IN THE CASE OF:	  

		BOARD DATE:  15 October 2013

		DOCKET NUMBER:  AR20130012455 


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:

   a.  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 January 2011 through 6 June 2011 be amended to show "Outstanding Performance, Must Promote" instead of "Satisfactory Performance, Promote;" and

	b.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) of this OER be amended to show "Best Qualified" instead of "Fully Qualified)."

2.  The applicant states:

* he wants his OER modified to accurately reflect his performance during the rating period
* the OER is not a reflection of his performance during the rating period
* the rater and senior rater acknowledged this and their support to modify the evaluation, based on new information verified by leaders in his unit, the Afghan Police Chief, and U.S. Law Enforcement professionals
* he considers it unjust that his career be ended due to administrative oversight in combat, not retrospective thinking, when the rated and senior rater have the integrity to admit error

* he has been passed over for promotion to captain and will be separated within six months if this administrative error is not corrected 

3.  The applicant provides:

* OER appeal
* Officer Special Review Board (OSRB) proceedings
* OER
* Officer Record Brief
* Evaluation Report Appeal
* Letters of endorsement

 CONSIDERATION OF EVIDENCE:

1.  Having prior enlisted service in the Regular Army (RA), the applicant was appointed as a second lieutenant in the RA on 4 June 2009.  He was promoted to first lieutenant on 4 December 2010.  He arrived in Afghanistan in January 2011.  

2.  He was rated "Satisfactory Performance, Promote" by his rater in Part Va of his OER for the period 11 January 2011 through 6 June 2011.  

3.  He was rated "Fully Qualified" by his senior rater in Part Vlla of this OER.

4.  He departed Afghanistan on 6 January 2012.

5.  He provided a memorandum, dated 15 February 2013, from his senior rater at the time in question who states:

	a.  the purpose of this memorandum is to request a modification be made to the applicant's OER for the rated period 11 January 2011 through 6 June 2011 based on new information he received since the evaluation was rendered.

	b.  the applicant's vehicle was in an observation post watching a stretch of road when insurgents showed up to emplace an IED (improvised explosive device) on the road his platoon was traveling on.  The applicant's gunner killed one of the insurgents who happened to be a high ranking Taliban commander in the area.  This insurgent was responsible for killing five Afghan national policemen a few days earlier and was carrying one of their 9mm pistols with them.  This information was verified by the Afghan Police Chief and U.S. Law Enforcement professionals.  As a result of this engagement, there were no IED threats in his area of operation (AO) for the next two months.  He has confirmed that this incident occurred and the effect it had on his company's AO with his company commander.

	c.  he did not have this information at the time he wrote the OER, and considering the significant impact his planning, insight, and leadership had on his company's AO, he would rate the applicant as a "Best Qualified" officer.  He would like to amend the senior rater comments in block VIIc to read "1LT (applicant's name) has performed in an outstanding manner as a Rifle Platoon Leader in combat.  (Applicant's first name) is an extremely loyal, committed young officer who demonstrates outstanding care for his Soldiers.  (Applicant's first name) tactical competence in the employment of his platoon and understanding of the enemy directly resulted in significant degradation of the insurgency in his company's AO.  His interpersonal skill was critical in the mentorship and development of his partnered Afghan platoon.  Outstanding potential; promote to Captain and send to MCCC (Maneuver Captains Career Course) upon redeployment from Afghanistan."

	d.  he respectfully requests these modifications be made to the applicant's OER.  The applicant is a great young officer who deserves to have his evaluation for record reflect his true performance.

6.  He provided a memorandum, dated 22 February 2013, from his rater at the time in question who states:

	a.  he is writing on behalf of the applicant and more specifically to highlight an error during the evaluative process that demands immediate attention.  He takes his responsibility as a rater seriously and exercises prudence and judgment in voting for the right leaders.  The applicant is the right officer to continue serving our nation and its Soldiers as an officer and leader of infantrymen.

	b.  over the past month, he received additional information that added clarity and insight into the applicant's performance while serving as a platoon leader in combat.  It was truly outstanding.  His desire as the applicant's rater during this time, is to modify his comments to the extent that they accurately represent the applicant's performance at the time the evaluation was written. 

	c.  Part Va should be changed to "Outstanding Performance, Must Promote."

	d.  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) should be changed to "Outstanding performance, LT (applicant's name) is one of my best proven platoon leaders.  Within only six months of the deployment, he conducted over 90 combat patrols and was involved in multiple direct fire engagements with the Taliban insurgency in which his Platoon was successful in driving the enemy off the objective.  LT (applicant's name) partnered with the Afghan National Army Soldiers and Afghan Uniformed Police during all combat operations, fostering a relationship that consisted of teaching, coaching and mentoring his ANSF (Afghanistan National Security Forces) counterparts.  He conducted over 90 Key Leader Engagements with Afghan village elders which facilitated connecting GIRoA with villages of Deh Yak District, in Ghazni Province.  While completing all of these operational tasks, LT (applicant's name) maintained over 85% of his assigned fleet as fully mission capable and 100% accountability of his assigned Platoon property."

	e.  Part Vc (Comment on Potential for Promotion) should be changed to "Promote to CPT (captain) now and sent to MCCC ahead of his peers.  LT (applicant's name) will be an outstanding Infantry Company Commander."

	f.  he believed wholeheartedly then and now that the applicant demonstrated in nearly 100 hostile missions and in his liaison with Coalition units, the ability and tenacity to command Soldiers in combat.  His professionalism, resilience, leadership and example set the standard and motivated others in combat.  He fully endorses these changes of his evaluation and would fight to have him on his team again if going to war. 

7.  On 25 February 2013, the applicant submitted an appeal of the OER to the OSRB.  On 11 April 2013, the OSRB determined: 

   a.  the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 

   b.  the overall merits of his case did not warrant the relief requested. 

8.  He was promoted to captain on 19 July 2013.

9.  A review of the applicant's performance section of his AMHRR on the Interactive Personnel Electronic Records Management System revealed a copy of the contested OER.

10.  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.

11.  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.

12.   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's contention he has been passed over for promotion to captain and will be separated within six months was noted.  However, evidence shows he was promoted to captain on 19 July 2013. 

2.  He requests Parts Va and VIIa of the contested OER be amended to accurately reflect his performance during the contested rating period.  He contends the rating officials were not aware of several of his substantive accomplishments that had a direct impact on his battalion's mission.  Based on the newly discovered information, his rating officials support the evaluation modification. 

3.  The newly discovered information was found out approximately 18 months after the "THRU" date of the OER.   


4.  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.

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

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

7.  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 does not accurately reflect his performance during the contested rating period, his application must be supported by substantive evidence.

8.  The letters of support from his rater and senior rater to modify the evaluation were carefully considered.  However, there is 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 and their current comments appear to be retrospective in nature.  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)                                         AR20130012455





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ABCMR Record of Proceedings (cont)                                         AR20130012455



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