IN THE CASE OF:	  

		BOARD DATE:  17 October 2013

		DOCKET NUMBER:  AR20130013246 


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 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)) covering the period 2 August 2007 through 1 August 2008 to show "Outstanding Performance, Must Promote" instead of "Satisfactory Performance, Promote."

2.  The applicant states:

	a.  the error was made by the rater;

	b.  he performed flawlessly during his last position in the battalion which was not the Company Fire Support Officer (FSO), but as the Battalion FSO;
 
	c.  based on his performance as the Battalion FSO, he requests amendment of his OER from "Satisfactory Performance" to "Outstanding Performance";

	d.  due to certain circumstances during his 15-month deployment, he believes the commander felt he did something personal against him; and

	e.  he believes he did an outstanding job as the Company and Battalion FSO.

3.  The applicant provides:

* letter from the senior rater, dated 9 June 2013
* memorandum from Charlie Battery, 1st Battalion, 30th Field Artillery, dated 12 July 2013
* OER

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the Regular Army on 23 May 2004.  He was promoted to first lieutenant on 15 February 2006.  His inclusive dates of service in Iraq are unknown.

2.  He was promoted to captain on 1 October 2007.

3.  The contested OER is a 12-month OER covering the period 2 August 2007 through 1 August 2008 for duties as the FSO for Company B, 1st Battalion, 501st Infantry (Airborne), Fort Richardson, AK.

4.  He was rated "Satisfactory Performance, Promote" by his rater in Part Va of this OER.  The rater states, "[Applicant] has performed well as the Fire Support Officer for Blackfoot Company.  While deployed to Iraq, [Applicant] planned and executed over 100 close combat attack aviation and indirect fire missions in support of troops in contact and terrain denial.  [Applicant] coordinated for air weapon teams and indirect fire assets which provided vital support to the successful deliberate route clearance of a key alternate supply route in the company's area of operation.  [Applicant] also served as a pay agent and was a key member in creating the Concerned Citizens Program.  During his tenure as a pay agent, he disbursed over $250,000 that facilitated the employment of over 300 concerned citizens manning 12 key check points.  After redeployment, [Applicant] acted as the Company Executive Officer and worked through the initial turmoil of reset where he facilitated block leave preparation and the initial planning to deploy the Company to Fort Greely, Alaska for platoon live fire exercises.  [Applicant] continued his work as the FSO by scheduling and maintaining FIST [fire support team] training ensuring their successful certification.  [Applicant] also provided instruction in COIN [counterinsurgency operations], IO [information operations], and non-lethal effects to the company FIST and during the battalion's Tactical Leader Course in preparation for Afghanistan."

5.  He was rated "Best Qualified" by his senior rater in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  In Part VIIc (Comment on Performance/Potential), his senior rater stated, "[Applicant] has turned in an excellent performance as a company fire support officer in combat, and he is clearly an above center of mass officer.  Accordingly, I selected him to serve as the battalion fire support officer for almost three months.  Throughout the last year, [Applicant] has proven himself to be an agile, dependable, and dedicated officer who has exceptional potential for service in positions of greater responsibility.  He will be an outstanding battalion fire support officer and battery commander."

6.  Part VIId (List Three Future Assignments for Which this Officer is Best Suited for Army Competitive Category CPT, also Indicate a Potential Career Field for Future Service) of this OER shows the following future assignment recommendations:

* Battalion Intelligence Officer
* Battalion Targeting Officer
* Battery Fire Direction Officer OS/35

7.  He provides a letter from the senior rater at the time in question, dated 9 June 2013, who attests:

	a.  He rated the applicant as his battalion commander from 20 May 2008 until the end of the rating period on 1 August 2008.  He assumed command of the battalion when it returned from a 15-month combat tour in Iraq in which the applicant was then a Company FSO.  During the majority of the 70 days he rated the applicant he served as the acting Battalion FSO because the Battalion FSO had transferred without a replacement.

	b.  As the acting Battalion FSO, he tasked the applicant with building a battalion-level digital fire support exercise that would enable newly-assigned rifle platoon leaders and their forward observers to conduct virtual missions in which they planned and executed indirect fire support in a virtual construct that mirrored the environment they would see in Afghanistan.  Simply put, the applicant did a fantastic job on this challenging and complex task which resulted in exceptional fire support training in a first-rate battalion training event.  Based on his performance during the short time that he was the applicant's senior rater, he believes his rating of the applicant as a "best qualified" officer was absolutely accurate.  The applicant clearly demonstrated outstanding performance and potential as he stated in his rating.

	c.  He recognizes his evaluation of the applicant does not match the applicant's rater's assessment in the way one would expect.  In his opinion, this is owing to the fact that his company commander rated him for the entire rating period (versus 70 days) to include a portion of the deployment to Iraq in which he was not a part.  He does not know and cannot speak to what may have occurred during this time frame.  The fact of the matter is that high-performing units often hold their own to a higher standard than mediocre units, particularly when facing a challenging and dangerous mission for 15 months.  It would be a shame if the Army lost an officer of the applicant's caliber due to one block check on an OER when he is quite confident that the applicant is one of the best and the brightest of his peer group.

	d.  He recommends that the Board take the necessary steps to keep the applicant competitive with his peer group for promotion to major.

8.  He also provides a self-authored memorandum, dated 12 July 2013, wherein he states:

	a.  He was not selected for promotion while in the primary zone for the Fiscal Year (FY) 2013 major's promotion board.  He is currently pending no adverse action and will be eligible for above-the-zone consideration during the FY 2014 major's promotion board.  This appeal is considered critical for him to be competitive for the FY 2014 promotion board and meets the criteria of second in procession priority.

	b.  The basis of this appeal is a substantive inaccuracy regarding his assessed promotion potential as "Satisfactory Performance, Promote."  The rater was unaware of facts that would have resulted in a "Best Qualified" or "Outstanding Performance, Must Promote" rating.  During the time period of the evaluation he also served as the Battalion FSO in addition to being a Company FSO.  The duty position that is not covered on his evaluation is his time as the Battalion FSO.  During this time he established a recertification for a Fire Support Element and also integration of a unit-wide Digital Fire Support Exercise consisting of combining new infantry platoon leaders and their forward observers together to understand the use of Joint Fires in a Stability Operations Environment.  This exercise assisted the battalion in achieving the joint fires operations at the platoon and company level in preparation for their upcoming deployment in support of Operation Enduring Freedom.

	c.  Based on the senior rater's comments, he requests amendment of his OER to reflect "Best Qualified" or "Outstanding Performance, Must Promote."  He also requests amendment of Parts VIIc and VIId of his OER to reflect "Battalion Operations Officer, Battalion Fire Support Officer, Battery Commander."

9.  A review of the applicant's Army Military Human Resource Record (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 must 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests amendment of the contested OER on the basis of substantive inaccuracy regarding his assessed promotion potential by his rater.  In order to justify amendment 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 that he believes the rater felt he did something personal against him due to certain circumstances during his 15-month deployment was noted.  However, there is no evidence of record and he provided no evidence to support this contention.

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

4.  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 inaccurate, his application must be supported by substantive evidence.

5.  The letter of support from his senior rater was carefully considered.  However, there is no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the raters 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 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)                                         AR20130013246



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ABCMR Record of Proceedings (cont)                                         AR20130013246



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