IN THE CASE OF:	  

		BOARD DATE:  24 September 2013

		DOCKET NUMBER:  AR20120021934 


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 Part Va (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion) on his Officer Evaluation Report (OER) for the period 12 September 2011 through 
3 March 2012 (hereafter referred to as the contested report) be changed from "Satisfactory performance, promote" to "Outstanding performance, must promote”   

2.  He states:

	a.  the evaluation rating of "Satisfactory Performance, Promote" was an act of reprisal by his rater;

   b.  after a career of seven consecutive "top block" OERs, his rater downgraded his rating with no evidence of decreased performance;
   
   c.  he contacted his State Representative after his OER was 7 months late and was punished by his rater for seeking outside help;
   
	d.  his senior rater rated him "Above Center of Mass" and "Best Qualified" compared to 15 other captains in the brigade; 

	e.  he received an Army Commendation Medal (ARCOM) for meritorious service during the same rating period his rater rated him as average; and

	f.  his performance empirically warranted an evaluation of "Outstanding Performance, Must Promote."  His rater committed reprisal.

3.  He provides:

* eight OERs
* DA Form 638 (Recommendation for Award)
* an excerpt from his executive summary
* two emails
* a memorandum
* a biographical summary
* a timeline
* his discharge certificate
* his letter of resignation

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted his application, he was serving in the Massachusetts Army National Guard (MAARNG) in the rank of captain (O-3).

2.  The contested OER, signed and dated by the applicant and his rating chain in 2012, shows the following entries:

	a.  Part Ii (Period Covered) 12 September 2011 to 3 March 2012;

	b.  Part Ij (Rated Months) 6; and 

	c.  Part Va shows the rater placed an X in the "Satisfactory Performance, Promote" block.

	d.  Part Vb (Comment on Specific Aspects of Performance) shows the rater wrote the following:  "(applicant) completed 11 months of company command prior to transferring.  He maintained $13.4 million of property while leading 155 Soldiers.  Prior to leaving he successfully organized and executed a zero defect change of command inventory for the incoming company commander.  He continued endeavors at self-improvement by pursuing a law degree at Suffolk University Law School's night program; undertaking 11 credits during this rating period.  The 1166th [Transportation Company] underwent a command maintenance evaluation inspection by the directorate of logistics, G4 on 
1 October 2011 and received a satisfactory rating.  This was especially noteworthy during the unit's RESET [resettlement] year.  During this rating period, the applicant increased his unit assigned strength by 16 percent, 128 to 148.  Additionally, duty military occupational specialty qualification increased from 94 percent to 96 percent, a two percent increase."

	e.  Part Vc (Comment on Potential for Promotion) contains the comment "Promote with peers."

	f.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows the senior rater checked "Best Qualified."

	g.  Part VIIc (Comment on Performance/Potential) shows the senior rater wrote, "(applicant) performed well during the difficult reset period following deployment.  He exhibits all indications of potential for continued success evidenced by favorable outcomes in all tasks undertaken.  (The applicant) set the example for his Soldiers by maintaining superb physical condition, involvement in many charity events, and pursuing a rigorous academic schedule.  Prior to leaving command he ensured all required administrative tasks were completed and expedited successful pre-change of command tasks ensuring a smooth transition for his replacement.  He has the drive, professionalism and determination to succeed and be a valued asset to any organization, both defense and civilian.  (The applicant) has served his Commonwealth and Nation with honor."

3.  He submitted:

   a.   seven OERs for the rating periods 13 May 2006 to 12 May 2007, 13 May 2007 to 3 April 2008, 4 April 2008 to 3 April 2009, 4 April 2009 to 
7 January 2010, 8 January 2010 to 7 January 2011, 9 January to 17 April 2011, and 18 April to 11 September 2011, which all show in Part Va that an X was placed in the "Outstanding Performance, Must Promote" block.

	b.  a DA Form 638, which shows he was awarded an ARCOM (2d award) for service as a company commander during the period 21 July 2011 to 
4 March 2012.

   c.  one page of an executive summary, which highlighted some of the successes of his company while he was in command.

	d.  a biographical summary, dated 13 June 2012, of his military and educational career.

	e.  a timeline of his period of command from April 2011 to March 2012.

   f.  a memorandum, issued by the MAARNG, dated 8 December 2011, Subject:  Resignation from the MAARNG and as Reserve of the Army, wherein he stated he was resigning from the MAARNG and the Reserve Component of the Army due his attending law school on a full-time basis.

	g.  two emails dated 28 September and 18 October 2012 to his State Representative, requesting assistance in obtaining his final OER.

	h.  a copy his honorable discharge certificate, dated 13 May 2012.

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

	a.  Paragraph 6-7 states an appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate or unjust without usable supporting evidence will not be considered.

	b.  Paragraph 6-11 states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe first-hand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.

	c.  Paragraph 3-39 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.  Requests that an evaluation report of a Soldier's be altered, withdrawn, or replaced with another report will not be honored.

5.  Department of the Army Pamphlet 623-3 prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System.  This pamphlet also provides procedures for completing required forms and submitting evaluations to Headquarters, Department of the Army (HQDA). 

	a.  Paragraph 1-10 states no person may require changes be made to an evaluation report.  Until completed and accepted by HQDA, evaluations will only be changed by HQDA based on reasonable, substantiated information or investigations, and in accordance with established HQDA regulations and procedures.  Senior raters will notify the rated Soldier of any changes made to a report and review changes with the rated Soldier as applicable. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested report covering the rating period
12 September 2011 to 3 March 2012 should be changed. 

2.  In order to justify the change or deletion of an evaluation report, the applicant 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.  

3.  After a comprehensive review of the evidence in the applicant's official record, his contentions and arguments and the evidence submitted in support of his application, other than his dissatisfaction, the applicant failed to show by clear and convincing evidence that his OER contained a material error, inaccuracy, or injustice.

4.  Aside from his dissatisfaction, the applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removing the contested OER.  Based on the applicable regulations, the applicant did not meet the burden of proof necessary to change or remove the contested OER.  

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)                                         AR20120021934





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ABCMR Record of Proceedings (cont)                                         AR20120021934



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