IN THE CASE OF: 

		BOARD DATE:	18 June 2012

		DOCKET NUMBER:  AR20120018317 


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 DA Forms 67-9 (Officer Evaluation Reports (OER)) for the periods 7 September 2006 through 30 April 2007 and
1 May 2007 through 14 January 2008.

2.  The applicant states:

* on or about 15 March 2005, he left active duty and went on transition leave
* in July 2005, his transition leave ended and he was placed in the Individual Ready Reserve (IRR)
* in September 2006, he joined the New York Army National Guard (NYARNG) and he did not conduct his first drill until November 2006 with the 369th Sustainment Brigade
* he subsequently drilled four more times before he was called to work for the U.S. Border Patrol in May 2007
* during the last week of April 2007, he received his conditional offer of employment with the U.S. Border Patrol and he was given a reporting date of 14 May 2007 for the U.S. Border Academy in Artesia, NM
* he advised his superiors of his new job and that he would not be making the next drill
* he subsequently received two OERs with the first OER covering his time in the unit in which he set up new offices and the second OER covering a 9-month period he was not in the NYARNG


* he did not sign the OERs and it is his understanding that there may be a discrepancy with the signatures
* both his rater and senior rater have confirmed they did not write nor sign the OER ending 30 April 2007
* he did not sign the OER ending 30 April 2007 and it is his belief the OER was forged
* an upcoming major's promotion board will be a best qualified board and his two contested OERs do not reflect his hard work and ethic and he fears they will be detrimental to his career
* his branch manager informed him that letters detailing his competence and justification of the OERs would be the best options for his situation
* in September 2006, he signed a 10-month contract with the NYARNG to finish his IRR time
* on 7 September 2007, he graduated from the U.S. Border Patrol 
* in February 2008, he applied to the Return to Active Duty Program 
* in April 2008, he terminated his employment with the U.S. Border Patrol
* in May 2008, he returned to active duty
* he discovered the errors in the OERs while he was employed with the U.S. Border Patrol
* he did not foresee the OERs being an issue as he did not intend to return to active duty

3.  The applicant provides:

* self-authored statement, dated 20 September 2012
* letter from Lieutenant Colonel (LTC) KMB, dated 6 September 2012
* letter from LTC (Retired) HG, dated 14 September 2012
* OER for the period 7 September 2006 through 30 April 2007
* OER for the period 1 May 2007 through 4 November 2008

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After completing the Reserve Officers' Training Corps at Valley Forge Military College, the applicant was appointed a second lieutenant (2LT) in the U.S. Army Reserve (USAR) on 10 May 1999.  He entered active duty on 5 July 2002.  He was promoted to the rank/grade of captain (CPT)/O-3 on 1 March 2005.

3.  On 7 July 2005, he was honorably released from active duty at the completion of required active service and he was transferred to the USAR Control Group (Reinforcement) to complete his Reserve obligation.

4.  On 7 September 2006, the applicant was granted temporary Federal recognition in the rank/grade of CPT/O-3 in the NYARNG.  On 25 September 2006, he was granted permanent Federal recognition.

5.  A DA Form 67-9 for the period 7 September 2006 through 30 April 2007 shows:

* signatures with a date of 17 July 2007 for the rater, the senior rater, and the applicant
* in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) an "X" in the block marked "Satisfactory Performance, Promote"
* in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) an "X" in the block marked "Fully Qualified"

6.  A DA Form 67-9 for the period 1 May 2007 through 14 January 2008 shows:

* common access card (CAC) electronic signatures with a date of 31 January 2008 for the rater and the senior rater
* the applicant's handwritten signature
* in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) an "X" in the block marked "Satisfactory Performance, Promote"
* in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) and "X" in the block marked "Fully Qualified"

7.  On 14 January 2008, the applicant was separated from the ARNG and transferred to the USAR Control Group (Reinforcement). 

8.  Orders A-04-086315, issued by the U.S Army Human Resources Command (HRC), St. Louis , MO, dated 3 April 208, ordered the applicant to active duty to fulfill an active Army requirement for the period 10 May 2008 through 18 May 2011.

9.  A review of the applicant's interactive Personnel Electronic Records Management System (iPERMS) record shows:

* his OER for the period ending 30 April 2007 was added to his records on 5 October 2012
* his OER for the period ending 14 January 2008 was added to his records on 28 February 2008

10.  An ARNG Retirement Points History Statement, dated 26 February 2008 shows:

* he earned 39 total points for retired pay for the period 7 September 2006 through 4 July 2007
* he earned 22 total points for retired pay for the period 5 July 2007 through 14 January 2008
* during the period 8 July 2005 through 6 September 2006 he was in an "unaccounted status"

11.  The applicant provides a self-authored statement, a timeline, copies of the contested OERS, and letters from the rater and senior rater wherein they state their signatures on the OERs were forged.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the evaluation reporting system.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in another pamphlet.

	b.  Paragraph 2-10b states normally a Soldier will complete 90 calendar days in the same position under the same rater to be eligible for an evaluation report.  Nonrated periods are not included in this 90-day period.

	c.  Table 2-2 states the rated officer will sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the APFT and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I through VII.  This action increases administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  If the rated officer is unavailable, unable, or fails to sign the DA Form 67-9 for any reason, the senior rater will either resolve the problem or explain why in Part VIIc and the rated officer's signature is left blank.  The report will not be delayed because it lacks the rated officer's signature.

	d.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will 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 the assertions, the clear and convincing standard has been met with regard to those assertions.

	e.  Table 2-2 states the rated officer will sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the APFT and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I through VII.  This action increases administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  If the rated officer is unavailable, unable, or fails to sign the DA Form 67-9 for any reason, the senior rater will either resolve the problem or explain why in Part VIIc and the rated officer's signature is left blank.  The report will not be delayed because it lacks the rated officer's signature.

13.  Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) is intended as a professional development guide for individual officers.  In pertinent part, it states officers in many respects are ultimately their own career managers.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the OERs for the periods 7 September 2006 through 30 April 2007 and 1 May 2007 through 14 January 2008 was carefully considered.

2.  Once a report is filed in the Army Human Resource Record (AMHRR), formerly known as the Official Military Personnel File (OMPF), it is presumed to be administratively correct.  To justify deletion of an OER, there must be 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.  The applicant does not contend that the OER in question contained a material error, was inaccurate, or was unjust; just that he did not sign the OERs and there were discrepancies with the rater and senior rater's signatures.

3.  The contested OERs are neither referred nor negative.  On the contrary, the OER for the period ending 30 April 2007 is a positive OER; both rater and senior rater comments are favorable, and he was recommended for promotion.  His OER for the period ending 14 January 2008 shows he was recommended for promotion and fully qualified although he was not directly observed.

4.  With respect to complying with the governing regulation, there is no evidence and the applicant has not provided sufficiently compelling evidence that shows the contested OERs were substantively inaccurate and did not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner.

5.  With respect to the contention of forged signatures, ABCMR members are neither trained nor qualified to determine the validity of a Soldier's signature, and an administrative error does not justify deletion of an OER.  Further, insufficient evidence was presented to show the CAC signatures were forged.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  __X_____  __X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board accepted the applicant’s contention that the OER for the period ending   30 April 2007 appears to be a forged document.  The applicant, the rater, and the senior rater all have signed letters attesting that they did not sign the report.  Additionally, this report was added to his file almost 5 years later, giving further credence to the applicant’s contention.  A comparison of the signatures indicates significant discrepancies.

2.  Therefore, 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 removing the OER for the period ending 30 April 2007 from his records and replacing it with a nonrated statement.

3.  The Board further determined that the evidence presented was 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 removing the OER for the period ending 14 January 2008.



      __________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.






SAMR-RB									  20 June 2013


MEMORANDUM FOR Commander, US Army Human Resources Command, 
1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 

SUBJECT:  Army Board for Correction of Military Records Record of Proceedings
for AR20120018317


1.  Reference the attached Army Board for Correction of Military Records (ABCMR) Record of Proceedings, dated 18 June 2013, in which the Board recommended, in a unanimous decision and contrary to the staff DISCUSSION AND CONCLUSIONS, to grant partial relief.

2.  The Board accepted the applicant's contention that his officer evaluation report (OER) for the period ending 30 April 2007 is a forged document.  The ratee, rater, and senior rater all stated they did not sign this contested report.  Additionally, the contested report was added to his records almost 5 years after the close date.  The Board compared the signatures on the OER to the signatures on the statements and believed there were significant discrepancies.  The Board therefore believed the contested report should be removed from his records.

3.  I have reviewed the findings, discussion, recommendation, and reasons for the Board's recommendation to grant partial relief to the applicant's request.  While the Board’s reasoning does not conform to the strict interpretation of Army Regulation    623-3, I will not reject its proper exercise of its discretion to grant partial relief in this case.  I have decided to adopt the Board's recommendation to grant partial relief by removing the OER for the period ending 30 April 2007 from the applicant's records.

4.  Therefore, under the authority of Title 10, U.S. Code, section 1552, the recommendation of the ABCMR is hereby approved, and I direct that all the Department of the Army records of the individual concerned be corrected as shown under BOARD DETERMINATION/RECOMMENDATION in the Record of Proceedings in the subject case enclosed.

5.  Request necessary administrative action be taken to effect the correction of records as indicated no later than 19 August 2013.  Further, request that the individual 




SAMR-RB						
SUBJECT:  Army Board for Correction of Military Records Record of Proceedings
for AR20120018317


concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence.

BY ORDER OF THE SECRETARY OF THE ARMY:




Encl						     
						     Deputy Assistant Secretary
						     (Army Review Boards)

CF: 
(X)AMHRR