BOARD DATE:	  29 January 2013

		DOCKET NUMBER:  AR20120020210 


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 the entry in Part Va (Evaluate the rated officer's performance during the rating period and his/her potential for promotion), "SATISFACTORY PERFORMANCE, PROMOTE," be replaced with "OUTSTANDING PERFORMANCE, MUST PROMOTE."  In addition, he requests  the first two words "Satisfactory performance" in Part Vb (Comment on specific aspects of the performance, refer to part III, DA Form 67-9 and part IVa, b, and part Vb, DA Form 67-9-1) of his Officer Evaluation Report (OER) for the period ending 25 March 2009 be replaced with "Outstanding performance."  

2.  The applicant states the rating and statement are in direct contradiction to the stated accomplishments listed by the rater in the remainder of Part Vb.  During the rated period, he served as the Task Force Shadow Production Control Officer deployed in support of Operation Enduring Freedom.  The accomplishments of Task Force Shadow's maintenance under his direct supervision speak for themselves.  He believes the rating and statement are the result of his rater's personal dislike for him.  

3.  He further states the evaluation directly resulted in him being non-selected for promotion on the fiscal year 2012, chief warrant officer five (CW5) selection board.  Having never received an evaluation like this, he was unaware of the appeals process and requests he be allowed to appeal the evaluation in the interest of justice, as the remainder of his file is worthy of promotion.



4.  The applicant provides:

* a self-authored statement
* DA Form 67-9 (OER)
* DA Form 2166-8 (Noncommissioned Officer Evaluation Report)
* 3 letters of support
* a memorandum

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a member from the Northern Law Center as Counsel, they did not render a request on the applicant's behalf. 

2.  Counsel provides no additional statement.
 
3.  Counsel provides no additional evidence.

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.  The applicant is currently serving in the Regular Army in the rank/grade of chief warrant officer four. 

3.  His OER for the period ending 25 March 2009 shows he was evaluated on his performance as an Aviation Maintenance Officer.  His rater, the company commander, placed an "X" in the box for "yes" for all items in Part IV (Performance Evaluation - Professionalism).

4.  In Part Va his rater placed an "X" in the box for "SATISFACTORY PERFORMANCE, PROMOTE."


5.  In Part Vb his rater stated:

"Satisfactory performance by [the applicant] as the Task Force Production Control (PC) Officer.  [The applicant's] performance for a seasoned Maintenance Test Pilot was excellent.  As PC officer in charge, [the applicant] tracked and assisted in the maintaining of 100% launch rate ensuring every mission was accomplished.  Additionally, during the last nine months of deployment, [the applicant] oversaw the completion of forty-two UH-64A/L phase maintenance inspections (PMIs), forty-five CH47D phases, and twenty AH-64D phase inspections.  Each phase consistently being completed an average of five days faster than the Brigade's standards.  Also at this time, his oversight and assistance allowed the Task Force to fly over 24,400 hours while maintaining an 89% FMC rate.  [The applicant] coordinated all MWOs for Task Force Shadow including the CMWS 5th Sensor modification for UH-60, CH-47, and AH64 aircraft, as well as oversaw the FOG Gyro heater and FLIR modifications for the UH-60s and SATCOM for the       UH-64s.  [The applicant] provided Brigade level support as he coordinated complex repair efforts for two UH-60s and two CH-47s following extensive combat related battle damage, ensuring quick turn-around of the aircraft back into flight."

6.  In Part Vc (Comment on potential for promotion) his rater stated, "[The applicant] has unlimited potential.  Continue to groom for CW5 and send to the Senior Staff Course at the unit's earliest convenience."

7.  Part VII (Senior Rater) shows his battalion commander placed an "X" in the box for "BEST QUALIFIED" in Part VIIa (Evaluate the rated officer's promotion potential to the next higher grade).  His comments in Part VIIc (Comment on performance/potential) began with, "Excellent performance by a dedicated Warrant Officer" and continued to be positive.  To conclude his comments, he stated, "Unlimited potential.  Continue to groom for CW5 and send to advanced schooling when ready."

8.  The applicant provides memoranda from his former battalion commander, a CW5, and a noncommissioned officer who attest to his exemplary duty performance.  However, his record does not contain nor did he provide any evidence which shows his rater personally disliked him.

9.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) 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.  Paragraph 3-39 provides the basic rule applicable to modifications of previously submitted reports.  It states, in 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.

10.  Paragraph 1-9 of the ERS regulation 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 (NCO) 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 Department of the Army Pamphlet 623-3 (ERS).  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCO's of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCO's, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

11.  Chapter 6 of the ERS regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-7 outlines policies and states 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.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states that 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 to change information on his OER for the period ending 25 March 2009.

2.  The applicant believes his rating for performance in Part Va and the first sentence in his rater's comments in Part Vb are in direct contradiction to the stated accomplishments subsequently listed by the rater; however, that does not appear to be the case when the sentence is read in the context of his rater's full comments in that section of the OER, which are wholly positive.

3.  His rater marked the box for "SATISFACTORY PERFORMANCE, PROMOTE," and stated that the applicant "has unlimited potential."  The available documentation does not show that this assessment represents anything but the considered opinion and objective judgment of his rater.  Furthermore, the applicant provides no evidence to support his contention the rating and statement were the result of his rater's personal dislike for him.

4.  There is no requirement that raters and senior raters render similar evaluations of a Soldier.  Each individual in the rating chain is held to the same standard of providing their considered opinions and objective judgment.  

5.  Careful consideration was given to the supporting documentation he provides.  While each provides a compelling statement on his behalf, none of the memoranda provide clear and convincing evidence that his rater's assessment is anything but her considered opinion and objective judgment.

6.  In the absence of clear and convincing evidence overcoming the presumption that the OER is administratively correct and factually accurate, there is no basis for granting 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)                                         AR20120020210



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ABCMR Record of Proceedings (cont)                                         AR20120020210



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