IN THE CASE OF:	  

		BOARD DATE:  19 September 2013

		DOCKET NUMBER:  AR20130008924 


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)) covering the period 13 July 2008 through 12 April 2009 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File), or, in the alternative, transfer of the DA Form 67-9 to the restricted portion of his AMHRR.

2.  The applicant states:

	a.  the statements are false, misleading, and incorrect.  He was a first lieutenant during the rating period.  The evaluation was written following his promotion to captain to prevent his advancement to major.  The evaluation was written 90 days after he had been removed from his rater's influence and transitioned to the Captains Career Course.  The senior rater was not in office long enough to accurately assess his performance.  

	b.  he currently serves as a company commander and he was selected over  nine officers due to his character, integrity, and logistical expertise.  The injustice occurred during his first military assignment as he experienced great hardship and unjustly received a referred OER during his exodus.  The hardship and injustice was due to the fact that he refused sexual advances from his company commander.  He made every attempt possible to be removed from her command but was unsuccessful.  

	c.  an OER was written and placed in his AMHRR in an attempt to prevent him from making captain, but was rejected by the Board due to its negative content but not being referred.  After he was promoted to captain, his battalion received new leadership.  He requested to be removed from under her command and after about two weeks of consideration, it was granted.  About two months later, he permanently changed stations to Fort Lee to attend the Captains Career Course, and about one month later a referred OER was mailed to him for signature.  His senior rater had just taken command within 30 days during the time the OER was written, and could not accurately assess his performance.  The guidance he received from the senior rater was to write a rebuttal to accompany the OER, but as long as he was successful as a company commander, his career was not in jeopardy.

	d.  he is in the primary zone of consideration for promotion to major in Fiscal Year 2014 (FY14).  The Army promotion rate is decreasing due to a more stringent selection process because of force reduction.  He recently read the latest Company Grade Logistics Newsletter which states officers who had received other than "Best Qualified" OERs were not selected for promotion.  These officers had "Fully Qualified" or "Do Not Promote" senior rater box check OERS or a "Referred" OER in their file.  Several officers only had ONE "Fully Qualified" OER in their file and were passed over for promotion to major in FY13. 

	e.  this unjust OER places him in the category for non-selection for advancement.  It will not afford him the opportunity to be accurately and fairly assessed.  If the promotion board reviews this unjust referred evaluation, it will prevent his advancement to major.  His FY14 promotion board is scheduled to convene in October 2013.       

3.  The applicant provides:

* Officer Record Brief
* Duty memorandum, dated 7 November 2012
* Company Grade Logistics Newsletter, dated March-April 2013
* Referred OER with rebuttal
* Evaluation reports
* Emails

CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Army National Guard (ARNG), the applicant was appointed as a U.S. Army Reserve (USAR) commissioned officer in the rank of second lieutenant on 19 November 2004.   He was ordered to active duty on or about 20 December 2007 as a USAR officer to fulfill a 3-year active duty commitment.  He was promoted to first lieutenant on 19 November 2006.  He was promoted to captain on 29 January 2009.  
2.  The contested OER is a 9-month change of rater OER covering the period 
13 July 2008 through 12 April 2009 for duties as a platoon leader/maintenance control officer for Company E, 3-1, Assault Helicopter Battalion, Combat Aviation Brigade, 1st Infantry Division, Fort Riley, KS.  This OER was authenticated by the rater on 28 May 2009, by the senior rater on 29 May 2009, and the applicant on 12 June 2009.  Part IId (THIS IS A REFERRED REPORT, DO YOU WISH TO MAKE COMMENTS?) of the OER is check-marked and further shows a handwritten check mark in the "YES" block.

3.  In Part IV (PERFORMANCE EVALUATION – PROFESSIONALISM), the rater placed an "X" in the "NO" box for Integrity (POSSESSES HIGH PERSONAL MORAL STANDARDS, HONEST IN WORD AND DEED) and for Respect (PROMOTES DIGNITY, CONSIDERATION, FAIRNESS, & EO (EQUAL OPPORTUNITY)).

4.  In Part Va (EVALUATE THE RATED OFFICER'S PERFORMANCE DURING THE RATING PERIOD AND HIS POTENTIAL FOR PROMOTION), the rater placed an "X" in the "UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE" box and placed the following comments in Part Vb (COMMENT ON SPECIFIC ASPECTS OF THE PERFORMANCE, REFER TO PART III, DA FORM 67-9 AND PART IVA, B, AND PART VB, DA FORM 67-9-1 (OFFICER EVALUATION REPORT SUPPORT FORM)):

During this rating period, CPT [Applicant's name] made inappropriate, disrespectful, and unprofessional comments towards me.  Occasionally he followed my orders.  He took great initiative critiquing my leadership, but understood his short-comings rested within himself.  He placed his integrity in question on many occasions.  He did not respond to professional assessment of his performance.  CPT [Applicant's name] enhanced his vehicle dispatch report during the deployment in support of Operation Iraqi Freedom 07-09.  His research ability was exceptional.  He made significant improvements to the battalion's recreational facility.  He utilized outside sources at the division level to accomplish his tasks.  He took initiative as the company CBRN [Chemical, Biological, Radiological, and Nuclear] officer during the first phase of redeployment reset.  CPT [Applicant's name] empowered his subordinates to manage all aspects of battalion maintenance operations and platoon functions.  He related commonly well with his junior Soldiers.  With time, maturity, and continuous grooming, CPT [Applicant's name] might develop into a professional Army officer.  Do not promote at this time.

5.  In Part Vc (COMMENT ON POTENTIAL FOR PROMOTION), the rater provided the comment "Do not promote."


6.  In Part VIIa (EVALUATE THE RATED OFFICER'S PROMOTION POTENTIAL TO THE NEXT HIGHER GRADE), the senior rater placed an "X" in the "FULLY QUALIFIED" box and "NO BOX CHECK" box.  He also placed the following comments in Part VIIc (COMMENT ON PERFORMANCE/POTENTIAL):

CPT [Applicant's name] performance was in question the majority of this rating period.  During the Battalion's deployment to OIF (Operation Iraqi Freedom) he experienced challenges in adhering to the Army Values, which placed him in contention with his chain of command.  Despite these challenges, CPT [Applicant's name] should be afforded an opportunity to demonstrate his potential for future service in a new Command environment.

7.  On 1 June 2009, he submitted a rebuttal to the referred OER.  In summary, he stated:

	a.  his company commander created a deceptive OER.  She voluntarily initiated and attempted to engage in unprofessional conversations with him concerning sex and consumption of alcohol.  He informed her that it was offensive to him.  She informed him that if he had an issue with these topics, he was going to have a very difficult time throughout his Army career because they were most prevalently discussed.

	b.  in the management of his platoon operations, she deliberately chose to submit all relevant information and instructions concerning the management and training of his platoon to his senior noncommissioned officer and his maintenance technician.  She informed him that he should correspond with them in reference to these concerns.  He informed her several times that he was not being properly trained and utilized within the company.  She informed him that this is the way she chose to run her company and took this as an offense as critiquing her leadership.

	c.  she made formidable attempts to end his career.  These attempts range from petitioning to the brigade commander to telling the Captains promotion board to consider him for promotion next year; all have failed.

	d.  she continuously disrespected and embarrassed him using profanity in the presence of subordinates.

	e.  he has made numerous attempts to be removed from under her command during the battalion's deployment in Operation Iraqi Freedom, which were all denied.  Under the new leadership, he was able to escape from her command by explaining the situation to his battalion commander.    
8.  A review of the applicant's AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the contested OER.

9.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, 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.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration; and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

10.  Army Regulation 600-8-104 (AMHHR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, Human Resources Command (HRC); AMHRR custodian (when documents have been improperly filed); Commander, HRC, (as an approved policy change to this regulation); and Chief, Appeals Branch, National Guard Personnel Center.

11.  Army Regulation 600-8-104, table 2-1 (Composition of the AMHRR), states an OER will be filed in the performance section of the AMHRR.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the contested OER from his AMHRR on the basis the statements are false, misleading, and incorrect.  In order to justify deletion of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

2.  His contention he refused sexual advances from his company commander was carefully considered.  However, there is no evidence of record and he provided no evidence which shows he was the victim of sexual harassment.

3.  The OER is properly filed in the applicant's AMHRR in accordance with the governing regulation.

4.  Essentially, the applicant has failed to show by clear and convincing evidence that the OER contained an inaccurate assessment by his raters.

5.  An OER accepted for filing in the AMHRR is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.  Although he contends the OER is false, misleading, and incorrect, his application must be supported by substantive evidence.

6.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of substantive error or factual inaccuracy.  The applicant has not met this threshold of proof with the type of evidence he submitted.  There was no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the rating officials when the OER was prepared.  As a result, there is an insufficient basis to grant the 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)                                         AR20130008924





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ABCMR Record of Proceedings (cont)                                         AR20130008924



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