IN THE CASE OF:	  

		BOARD DATE:	  24 January 2013

		DOCKET NUMBER:  AR20120016997 


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 the reason for his Officer Evaluation Report (OER) for the period ending 18 June 2009 be changed from "PCS" (permanent change of station) to "Mobilization."  He also requests, in effect, a change of:

* his rater's evaluation from "satisfactory performance, promote" to "outstanding performance, must promote"
* his senior rater's evaluation from "fully qualified" to "best qualified"
* his potential compared with officers senior rated in the same grade from "center of mass" to "above center of mass"

2.  He states his evaluation for the period 16 September 2008 through 18 June 2009 unjustly rated him below his performance standard.  He was directed to transfer to a new unit after 8th U.S. Army was disbanded.  No developmental counseling was documented for him, and his performance of his assigned duties outlined on his DA Form 67-9-1 (OER Support Form) exceeded all standards.  He was deployed to Operation Iraqi Freedom (OIF) on 5 July 2009, and his OER had not been completed per Army regulation.  He tried to reach Lieutenant Colonel (LTC) P (his rater) from within Iraq to obtain his OER so he could be evaluated by his new rater.  The OER was not available for signature until 13 August 2009, and he was unable to address the injustice due to the operational nature of the mission.  The problem was exacerbated when his new unit deployed to another theater of operations.  He was given no indication his performance was anything other than exemplary, and he has no punitive actions against him.  

3.  He states subsequent OERs and letters of recommendation show he is an excellent officer with unlimited opportunities for promotion.  While serving in an operation environment and in combat, he has achieved an "above center of mass" rating.  He is being considered for promotion to colonel (COL)/O-6, and this unfair and biased OER does not reflect his performance.  He states it is in the interest of justice to correct the OER to give him the best chance to be promoted and continue to offer exemplary service to the U.S. Army and the country.

4.  He provides:

* OERs
* memorandum, subject:  Letter of Recommendation for [Applicant] 
* memorandum, subject:  Letter of Recommendation for CENTCOM [Central Command] J2 Position for [Applicant], dated 10 February 2012
* DD Form 214 (Certificate of Release or Discharge from Active Duty) with DD Form 214C (Continuation Sheet)

CONSIDERATION OF EVIDENCE:

1.  With prior service as a Merchant Marine officer, on 29 June 1998, the applicant accepted appointment as a Reserve commissioned officer of the Army in the rank/grade of captain/O-3.  He is currently serving in the U.S. Army Reserve (USAR) in the rank/grade of lieutenant colonel/O-5.

2.  His OER for the period 16 September 2008 through 18 June 2009 shows in:

	a.  Part I (Administrative Data), item h (Reason for Submission) – "04    PCS";

	b.  Part II (Authentication), his rater and senior rater signed the form on 8 August 2009, and he signed the form on 13 August 2009; 

	b.  Part V (Performance and Potential Evaluation (Rater)), his rater marked the box for "satisfactory performance, promote"; and

	c.  Part VII (Senior Rater) –

* his senior rater marked the box for "fully qualified"
* his potential compared with officers senior rated in the same grade was recorded as "center of mass"

3.  His record includes a DD Form 214 covering his active duty service from 5 July 2009 to 19 April 2010.  The form shows he served in Kuwait and Iraq from 22 August 2009 to 26 February 2010.  

4.  He provides:

	a.  His OER for the period 19 June 2009 through 20 February 2010.  The OER shows a rater evaluation of "outstanding performance, must promote," a senior rater evaluation of "best qualified," and a potential of "above center of mass."  

	b.  A memorandum, subject:  Letter of Recommendation for [Applicant], dated 2 February 2011, from the Commander, Headquarters, 90th Sustainment Brigade, North Little Rock, AR.  The author of the memorandum, a colonel/O-6, recommended the applicant for immediate selection to attend the Advanced Joint Professional Military Education Course and stated he first met the applicant in April 2009. 

	c.  A memorandum, subject:  Letter of Recommendation for CENTCOM J2 Position for [Applicant], dated 10 February 2012, from the Deputy Commanding General - Support, Headquarters, First Army, Rock Island, IL.  The author of the memorandum, a major general/O-8, recommended the applicant for the CENTCOM J2 position based on his experience serving with the applicant in Iraq from May 2009 to April 2010.

5.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) currently prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.  

   a.  Paragraph 3-39 provides the basic rules applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA), and included in the official record of a rated Soldier 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.  Once accepted for filing in an officer’s record, requests that a report be altered, withdrawn, or replaced with another report will not be honored.
   
   b.  Chapter 6 contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  
   	(1)  Paragraph 6-7 outlines policies and states, in pertinent part, that evaluation reports accepted by HQDA and included in the official record of a rated Soldier are 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, as outlined in paragraph 3-39.  
   
   	(2)  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will 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 evidence of record does not support the applicant's request for amendments to his OER for the period ending 18 June 2009.  

2.  The record shows his OER for the period ending 18 June 2009 was accepted by HQDA and is included in his official record.  As such, the document is presumed to be administratively correct and to represent the considered opinions and objective judgment of his rater and senior rater.  

3.    Other than his own statements, the applicant has provided no evidence indicating his performance was anything other than that shown on the OER in question.  The recommendations he provides are dated well after the end of the rating period documented by the OER in question, and there is no evidence that the recommending individuals were in a position to evaluate the performance of his duties during the rating period.  

4.  To amend an OER requires clear and convincing evidence of a strong and compelling nature.  In the absence of such evidence, there is no basis for changing his rater's or senior rater's assessment of his promotion potential.

5.  Regarding the reason for the OER in question, while it appears "PCS" may not have been the reason for completing the OER, there is no evidence indicating this error has done or will do him harm.  As such, it does not constitute a material error warranting correction under the governing regulation.

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)                                         AR20120016997





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ABCMR Record of Proceedings (cont)                                         AR20120016997



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