IN THE CASE OF:	

		BOARD DATE:	  27 August 2013

		DOCKET NUMBER:  AR20120019076 


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 correction of his DA Form 69-7 (Officer Evaluation Report) for the period ending 31 May 2009 (hereafter referred to as the contested OER) as follows:

   a.  Remove the negative comments having to do with his dual citizenship in Part V (Performance and Potential Evaluation (Rater)) c (Comment on Potential for Promotion) and Part VII (Senior Rater) c (Comment on Performance/Potential).

   b.  Increase the senior rater's evaluation of his promotion potential in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade)   from "Fully Qualified" to "Best Qualified."

   c.  Increase the senior rater's evaluation of his potential compared with officers senior rated in the same grade to above center of mass.

   d.  Correct the rater's administrative errors in the last sentence of Part Vb (Comment on Specific Acts of the Performance). 
   
2.  The applicant further requests not to have Mr. Schxxxxx or anyone involved in his previously-boarded case participate in reviewing his current request.    




3.  The applicant states:
   
   a.  He would like for his appeal to stand on its own merits and be fairly evaluated.

   b.  The report weighs heavily on dual citizenship and limitations than his actual performance.  

   c.  He was never formally counseled on his dual citizenship or clearance issues prior to or during the rating period.
   
   d.  The unit failed to publish and post a correct rating chain.

   e.  He did not receive a copy of the rater or senior rater's Officer Evaluation Support Forms.

   f.  He did not receive mandatory face-to-face counseling with the rater and senior rater throughout the entire rating period. 

4.  The applicant provides:

* 2 DA Forms 67-9
* 3 self-authored statements
* a 6-page Rating Scheme
* an 11-page enclosure 
* a notarized memorandum
* U.S. Army Combat Readiness/Safety Center Ground Safety Officer Course Certificate of Graduation
* U.S. Army Chemical, Biological, Radiological and Nuclear School Operational Radiation Safety Course Diploma
* U.S. Army Reserve Command Composite Risk Management Train the Trainer Course Certificate
* Army Board for Correction of Military Records (ABCMR) Record of Proceedings Docket Number AR20110001847 and associated memoranda
* a 2-page email
* a thumb drive

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 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.  On 18 September 2012, the applicant was assigned to the U.S. Army Retired Reserve in the rank of lieutenant colonel.

3.  Records show the contested OER was a Change of Rater report that covered 10 months of rated time while the applicant was serving in the rank of lieutenant colonel as the Assistant G4/Safety Officer during the period of the contested report.  The contested OER was not a referred report.

4.  The rater, a colonel in the position of chief of staff, signed his portion of the contested OER on 7 September 2009.  The senior rater, a brigadier general serving in the position of commander, signed his portion of the contested OER on 11 September 2009.

5.  The applicant signed Part IIe (Signature of Rated Officer) of the contested OER on 6 October 2009, that attested the administrative portion of the contested OER was correct and also confirmed the rating officials were those established as the rating chain.

6.  In Part Vc, the rater entered the comment "[the applicant's] his dual citizenship prevents him from having access to classified documents or the Army Reserve network; however, he finds ways to work around this limitation and complete his work.  Promote with peers."

7.  In Part VIIa, the senior rater rated the applicant as "Fully Qualified."  It is noted on the form that the senior rater evaluated 38 officers in the applicant's grade and that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with the report and considered in his evaluation and review.   

8.  In Part VIIc, after laudatory comments pertaining to the applicant's performance, the senior rater concluded with the comment "[the applicant] has the potential to handle greater responsibility however, his dual citizenship limits his opportunities."

9.  There is no indication the applicant requested a commander's inquiry be initiated on the contested report.
10.  There is no documentation in his available record that shows he appealed the contested OER through the U.S. Army Human Resources Command to the Army Officer Special Review Board.  

11.  The applicant provides the following evidence/argument in support of his request to the Board:

   a.  The applicant believes the rater and senior rater made negative comments regarding his future potential for promotion based on his dual citizenship and limitations rather than commenting on his actual performance.

   b.  The rater placed him in the "Outstanding Performance, Must Promote" block signifying that he considered his performance to be above others in his grade, yet because of his dual citizenship, he downgraded his potential to "promote with peers" instead of promote ahead of peers.
   
   c.  He disagrees with the senior rater's assessment of placing him in the "Fully Qualified" and "Center of Mass" blocks with regard to his potential compared to officers in the same grade.  Stating he [the applicant] has the potential for greater responsibility does not support a senior rating of "Promote With Peers" nor is it in line with the remark concerning his dual citizenship limiting his opportunities.

   d.  A copy of an OER immediately preceding the contested OER which shows he was rated in the same position with a different rating chain.  It is noted the senior rater placed him in the "Best Qualified" block for promotion potential to the next higher grade.  The applicant argues he took the necessary steps to advance his knowledge throughout the next (contested) rating period and he provides evidence to show he completed various courses of instruction and schools which further prepared him to accomplish the mission.  Therefore, since he had more experience a year later, he argues he performed better during the contested OER and should have received a "Best Qualified" rating by the senior rater.
   
   e.  A notarized memorandum from a retired colonel who previously served as the applicant's rater.  He states he believes the rating chain was never updated to reflect the applicant's new rating chain and that he most likely never received  mandatory face-to-face counseling, per regulation.  He attests to the applicant being a dedicated hard-working Soldier who at the very least deserves proper adherence to the standards and behavior in the area of career development which appears to have been lacking in this case.
   
   f.  A copy of a rating scheme dated 16 December 2008, which shows the applicant's rating chain as something other than what is on the contested OER.  
   g.  An 11-page enclosure in which the applicant attempts to provide justification for removing the negative comments and for receiving a higher rating from his senior rater.  He states, since he was never given developmental or face to face counseling concerning his dual citizenship before or during the rating period, the rating chain had no justification to add any negative comments to include comments concerning his dual citizenship.  The applicant repeatedly states he:
   
* received no face to face counseling within the first 30 days or anytime thereafter
* never received the rater or senior rater's support forms
* received no career development, advice, or guidance
* was never informed who his rater was or was given a copy of the rating chain
* emailed the rater a copy of his previous report after the rating period was over so he could determine objectives and write the report

12.  Army Regulation 623-105 (Officer Evaluation Reporting System) prescribed the policies for completing evaluation reports that supported the Officer Evaluation Reporting System.  

	a.  Paragraph 3-5f stated that failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report.  

	b.  Paragraph 3-57 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	c.  Paragraph 3-17c(3) states that the rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the Army Physical Fitness Test and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I-VII.  This action increases the administrative accuracy of the OER sin the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

	d.  Paragraph 6-6h(2) states correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will only be allowed when circumstances preclude correction of the errors, and then only when retention of the report would clearly result in an injustice to the officer.   

   e.  Paragraph 6-10 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his report weighs heavily on comments pertaining to his dual citizenship and its limitations rather than his actual performance.  While both the rater and the senior rater commented on his dual citizenship relative to his promotion potential, the vast majority of the report contained a wholly positive narrative pertaining to his performance and potential to handle greater responsibility.  The statements concerning his dual citizenship are simply statements of fact among the considered opinions and objective judgment of the rating officials. 

2.  Although the applicant contends he never received face-to-face counseling or the rater and senior rater's OER support forms, he provides no tangible evidence to overcome the presumption of regularity in this matter.  Further, the applicant contends that his rating chain was remiss in their duties to counsel and provide continuous assessment and feedback.  However, in accordance with Army regulations, failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report.  

3.  When the applicant signed the contested OER on 6 October 2009, he verified the accuracy of the administrative data in Part I and the rating officials in Part II.  This action is intended to increase administrative accuracy of the report since the rated individual is most familiar with and interested in this information.  The applicant's contentions concerning the rating scheme along with the copies and thumb drive of the scheme he provided fail to overcome the presumption of regularity which is only strengthened by the applicant's signature verifying his rating chain was proper on the contested report.

4.  The contested OER appears to be correct with the exception of grammatical errors and the final sentence of Part Vb; however, the correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will only be allowed when circumstances preclude correction of the errors, and then only when retention of the report would clearly result in an injustice to the officer.  

5.  There is no evidence and the applicant has not provided any evidence to show that the ratings and comments listed on the contested report are inaccurate and unjust and/or not consistent with the appellant's demonstrated performance of duty during the rating period.  It appears the comments listed simply represent the considered opinions and objective judgment of the rating officials.  

6.  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" to justify altering the contested report at this time.  After a comprehensive review of the applicant's contentions and arguments, evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.  Therefore, he is not entitled to the requested relief. 

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)                                         AR20120019076





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ABCMR Record of Proceedings (cont)                                         AR20120019076



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