IN THE CASE OF:	  

		BOARD DATE:	  20 August 2013

		DOCKET NUMBER:  AR20130002772 


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 or correction of his officer evaluation report (OER) covering the period 21 December 2008 through 20 December 2009.

2.  The applicant states, in effect, the contested report contains numerous administrative and substantive errors, including the fact that the report does not show the correct amount of actual rated and non-rated periods of service, it was not submitted in a timely manner, he was evaluated by improper rating officials, he never received counseling, and the rating officials ratings and comments are untrue because he did not attend the unit's annual training or any other training for the first 120 days of the rating period.  He states he mistakenly signed the report in error and desires the report to be removed because it is substantially inaccurate and will damage his prospects for promotion to the next higher grade.

3.  The applicant provides a 15-page memorandum appealing the contested OER with enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve (USAR) second lieutenant on 10 May 2003.  On 11 May 2003, he accepted an appointment as a field artillery second lieutenant in the Arkansas Army National Guard (ARARNG).  On 28 August 2007, he was promoted to the rank of captain.

2.  On 24 May 2010, he received an annual OER covering the period 21 December 2008 through 20 December 2009 as a fire control officer.  The applicant signed the report in Part II (Authentication) indicating he verified he had seen the completed report and the administrative data was correct.

3.  The applicant's rater gave him all "Yes" ratings in Part IV (Performance Evaluation – Professionalism) and he gave the applicant a "Satisfactory Performance, Promote" rating Part Va (Evaluate the Rated Officer's Performance During the Rated Period and His/Her Potential for Promotion).  He indicated that the applicant spent the first portion of his rating period on post-deployment terminal leave and conducting reintegration activities with his deployed unit.  All of the rater's comments were favorable to the applicant.

4.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), his senior rater gave him a "Fully Qualified" rating and all of his comments were favorable to the applicant.  The report was not considered to be adverse and as such was not referred to him.

5.  On 31 May 2010, the applicant was honorably discharged from the ARARNG and he was transferred to the USAR Control Group (Reinforcement).  He was ordered to active duty on 1 June 2010 to complete his active duty obligation in a voluntary indefinite status and was assigned to Fort Sill, Oklahoma.

6.  On 1 June 2012, he appealed the contested OER to the Officer Special Review Board (OSRB), contending essentially the same as he has to this Board.  However, after reviewing the applicant's contentions and supporting documents, the OSRB opined, in effect, that:

* there was insufficient evidence to negate the rating officials or the period of the report.
* there was insufficient evidence to invalidate the rating officials or the ratings and/or comments
* the applicant verified by his signature that the administrative data was correct
* the fact that the applicant did not receive counseling was without merit as the applicant also had a responsibility to take an active role in the evaluation process
* there was no evidence that the ratings and comments on the contested OER were anything other than the considered opinions of the rating officials at the time the evaluation was rendered

7.  On 6 September 2012, the OSRB opined that there was insufficient evidence to warrant removal of the contested OER and voted to deny the applicant's appeal.

8.  The statement provided by the unit S-1 during the period of the report indicates the applicant did not attend annual training in 2009 and he did not drill with the unit during the first 120 days of the rated period.  He also asserts that the rating schemes for the period in question could not be located.

9.  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, 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.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored. 

10.  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.  It also provides that failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

11.  Paragraph 6-7 of Army Regulation 623-3 provides that correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the senior rater's comments on the contested OER incorrectly reflect that he served as the fire control officer and oversaw fire control operations during annual training 2009 has been noted and appears to have merit.  The applicant has provided sufficient evidence to show he did not attend annual training in 2009.  Accordingly, that sentence should be deleted from the senior rater's comments in Part VIIc.

2.  However, deletion of that administrative error does not serve to invalidate the senior rater's rating or to warrant a higher rating.

3.  While the applicant now claims that he mistakenly signed the OER verifying the administrative data contained on the contested OER, he did not appeal the errors until almost 3 years after the fact.  Although this does not prevent him from appealing the report, in the absence of evidence to show otherwise, it serves to show the applicant did not believe the report was unjust or substantively inaccurate at the time he signed the report.

4.  In any event, the applicant failed to show sufficiently convincing evidence to indicate the report was not prepared by the properly-designated rating officials or did not represent the considered opinions and objective judgment of the rating officials at the time of preparation.

5.  Accordingly, there appears to be no basis to remove the report from his official records.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army and State ARNG records of the individual concerned be corrected by deleting the sentence "Captain J____ served as the Fire Control Officer and oversaw fire control operations during annual training 2009" from the senior rater comments in Part VIIc of the OER covering the period 21 December 2008 through 20 December 2009.



2.  The Board further determined the evidence presented is 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 from his AMHRR.


      _______ _   _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)                                         AR20130002772



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ABCMR Record of Proceedings (cont)                                         AR20130002772



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