IN THE CASE OF:	  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20130003013 


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, in effect, an exception to policy for his DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 16 May 2009 through 13 September 2012 (hereafter referred to as the contested OER) to be accepted for inclusion in his board file for reconsideration for promotion by a Special Selection Board (SSB).  

2.  The applicant states from May 2010 through September 2011 he served as a company executive officer.  His chain of command was not authorized to write an OER since he was not yet branch qualified.  From September 2011 through January of 2012 he attended the Military Intelligence Basic Officer Leader Course (MIBOLC).  Once he completed MIBOLC he was forced to wait until reporting to his permanent duty station on 26 June 2012 (after the date of his captain (CPT) promotion board of 20 April "2011" so his unit could write an extended annual OER covering the period of time he served as an executive officer.  This quantifies his performance, as substantiated by his letter of continuity from his commander at the time of his service as an executive officer.  In addition, he was unable to update his records due to his "student" status during the time period prior to the board.

3.  He has since requested an SSB through Department of the Army (DA) Promotions since his records have been corrected and updated.  However Mr. JD (DA Promotions Branch) regretfully informed him that he cannot initiate an SSB until the ABCMR makes an exception to the contested OER which was uploaded to substantiate the time prior to the convene date of the CPT promotion board, because the end date of the OER is after the convene date of the board. That OER was the only way he could justify the executive officer time served prior to the board.  Mr. JD does understand it is a unique situation and is apologetic for it; however, he needs the ABCMR to say "That OER is approved despite its date, go ahead with the SSB."  Now that he is branch qualified, the only way his unit could cover the rated time prior to the CPT promotion board was via an extended annual OER.

4.  The applicant provides:

* a self-authored statement
* promotion board message
* Memorandum for Record (commander's letter)

CONSIDERATION OF EVIDENCE:

1.  On 15 September 1999, the applicant enlisted in the Regular Army for a period of 4 years.  He continued to serve through reenlistments until 3 August 2007 when he was discharged as an enlisted Soldier in the rank of SSG for the purpose of entering an officer training program.

2.  A DA Form 1506 (Statement of Service) shows he was in a civilian status and in a Reserve Officers' Training Corps program from 4 August 2007 to 24 August 2009. 

3.  On 25 August 2009, he entered active duty as a second lieutenant and he has continuously served on active duty through the present.

4.  He was promoted to his current rank of first lieutenant with a date of rank of 25 February 2011.

5.  His records contain a DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 24 January 2012, showing an "X" in the "Failed to Achieve Course Standards" block for the MIBOLC he attended during the period 6 September 2011 through 24 January 2012.

6.  The applicant provides a memorandum for record from his previous commander, dated 30 January 2012, which provides the details of the applicant's service as an Infantry BOLC company executive officer for inclusion in his initial OER.

7.  On 11 January 2013, the Army Special Review Board (ASRB) directed that based on the unanimous vote of the Officer Special Review Board (OSRB), Part 11 (Performance Summary) of the applicant's MIBOLC DA Form 1059 be changed by placing an "X" in the "Marginally Achieved Course Standards" block and removing the "X" from the "Failed to Achieve Course Standards" block.  The change was based on regulatory policy, in effect at the time, providing that a Soldier otherwise meeting course completion standards but failing to meet height and weight standards would receive a "marginally achieved course standards" rating.  The OSRB also stated that promotion reconsideration was not warranted as a result of this action.

8.  The applicant was considered but not selected for promotion by the Fiscal Year (FY) 2012 CPT Competitive Category Promotion Selection Board (PSB) which convened on 2 April 2012 and adjourned on 20 April 2012.

9.  He provides the contested OER, which shows 3 rated months (approximately 26 June-13 September 2012) with the remainder of the period (approximately 16 May 2009-25 June 2012) being nonrated time.  He was rated center-of-mass on the "extended annual" report.

10.  In the processing of this case, an advisory opinion was obtained from the Chief, Officer Promotions, Special Actions, U.S. Army Human Resources Command (HRC).  The advisory official stated that based on a review of the information provided, the applicant was not entitled to reconsideration for promotion by an SSB.  The official stated the applicant's contested OER was not received and available for viewing during the FY12 CPT Army PSB.  The official further stated that Military Personnel (MILPER) Message 12-001 stated "an OER has to arrive at the HRC Evaluations Center (error free) on or before 23 March 2012 for viewing by the FY12 promotion selection board."  The applicant's OER did not arrive at the HRC Evaluations Center until 12 October 2012.

11.  The advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He stated that although he was entitled to an OER, he was still at the MIBOLC, a location which was not authorized to write him an OER.  This would imply he was placed on the board without a single OER.  Despite being entitled to an OER for serving as an executive officer from April 2010 through August 2011, MILPER Message 12-001 states "to ensure all eligible officers have a current evaluation within the Army Military Human Resource Record (AMHRR) containing assessments in accordance with the recent OER enhancements described in Army Directive 2011-16, an HRC directed code 19 evaluation will be prepared for those officers who do not possess a minimum of one completed evaluation (mandatory or optional) with a thru date of 1 Nov 11 or later.  The required 'THRU DATE' for HRC directed evaluation code 19 is 7 Feb 12."  During the "THRU DATE" time frame, he was still at MIBOLC and could not receive a "code 19" OER because he was not yet branch qualified.  In addition, an administrative error on his MIBOLC DA Form 1059 rendered him not branch qualified.  It was not until the ASRB reviewed and changed his DA Form 1059 in January 2013 that he could be listed as branch qualified.  He did not arrive at his first duty station until late June 2012.  Upon arrival it was identified by his chain of command that he needed an OER to substantiate the time he served as an executive officer.  An extended annual OER was produced covering the entire time frame dating back to the beginning of his position as an executive officer through the time it took to write the OER (September 2012).  This was the only way he could have received an OER substantiating his time served as an executive officer, since at the time he left that position he was not yet branch qualified.

12.  He also states, in effect, that Army Regulation 600-8-29 (Officer Promotions), chapter 7 provides for an SSB if the PSB that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).  Without the contested OER the PSB would have no OER on file for review.  He further states that his case meets none of the disqualifying criteria for an SSB.  According to this regulation, there is no regulatory reason why his case should not be considered by an SSB.  He states that in conclusion he believes his situation is the unfortunate result of several conflicting administrative errors, regulations, and MILPER messages.  Therefore, he believes the contested OER should be admitted and accepted for use by an SSB. 

13.  In the processing of this case, an HRC official stated in an email that the applicant's rating chain in effect on 7 February 2012 should have rendered the mandatory "HRC directed" report for the FY12 CPT's board; however, it's unclear who his rating chain was at the time and whether anyone was observing his performance of duties from 25 January through 7 February 2012.

14.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s ERS.  These include the DA Form 67-9 and 
DA Form 1059.  It states an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct.

	a.  It states, normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  Nonrated periods are not included in this 90-day period.

	b.  Paragraph 3-2i states a newly-commissioned officer will not be rated on an OER under any provisions of this regulation prior to completion of BOLC, except for "relief for cause" reports.  The time from the commissioning or appointment date (including completion of BOLC) through the day before the officer arrives at the unit of assignment is nonrated time and will be accounted for in the officer's first OER.

	c.  Paragraph 3-42 states there are two types of "Extended Annual" reports -- one is mandatory to cover any period of nonrated time since the previous report, the other is optional and used only in exceptional situations.  A mandatory code 10, "Extended Annual" evaluation report, will be prepared when a Soldier arrives at a unit with any nonrated time since the "THRU" date of the last evaluation report.  The "FROM" date of the period covered on the evaluation report will be the day after the "THRU" date of the last evaluation report.  The "THRU" date will be 1 calendar year after the arrival date.  There is no required length or type of nonrated time between the "THRU" date of the last evaluation report and the establishment of a new rating relationship in order to render an "Extended Annual" report.

	d.  Paragraph 3-53 states when the Commanding General, HRC, decides there is a need for an evaluation report, an HRC directed report will be submitted on the rated Soldier.  The reason for submission, code 19, HRC directed, will be used.

15.  Army Regulation 600-8-29 provides the Army’s policies and procedures on officer promotions.  Chapter 7 provides guidance on SSBs.  It states SSBs may be convened (discretionary) to consider or reconsider commissioned officers for promotion when DA discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  Reconsideration will normally not be granted when an administrative error was immaterial (minor) or when the officer, by exercising reasonable care, could have detected and corrected the error.

16.  MILPER Message 12-001, dated 5 January 2012, paragraph 3 (Evaluation Reports) states in:

	a.  subparagraph a, "To ensure all eligible officers have a current evaluation within the AMHRR containing assessments in accordance with the recent OER enhancements described in Army Directive 2011-16, an HRC directed code 19 evaluation will be prepared for those officers who do not possess a minimum of one completed evaluation (mandatory or optional) with a thru date of 1 Nov 11 or later.  The required 'THRU DATE' for HRC directed evaluation code 19 is 
7 Feb 12."

	b.  subparagraph b, in order to be eligible for consideration by the PSB, all mandatory or optional OERs/AERs must be received, error free, in the Evaluation Reports Branch, HRC not later than and by close of business on 23 March 2012.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s desire to have his "extended annual" OER accepted for use in reconsideration for promotion to CPT by an SSB was carefully considered.  However, there is an insufficient basis to support his request. 

2.  It is unknown why the applicant did not attend BOLC until approximately 2 years after he entered active duty as a commissioned officer.  However, the evidence of record confirms he was not authorized an OER covering his service from 2009 until 13 September 2012 due to lack of branch qualification.  Based on regulatory policy, it appears he was given his first OER at the earliest possible time based on his first duty station assignment in June 2012 and the requisite 
90-day period with a qualified rater to be authorized an OER.

3.  Though HRC may direct an officer be given a code 19 evaluation when the officer does not have at least one evaluation in their board file there appears to be no period for which he had a qualified rater and senior rater who could have completed an evaluation on him earlier than the contested OER.  As such, it does not appear there was a basis for an HRC-directed OER on the applicant.

4.  His original MIBOLC AER, dated 24 January 2012, contained an administrative error in that it showed he had failed to achieve course standards due to not meeting height and weight standards.  This AER would likely have been in his board file.  The OSRB directed a corrected copy that showed he marginally achieved course standards was posted to his AMHRR on 23 January 2013.  However, even if the original version of his AER had reflected that he had marginally achieved course standards it is unlikely that it would have changed the outcome of the FY12 CPT PSB.

5.  Absent evidence to show that the delay in his completion of MIBOLC was through no fault of his, there appears to be no significant material error or injustice in his case, which would warrant acceptance of the contested OER for consideration by an SSB.

6.  In view of the foregoing, there is an insufficient 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 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)                                         AR20130003013



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ABCMR Record of Proceedings (cont)                                         AR20130003013



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