPT, assigned to B Company, 1st Battalion, 12th Cavalry Regiment, Ft Hood, Texas, the applicant received OER-2, a CR report.  OER-2 evaluated the applicant as an Assistant Battalion Operations Officer of a 700 Soldier combined arms battalion.

9.  In Part IV (Performance Evaluation-Professionalism) of OER-2, the rater, a major (MAJ/O-3), checked the "Yes" block in response to every question in Part IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions).

10.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the second block (Satisfactory Performance) and provided comments in Part Vb (Comments) that included the following:

* the applicant is a hard working, motivated, and dedicated officer who strives to learn and become more proficient at his job and continues to make progress
* the applicant served without incident while acting as the officer in charge for the 1st Cavalry Division War-Fighter Guard Force
*  the applicant should attend Infantry Captains Career Course (ICCC) and command a Table of Distribution and Allowances (TDA) company

11.  In Part VIIa (Promotion Potential) the senior rater placed the applicant in the second block (Fully Qualified).  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the SR did not provide an evaluation.  The SR's supporting comments included:

* the applicant improved over the last several months
* his performance was satisfactory
* with additional coaching, teaching, mentoring, and schooling, he will continue to improve
* maintained Army standard as night battle CPT
* allow to attend ICCC and groom for TDA command

12.  The applicant's OMPF fails to provide any indication that he requested a commander's inquiry or appealed OER-2 to the OSRB.

13.  The applicant provides a letter of support from his current commander who attests the applicant:

	a.  has been a great asset to the battalion and brigade;

	b.  serves as a major player in the day to day operations at the unit and Camp Shelby Joint Forces Training Center providing training, assistance, and validation for mobilizing units;

	c.  is nothing less than driven, focused, and an highly capable officer who has earned the admiration of subordinates as sell as peers;
	d.  chose, immediately upon return from Afghanistan, to assume his duties as team leader in order to help battalion achieve its mission to train, coach, and mentor Soldiers deploying to multiple theaters of operation around the globe; and

	e.  selecting him to the rank of major will only further excise the unlimited potential of this superb officer.

14.  The applicant provides an OER covering the period 1 January through 15 June 2005 that evaluated him as an executive officer and only contained favorable comments.  He also provides multiple award and training certificates signifying his accomplishments since issuance of the two OERs in question.

15.  Army Regulation 623-105 prescribes the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provides guidance regarding redress programs including commander inquiries and appeals.  

16.  Paragraph 3-57 of the OER regulation provides the basic rule applicable to modifications of previously submitted reports.  It states that an evaluation report 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, 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.

17.  Chapter 6 of the OER regulation contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  It states that the burden of proof rests 
with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-57 should 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 contention that the OERs in question should be removed from his OMPF because the SR he had personal issues which clouded the senior rater's judgment towards him and led to his unfair rating, was carefully considered.  However, there is insufficient evidence to support removal of the two OERs in question.

2.  By regulation, an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation; and the burden of proof to overcome this presumption of regularity rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce clear and convincing evidence that a material error, inaccuracy, or injustice exists in the report.  The evidence provided by the applicant must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

3.  The evidence of record in this case fails to show the applicant requested a commander's inquiry or appealed these reports to the OSRB.  The evaluations contained on the contested OERs represent the considered opinions and objective judgments of the rating officials.  As a result, it is concluded that the OERs in question were processed and accepted for filing in the OMPF in accordance with applicable regulations.  There is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove or amend the contested reports.

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)                                         AR20120005319





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ABCMR Record of Proceedings (cont)                                         AR20120005319



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