BOARD DATE: 13 November 2012
DOCKET NUMBER: AR20120016674
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 that her Officer Evaluation Report (OER) for the period 31 October 2007 through 30 June 2008 be removed from her records and her records be sent to a Special Selection Board (SSB).
2. The applicant states her husband died during the rated period and she could not deploy. She believes her rater gave her the "Fully Qualified" not "Best Qualified" due to her not being deployable. She believes that this OER is discriminatory and the reason for her being a two-time nonselect for chief warrant officer three (CW3).
3. The applicant provides copies of three OER's, a memorandum to the Fiscal Year (FY) 2012 CW3 Selection Board, four letters of recommendation, and her Officer Record Brief (ORB).
CONSIDERATION OF EVIDENCE:
1. The applicant, a former Regular Army staff sergeant, was appointed a U.S. Army Reserve (USAR) warrant officer one on 28 June 2006. She has remained on active duty since her appointment.
2. On her OER, ending 30 October 2007, her rater evaluated her as "Outstanding Performance, Must Promote" and her senior rater as "Best Qualified."
3. On the OER at issue, for the period ending 30 June 2008, her rater marked her as "Satisfactory Performance, Promote," and added the comment "WO 1 G____ must continue to serve in her current position and deploy to gain more experience." Her senior rater marked her as "Fully Qualified" noting she was already selected for promotion to chief warrant officer two (CW2) and stated "she demonstrates potential to perform at higher levels with more experience."
4. On her OER, ending 26 June 2009, her rater evaluated her as "Outstanding Performance, Must Promote" and her senior rater evaluated her as "Best Qualified." Her senior rater described her as "A quiet professional, CW2 Gardner applies experience and excellence to every task. CW2 Gardner has unlimited potential, send to the Warrant Officer Advanced Course as soon as possible.
5. Her rater for the first and third OER were the same person and her senior rater for the first and second OER were the same person. Her subsequent OER raters all marked her as "Outstanding Performance, Must Promote" and her senior raters evaluated her as "Best Qualified" and all recommended promotion to CW3.
6. Apparently following the release of the results of the FY 2012 CW3 Selection Board, the applicant submitted a personal letter and four memoranda of record to the President of the promotion board requesting an SSB. (The same documents are submitted with this application.) The officers providing the memorandum described her as having a can-do attitude, with unquestioned candor, professionalism, and expertise. All four officers stated it would be a great loss to the Army if her skills and talents were lost, they recommended her file be referred to an SSB. None of the memoranda make a specific reference to the period in question or the loss of her husband and its effect on her performance/deployability.
7. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Officer Evaluation Reporting System and includes policy, statements, operating tasks, and rules in support of operating tasks. The regulation provides that:
a. an evaluation report 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;
b. an appeal must be supported by substantiating evidence. An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered. Appeals alleging bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error, are substantive in nature;
c. failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception; and
d. 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 should not be applied to the report under consideration or 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. If the adjudication authority is convinced that an appellant is correct in some or all of his/her assertions, the clear and convincing standard has been met with regard to those assertions.
DISCUSSION AND CONCLUSIONS:
1. The rater on the contested OER does make comment that in his opinion the applicant needs to have a deployment to gain more experience. This would indicate he felt it was important for her development to gain this type of experience; it is not incorrect or inaccurate or unjust.
2. The record does not contain and the applicant has not provided sufficiently compelling evidence that shows the OER is substantively inaccurate and does not accurately reflect her performance or potential or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.
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) AR20120016674
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