DOCKET NUMBER:  AR20120022158 


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 officer evaluation report (OER) covering the period 2 January 2006-31 December 2006 from his Army Military Human Resource Record.

2.  The applicant states the basis for his appeal is the substantive inaccuracy of the rater and senior rater (SR) comments.  He states the rater had personal motives and/or a personality conflict with him when he rendered the rating.  He also states that it was his rater's first Active Guard Reserve (AGR) tour and his own second AGR tour.  While the first part of the OER was completed correctly, he does not know if his SR actually reviewed the comments he sent and he did not receive an "official memo" from his SR stating his options in accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-28.  He states the Board should grant his request because his evaluations before and after the contested OER were very good.

3.  The applicant provides a copy of the contested OER, copies of OER's received before and after the contested OER, and third-party letters of support from three officers.

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 was commissioned as a second lieutenant in the U.S. Army Reserve (USAR) on 18 May 1991 and served in the USAR until he accepted an appointment in the Virginia Army National Guard on 16 February 1995.  He served in the Virginia Army National Guard until his resignation on 1 December 1996.  He was transferred to the USAR Control Group (Reinforcement) and was promoted to the rank of captain on 18 March 2000 and to the rank of major on 7 June 2006.

3.  The applicant was serving on active duty in the USAR AGR Program as an assistant plans officer assigned to the 412th Engineer Command (Forward) in Hawaii when he received the contested report covering the period 2 January 2006-31 December 2006.

4.  In Part IV (Performance Evaluation – Professionalism), he received "No" ratings for "Duty" and "Leader Attributes/Skills/Actions" of "Mental," "Conceptual," "Interpersonal," "Technical," "Communicating," "Decision-Making," "Motivating," "Planning," "Executing," "Assessing," "Developing," and "Learning."

5.  In Part V (Performance and Potential Evaluation), his rater gave him an "Unsatisfactory Performance, Do Not Promote" rating and stated the applicant's performance had been substandard during the rated period.  He also stated the applicant was ineffective in providing value to the missions, he failed to take the initiative to support the missions in any significant way, he required a level of guidance above that expected of a field-grade officer, he required extreme follow up on all actions, he failed to manage multiple tasks simultaneously, and he failed to demonstrate the requisite interpersonal skills to coordinate with higher headquarters staffs and inter-agencies.  His rater further stated the applicant did not possess the potential for promotion and failed to show improvement despite counseling in September 2006 and a detailed performance improvement plan.

6.  In Part VII (Senior Rater), his SR gave him a "Fully Qualified" rating and stated the applicant had been somewhat overwhelmed by the scope and intensity of his duties.  He further stated the applicant acknowledged the need to apply himself more diligently to his duties during the next rating period to show he has the ability to perform to the levels required of the program.  He rated the applicant "Below Center of Mass" compared with officers senior-rated in the same grade.

7.  The report was considered adverse and as such was referred to the applicant by the SR for acknowledgement.

8.  The applicant responded to the referred OER with a two-page memorandum stating, in effect, that he added value to the missions and how he believed he did so.  He also stated he took initiative in supporting exercises by taking active participation and explained how he did so.  He stated he did have some personal challenges that affected his performance which included moving two times within a 6-month period and family situations on the mainland.

9.  The applicant remained in his position and in his subsequent OER covering the period 1 January 2007-31 December 2007 he was rated by a different rater (a colonel) who also provides the applicant with letters of support.  His new rater gave him a rating of "Satisfactory Performance, Promote."  His SR, the same SR as in the contested report gave the applicant a "Fully Qualified" rating and placed him "Center of Mass" compared with officers senior-rated in the same grade.

10.  There is no evidence in the available records to show he appealed to the Department of the Army Suitability Evaluation Board to have the contested OER removed from his records.

11.  The three third-party statements provided with his application serve to applaud his character and work ethic but do not address his rating during the period of the contested report or offer evidence to dispute the ratings.

12.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

13.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

14.  Army Regulation 623-3 further provides that if referral of a report is required, the SR will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been carefully considered.  However, the allegations made by the applicant are not supported by sufficiently convincing evidence to show his allegations are valid.

2.  The mere act of stating that his rating officials had personal motives for rating him as they did is not sufficient to justify allegations of wrongdoing and the applicant has not provided any evidence that supports his allegations.  Allegations of wrongdoings must be supported by valid verifiable evidence.

3.  Accordingly, in the absence of evidence to the contrary, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.  Additionally, it also appears that the report was properly referred to him in accordance with the applicable regulation with no violation of any of his rights.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20120022158



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ABCMR Record of Proceedings (cont)                                         AR20120022158



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