IN THE CASE OF:	  

		BOARD DATE:	  11 February 2013

		DOCKET NUMBER:  AR20130012298 


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:

The applicant defers his request to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of the applicant's request for removal of a negative comment in Part VI (Intermediate Rater) of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 3 June 2006 to 2 June 2007 (hereafter referred to as the contested OER).  Counsel also requests:

	a.  removal of the contested OER;

	b.  promotion reconsideration to major (MAJ) by a special selection board (SSB); 

   c.  retroactive promotion with all back pay and allowances; and 
   
   d.  any other relief the Board deems. 

2.  Counsel submitted a 9-page supplemental wherein he essentially states:

	a.  the Board justified its denial of the applicant's initial application on the grounds that there was no evidence of a personality conflict between him and his intermediate rater. 

	b.  documentation generated contemporaneously during the contested rated period shows the applicant notified his chain of command of a personality conflict with this intermediate rater and requested that the following comments be removed from his contested OER:  "He has great potential at any assignment where he is providing religious support to Soldiers, but needs to grow in his ability to function in the military environment, especially with other chaplains, before he is ready for supervision responsibilities."

	c.  the applicant is a native of Haiti who was commissioned as an officer in the Chaplain Corps.  He has held a succession of assignments, including his deployment in support of Operation Enduring Freedom and culminating at Fort Jackson, SC.  

	d.  MAJ R----ds had previously served as the applicant's intermediate rater and noted on his OER ending 2 June 2005 that he was a team player, and he was senior rated as best qualified.  However, MAJ R----ds included highly derogatory comments on the contested report ending 2 June 2007.

	e.  because the contested OER contained a negative comment, it was referred to the applicant for acknowledgement and it was clear the senior rater (SR) disagreed with the intermediate rater's comments.

	f.  the applicant acknowledged the OER and issued responsive comments stating the comments stemmed from personality conflicts that the chain of command was aware of because the applicant had addressed them on numerous occasions.

3.  Counsel provides:

* four DA Forms 67-9 for the rating periods:

* 15 June to 12 December 2004
* 1 January to 2 June 2005
* 3 June 2006 to 2 June 2007 (the contested OER)
* 10 May 2011 to 9 May 2012

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his evaluation report comment
* three memoranda
* two emails 



CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110008573 on 18 August 2011.

2.  In support of his request for reconsideration the applicant's counsel provides new argument and documents which are considered new evidence and argument and merit reconsideration by the Board.

3.  The applicant's records show that after having prior enlisted service in the Army National Guard, he was appointed as a first lieutenant in the Regular Army Chaplain Corps on 28 May 2003.  He was promoted to captain on 9 December 2003.  

4.  The contested OER, signed and dated by the applicant and his rating chain in 2007, shows the following entries:

	a.  Part Ii (Period Covered) 3 June 2006 to 2 June 2007;
	
	b.  Part Ij (Rated Months) 12; and 

	c.  Part VI (Intermediate Rater) the intermediate rater wrote that the applicant did a great job of performing religious support to his Soldiers, spread out over 25,000 square miles during Operation Enduring Freedom VII.  At the forward observation base Salerno he was the Senior Pastor for the Gospel Congregation and did an excellent job as the Officer in Charge for the Martin Luther King Day Service.  He has the great potential for any assignment where he is providing religious support to Soldiers, but needs to grow in his ability to function in the military environment, especially with other Chaplains, before he is ready for supervisory responsibilities.  He would like to attend civilian schooling to become a Family Life Chaplain.

5.  The applicant's record contains a memorandum from Office of the Deputy Chief of Staff, G-4 (Logistics), Pentagon, VA, Subject:  OER Referral (20060603-20070602), [the applicant], which states the 20060603-20070603 OER was referred to the applicant for acknowledgement.  The specific reason for the referral is that it contained negative comments in Part VI of the DA Form
67-9. 



6.  The applicant's Evaluation Report Comment, wherein he indicates:

	a.  he is very solicitous about his intermediate rater's negative remarks that stemmed out of personality conflicts.  

	b.  his chain of command and the Chaplain's chain of command were aware of the situation, tried to address the issue, but were unsuccessful in remediation of the situation.
		
	c.  in April 2007, his intermediate rater was counseled and left more angry because his superior was aware of the issue.

	d.  another chaplain was removed from his intermediate rater's supervision due to personality conflicts.

	e.  during a farewell ceremony, his intermediate rater publically thanked him for his willingness to risk everything during Operation Enduring Freedom 7, by visiting other chaplains.

7.  Counsel submitted as new evidence:

   a.   an OER for the rating period 10 May 2011 to 9 May 2012.

	b.  two emails:

		(1)  dated 15 August 2006, wherein the applicant indicates he was attaching an unsubmitted letter of concern regarding his brigade chaplain who has treated him with indifference based on what he assumed is due to his national origin. 

		(2)  dated 20 October 2006, Subject:  Greetings, with an unsubmitted attachment, regarding the worsening situation between him and his intermediate rater. 

	c.  a memorandum, dated 14 May 2007, to the Office of the Brigade Commander, Forward Observation Base, 3d Infantry Brigade Support Battalion, Afghanistan, Subject:  Letter of Concern, wherein he indicates the personal issues between him and Chaplain R----ds has caused MAJ S----d to become very vituperative towards him.

	d.  a memorandum for record, dated 15 February 2012, Subject:  Abuse in the Chaplain Corps, wherein he indicated he spent 15 months in Afghanistan, was the only chaplain out of eight who did not receive a Bronze Star Medal, was treated like nothing, called Haitian, was not allowed to attend the advanced course, and never received a permanent change of station award. 

	e.  a memorandum from the U.S. Army Human Resources Command, dated 
23 January 2012, Subject:  Notification of Separation Due to Non-selection for Promotion, which informed the applicant he was considered for promotion to MAJ by the Army Fiscal Year 2012 MAJ Chaplains Promotion Selection Board, but he was not selected.  This constituted his second non-selection for promotion and in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges) he must be released from active duty no later than 120 days after receipt of this involuntary release notification.  He would then be released from an active status per Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers).  He signed the Acknowledgement and Election of Options on 6 February 2012, and indicated he would transfer to the U.S. Army Reserve.  

8.  On 1 August 2012, he was released from active duty by reason of non-selection for permanent promotion.  The DD Form 214 he was issued shows he completed 9 years, 2 months, and 4 days of creditable active service.

9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.  This regulation states in:  

	a.  paragraph 1-9, Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  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, counseling forms, and as explained in other directives.  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 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-34 states any report with negative comments in Part Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to HQDA.

	d.  Paragraph 3-36a states the SR will place an "X" in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in Part IId.

	e.  Paragraph 3-36b states the rated Soldier may comment if he or she believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/academic evaluation report; rating officials may not rebut rated Soldier's referral comments.  

	f.  Paragraph 6-2 states third-party statements form the basis of most substantive appeals.  "Third Parties" are persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period and who served in positions from which they could observe the appellant's performance and their interactions with rating officials, are both useful and supportive.  

	g.  Paragraph 6-7 states an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

10.  Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  This regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions.  Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur.  Paragraph 3-2 states that except as indicated in paragraph 3-3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.
		
11.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Chapter 7 prescribes the rules for conducting an SSB.  It states an SSB may be convened under Title 10, U.S. Code, Section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: 

   a. Mandatory when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.

   b.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error.
   
   c.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone did not have before it some material information. 

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was afforded the opportunity to seek redress via a Commander's Inquiry, but he chose not to use that avenue.  It also appears he never appealed the OER.  

2.  There is no evidence nor has the applicant provided any to show the contested report was unfair or unjust, or that the intermediate rater’s comments listed on the report were inconsistent with the applicant’s performance of duty during the rating period.

3.  Although he states his problems with his intermediate rater were due to personality conflicts between him and his intermediate rater, there is no evidence nor did he submit any evidence that it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.  The same intermediate rater had previously made highly-commendable comments on his earlier OER.

4.  The subject OER has been accepted by HQDA and is included in the applicant's official record.  Therefore, it is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The applicant has not provided any evidence to overcome this presumption of regularity.  
5.  After a comprehensive review of the evidence in the applicant's official record, counsel’s contentions, arguments, and the evidence submitted in support of his application, other than the applicant's dissatisfaction, counsel did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify removal of the contested OER.  Based on the applicable regulations, the contested OERs are correct as constituted and the applicant did not meet the burden of proof necessary to change or remove the contested OERs.  

6.  Counsel further contends the applicant should be referred to an SSB for promotion consideration to MAJ and with all pay and allowances should the Board grant his request for removal of the contested OER.  The evidence of record does not support removal of the contested OER or the negative comments on that OER.  There is no evidence in the applicant's file and the applicant has not provided sufficient proof that a material error existed in his file at the time he was non-selected for promotion.  Therefore, he is not entitled to consideration by an SSB or reinstatement to active duty with all pay and allowances.

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)                                         AR20130012298





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ABCMR Record of Proceedings (cont)                                         AR20130012298



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