IN THE CASE OF:	  

		BOARD DATE:	  30 April 2013

		DOCKET NUMBER:  AR20120016971 


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, in effect, correction of his DA Forms 67-9 (Officer Evaluation Report (OER)), for the rating periods 2 August 2005 through 9 June 2006 and 10 June 2006 through 4 November 2006 (hereafter referred to as the contested OERs), to show in:

* Part I, block (l) (Number of Enclosures) the entry "0"
* Part II, block d (This is a referred report, do you wish to make comments?) that the report was not referred and had no comments attached

2.  In the alternative, the applicant requests removal of the contested OERs from his Army Military Human Resource Record (AMHRR).

3.  The applicant states the alteration of both reports has denied him and his rating chain the opportunity to acknowledge and correct or refute the reports in a timely fashion.  The basis for his appeal is based on administrative errors on both reports wherein whiteout was used, after the OERs had already been signed but prior to the reports being posted to his AMHRR, to indicate that enclosures and comments were attached.  In addition, the report ending 4 November 2006 had a memorandum attached intended for another report that is signed a year after the OER. 


4.  The applicant provides:

* Two original OERs
* Two contested OERs
* U.S. Army Human Resources Command (HRC) memorandum for record (MFR); SUBJECT:  Officer Evaluation Report Referral
* MFR dated 15 August 2007
* Email dated 23 August 2012

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty in the Regular Army in the rank of major (MAJ)/O-4.

2.  His AMHRR contains a Change of Rater OER for the period 2 August 2005 through 9 June 2006.  The contested OER indicates:

	a.  the rater, senior rater, and applicant signed the report on 20 June 2006.

	b.  in Part Ij that one enclosure was included and this entry is handwritten.

	c.  in Part IId that it was a referred report and comments were attached.  These entries are handwritten.

	d.  he did not take the Army Physical Fitness Test (APFT) because of a profile and he failed to meet Army height and weight requirements as shown in Part IVc (APFT/Date/Height/Weight).

	e.  in Part Vc (Performance and Potential Evaluation (Rater)), the rater stated the applicant was making satisfactory progress in accordance with his medical treatment plan and that his profile did not prevent him from performing his assigned duties.

3.  His AMHRR contains a Change of Rater OER for the period 10 June 2006 through 4 November 2006.  This second contested OER indicates:

	a.  the rater, senior rater, and applicant signed the report on 26 February 2007.

	b.  In Part Ij that one enclosure was included and this entry is handwritten.

	c.  in Part IId that it was a referred report and no comments were included and this entry is handwritten.
	d.  he did not take the APFT because of a profile and he failed to meet Army height and weight requirements as shown in Part IVc.

	e.  in Part Vc, the rater stated the applicant's overweight status was the result of a medical condition, and he was making satisfactory progress in accordance with the medical treatment plan.

4.  He submits:

	a.  A copy of his Evaluation Report Appeal, dated 17 August 2012, submitted to the Army Special Review Board (ASRB), in which he contends neither of the original reports indicates that the reports were referred.  The two contested OERs were clearly altered after all three signatures had been collected to show they were referred reports with enclosures.  He further contends that the report was never referred to him by his senior rater, and the second report has enclosures attached to it that belong to a later OER.

	b.  An email from his rater stating that both reports were altered by someone outside the rating chain.

	c.  An OER for the period 2 August 2005 through 9 June 2006 which he contends is the correct OER.  This OER shows:

		(1)  no enclosures were included in Part Ij

		(2)  it was not a referred report and no comments were included in Part IId

		(3)  he did not take the APFT because of a profile and he failed to meet Army height and weight requirements as shown in Part IVc.

	d.  A memorandum for record, authored by the applicant, dated 15 August 2007, in which he defined his current medical conditions as outlined in his current and previous OERs.  Further, he was diagnosed with hypothyroidism and had a P2 profile which limited him to certain cardiovascular activities and severely challenged all of his attempts to remain in accordance with Army Regulation 
600-9 (The Army Weight Control Program) parameters.  His current treatment plan included continuing his prescribed medication plan and he was exploring surgical intervention.  He contends this document is erroneously filed as an enclosure to the OER listed above.


	e.  An OER for the period 10 June 2006 through 4 November 2006 which he contends is the correct report.  This OER shows:

		(1)  no enclosures were included in Part Ij 

		(2)  it was not a referred report and no comments were included in Part IId

		(3)  he did not take the APFT because of a profile and he failed to meet Army height and weight requirements as shown in Part IVc.

	f.  A memorandum from the Chief, Evaluation Report Branch, HRC, undated, SUBJECT:  Officer Evaluation Report Referral.  This memorandum stated that the applicant failed to respond within the required suspense date; therefore, the report was accepted without the rated officer's acknowledgement or comments.

5.  References:

   a.  Army Regulation 623-3, in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 67-9 (OER).

		(1)  Paragraph 3-34 stipulates that any report with an entry of "NO" in Part IVc indicating noncompliance with Army Regulation 600-9 will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army.

		(2)  Paragraph 3-36a states the senior rater will place an “X” in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an “X” in the appropriate box in Part IId.

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

		(4)  Paragraph 6-7g states that the Personnel Service Battalion (PSB)/administrative office servicing the rated officer’s unit may request minor administrative changes to an accepted report in parts I, II, and IIIb, of the DA Form 67-9.  However, the request must be accompanied by substantiating evidence.
	
	b.  DA Pamphlet 623-3 (ERS), in effect at the time, prescribed the procedures for completing evaluation reports that support the ERS.  It stated in Table 2-4 that the rater will comment on a “NO” entry, indicating noncompliance with the standards of Army Regulation 600–9 in Part Vb.  These comments should indicate the reason for noncompliance.  Medical conditions may be cited for noncompliance; however, the “NO “entry is still required because medical waivers of weight control standards are not permitted for evaluation report purposes.  The progress or lack of progress in weight control programs should be indicated.

   c.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  It states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by, among other agencies, the Army Board for Correction of Military Records and Department of the Army Suitability Evaluation Board.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the contested OERs be corrected to show they did not contain enclosures and were not referred reports.  In the alternative, he requests the contested OERs be removed from his AMHRR.

2.  He contends the contested OERs were altered to show that enclosures were attached and to indicate the reports were referred after all members of the rating chain had signed the report.  This administrative error denied him the opportunity to provide comments as outlined in Army Regulation 623-3.

3.  The evidence shows that the two contested OERs are filed in his AMHRR.  The contested reports contain handwritten changes and these changes show the reports were referred with enclosures.  There is a memorandum dated
15 August 2007 filed with his OER ending 4 November 2007.

4.  It is unclear why the two contested reports were not referred to the applicant for acknowledgement.  Regulatory guidance requires that an OER be referred to the rated officer whenever the rated officer is noncompliant with weight control standards.  Medical waivers of weight control standards are not permitted for evaluation report purposes.  Regulatory guidance permits the PSB and higher headquarters agencies to make minor administrative changes to accepted reports in parts I, II, and IIIb of the DA Form 67-9 provided there is substantive evidence to support the change.  It appears that the PSB or HRC made changes to the contested reports after noting the rated officer was noncompliant with weight standards.

5.  The applicant's contention that he was not allowed to acknowledge the report or provide comments is considered a minor administrative processing error which does not invalidate the report.  Further, the applicant's rater made the appropriate and required comments in reference to the applicant's progress on the weight control program; therefore, there is no error with the content of the contested reports.  Nonetheless, it would be appropriate to permit the applicant to provide comments describing his medical condition relevant to his inability to meet the Army weight standards to both contested reports.

6.  The applicant has not provided evidence of a clear and convincing nature that shows the administrative changes made to the contested reports are inaccurate or unjust.  The contested OERs are properly filed in the applicant's military personnel records in accordance with the governing regulation.

7.  In view of the above, he should be granted partial relief.

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:

	a.  Permitting the applicant to submit comments to the referred evaluations for filing in his AMHRR.  Comments must be completed within 90 days of the Board approval date and only address matters related to his noncompliance with Army weight control standards as indicated in his OERs covering the periods:

* 2 August 2005 through 9 June 2006
* 10 June 2006 through 4 November 2006

	b.  Submitting his comments, along with a copy of these Board proceedings, to:

			U.S. Army Human Resources Command
			(AHRC–PDV–E) Evaluation Systems
			1600 Spearhead Division Avenue, Dept. #470
			Fort Knox, KY  40122–5407
			Commercial:  (502) 613–9019
			DSN:  983–9019
			E-mail:  usarmy.knox.hrc.mbx.tagd-eval-policy@mail.mil

2.  The Board further determined that 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 correction and or removal of the above mentioned contested OERs.



      ___________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)                                         AR20120016971





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ABCMR Record of Proceedings (cont)                                         AR20120016971



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