IN THE CASE OF:	 

		BOARD DATE:	    20 August 2013

		DOCKET NUMBER:  AR20130009945 


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 correction of his DA Form 67-9 (Officer Evaluation Report (OER) for the period ending 20 June 2002 by removing the "X" in block IId (This is a referred report, do you wish to make comments) and the "X" in the block "Yes, comments are attached."

2.  The applicant states, in effect, that the Officer Special Review Board (OSRB) violated Army regulations by placing an "X" in the "Yes" block of block IId indicating it was a referred report after he appealed to the OSRB.  The contested OER was not a referred report.  He received an email from a member of the Army Review Boards Agency indicating the OSRB did not have the authority to make such a change on the OER.  The unjustly referred OER in his file likely unfairly and negatively impacted his potential for promotion to colonel during the primary zone board in 2010 and two secondary zone boards in 2011 and 2012.  Likewise, it may negatively affect him during the 2013 Selective Early Retirement Board (SERB).  He also states he stands by his original appeal made on 
15 November 2002 wherein he requested the two sentences made by the rater and senior rater (SR) be removed from the OER, which given the actions of the OSRB, proves that his appeal is valid.

3.  The applicant provides an index of documents submitted with his application tabbed A-I.



CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a U.S. Army Reserve second lieutenant on 2 August 1987 and he was ordered to active duty on 21 August 1988.  He was initially detailed as an infantry officer and subsequently branch transferred to the military intelligence.  He was promoted to the rank of captain on 1 December 1992 and to the rank of major on 1 April 1999.

2.  On 1 July 2002, while serving as a detachment commander in Madrid, Spain, the applicant received the contested change of rater OER covering the period
29 June 2001 through 20 June 2002.

3.  In Part V – Performance and Potential Evaluations, the applicant received a "Satisfactory Performance – Promote" rating from his rater.  The rater made a comment that the applicant was challenged in his ability to perform outside of strict military protocols where liaison skills are necessary with counterparts with allied nations.

4.  In Part VII the SR gave the applicant a "Fully Qualified" rating and placed the applicant "Center of Mass" on his SR profile.  He also stated that the applicant experienced occasional difficulties in relationships with allied counterparts and U.S. subordinates.  The report was not referred to the applicant.

5.  The applicant appealed the OER to the OSRB on 15 November 2002 contending that the report was substantially inaccurate because it contained negative comments from the rater and SR regarding his ability to perform with counterparts from allied nations and the report was never referred to him.  He asserted he had not received formal counseling in the matter and contended the two sentences by the rater and SR should be deleted and that his "Satisfactory Performance – Promote" rating be changed to "Outstanding Performance – Must Promote" and his "Fully Qualified" rating should be changed to "Best Qualified."

6.  The staff of the OSRB contacted the rating officials who stood by their ratings and provided additional insight into the rating.  The SR indicated the failure to refer the OER was an oversight.

7.  As a result, the OSRB requested the OER be referred to the applicant for comment and on 19 June 2003 he responded with a letter disputing the rating official's comments and ratings.  The letter is filed with the OER is his official records.

8.  After reviewing the applicant's comments the OSRB opined that his response added no new information to the appeal and the fact that the report was not referred to the applicant by his chain of command did not negate his performance as evaluated by his rating chain.  The OSRB directed that the contested OER be corrected to show that it was referred to the applicant and the applicant's response be filed with the OER in question.  The remainder of his appeal was denied.

9.  The applicant was promoted to the rank of lieutenant colonel on 1 October 2005 while serving as a battalion commander of a military intelligence battalion at Fort Sam Houston, TX.

10.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

11.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

12.  Army Regulation 623-3 further provides that if referral of a report is required, the SR will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

13.  A review of Army Regulation 623-3 failed to show any provisions that prevent a review board from making administrative corrections to an OER such as changing it from a report that was not referred to a referred report when conditions warrant.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested report should be changed to reflect that it was not a referred report has been noted and appears to lack merit.

2.  While the report was not properly referred to the applicant by his rating chain in order to allow him to make comments, the applicant appealed the contested report to the OSRB contending that it contained negative comments and that the OER had not been referred to him.  Accordingly, the OSRB directed the report be referred to the applicant and did not adjudicate his appeal until he had responded to the referred report.

3.  The fact that the OSRB referred the OER to the applicant does not change the fact that the report was in fact referred, and rightfully so given the rating chain's comments.  However, the applicant failed to provide sufficiently convincing evidence to show the ratings and comments were not a fair, objective, and a valid appraisal of his performance and potential by his rating officials during the period in question.

4.  The applicant's contention that the OSRB did not have the authority to direct referral of the OER or to change the OER to reflect that it had been referred has been noted and appears to lack merit.  The applicant has not provided a specific authority that prohibits the OSRB from making such corrections and the staff of the Board has been unable to find any such restrictions in the applicable regulation.

5.  The applicant's contention that the actions by the OSRB that directed the contested OER be changed to show it was a referred OER is most likely the cause of his non-selection for promotion to colonel appears to be speculative at best on his part, especially since he was selected for promotion to the rank of lieutenant colonel with the report in his file.

6.  It is a well-known fact that not everyone considered for promotion will be selected.  If such were the case, there would be no need for selection boards.  It is also a well-known fact that statutory requirements prevent the disclosure of board proceedings to anyone not a member of the board.  While it is unfortunate that the applicant has not been selected for promotion to colonel, he has failed to show sufficient basis to further amend the OER in question. 

7.  Accordingly, there appears to be no basis to grant his request to change the contested OER to reflect that it was not a referred report.



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 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)                                         AR20130009945



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ABCMR Record of Proceedings (cont)                                         AR20130009945



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