IN THE CASE OF: 

		BOARD DATE:	  4 December 2012

		DOCKET NUMBER:  AR20120009759 


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 his officer evaluation report (OER) ending on 12 January 2009 from his official records.

2.  The applicant states his appeal is based on substantive inaccuracy and injustice because the rater and senior rater (SR) comments related to his performance are inaccurate and unjust.  All of his accomplishments and exceptional performance during the rated period are not accurately addressed.  He goes on to state that although the comments are not outright negative, they simply list some of the tasks he accomplished in generic detail.  He also states the lack of positive detailed comments was a form of retaliation against him after he was accused of sexual harassment and was later cleared of all the allegations by the commanding general.  He also states the OER has had a severe detrimental effect on his career and it is likely the main reason he was passed over for promotion to the rank of major.  He further states the OER was written to punish him for the alleged misconduct that he was cleared of.

3.  The applicant provides copies of three memoranda of his appeal, the contested OER, all of his previous OERs, his officer record brief, two letters of support for his appeal, his rebuttal to a General Officer Memorandum of Reprimand, and supporting documents related to the investigation of the allegations.




CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve first lieutenant in the Chaplain Corps on 16 September 2003.  He served a short tour in Iraq in 2004 and was promoted to the rank of captain on 10 July 2004.  He also served a full tour in Iraq in 2006 and a full tour in Germany in 2007. 

2.  On 12 January 2009, the applicant received a Permanent Change of Station OER evaluating him as a battalion chaplain for an initial entry training battalion at Fort Sam Houston, Texas.

3.  In Part V under Performance and Potential Evaluation his rated gave him an “outstanding performance – must promote” rating and the comments on specific aspects of his performance were:

* Provided counseling to Soldiers, cadre, civilian employees and their families
* Counseling loads averaged 10 formal counseling's per day totaling 1,000 during his tenure
* Performed 15 wedding ceremonies, one baby dedication service, and managed Sunday services at three locations
* Performed one battalion-level family retreat for 20 couples
* Conducted prayers and benedictions for seven companies and sister battalion graduation dinner and ceremony events

4.  In Part VI his intermediate rater commented that he energetically provided numerous battalion spiritual fitness and welfare programs for advanced individual training Soldiers, that he was a compassionate counselor, leader, pastor and a good learner with developed staff skills, that he led and excelled in all unit religious activities, that he was proactive in ministering to the Soldiers, cadre, civilian instructors and their families in the battalion.  Promote now.

5.  In Part VII, his SR gave him a “Best Qualified” rating and indicated in his comments:

* That the applicant completed numerous tasks while serving as the battalion chaplain
* He counseled over 1,000 Soldiers, conducted prayer breakfasts, organized a marriage retreat, and held routine chapel service on post and in the field
* He demonstrated the potential to best serve as a chaplain in healthcare facilities and similar environments
* Promote with peers
6.  On 13 April 2012, he appealed the contested OER to the Human Resources Command and his appeal was returned without action because he did not appeal the report within 3 years and was advised to apply to this Board.

7.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.  It states that an evaluation report accepted by Headquarters Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, 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.  Requests that an evaluation report in a Soldier's Army Military Human Resources Record be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that the regulatory presumption of regularity referred to in paragraphs 3-39 and 6-7 of this regulation will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice.

8.  Army Regulation 600-8-29 (Officer Promotions) serves as the authority for the conduct of officer selection boards.  It provides, in pertinent part, that selection board members may not record their reasons nor give any reasons for selection or nonselection.  Selections are based on the best qualified to meet the projected needs of the Army.  A Soldier within an announced zone of consideration may write to the President of the selection board inviting attention to any matter he or she feels is important in consideration of his or her records and are considered privileged information and will not be filed in the official record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions that the contested OER does not accurately reflect his performance during the rating period has been noted and appears to lack merit.  While he may believe that he warranted different comments by the rater and SR, he received maximum ratings from them and it appears that their comments represent the considered opinions and objective judgment of the rating officials at the time of preparation.

2.  Notwithstanding his claim that the OER was unjust because of the absence of his accomplishments during the rating period, the applicant has failed to show that the comments he received were in error or unjust.

3.  The applicant’s contention that the contested OER served as the basis for nonselection is speculative at best.  It is a well known fact that promotion boards and other selection boards do not reveal the basis for selection or nonselection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that he was not deemed the best qualified to meet the needs of the Army when compared to his peers. 
 
4.  The applicant's contention that the contested OER was retaliation against him for being cleared of allegations of sexual harassment has been noted and appears to lack merit.  The applicant has submitted no evidence to substantiate his allegations.

5.  Therefore, absent sufficient evidence to substantiate his allegations, there appears to be no basis to grant his request to remove the contested OER from his official records. 

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)                                         AR20120009759



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ABCMR Record of Proceedings (cont)                                         AR20120009759



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