IN THE CASE OF:  

		BOARD DATE:  25 April 2013

		DOCKET NUMBER:  AR20130003627


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, removal of his Officer Evaluation Report (OER) for the rating period 9 October 2007 through 8 October 2008, hereafter referred to as the contested OER.

2.  The applicant states:

* the rater was not qualified 
* he was assigned and rated in a principle duty position that was contrary to the provisions of Army Regulation 614-100 (Officer Assignment Policies, Details, and Transfers)
* the OER was not conducive to either Army Regulation 614-100, nor Army Regulation 623-3 (Evaluation Reporting System) in utilizing a warrant officer outside their military occupational specialty (MOS)
* the OER was submitted without the documentation required by Army Regulation 623-3 
* the recommendations for future assignments are not conducive with his MOS
* his rater and senior rater made narrative comments and observations, which physically could not have been made (as he was in Iraq during Annual Training 2007) 

3.  The applicant provides:

* a 2-page memorandum to the Board, dated 24 August 2012
* the contested OER
* DA Form 1687 (Notice of Delegation of Authority – Receipt for Supplies), dated 14 November 2008
* a memorandum from the Commander, Company A, 199th Support Battalion, Winnfield, LA, dated 5 December 2008, subject:  Assumption of Command

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 currently serves as a chief warrant officer two (CW2)/W-2 in the U.S. Army Reserve (USAR).

3.  On 23 March 2001, after previous enlisted service, he was appointed as a warrant officer in the Louisiana Army National Guard (LAARNG), in the rank/grade of warrant officer one (WO1)/W-1.  On this same date, he executed an oath of office.  

4.  On 22 March 2003, he was promoted to the rank/grade of CW2/W-2.

5.  On 16 October 2006, he was mobilized as an individual volunteer, ordered to active duty in support of Operation Iraqi Freedom (OIF), and assigned to Headquarters, 260th Military Intelligence Battalion (a unit of the Florida Army National Guard), under the command of Multi-National Corps – Iraq.

6.  On 8 October 2007, he was honorably released from active duty, at the completion of his required period of active service, and transferred to Company A, 199th Support Battalion, LAARNG.

7.  On 28 May 2009, he received the contested OER for his duty performance as an Ammunition Warrant Officer, in MOS 890A (Ammunition Warrant Officer).  His rater is listed as Captain (CPT) BAC, the company commander, and his senior rater as Lieutenant Colonel (LTC) VMK, the battalion commander.  According to the Interactive Personnel Electronics Records Management System (iPERMS), the contested OER was filed in his Army Military Human Resource Record (AMHRR) on 13 October 2009.

   a. Part I (Administrative Date), section h. (Reason for Submission), shows the report was an annual rating.

   b. Part I, section i. (Period Covered), shows the report covered 12 months of rated time between 9 October 2007 and 8 October 2008.

   c. Part V (Performance and Potential Evaluation (Rater)), section b. (Comment on Specific Aspects of the Performance), contains the following extract:

CW2 [Applicant]'s performance during this rating period has been satisfactory.  He has aided this command with the reset of Alpha Company and the transitioning from a supply company to a supply and distribution company by his use of his knowledge of ammunition policies and distribution assets.  During annual training 2007, with the company executive officer (XO) directed in another position, CW2 [Applicant] served as the maintenance officer and supervised the services and updates for over 32 vehicles.  CW2 [Applicant] served adequately in this capacity for the company and has set a precedent for the company with his rounded knowledge of maintenance.  He has a working knowledge of the ammunition and maintenance fields, however, [he] needs to work on his involvement with his fellow Soldiers.  CW2 [Applicant] lead [sic] the ammo platoon during the battalion weapons qualifications to ensure a fluid push for a training exercise at AT-07; aiding Alpha company's mission/tasking set by battalion.  CW2 [Applicant] was an asset to this unit during this rating period.

   d. Part VII (Senior Rater), section c. (Comment on Performance/Potential), contains the following extract:

CW2 [Applicant] has performed his duties in an adequate manner during this rating period.  He has served as the A/199 Ammunition Warrant Officer during Annual Training 2007 where he assisted his company commander sufficiently.  CW2 [Applicant] needs to improve his leadership qualities prior to advancement.  He needs to refine his people skills to effectively manage and lead a section.  He has met the minimum educational requirements for advancement and should be promoted upon further development of his Warrant Officer leadership skills derived from serving in additional company level positions.

8.  There is no documentation in his available record that shows he appealed his OER through the U.S. Army Human Resources Command (HRC) to the Army Officer Special Review Board (OSRB).  

9.  The applicant provides:

   a. A 2-page memorandum to the Board, dated 24 August 2012, wherein he contends the following:

		(1)  His appeal is based on both administrative and substantive error.  The administrative errors include:

         (a)  His rater on the contested OER, CPT BAC, was not the commander of Company A, 199th Support Battalion during the rating period.  Instead, he contends the Alpha company commander was First Lieutenant (1LT) RDC, and he refers to her assumption of command memorandum which he supplied as evidence.  According to this memorandum, she assumed command of Company A, 199th Support Battalion on 9 April 2006. 

          (b)  His rating was based on an MOS he never attained qualification in; specifically, MOS 890A.

         (c)  His assignment to a position outside his career management field (CMF) was not approved by his career management office, as required by Army Regulation 614-100 and Army Regulation 623-3.

         (d)  Part VII, section d. (List Three Future Assignments for Which This Officer is Best Suited) contains recommendations for future assignments that are prohibited by Army Regulation 614-100.

		(2)  The substantive errors include:		  

			(a)  His rater and senior rater reference his performance at Annual Training 2007; however, the 199th Support Battalion conducted its annual training in June or July 2007, and since he did not begin attending battle assemblies with the unit until December 2007, any observations of performance pertaining to Annual Training 2007 could not have taken place.

			(b)  His rater and senior rater reference his performance as an Ammunition Warrant Officer, performing duties outside his qualification as a Unit Maintenance Officer.  Army Regulation 614-100 prohibits the utilization of warrant officers outside their respective career fields. 

   b. A DA Form 1687, dated 14 November 2008, which authorizes two other Soldiers, unrelated to the applicant, to requisition and receive supplies for the delegator, in this case 1LT RDX.  

   c. An assumption of command memorandum signed by 1LT RDC as the Commander, Company A, 199th Support Battalion.  This memorandum, dated 
5 December 2008, states she assumed command of Company A, 199th Support Battalion, effective 9 April 2006.

10.  A review of the record pertaining to CPT BAC reveals he was rated as the Company Commander of Company A, 199th Support Battalion, during the periods 8 April 2007 through 9 December 2007 and 10 December 2007 through 2 October 2008.  These periods cover nearly the entire rating period on the contested OER, with the exception of the last 6 days.

11.  A review of the record pertaining to 1LT RDC reveals she was rated as the Maintenance Control Officer of Company B, 199th Support Battalion, during the period 2 July 2007 through 1 July 2008, and she was rated as the Company Commander of Company A, 199th Support Battalion, during the period 21 August 2008 through 20 August 2009.  According to item 35 (Record of Assignments) of her DA Form 2-1 (Personnel Qualification Record, Part II), she did not assume her role as commander of Company A, 199th Support Battalion until 3 October 2008.

12.  Army Regulation 614-100 prescribes policies and procedures pertaining to the assignment, reassignment, details, and transfers of officer between commands, units, branches, specialties, and components of the Active Army, or between external military organizations.  Army Regulation 310-25 (Dictionary of United States Army Terms) defines the term "Active Army" as:

* members of the Regular Army on active duty
* members of the Army National Guard of the United States and U.S. Army Reserve on active duty (other than for training)
* members of the Army National Guard in the service of the United States pursuant to a call
* all persons appointed, enlisted, or inducted into the Army without component


13.  National Guard Regulation (NGR) 600-101 (Warrant Officers – Federal Recognition and Related Personnel Actions) prescribes the National Guard Bureau (NGB) policies and procedures governing the appointment, assignment, and management of warrant officers of the ARNG.  Chapter 4 governs the assignment, reassignment, and retention of ARNG warrant officers.  

   a. Paragraph 4-1 provides that the assignment, reassignment, retention and utilization of warrant officers of the ARNG (other than those on active duty under Title 10, U.S. Code), is a function of the State concerned.  State Adjutants General and personnel managers must follow management principles of the appropriate Army and NGB regulations, MOS assignment criteria, and the needs of the Army.

   b. Paragraph 4-3 governs assignment policies.  It provides that the State Adjutant General is the approving authority for warrant officer assignments unless otherwise indicated below.  

		(1)  Sub-paragraph a. provides that Technical Warrant Officers will be assigned to fill authorized warrant officer Modified Table of Organization and Equipment (MTOE)/Table of Distribution and Allowances (TDA) positions in federally-recognized units of the ARNG, provided the warrant officer is MOS proponent certified in the MOS for which the vacancy exists or the warrant officer can qualify for certification within two years of assignment.

		(2)  Sub-paragraph f. provides that warrant officers may be assigned to positions for which they are not MOS qualified provided proponent certification in the new MOS is obtained within two years of assignment.  This exception only applies when the unit of assignment is under reorganization or an MOS is re-designated in accordance with paragraph 6-4 of this regulation.

   c. Paragraph 6-4 governs unit reorganization.  Sub-paragraph a. provides,  in pertinent part, that warrant officers whose duty positions are deleted or duty position MOS changed due to unit reorganization may be assigned to a position with a different duty MOS.  Warrant officers assigned to positions with an MOS different than their primary or additional MOS must be certified in the new MOS by the appropriate Department of the Army MOS proponent within two years of assignment.

14.  Army Regulation 623-3, effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Army's Evaluation Reporting System (ERS), including the DA Form 67-9.


   a. Paragraph 3-39 provides that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct; prepared by the proper rating officials; and represent the considered opinion and objective judgment of rating officials at the time of preparation.

   b. Paragraph 6-11, sub-paragraph a. provides that the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  1) the presumption of regularity will not be applied to the report under consideration; and 2) 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 or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the correction of the contested OER, based on perceived procedural/administrative and substantive inaccuracies.

2.  The applicant makes numerous contentions; specifically, regarding: 1) his rater's lack of qualification to serve as his rater; 2) the inappropriateness of certain narrative comments made by his rater and senior rater; and 3) whether or not the evaluation met the regulatory requirements of Army Regulation 614-100 and Army Regulation 623-3.

3.  The evidence of record shows his rater on the contested OER, CPT BAC, was in fact his rater during the rated period.  He submits as evidence an assumption of command memorandum; however, the officer who supposedly assumed command, 1LT RDC, received her own OER, covering a similar period as that on the contested OER, for her performance of duty as the Maintenance Control Officer of Company B, 199th Support Battalion.  Furthermore, item 38 of her DA Form 2-1 shows she assumed command of Company A, 199th Support Battalion, on 3 October 2008, which coincides with the ending period of CPT BAC's Change of Duty OER (2 October 2008).  In view of the evidence, this contention is rejected.

4.  He also contends comments by the rater and senior rater, regarding his performance of duty during Annual Training 2007, were substantive errors and false because he was not performing duty with Company A, 199th Support Battalion, during their annual training in 2007.  The evidence of record does not show, and he failed to submit any evidence that shows, the exact dates in which the 199th Support Battalion conducted its annual training in 2007.  Therefore, the appropriateness of those referenced comments cannot be determined, and command judgment and administrative regularity must be presumed.  In view of the available evidence, this contention is rejected.

5.  He contends his OER is invalid because he was rated in a duty position which he was not qualified in and because of various narrative comments his rater and senior rater made regarding his performance in that duty position.  He cites Army Regulation 614-100; however, as a traditional ARNG Soldier not serving on active duty, this regulation was not applicable to him.  Instead, the assignment policies applicable to him are found in NGR 600-101, which allows for the assignment of warrant officers to positions for which they are not qualified. In view of this evidence, this contention is rejected. 

6.  He contends his OER is contrary to the provisions of Army Regulation 623-3.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct; prepared by the proper rating officials; and represent the considered opinion and objective judgment of rating officials at the time of preparation.  The burden of proof rests with the applicant to show otherwise, and he has failed to sufficiently do so.    

7.  In order to justify deletion or amendment of a report, he must produce evidence that establishes clearly and convincingly that (a) the presumption of regularity should not be applied to the report under consideration; and (b) action is warranted to correct a material error, inaccuracy, or injustice.

8.  The applicant has not provided sufficient evidence to show the ratings on the contested report were in error; that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered; or that the contested report was inaccurate, unjust, or otherwise flawed.  The evidence presented does not establish 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.

9.  The contested OER is facially correct; therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.







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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20130003627



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