IN THE CASE OF:	  

		BOARD DATE:	  12 March 2014

		DOCKET NUMBER:  AR20130010725 


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 a referred DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 16 August 2005 - 15 August 2006 and a DA Form 67-9 covering the rating period 16 August 2006 through 15 August 2007 from the performance portion of her official military personnel file, now known as Army Military Human Resource Record (AMHRR).

2.  She further requests that based upon a favorable result of the above request she be granted reconsideration for promotion to lieutenant colonel (LTC) and reinstatement in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program. 

3.  The applicant states she chose the option of early retirement upon her second non-selection for promotion to LTC.  She was in shock and never really had a chance to weigh her options, so she chose the Temporary Early Retirement Authority early retirement.  She states she is filing this appeal because she knows her two negative and unjust OERs during the 2005-2007 evaluation periods were the mitigating factor in her not being recommended for promotion.  During that time her security clearance was suspended and she went to a unit where she was judged wrongly simply because of her situation.  The U.S. Army Human Resources Command (HRC) has records of her calling them every day because things were bad and she simply could not have gotten a better OER if she had "walked on water."  She requested many times to be removed from the situation or simply be discharged, to no avail.  Now she is discharged and doesn't want to be.  She thinks she deserves promotion with her peers.  She states her senior rater at the time believes she has now overcome the hardship of being in that unit and is competent and qualified to be promoted to the next level.

4.  The applicant provides:

* personal statement
* Headquarters, 81st Regional Support Command (RSC) memorandum, subject: Notification of Non-Selection for Promotion (1st Time)
* email, dated 6 March 2012
* four OERs
* OER referral memorandum
* undated letter requesting reconsideration for promotion to LTC
* two letters recommending her for promotion

CONSIDERATION OF EVIDENCE:

1.  She was ordered to active duty in the rank of second lieutenant in an AGR status effective 2 September 1996.

2.  She provides four OERS covering the rating period 16 August 2005 through 9 August 2009.

3.  Her OER for the period 16 August 2005 through 15 August 2006 was a referred OER due to both her rater and senior rater marking the respective "do not promote" boxes.  She was rated at below center of mass.

4.  A memorandum from the Deputy Chief of Staff, G1, 100th Division (Institutional Training) dated 20 November 2006, addressed to the applicant stated the above referred OER was enclosed with the memorandum.  The specific reasons for referral were part Va., block checked (Unsatisfactory performance. Do not promote.) and part VIIa., block checked (Do not promote).  She was advised that she must acknowledge receipt of the referred OER and could provide comments.  In response to the memorandum, she marked that she did not desire to submit comments to the DA Form 67-9 for the period 16 August 2005 through 15 August 2006. 

5.  Her OER for the period 16 August 2006 through 15 August 2007 shows she was rated center-of-mass.

6.  A Headquarters, 81st RSC memorandum, subject: Notification of Non-Selection for Promotion (1st Time) Corrected Copy, dated 13 March 2012, stated she was considered but not among those selected for promotion by the board.  It further stated selection boards do not record the reason for selection or non-selection of individual officers.

7.  On 31 March 2013, she voluntarily retired early from the USAR.  She had completed 16 years, 6 months, and 29 days of active service.

8.  She provides two letters of recommendation.  In one, her senior rater stated her first year with the G1 was made difficult as a result of her lack of a security clearance, which severely limited her ability to work on the Army Reserve network and various personnel systems.  Her OER for that period reflected those limitations and she was rated "do not promote."  He stated the years following were much better after she regained her security clearance.  He stated he feels she has earned a re-look of her performance file, and should be promoted to LTC.  The other letter described what the author believed to be positive attributes including exceptional professionalism and technical ability.

9.  In the processing of this case, on 30 July 2013, an advisory opinion was obtained from HRC, Chief, Officer Promotions, Special Actions.  The advisory official stated based on a review of the information provided (as it stands), the applicant's request for reconsideration of promotion does not have merit.  She expressed her concern and belief that two unjust OERs received during 2005-2007 may have been the probable mitigating factor in her non-selection.  However, any reasons for non-selection are unknown because statutory requirements set forth in Title 10, U.S. Code, Section 618, prevent disclosure of board proceedings to anyone outside the promotion board in question.

10.  The advisory official further stated that Army Regulation 623-3 (Evaluation Rating System), Section III, Evaluation Appeals, lists the steps that must be taken to appeal an OER.  The OER proponent along with its Appeals Section will verify and determine if the OERs in question should be amended, retained, or moved from the performance portion of her AMHRR.  It will also determine if any amendment or removal of the reports would be a basis for reconsideration by a special selection board (SSB).

11.  The advisory opinion was forwarded to the applicant for information and to allow her the opportunity to submit comments or a rebuttal.  She did not submit a response.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

     a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

     b.  Paragraph 6-11 states that to justify deletion or amendment of a report, the appellant must produce evidence that establishes 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.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	c.  Paragraph 6-11 further states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  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 practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

13.  Army Regulation 600-8-104 (AMHRR Management/Records) governs the composition of the AMHRR and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B states the DA Form 67-9 is filed in the performance section of the Soldier's AMHRR.

14.  Army Regulation 135-155 (Army National Guard and USAR - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commissioned officers of the USAR.

	a.  Paragraph 3-19 states officers who have failed of selection for promotion through administrative error may be reconsidered for promotion by an SSB.  

	b.  SSBs are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records—

		(1) Through error, were not submitted to a mandatory promotion selection board for consideration.

		(2) Contained a material error when reviewed by the mandatory selection board.

	c.  Records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines, in pertinent part, the following—

			(1) A review of a mandatory selection board finds that an officer’s records contained a material error.

			(2) The Army Board for Correction of Military Records requests such a referral.

	d.  Commander (CDR), HRC, Office of Promotions (RC) may find that a "material error" caused the non-selection of an officer by a promotion board.  That agency must first determine that there is a fair risk that one or more of the following circumstances was responsible—

		(1) The record erroneously reflected that an officer was ineligible for selection for educational or other reasons.  In fact, the officer was eligible for selection when the records were submitted to the original board for consideration.

		(2) One or more of the evaluation reports seen by the board were later deleted from an officer’s AMHRR.

		(3) One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer’s AMHRR.

		(4) One or more existing evaluation reports as seen by the board in an officer’s AMHRR were later modified.
		(5) Another person’s adverse document had been filed in an officer’s AMHRR and was seen by the board.

		(6) An adverse document, required to be removed from an officer’s AMHRR as of the convening date of the board, was seen by the board.

		(7) The Silver Star or higher award was missing from an officer’s AMHRR.

		(8) An officer’s military or civilian educational level as constituted in the officer’s record (as seen by the board) was incorrect.

	e.  CDR, HRC, Office of Promotions (RC) will normally not determine that a material error existed under the following conditions—

		(1) Officer is removed from a selection list after the next selection board considering the officers of his or her grade recesses.  If eligible, this person will be considered by the next regularly scheduled selection board.  A special board will not be used.

		(2) An administrative error was immaterial or, the officer in exercising reasonable diligence, could have discovered and corrected the error or omission in the AMHRR.  Also, the officer could have taken timely corrective action such as notifying the Office of Promotions (RC) of the error and providing any relevant documentation that they had.

		(3) Letters or memoranda of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer’s AMHRR.

		(4) The board did not consider correspondence to the board president that was delivered to the Office of Promotions (RC) after the cutoff date for such correspondence established in the promotion board zone of consideration message.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the evidence of record does not support her request for removal of the two contested OERs from her AMHRR.  She states that she initially didn't believe the two OERs would prevent her from being promoted to the rank of LTC.  She now contends these two evaluations are the reason for her being twice non-selected for promotion to LTC.  However, this is only an assumption on her part, given that only the board members at the time know why she was not selected for promotion.

2.  The record shows her OERs for the periods 16 August 2005 through 15 August 2006 and 16 August 2006 through 15 August 2007 were accepted by HQDA and are included in her AMHRR.  As such, the documents are presumed to be administratively correct and to represent the considered opinions and objective judgment of her rater and senior rater at the time.  There is no evidence the applicant submitted rebuttal comments for the referred OER.

3.  Her senior rater recently stated she was hindered in her duties at the time by the lack of a security clearance, but he now feels she has since earned a "re-look" of her performance file and should be considered for promotion.  However, at the time of her evaluation he did not indicate she should be considered for promotion, and he does not now say that the referred OER was in error, only that her performance improved after the period in question.  Therefore, this statement is not a mitigating factor with regard to removing the two contested OERs.

4.  In order to justify deletion or amendment of an evaluation report, the applicant must produce evidence that establishes 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.  Notwithstanding her arguments, the applicant has failed to show, by clear and convincing evidence that her contested OERs contained material error, inaccuracy, or injustice.  Therefore, the two contested OERs are properly filed and there is no basis for removing them from her AMHRR.  Given that these OERS are the basis of her argument for reconsideration for promotion, there is no basis for granting her request for reconsideration for promotion or for reinstatement in the AGR program.

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's request. 

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)                                         AR20130010725



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ABCMR Record of Proceedings (cont)                                         AR20130010725



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