IN THE CASE OF:	   

		BOARD DATE:	  23 January 2014

		DOCKET NUMBER:  AR20130005826 


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 DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 March 2010 through 18 August 2010 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  In 2009 and 2010, the Delaware Army National Guard (DEARNG) senior leadership violated countless Congressional and regulatory policies with regard to its manpower management.

	b.  In July 2010, he spoke out against the immoral and illegal practices being conducted by the DEARNG and went as far as sending protected communications in an effort to expose the corruption.

	c.  In August 2010, he was relieved for cause of a command that he did not assume command of.  His record lacks documentation of assumption, position, or even credited time for such command.

	d.  He was not the commander of the unit from which he was ostensibly relieved of command.

	e.  On 1 December 2010, his rating chain presented the contested OER to him with a 10 December 2010 suspense for rebuttal comments.  He provided his response on 9 December 2010 and stated he could not be relieved of command of a unit he did not command.

	f.  On 23 December 2010, his rating chain changed his principal duty title on the contested OER, changed his unit of assignment, but never re-referred the changed OER to him for comment.  This illegally-changed OER was later rejected by Headquarters, Department of the Army (HQDA) on 28 February 2011 due to unattached rated officer comments.

	g.  On 13 April 2012, the contested OER was filed in his records with his original comments from 9 December 2010.  This third and final contested OER was not the version he signed on 8 December 2010.  The final version of the contested OER reverted back to his correct duty title and unit of assignment.  The only change between the final version of the contested OER and the original version was that the number of rated months was changed from 6 months to 3 months of nonrated time.  He was not the last individual to sign the contested OER in his records.  The final version of the contested OER is illegal, unfair, unjust, substantively inaccurate, and denied him due process.

	h.  The 3 months of nonrated time should have been covered by a letter indicating the rater and senior rater had insufficient time to rate him due to a mandatory Change of Duty and then the letter should have been filed in his AMHRR.

	i.  His rating chain made an unethical attempt to substantiate that he was a commander during the rating period of the contested OER.  The rating chain retroactively inserted an expired Assumption of Command memorandum in his AMHRR in order to justify relieving him of command.

	j.  The rating chain conducted a mandatory Change of Duty OER for another officer transferred between the two units but failed to provide him the same process. 

	k.  The contested OER has an incorrect rating period of 1 March 2010 through 18 August 2010.  The rating period should have been 12 May 2010 through 18 August 2010 as shown on orders issued by the State of Delaware that show he transferred to a new unit, received a new Unit Identification Code (UIC), and was assigned to a new duty position.  The orders also show in the Command Status Code:  "Never Assigned as Commander."

	l.  Part IVa (Army Values) of the contested OER is checked "No" in the Duty block, indicating he failed to fulfill professional, legal, and moral obligations.

	m.  Part IVb (Leadership Attributes/Skills/Actions) of the contested OER has blocks marked "No," which unjustly and unfairly rates him as a commander or with command responsibilities.

	n.  In May 2011, he had to withdraw his appeal of the contested OER to the Army Board for Correction of Military Records (ABCMR) based on the report not being filed in his records.  A second request to the ABCMR was denied because it was expressed that he had not exhausted all administrative remedies.

3.  The applicant provides:

* self-authored statements
* 3 versions of the contested OER
* OER for Captain MIT for the period ending 11 May 2010
* Referral OER Notification Memorandum, dated 1 December 2010
* Referral OER Response Memorandum, dated 9 December 2010
* interactive Personnel Records Management System (iPERMS) screenshot
* Assumption of Command Memorandum, dated 15 April 2007
* 2 emails
* Integrated Web Services (IWS) screenshot
* spreadsheet entitled "Evaluation Reports Available by Individual Look Up"
* Orders Number 132-518, issued by State of Delaware, DEARNG, Wilmington, DE, dated 12 May 2010
* Unit Manning Report GPFM-1710 extract, dated 21 July 2010
* Orders Number 132-520, issued by State of Delaware, DEARNG, Wilmington, DE, dated 12 May 2010

CONSIDERATION OF EVIDENCE:

1.  On 15 April 2007, the applicant assumed command of Detachment 1,
121st Medical Company (Air Ambulance), DEARNG.  A review of his IWS records shows the assumption of command memorandum was filed in his records on 10 December 2010.

2.  Orders 106-513, issued by DEARNG, dated 16 April 2007, assigned him to the duty position of Platoon Leader.

3.  Orders 132-518, issued by DEARNG, dated 12 May 2010, transferred the applicant to Company F, Detachment 1, 1st Battalion, 126th General Support Aviation Battalion as an Aeromedical Evacuation Officer, effective 12 May 2010.  The orders also show he was never assigned as commander.


4.  Orders 132-520, issued by DEARNG, dated 12 May 2010, show another Soldier, Captain MIT, was released from the position of Section Leader, Detachment 1, 121st Medical Company (Air Ambulance) and transferred to the position of Aeromedical Evacuation Officer, Company F, Detachment 1, 1st Battalion, 126th General Support Aviation Battalion effective 12 May 2010.  These orders also show he was never assigned as commander.

5.  He provides a self-authored document entitled Blue Training In-Process Review, dated 7 July 2010, that shows the applicant and other crewmembers required training.

6.  On 18 August 2010, the applicant was relieved for cause.

7.  On 30 August 2010, the applicant requested to be transferred to the Retired Reserve, effective 1 November 2010.

8.  On 5 October 2010, the applicant requested amendment of his retirement request in order to address administrative requirements generated by his organization.  He requested to remain in an active status until 1 December 2010 and stated this would allow for the receipt of the referred OER and grant him the opportunity to make comments for a Commander's Inquiry.

9.  The applicant was separated from the ARNG and transferred to the Retired Reserve on 1 November 2010.

10.  He provided three versions of his contested OER that show in:

	a.  Part Ig1 (Unit, Organization, Station, Zip Code or APO, Major Command) -

*	version 1, Company F, Detachment 1, 1st Battalion, 126th Aviation Regiment, New Castle, DE 19720
*	version 2, Detachment 1, 121st Medical Company (Air Ambulance), New Castle, DE 19720
*	version 3, Company F, Detachment 1, 126th General Support Aviation Battalion, New Castle, DE 19720

	b.  Part 1j (Rated Months) and Part 1k (Nonrated Months) -

*	version 1, 6 months rated months and "blank" months nonrated
*	version 2, 6 months rated months and "blank" months nonrated
*	version 3, 3 months rated months and "Z" months nonrated


	c.  Part II (Authentication) - all 3 versions of the contested OER have the same date and only version 1 has the applicant's signature.

	d.  Part IIIa (Principal Duty Title) -

		*	version 1, Aero Medical Pilot
		*	version 2, Platoon Leader
		*	version 3, Aeromedical Evacuation Officer

	e.  Part IIIc (Significant Duties and Responsibilities) - remained the same on all 3 versions of the contested OER.

	f.  Part IVa (Army Values) - the rater checked "Yes" for all blocks except for block 7 (Duty:  Fulfills professional, legal, and moral obligations).

	g.  Part IVb (Leader Attributes/Skills/Actions), the rater checked - 

		*	Block b.2 (Skills), "No" for Conceptual
		*	Block b.3 (Actions (Leadership), "No" for Motivating, Planning,
   Executing, and Learning

	h.  Part IVd (Officer Development) - "Yes" is checked showing developmental tasks were recorded on a DA Form 67-9-1a (OER Developmental Support Form) and quarterly follow-up counselings were conducted.

	i.  Part V (Performance and Potential Evaluation) - "Unsatisfactory Performance, Do Not Promote" was marked on all 3 versions of the contested OER.

	j.  Part Vb (Comment on Potential for Promotion) - the remark "Do not promote at this time."

	k.  Part VIIa (Senior Rater) - "Do Not Promote" is marked and the "No" block is checked indicating a completed DA Form 67-9-1 was not received with the report and considered in the evaluation and review on all 3 versions of the contested OERs.

11.  On 1 December 2010, the contested OER was referred to the applicant.

12.  On 9 December 2010, the applicant provided a response to the contested OER.  He stated the OER was unfair, unjust, substantively inaccurate, and 


illegal.  He requested, in the alternative, non-rated time for the rating period.  His comments also included the following:

	a.  Despite repeated and consistent warnings regarding safety and proper standards, the rating chain consciously disregarded those calls for transparency in advance of the unit's upcoming deployment.  He provided the commander a lengthy document detailing regulatory violations made by the State and previous leadership effecting the unit's mobilization.

	b.  The contested OER contained an inaccurate rating period.  He was never the commander of the unit from which he was relieved.

	c.  He never signed a DA Form 67-9-1 indicating his new duties as the Commander, Detachment 1, Company F, 1st Battalion, 126th Aviation Regiment.

	d.  He disputed the ratings in Part IV and comments by the rater and senior rater.

13.  The applicant provides an email from Major AMD, dated 23 December 2010, that indicates he was provided a copy of the contested OER.  The email also indicates his unit designation and duty title was changed to be accurate with his cutoff date.  Major AMD advised the applicant that the corrected copy of the contested OER and comments he had previously provided were forwarded to HQDA.  The applicant was also advised a copy of the corrected contested report would be mailed to him.  The email does not show he was given a suspense date to provide comments on the changes to the contested OER.

14.  On 28 February 2011, the contested OER was rejected by HQDA and returned to the unit due to "missing enclosures from the rated officer."

15.  The applicant provides emails, dated 17 March 2011, that show unit deficiencies within the 126th General Aviation Support Battalion were acknowledged by the DEARNG to the Deputy Chief of Staff, G3.

16.  On 13 April 2012, the contested OER and response from the applicant, dated 9 December 2010, were filed in the applicant's AMHRR.

17.  A review of his available record fails to show the final version of his contested report was referred to him for a response prior to being permanently filed in his AMHRR.


18.  The applicant provides an OER on Captain MIT for the period 17 September 2009 through 11 May 2010 that shows he held the duty title of Section Leader.  The OER also shows in Part VIIc ((Senior Rater) Comment on Performance/ Potential) the comment, "I am unable to evaluate the rated officer because I have not been his or her senior rater for the required number of days."  The senior rater for this OER is the applicant's rater.

19.  The applicant also provides a timeline of events regarding his assignments and the contested OER.  He also provides a 3-page document, subject:  Medivac RIP (Relief in Place), undated, that discusses the people, training/experience, and equipment of a medical evacuation unit deployed to Afghanistan.

20.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.

	a.  Paragraph 2-12 states the rater will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period; counsel the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; as well as other functions.

	b.  Paragraph 3-39 provides the basic rules applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of a rated Soldier 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.

	c.  Chapter 6 of the ERS regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal his contested report for the period 1 March 2010 through 18 August has been carefully examined.

2.  By regulation, an OER that is accepted by HQDA 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 represents the considered opinions and objective judgment of the rating officials at the time of preparation.  In order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the OER under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

3.  The evidence shows:

	a.  He was transferred to Company F, Detachment 1, 1st Battalion, 126th General Support Aviation Battalion on 12 May 2010 with duty as an Aeromedical Evacuation Officer. 

	b.  It appears the counseling process was performed in such a way that it violated Army regulations and did not allow for the possibility of recognizing his deficiencies in order to correct and improve his performance.

	c.  The reasons for the lengthy processing of the applicant's contested OER are unclear; however, he has provided clear and convincing evidence showing he was not afforded due process in appealing his contested OER. 

   d.  It is unclear why his rating chain was unable to properly identify his assigned unit, duty title, and rating period.

4.  After a comprehensive review of the evidence, and the contentions and arguments of the applicant, there is suitable corroborating evidence of the applicant's assertions that there was substantive injustice in his evaluation.

5.  In view of the foregoing, the applicant's record should be corrected as recommended below.





BOARD VOTE:

___x____  ____x___  ____x___  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by completely removing the contested OER from his AMHRR for the period 1 March 2010 through 18 August 2010.




      _______ _   _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)                                         AR20130005826



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ABCMR Record of Proceedings (cont)                                         AR20130005826



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