IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130003576 


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 reconsideration of an earlier request to:
 
* remove a DA Form 67-9 (Officer Evaluation Report) (OER) for the period 14 March through 28 July 2009, hereafter referred to as the contested OER, from his Army Military Human Resource Record (AMHRR)
* be considered by a special selection board (SSB)
* be recalled to active duty

2.  The applicant states:

	a.  The contested OER covered their regeneration/reintegration time after their deployment.  The contested OER should have been referred by the senior rater, if the statements were valid.  As a referred OER counseling statements would have been attached.  In addition, he should have been counseled on his rights to appeal the contested OER.  The rater and senior rater (SR) failed to properly counsel him and rate him during this period and did not wait for the investigation to be complete before passing judgment on him and putting it in writing on an OER.   Also, the rater attested to creating a DA Form 67-9-1a (Junior Officer Developmental Support Form) on the contested OER, but he did not.  He also did not conduct any written initial counseling in the first 30 days of the rating period. He was not given a copy of the rater or SR's support form.  His rater admitted to his lawyer that he had used knowledge of a previous financial liability investigation of property loss (FLIPL) in a previous rating period in putting derogatory remarks on the contested OER.
	b.  Lieutenant Colonel (LTC) W____ had written a high recommendation for a Meritorious Service Medal the week prior to the contested OER, but 
Colonel (COL) H_________ denied the request due to the FLIPL and his premature judgment against him, as the investigation was not complete at the time. 

	c.  In June 2007 his unit received deployment orders to Iraq.  He went to Iraq
for a Pre-Deployment Site Survey (PDSS) in July 2007.  At that time the unit received orders from the brigade property book officer to turn in their four common number one tools sets, all of which were in the mobile tool room
containers on the back of 5-tons.  He left his executive officer (XO) in charge to conduct the turn-ins.  He was still the property book holder despite the XO being in charge and him being out of country.  When he returned, he was informed by
one of the Soldiers that the tool rooms were emptied and all the contents were put into boxes and shipped off.  The supply sergeant told him that the tool sets were not laid out and inventoried prior to boxing and shipping.  This meant that some of the tools that were not part of the tool sets were inadvertently turned in and were separate Line Identification Numbers (LIN) on the property book.  This was the main issue for the missing equipment that did not get resolved until he changed command in July 2009.

	d.  He was sent to a Joint Readiness Training Center (JRTC) conference in September 2007 and left the XO in charge to separate the property book into three property books.  He had told LTC N_____ that he was uneasy leaving his XO in charge again and that he thought it would be better to send him to the conference instead, because it did not require a company commander.  
LTC N_____ ordered him to go.  His XO signed Assumption of Command
Orders while he was gone.  However, he was still the property book holder despite the XO being in charge of the equipment move and him being out of state.  The rolling stock and most of the equipment was to be taken over by Army
Materiel Command (AMC), the necessary equipment for Iraq was going on the forward property book and loaded in connexes, and the left over sensitive items and a few support vehicles were going on the rear detachment (Rear-D) property book.  When he got back, the XO said all was well.

	e.  In late November 2007, they did a short inventory of the Rear-D property book and found that there were some items missing based on the property that AMC signed for.  He noticed there were some discrepancies between the three property books and what they had agreed on in the preparation meetings.  He started a FLIPL.  He was unable to do a 100% inventory as the forward property had been packed and shipped to Iraq.  This was at the end of November/beginning of December and they were to go on block leave and deploy the day after Christmas.  They were not able to conduct a 100% inventory until they returned from Iraq and consolidated all of the equipment.

	f.  The day they left for Iraq, LTC N_____ had all parties involved with the equipment sign sworn statements in the applicant's office in front of his family members, one of which was his brother-in-law, U.S. Navy Commander P___ H___ of Naval Intelligence Station at Pearl Harbor at the time.  LTC N_____ told him that everything would be taken care of and not to worry.  He explained how he was not in the country or the state during the two critical equipment moves.  His XO attested to the fact that he was in charge during those times as well in his statement.  He also signed to the fact that all of the platoon sergeants and the
supply noncommissioned officer (NCO) had told him that the sub-hand receipts had been signed.

	g.  He went to the theater property book officer to set up the mission property book and found a Heavy Expanded Mobility Tactical (HEMTT) vehicle on his forward book that was supposed to be on the Rear-D books.  He told his supply NCO to get with the Rear-D and fix it.  After a couple of months of seeing that it was not done and a few other issues that Rear-D was failing to fix, the Rear-D NCO was transferred out of the unit.

	h.  They had taken their Standard Army Maintenance System-Enhanced (SAMS-E) boxes with them and they were wiped by the Information Technical (IT) Department when they got to Iraq and the operators did not back up the data.  They lost all of their records as to when the equipment was serviced and by whom.  The boxes were wiped again at home station, when they returned.

	i.  In May 2008, at a remote Forward Operating Base (FOB), FOB Endeavor, he received an e-mail from the FLIPL investigating officer stating that he was being charged one month's pay.  He was in a remote FOB and their mission was priority.  He did not have access to a JAG (Judge Advocate General’s Corps) for assistance.  He got word from his Rear-D NCO in June 2008 that he had found most of the equipment in the supply connex buried under boxes of new tools the original supply NCO had ordered off the shortage annexes and not issued.  
LTC N_____ should have, but did not have, a memo placed in his file showing that the equipment had been found.  Nor was the money returned to him.  He got a copy of the FLIPL discovering that the JAG review of the FLIPL noted that the timeline was violated by Brigade, but due to him not mentioning that fact in his rebuttal he signed off on it.   As the commander of 69th Forward Support Company (FSC), he took responsibility for the equipment issues, despite the fact that his XO was in charge during his absence when major equipment moves were required.  He asked command for help to correct what occurred while he was on temporary duty in Iraq in July 2007 and further prevent the same in September  2007 while at a JRTC Conference.

	j.  In May 2009, when they reassembled from block leave they received their equipment from theater.  They inventoried the items and found some equipment missing.  They started change of command inventories and started receiving the equipment back from AMC.  Once the 100% inventories were complete and they
understood all of what was missing, and they started another FLIPL investigation.  He had very little communication with the battalion commander, due to the battalion commander being deployed to Africa.  He returned from Africa in June 2009.  They started the FLIPL in July and the battalion commander wrote his change of rater OER.  He (the applicant) was selected to teach the CPTs Career Course for the Chemical Corps in January 2009 and had orders to report in August 2009.

	k.  LTC W____ wrote the contested OER in July 2009 and informed him that it was better to have a bad OER than unrated time.  He also told him that it would not affect his career.  He told him that he did not want to hold him up from reporting to the Chemical Corps School on account of the FLIPL.  By regulation
as the property book holder he was to be held at Fort Sill, during the investigation. He was directed by LTC W____  to permanent change of station (PCS) to Fort Leonard Wood anyway.  He was not counseled by COL H_________ when he went to sign the contested OER.   COL H_________ told him to just sign the contested OER and go on PCS leave. He was informed that the FLIPL was divided into two FLIPLs due to the amounts. The missing HEMTT was worth $100,000.  When the amount of a FLIPL exceeds this amount, the Post Commanding General (CG) has to see it.  Brigade did not want the CG to see the HEMTT and other equipment, so they violated regulations and split the FLIPL into two, even though all of the property was solely off the forward property book.  As far as the vehicle that was still on the Iraq Forward Property Book, but not in Iraq, three NCOs did not fix this issue, as he had ordered.  The HEMTT was taken to refit by one of the civilian organization contract augmentation team (OCAT) mechanics.  He understood it had remained in Rear-D care to move equipment along with additional vehicles that were not handed over to AMC.  They were to support the Battalion until the Battalion deployed to Africa.  Major (MAJ) S______, the Battalion XO, and he worked out that a HEMTT, Palletized Load System (PLS), Fueler, 5-ton, and High Mobility Multipurpose Wheeled Vehicle (HMMWV) were to be held by Rear-D.  It became a major issue during change of command inventories because, when the HEMTT returned from refit, it sat at the paint shop for some time before the bumper numbers were repainted and the unit was called to pick it up.  It was picked up by the unit in November 2009.  He received an e-mail from the FLIPL investigating officer, MAJ Powell, telling him that it was found and he was not being charged financially.  The vehicle was found before he was financially charged.  The other FLIPL was stopped and he was not held financially responsible for either FLIPL.  An amendment to the contested OER was not done.  He had found out that he could get guidance from the JAG for an appeal of the FLIPL and upon doing so, he did not get any further response from 2nd Battalion, 18th Field Artillery Regiment or 75th Brigade. 

	l.  He further provides his military history while commanding the 69th FSC, including their missions in Iraq.  He describes issues he had with his XO.  He further described the issues he dealt with in reintegrating his Soldiers with their families following a long and difficult deployment.  He also describes personal issues he was having at home.  

	m.  He stated he had 12 previous OERs with "Best Qualified" selected by the SRs and "Outstanding Must Promote" selected by the raters prior to and five "Best Qualified" selected by the SRs and "Outstanding Must Promote" selected by the raters after the contested OER. 

	n.  He states that after the first promotion board results were released in February 2010, he was not told exactly why he was passed over for promotion.  His brigade and battalion commanders in Fort Leonard Wood advised him that it could have been due to not having his college transcripts in his file.  He was informed that he was passed over for the second time, but still was not told why. He was able to reach COL T_____, who was a former rater, to ask advice.  He was at U.S. Army Human Resources Command (HRC) and inquired on his behalf about the board's decision.  He informed him that his board file was separated from the competitive files along with the others who were also passed over on the previous board.  This non-selection has put him in the same category with other CPTs who committed egregious acts of impropriety (i.e., driving under the influence, sexual misconduct, and domestic violence).  He requested a meeting with the Brigade Commander, COL W_____, and the Brigade commander contacted HRC and was told the applicant was passed over a second time due to the contested OER.  

3.  The applicant provides:

* the contested OER
* page 1 of 3 of a DA Form 638 (Recommendation For Award)
* a letter, dated 18 July 2011, from COL S_____ H. J_____
* a memorandum for record (MFR), dated 15 April 2012, from P. A. H___, Commander (CDR), U.S. Navy (USN)
* a letter, dated 13 November 2013, from W______ W. G_____, Jr., County Judge, Wichita County, Wichita Falls, TX
* one OER as a second lieutenant for the period 9 August 2001 to 1 June 2002
* four OERs as a first lieutenant from 2 June 2002 to 30 April 2004
* seven OERs as a captain (CPT) from 25 November 2004 to 10 March 2009
* five OERs as a CPT from 29 July 2009 to 27 March 2013

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110021672, on 14 February 2012.

2.  His provides the following new evidence that warrants consideration by the Board:

* page 1 of 3 of a DA Form 638 (Recommendation For Award)
* a letter, dated 18 July 2011, from COL S_____ H. J_____
* an MFR, dated 15 April 2012, from P. A. H___, CDR, USN
* a letter, dated 13 November 2013, from W______ W. G_____, Jr., County Judge, Wichita County, Wichita Falls, TX

3.  The applicant, a Regular Army CPT with prior enlisted service in the U.S. Marine Corps, was commissioned as a Chemical Corps officer and commenced active duty on 14 December 2000.  During the period of the contested OER he was a CPT serving as the 69th FSC commander at Fort Sill, OK.

4.  The contested OER was a change of rater evaluation and covers the period from 14 March to 28 July 2009.  His rater was LTC W____, the Battalion Commander, and his senior rater was COL H_________, the Brigade Commander.  The contested OER shows in:

	a.  Part IVa (Army Values) - all boxes are checked "Yes."

	b.  Part IVb (Leader Attributes/skills/Actions) - all boxes are check "Yes."

	c.  Part Va (Evaluate Officer's Performance During the Rating Period and His/Her Potential for Promotion) - the rater placed an "X" in the "Satisfactory Performance - Promote" block and entered the following comments:

[The applicant] has done a good job over the past five months reintegrating and reorganizing his Company following a long and demanding deployment to Iraq.  [The applicant's] caring brand of leadership was vital during this period as his Soldiers reintegrated with their families.  Thanks to [the applicant's] efforts Company Soldiers are now rejuvenated and prepared to train, maintain, and sustain.  [The applicant] also spent a great deal of time and effort reorganizing the Company into a functioning Forward Support Company.  The Company has successfully received all equipment, begun training, and will soon be fully supporting battalion operations.  Unfortunately, [the applicant] has experienced problems in the supply accountability arena.  Due to his negligence in this area a significant amount of property is unaccounted for. His failure to emphasize and supervise supply discipline and accountability is a black mark on his tenure as commander.  [The applicant] must improve his performance in this area if he is going to be an effective field-grade officer.

	d.  Part Vc (Comment on Potential for Promotion) the rater stated:

[The applicant] does possess the potential to serve at higher levels.  However, he must improve in the supply accountability area before he becomes an effective field-grade officer.

	e.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  The SR placed an "X" in the "Fully Qualified" block and a second "X" in the "Yes" block to indicate he senior-rated 18 officers of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in his evaluation.  He entered the following comments:

[The applicant] has done a good job reorganizing his Company and allowing his Soldiers to reintegrate with their families following a long and difficult deployment.  His work in these areas has been commendable and has set the stage for the future of the 69th FSC and the Mission Ready battalion.  However, [the applicant] failed to maintain proper accountability within his company, as significant amounts of property were unaccounted for during change of command inventories.  Despite these shortcomings [the applicant] does possess the potential to serve the Army at higher levels.

5.  There is no evidence in his AMHRR that he submitted comments concerning the contested OER.

6.  On 1 November 2011, he was discharged by reason of non-selection for permanent promotion.  He completed 10 years, 10 months, and 18 days of active commissioned service that was characterized as honorable.
7.  On 30 April 2011, the applicant appealed to the Officer Special Review Board (OSRB) for removal of the contested OER from his AMHRR.  The OSRB denied the applicant’s appeal on 11 July 2011.  The Record of Proceedings concluded the applicant did not provide sufficient evidence showing the contested report was inaccurate, unjust, or otherwise flawed.

8.  In support of his original request, the applicant provided a copy of a 
25 October 2011 email from the rater of the contested OER to his attorney, who stated:

	a.  He did not recall whether the DA Form 67-9-1a was completed and whether he provided the applicant with a copy of his support form.  He did 
recall he exchanged email with the applicant and talked to him on the phone once or twice.  He remembers he made it very clear what he expected of the applicant.

	b.  He also recalled the applicant's performance of duty was satisfactory except in the area of property accountability.  Additionally, he stated: 

I stressed to [the applicant] numerous times, both before and after I
redeployed, that he must focus on ensuring he accounted for all his unit
property prior to his change of command inventories.  He did this because [the applicant] had a history of poor property accountability.  A couple weeks before the original change of command date he [the applicant] came to me and told me he was missing property.  He asked me to delay his change of command date so he could attempt to account for this missing property.  I agreed and the change of command date was extended.  I soon learned that [the applicant's] unit had a significant amount of property unaccounted for.  This included a Heavy Expanded Mobility Tactical Truck (HEMMT) that was valued at over $100,000.  I directed him under no uncertain terms to find the property, or there would be consequences.  His unit did find some of the property.  However, most of it, including the HEMMT, remained unaccounted for.  As the situation developed I questioned [the applicant] and found out that the HEMMT had been on the Commander's 10% inventory for a previous month (either May 09 or June 09).  [The applicant] had signed the 10% inventory stating he had seen the HEMMT and that it was accounted for.  When I questioned him about this in July, he admitted that he hadn't seen the HEMMT, and had just signed the 10% inventory without physically seeing any of the property items on it (emphasis added).  Another major problem I discovered with [the applicant's] property accountability was that he did not sub-hand receipt the majority of his unit's property down to the end-user.  Thus, instead of the actual user of the property being signed for, and financially responsible for, the property, [the applicant] remained responsible.  This is contrary to Army command supply discipline procedures and is the reason [the applicant] remained ultimately financially responsible for the property. These issues were especially disturbing given the applicant's previous history with poor property accountability and the financial repercussions of his practices.

I gave [the applicant] until just prior to the change of command before we initiated a Financial Liability Investigation of Property Loss (FLIPL).  We actually had to execute two FLIPLs on the missing property because the HEMMT itself was over $100,000….Several months after [the applicant's] departure, the FLIPL officer found the missing HEMTT in another motor pool on post.  It had been there for a significant amount of time.  Thus, the FLIPL was cancelled.  This does not change the fact that [the applicant] had no idea where his property was, and that he stated in a 10% inventory that he had accounted for the HEMMT.

	c.  He told the applicant several days before his change of command
that his lack of property accountability would reflect on his performance
evaluation.  He also told the applicant that he only had himself to blame.  He discussed his property accountability shortcomings again when he presented him with the contested OER a day or two prior to the change of command.  He did author all the remarks in the rater section, and COL H_________ authored the comments in the SR portion of the contested OER.  During their discussions, he told the applicant that the contested OER would not help his future status.  He believed the applicant asked him if the contested OER would hurt his promotion potential, and he believed he told him that he did not know.  However, he told him that the contested OER reflected both his and the SR's opinion of his performance during the rating period.  At no time during these discussions did the applicant object to the rating scheme or to having a lack of direction.  He also did not object to the comments in the contested OER.

9.  The DA Form 638 he submitted was a recommendation for the award of the Meritorious Service Medal.  However, he only provided page 1 of 3 and 
LTC W____ did not sign the form.  There is no evidence the form was submitted or processed.

10.  In a letter, dated 18 July 2011, COL S_____ H. J_____ requested the applicant's appeal for promotion be favorably considered.

	a.  He served as the applicant's brigade commander at Fort Sill, OK from 2005 to 2007 and stated he was a superb officer who was extremely dedicated to his country and his Soldiers.
	b.  He was absolutely outstanding in the performance of all assigned and implied duties and his character was above reproach.  His sincere dedication to duty, selfless service, humility, and compassionate leadership earn him the right for reconsideration in his appeal.

	c.  He is a quick learner and a logical thinker.  He is a natural leader who excels at team building and who understands and works with a vision.

	d.  COL J_____ stated that as an officer with 30 years of experience, he understood the personality and abilities required of Soldiers.  The applicant meets all of the requirements.  He has proven to be a top 15 percent officer whose talents are uniquely suited for further service in the Army.

11.  In an MFR, dated 15 April 2012, CDR H___ stated he was present at Fort Sill, OK to see the applicant, his brother-in-law, off to Iraq.  He was present when LTC N_____ questioned the applicant about an equipment issue and he demanded sworn statements from the applicant immediately.  It was CDR H____'s opinion that the applicant and the others were not given ample time to research the issue in question, since the buses were due within the hour.

12.  The applicant provided a letter, dated 13 November 2013, from W______ W. G_____, Jr., County Judge, Wichita County, Wichita Falls, TX.  The judge stated:

	a.  He was a retired U.S. Army Reserve COL and past Chief of Officer Personnel for the Texas Army National Guard.

	b.  He reviewed the applicant's action and found he was taken advantage of and poorly advised by those in superior leadership.  His fault in these circumstances was relying on the leadership that gave him bad information and did not follow-up with corrective actions that would have mitigated much of his case.

	c.  It would behoove the process and determination of this case if the applicant were allowed to present his case before the board.  The board should consider reinstating him to active duty and back date his promotion to when he should have been promoted with back pay and allowances.

13.  The seven OERs as a CPT from 25 November 2004 to 10 March 2009, prior to the contested OER, and the five OERs as a CPT from 29 July 2009 to 
27 March 2013, subsequent to the contested OER, all contain an "X" in the "Outstanding Performance, Must Promote" block of Part Va and an "X" in the Best Qualified" block of Part VIIa.

14.  Army Regulation 623-3 prescribes the policies and tasks for the Army’s Evaluation Reporting Systems.  It governs OER's and the OER appeal process  It states in:

	a.  Paragraph 2-5 "The rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier’s performance.  The rater will be the immediate supervisor who monitors/observes the day-to-day performance of the rated individual and directly guides the rated Soldier’s participation in the organization’s mission."  In the case of an OER "A rater will be an officer of the United States or allied armed forces or an employee of a U.S. Government agency (including non-appropriated fund rating officials).  The rater will normally be the immediate supervisor for a minimum period of 
90 consecutive days."

	b.  Paragraph 2-12 that raters will provide their support forms, along with the SR’s support forms, to the rated Soldier at the beginning of the rating period.  
The DA Form 67–9–1 is used throughout the rating period.  The DA Form 
67–9–1a will be used along with the DA Form 67–9–1 for officers in the rank of CPT, LT, CW2, and WO1. 

	c.  Paragraph 2-13a that the raters of CPTs will ensure the DA Form 67–9–1a is initiated at the initial face-to-face counseling.  The initial developmental tasks will be established and recorded.  The rater will obtain the SR’s approval and initials.  The developmental support form (DSF) will then be used as a working tool throughout the remainder of the rating period.

	d.  Paragraph 3-2i "Rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards and career managers can make intelligent decisions.”

	e.  Paragraph 3-4g "Although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report."

	f.  Paragraph 3-5b "Correspondence and telephone conversations may be used as alternatives because of geographic separation, followed by face-to-face discussions between the rated individuals and the rater at the earliest opportunity."
	g.  Paragraph 3-6d "The rater will conduct a face-to-face counseling with the rated Soldier within the first 30 days of the rating period.  This initial discussion will focus on duties, responsibilities, and performance objectives of the rated individual.  Correspondence and telephone conversations may be used as an alternative because of geographic separation, followed by a face-to-face discussion between the rated individual and rater at the earliest opportunity.”

	h.  Paragraph 20a "Each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a
confession, or finding of guilt, or the completion of an investigation."

	i.  Paragraph 3-23a "No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier."

	j.  Paragraph 3-24c that no remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except relief-for cause reports based on information pertaining to a previous reporting period and the most recent Army Physical Fitness Test performance or profile data occurred prior to the beginning date of the report.

	k.  Paragraph 3-34b any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in the rater's narrative evaluation will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to Headquarters, Department of the Army (HQDA).

	l.  Paragraph 3-36a that if referral is required, the SR will place an “x” in the appropriate box in part IId of the completed report (for example, when the SR has signed and dated the report).  The report will then be given to the rated Soldier for signature and placement of an “x” in the appropriate box in part IId.

	m.  Paragraph 3-36d that if the SR decides that the comments provide significant new facts about the rated Soldier’s performance and that they could affect the rated Soldier’s evaluation, they may refer them to the other rating officials.  Any rating official who elects to raise their evaluation of the rated Solder as a result of this action may do so.  However, the evaluation may not be
lowered because of the rated Soldier’s comments.

	n.  Paragraph 3-36e that if the rated Soldier is unavailable to sign the OER for any reason or cannot be contacted and a written referral is required.
	o.  Paragraph 3-39a that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to:

* be administratively correct
* have been prepared by the properly designated rating officials
* represent the considered opinions and objective judgment of the rating 	officials at the time of preparation

An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	p.  Paragraph 6-7 that the rated Soldier’s authentication in Part II of a DA Form 67–9 or DA Form 2166–8 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  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. 

	q.  Paragraph 6–11a that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that:

* the presumption of regularity referred to in paragraphs 3–39 and 6–7 	will not be applied to the report under consideration
* action is warranted to correct a material error, inaccuracy, or injustice

Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

	r.  Paragraph 6-11d that in a claim of inaccuracy or injustice of a substantive type, 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 firsthand 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.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request.

15.  Army Regulation 600-8-29 (Officer Promotions) states in paragraph 1-32c(3) that promotion board members will not divulge details of the deliberative process (other than a generalized description of board procedures) before, during, or after the board to outside parties, whether senior or subordinate to the board member except as specifically directed by the Secretary of the Army or his authorized representative.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  

	a.  Paragraph 2-2 states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions.

	b.  Paragraph 2-11 states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER he received for the period 
14 March through 28 July 2009 should be removed from this AMHRR, that he should be considered by an SSB, and that he should be recalled to active duty.  

2.  He contends there was no use of the DA Form 67-9-1a.  The governing regulation states the support form will not be part of an official file used by selection boards or career managers.  In addition, failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

3.  He contends he was not given any written initial counseling in the first 30 days of the rating period.  Paragraphs 3-5b and 3-6d state "Correspondence and telephone conversations may be used as alternatives because of geographic separation, followed by face-to-face discussions between the rated individuals and the rater at the earliest opportunity."  His rater stated he provided the applicant guidance on what to focus on and what was expected of him.  He also consulted with him on several issues.  He exchanged email with the applicant and talked to him on the phone once or twice.  He made it clear what he expected of the applicant.

4.  He contends the contested OER should have been a referred report.  The rater checked the "Satisfactory Performance Promote" block and noted that he experienced problems in the supply accountability area.  He also noted in the Part Vc that the applicant must improve in the supply accountability area.  This rating and comment are not considered derogatory.  The SR checked the "Fully Qualified" box and mentioned the applicant failed to maintain property accountability.  This rating and the comment are not considered derogatory.  Therefore, the contested report was not required to be referred to the rated officer by the SR for acknowledgment and comment before it was sent to HQDA.

5.  The applicant contends his rater used knowledge of a previous FLIPL in a previous rating period in putting derogatory remarks in the contested OER.  However, in his email to the applicant's attorney, the rater indicated that based on the applicant's history of poor property accountability he stressed to the applicant the need to focus on ensuring he accounted for all his unit property prior to his change of command inventories.  The comments in the contested OER are based on the applicant's inability to account for all of his unit's property prior to his change of command.  This occurred during the period of the contested OER.  There is no mention of any previous FLIPLs.

6.  The applicant provided no evidence that the comments were in any way invalid or unfair.  The rater's description of the change of command inventory processing and the recovery of the HEMMT months after the applicant's departure make it quite clear that the applicant knew of his shortcomings.  

7.  He contends LTC W____ had written a recommendation for a Meritorious Service Medal.  However, LTC W____ did not sign the DA Form 638 and there is no other evidence the form was submitted or processed.

8.  The entries in Part Va and Part VIIa of his OERs both prior and subsequent to the contested OER are noted.  However, this does not change his performance as observed by LTC W____ and COL H________ during the 5-month period of the contested OER.

9.  He contends that COL T_____ inquired on his behalf about the board's decision after his second pass over and was told his board file was separated from the competitive files along with the others who were also passed over on the previous board. This non-selection has put him in the same category with other captains who committed egregious acts of impropriety.  He contends his brigade commander contacted HRC and was told he was passed over a second time because of the contested OER.  However, he did not provide any evidence to support these contentions.  

10.  By regulation, promotion board members will not divulge details of the deliberative process (other than a generalized description of board procedures) before, during, or after the board to outside parties, whether senior or subordinate to the board member except as specifically directed by the Secretary of the Army or his authorized representative.  Therefore, the reason an individual is not selected for promotion is not known.

11.  The letter of recommendation, dated 18 July 2011, from COL J_____ was noted.  However, COL J______'s recommendation was based on his observations of the applicant 2 years prior to the period covered by the contested OER.

12.  He has not provided clear and compelling evidence that the ratings on the contested report were in error or that they were not the opinions and objective judgments of the rating officials.  There is insufficient evidence of a strong and compelling nature to clearly and convincingly overcome the presumption of regularity which applies to every OER accepted by HQDA for filling.

13.  In view of the above, there is an insufficient basis for granting the applicant's request.

14.  Further, there is insufficient evidence to support a conclusion that a formal hearing is necessary to serve the interest of justice in this case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20110021672, dated 14 February 2012.




      ___________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)                                         AR20130003576



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ABCMR Record of Proceedings (cont)                                         AR20130003576



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