BOARD DATE:	  12 February 2014

		DOCKET NUMBER:  AR20130007829 


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 his Officer Evaluation Report (OER) for the period 27 May 2008 through 15 May 2009 be corrected or removed from his records.

2.  The applicant states the OER has substantive inaccuracies and the facts do not support the ratings.  Because the raters failed to provide any details to support their comments, their ratings should be stricken as improperly motivated by subjective, personal motivations.  His appeal of the OER was not acted upon in a timely manner due to his involuntarily discharged, which was a direct result of the contested OER.  

3.  The applicant provides copies of four OER's, a "bullet points" statement for his accomplishments during the period of the OER in question, a memorandum of support, separation orders, a 2011 Army Commendation Medal recommendation and award, and his DD Form 214 (Certificate of Release of Discharge from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no additional arguments or documentation.

CONSIDERATION OF EVIDENCE:

1.  The applicant, with four years of prior enlisted service, was commissioned a second lieutenant and entered active duty on 25 May 2006 with a subsequent promotion to first lieutenant (1LT).
2.  The applicant was recommended and selected for promotion to captain (CPT) by the Fiscal Year 2009 (FY09) CPT Promotion Board and placed on the selection list.

3.  He received a referred OER for the period 27 May 2008 through 15 May 2009.  Every block except number 2 (Physical, fitness and military bearing) in Part IVb LEADER ATTRIBUTES/SKILLS/ACTIONS section was marked "NO."  He was not recommended for promotion.  The comments section included the following negative comments:

* failed to follow policies and procedures
* he exhibited a complete lack of appropriate judgment
* he consistently failed to set and observe personal and professional boundaries making him a liability in the combat zone
* he was ineffective particularly regarding Operational Security (OPSEC) and Force Protection measures
* his problem solving skills directly resulted in multiple OPSEC violations
* his performance has not met the Army standards expected of a promotable 1LT 
* he has been reassigned three times in an effort to match his skills and interests to a duty position 
* his current position is normally filled by an NCO and still he needed constant supervision 
* he does not demonstrate the potential to be promoted

4.  On 16 May 2009, the applicant appealed the contested OER and submitted a list of his accomplishments during the contested period.  The available record does not contain any indication of any subsequent action on the OER appeal.  

5.  On 29 March 2010, the applicant was notified that the Secretary of the Army had approved the 10 September 2009 Army Promotion Review Board (PRB) recommendation that his name be removed from the FY09 CPT (ACC) Promotion selection list based on the referred OER.  The Summary Sheet includes the statement "The Officer states that he will appeal the OER…"

6.  All of the applicant's OER's subsequent to the contested one are the opposite of the contested OER.  Every block under LEADER ATTRIBUTES/SKILLS/ ACTIONS section is marked yes and he was recommended for promotion, additional training, and positions of increased responsibility.  There are no negative comments on any of his subsequent OER's.

7.  U.S. Army Human Resources Command memorandum, dated 18 April 2011, notified the applicant he had not been selected for promotion by the Fiscal Year 2011 Captain Promotion Board.

8.  On 1 November 2011, he was discharged from the Regular Army and accepted appointment in the U.S. Army Reserve.  His DD Form 214 shows he was discharged under Army Regulation 600-8-24, paragraph 2-41 for non-selection for permanent promotion. 

9.  U.S. Army Human Resources Command Orders B-09-305945, dated 13 September 2013, promoted the applicant to CPT effective 1 July 2013.

10.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army’s Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential.  Paragraph 4–11 (Burden of proof and type of evidence) state the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of an evaluation report, the appellant will have to produce evidence that establishes clearly and convincingly that:

   a.  The presumption of regularity referred to in paragraphs 3–36a and 4–7a will not be applied to the report under consideration.
   
   b.  Action is warranted to correct a material error, inaccuracy, or injustice.
   
   c.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of 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.
   
   d.  For 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 practicable, 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 CDR’s or Commandant’s Inquiry may provide support for an appeal request.

DISCUSSION AND CONCLUSIONS:

1.  An OER is the rating officials' opinions of the abilities and performance of the rated officer's duties during a specific period of time.  

2.  The applicant's contentions that the comment section was not specific enough to justify the marks and recommendation to not promote him is without merit.  The comments include sufficient evidence that, in the opinion of the rating officers, that the applicant was not performing his duties in such a manner as to warrant a better evaluation.  

3.  The applicant's accomplishment points statement for the contested period appears to have been reviewed by the Army Promotion Review Board without the members being convinced that his alleged accomplishments outweighed the official raters' comments.  Further, the applicant did not provide any evidence to support the alleged accomplishments.

4.  While the record does not contain any specific evidence of the outcome of the applicant's OER appeal, it is noted he initiated the appeal on 16 May 2009 and had an Army Promotion Review Board review which included a copy of the same accomplishment points statement provided for his appeal.

5.  The applicant has failed to provide and the record does not contain sufficient evidence to justify a correction of the contested OER as requested which would in effect require a deletion of the entire OER.

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)                                         AR20130007829





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ABCMR Record of Proceedings (cont)                                         AR20130007829



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