IN THE CASE OF:	  

		BOARD DATE:	  11 March 2014

		DOCKET NUMBER:  AR20130013933 


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.  his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 July 2011 through 15 December 2011 (hereafter referred to as the contested OER) be removed from his Army Military Human Resource Record (AMHRR); and 
   
   b.  the period covered by the contested OER be recorded as nonrated time in his AMHRR; or 
   
   c.  the rater and senior rater's (SR) block checks be masked and their comments regarding the property loss be masked with an un-prejudicial explanation inserted into the evaluation.  

2.  He states:

	a.  the contested OER is substantively flawed, incorrect, and does not have counseling to back up some of the comments cited on the OER.

	b.  the rater and SR refused to counsel him and send the contested OER to him, which would have prepared him for the Captain (CPT) Promotion Board.  His chain of command refused to address his plea concerning this matter.

	c.  the Commander's Inquiry into his evaluation accepts the truthfulness of his rater's "self-serving" explanation for the issues contained in the report despite the overwhelming evidence to the contrary.  The findings and recommendation of the Commander's Inquiry were without substance according to the Judge Advocate General (JAG) Office inquiry at Fort Riley, KS.

	d.  he believes the findings and recommendation of his OER appeal at the Officer Special Review Board (OSRB) are questionable.  The counseling packet submitted in response to his Commander's Inquiry had errors.  For example, the dates did not match the actual events of counseling.  The contested OER was prepared to punish rather than set him up for success.  His rater pressured him to sign five different event-counseling statements in one day, and one of them was 30 days after-the-fact.  

3.  He provides:

* Three DA Forms 67-9
* Three DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) of other Soldiers
* Headquarters and Headquarters Company (HHC) Rating Scheme
* HHC, 701st Brigade Support Battalion Service (BSB) schedules
* Several memoranda
* Email correspondence
* Several DA Forms 200 (Financial Liability Investigation of Property Loss)
* Two DA Forms 4856 (Developmental Counseling Form)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel submitted a 4-page brief wherein he essentially states:

	a.  the documents submitted by the applicant demonstrate:

		(1)  the rater's comments in Part V (Performance and Potential Evaluation (Rater)) of the contested OER are unsupported by the facts;

		(2)  there are questions as to whether the SR was properly detailed as SR; and

		(3)  the SR's assessment is contradicted by the evaluation of the applicant's peer and fellow platoon leader.

	b.  the contested OER, in part “VIII” (i.e., VII (SR)), states that "1LT [applicant's name] is the worst company grade officer that I senior rate.  He is not professionally mature enough to handle pivotal jobs like Executive Officer…Do not promote to Captain or retain within the Army."

	c.  The rater, in Part V, claimed the applicant:

		(1)  "failed at every significant duty assigned to him as executive officer."

		(2)  did not "effectively monitor the maintenance readiness of the assigned equipment which resulted in a total of 18 late services during the rated time."

		(3)  "did not counsel his five NCOs that were assigned to him which hindered the success of missions due to lack of understanding of his intent by his NCOs."

		(4)  "did not properly manage the company property book which resulted in a loss of equipment accountability on two missions."

		(5)  during "the Brigade FTX [Field Training Exercise], he was unable to complete a total of three field feeding missions…"

		(6)  "was responsible for the management and supervision of the Inspector General's Officer Inspection Program (OIP) in which he did not properly prepare for four areas under his direct supervision which resulted in a red rating for the company." 

		(7)  "failed to assume Command in the absence of the Commander."

	d.  Army Regulation (AR) 623-3 (Evaluation Reporting System (ERS)), paragraph 3-2(f) states that evaluation reports will be "forthright, accurate, and as complete as possible…With due regard for the rated Soldiers' current rank or grade, experience, and military schooling, evaluations will cover failures as well as achievements…Rating officials will make honest and fair evaluations…"

	e.  an AR 15-6 (Procedures for Investigating Officers (IO) and Boards of Officers) investigation was completed under AR 623-3.  The applicant was pressured by his chain of command to attend an National Training Center (NTC) exercise during the Command Inquiry investigation.  Therefore, he had no input on the inquiry.  The rater cites in the Commander's Inquiry that the applicant "failed to lead from the front during the APFT [Army Physical Fitness Test], but he had no counseling on file justifying this event.  There was documentary proof that the IO's comments were inaccurate and based on the rater's prejudices toward the applicant's performance.  The IO had a duty to investigate that documentary proof and make appropriate recommendations.

	f.  the IO noted the applicant never received an OER at his junior grade prior to CPT T.'s [rater] rating.  His OER was intentionally delayed for 9 months which had an effect on the applicant's career. 

2.  Counsel alleges:

	a.  the contested OER contains embellished language in every sentence that is unsupported by counseling statements and contains demonstrably false statements.  The counseling statements the applicant were pressured to sign by his rater had no dates.  The applicant didn't receive quarterly counseling and never concurred, and the signature was forged.  The suggestion that the applicant failed at every significant duty assigned was an exaggeration the rater attempted to support by misstating the facts.  The applicant provided a rebuttal memo that lists positive accomplishments that the rater and SR specifically omitted.  The applicant provided a rebuttal memorandum including positive accomplishments which the rater and SR specifically omitted.  

	b.  the rater alleged the applicant failed to effectively monitor the readiness of the assigned equipment, which resulted in 18 late services during the rated time. However, the applicant noted there were good causes for the late services.  According to certified unit Maintenance Report documents provided by the applicant, there were 6 pieces of equipment that were waiting on parts from Supply Support Activity (SSA) as well as other companies in the unit.  The rater again exaggerated the facts with no documentary support for her allegations.  

	c.  the rater stated the applicant failed to counsel five NCOs under his supervision.  However, the applicant provided documents that show he only evaluated three Soldiers, not five.  

	d.  the rater claimed the applicant was responsible for a loss of property and equipment on two occasions.  However, this is a blatant misstatement of the facts.  The applicant has provided the Financial Liability Investigation of Property Loss forms.  There was no loss of accountability according to the investigation.  

	e.  the rater claimed the applicant failed on three FTX feeding missions.  However, the applicant obtained a statement from Sergeant (SGT) A.O. who stated the missions were completed and he never received any complaints from the rater or Soldiers.  Another statement from SGT G. corroborates SGT A.O.'s statement.

	f.  in regard to Part VII of the contested OER, First Lieutenant (1LT) S.W., a fellow platoon leader provided a contrary assessment.  1LT S.W. noted Lieutenant Colonel (LTC) N.H. should have been the SR according to the rating scheme; the applicant was an outstanding and professional leader; and the rating scheme provided by the applicant clearly shows LTC N.H. was properly the SR.

	g.  First Sergeant (1SG) B. also has provided a letter plainly indicating there were errors in the rating scheme and confirms the error regarding the applicant having to counsel 5 NCOs.  

	h.  the applicant has provided 2 Assumption of Command Orders issued by the unit's S-1 and an email that 1SG B. received from higher [personnel] that the applicant should assume command.  The rater made false allegations without justifiable evidence to the contrary.

	i.  based on the errors and inaccuracies on the contested OER, the requested relief should be granted.

3.  Counsel provides three memoranda.  

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in the Regular Army in the rank of 1LT.  

2.  After completing prior enlisted service, he was appointed as a Regular Army commissioned officer on 29 January 2009 in the rank of second lieutenant.

3.  He was promoted to 1LT on 29 July 2010.  

4.  He submitted as evidence to this Board:

Document(s)
Date
Action
Two DA Forms 67-9
1 January-17 October 2010 and 18 October 2010-30 June 2011
He was rated as "Best Qualified" and "Fully Qualified," respectively.  The rating officials differ from those listed on the contested OER.
HHC Rating Scheme
July 2011
He was reviewer of one NCO, rater of two NCOs, and SR of one NCO.  
Memorandum
5 July 2011
He assumed command of HHC, 701st BSB, effective 
5 to 11 July 2011.  
HHC Rating Scheme
August 2011
His SR is listed as LTC N.H. and his rater as CPT A.L.T.

DD Form 200
16 August 2011
An accountability report was submitted for the loss of a Terminal Satellite system (VSAT) [Very Small Aperture Terminal].  The appointing and approval authorities recommended approval with report corrected to show "no loss of property and change of serial number."
Two DA Forms 4856
Signed on 30 and 31 August 2011
He received event oriented counseling due to convoy manifests for the August FTX not being submitted on time.  No date on first page.
DA Form 4856
Signed on 20 September 2011
He received event oriented counseling for his inability to execute property management during the months of July, August, and September [2011].  No date on first page.
DD Form 200
3 October 2011
An accountability report was submitted for loss of equipment by a Soldier in an AWOL [absent without leave] status.  Block 12 (Responsible Officer (Property Record Items)) of this form was signed by the applicant's rater, CPT A.L.T.  The appointing and approval authorities recommended approval with no liability.  
DD Form 200
4 November 2011
An accountability report was submitted for missing keys.  Block 12 of this form was signed by the applicant's rater.  The appointing and approval authorities recommended approval.  It was recommended a system be in place regarding proper key control and no liability was listed for loss of property.  
Two Memoranda
15 and 16 November 2011
He assumed command of HHC, 701st BSB, 4th Brigade Combat Team (BCT), 1st Infantry Division, effective 15 to 21 November 2011.
701st Maintenance Reports

Reports show overdue services for maintenance on equipment in HHC and Companies A, B, and C.
5.  Counsel provided two memoranda, dated 25 July and 20 September 2011, which indicate the applicant received Executive Officer Counseling to review his performance.  In both memoranda, his rater outlined his Executive Officer responsibilities in maintenance and supply, as an Arms Room Officer and Operations/Training Officer, and his other duties and responsibilities.  The applicant signed each memoranda. 

6.  He received the contested OER for the period covering 1 July 2011 through 15 December 2011, which rated him as the Company Executive Officer for HHC, 701st BSB.  This report was a Change of Rater report and he was rated for 6 months.  This contested report shows in:

	a.  Part Ik (Nonrated Codes), no entry for nonrated periods.

   b.  Part II (Authentication), the rater is listed as CPT A.L.T., Company Commander and the SR is listed as MAJ T.M. H-N, Battalion Commander.  The rating officials digitally signed the report on 31 January and 2 February 2012, respectively.  

   c.  Part IId, the contested OER was a referred report and he digitally signed the report on 5 March 2012.  He elected to submit comments.  

   d.  Part IIIc (Significant Duties and Responsibilities) indicates he was Executive Officer with responsibilities for the training, welfare, and development of 12 enlisted Soldiers and 8 NCOs.  He monitored the maintenance readiness of over $1 million dollars of equipment; supervised all supply, training, and administrative functions within the company; and he was responsible for all maintenance operations in the company as well as coordinating all outside resources for any company training events.

   e.  The rater placed an "X" in the box "No" in the following items under Part IV (Performance Evaluation – Professionalism (Rater)):

   (1)  IVb.2. (Skills) (Competence), Conceptual
   
   (2)  IVb.3. (Actions) (Leadership), Communicating, Decision-Making

   f.  Part Va (Performance and Potential Evaluation (Rater)), the rater evaluated him as “Unsatisfactory Performance, Do Not Promote.”  
   
   g.  Part Vb (Performance Narrative), the rater listed negative comments such as,
"1LT [applicant's name] failed at every significant duty assigned to him as the executive officer.  He did not effectively monitor the maintenance readiness of the assigned equipment which resulted in a total of 18 late services during his rated time.  [Applicant's name] did not counsel his five NCOs that were assiged to him which hindered the success of missions due to lack of understanding of his intent by his NCOs.  He did not properly manage the company property book which resulted in a loss of equipment accountability on two occasions.  During the Brigade FTX he was unable to complete a total of three field feeding missions which lowered the morale of the 30 Soldiers it affected…"

	h.  Part Vc (Potential for Promotion Narrative), the rater commented "[Applicant] requires constant supervision from senior leaders.  Do not promote to Captain or retain within the Army."

	i.  Part VIIa, the SR evaluated the applicant's promotion potential to the next higher grade as “Do Not Promote."  The SR placed an "X" in the "No" box indicating a completed DA Form 67-9-1 (OER Support Form) was not received with this report and considered in his evaluation and review.  

	j.  Part VIIb, "Below Center of Mass Do Not Retain."

   k.  Part VIIc, the SR provided negative comments, 

"1LT [applicant's name] is currently the worst company grade officer that I senior rate.  He is not professionally mature enough to handle pivotal jobs like Executive Officer and he hinders the success of the company.  He requires constant supervision from his leadership which also hinders the success of any mission he is tasked for or unit that he is assigned to.  He does not display the tactical or technical knowledge required to be successful as an officer in the Army.  Do not promote to Captain or retain within the Army."

7.  On 29 March 2012, he submitted an appeal to the contested OER.  He contended:
   
   a.  the counseling packet submitted in response to his Commander's Inquiry was incorrect and none of the counseling statements were dated.  He wasn't counseled on any of the dates noted on the event oriented counseling.  His rater met with him prior to receipt of the report and made him sign all the counseling forms on the same day and he was told to write a different date on the second page.  His rater also failed to give him quarterly counseling.  
   b.  the contested OER shows he had 18 late services; however, this is incorrect.  His HHC Services and Maintenance slides for the period he was Executive Officer do not show he had 18 late services during his rated time.  
   
   c.  the rater's comments that he rated 5 NCOs are blatantly false.  He only rated 2 NCOs who were assigned under his direct supervision within a 
5-month period with CPT T. (rater) and record shows he was not late on their NCOERs.  His commander tried to make him to be rater and SR to service members he had never seen and were not under his direct supervision.

	d.  he was never found liable in a Financial Liability Investigation of Property Loss despite his rater's narrative comment implicating him for company property losses.  
		
   e.  he completed more than 4 Class I meal delivery missions and other undocumented missions during their FTX despite his rater's narrative statement to the contrary on the contested OER and DA Form 4856.  

	f.  his rater and commander cited as support for the negative OER the company's red rating during an Inspector General (IG) inspection.  He alleged the use of IG records as a basis for adverse action against him is prohibited without preapproval from the Department of the Army IG.  He requested an IG and Equal Opportunity investigation at Fort Riley, but no action was taken.  He was told by the IG office that they had no jurisdiction or authority on how company commanders evaluate their officers, but they could advise commanders.  The rater also cited as support for the negative evaluation that a substitute officer was selected to fill the role of a company commander.

	g.  the rater said she used a DA Form 67-9-1 (OER Support Form) for the completion of this evaluation, but there is no record on file.  He was given initial counseling, but the rater refused to give him a face-to-face DA Form 67-9 at the time she left office in November 2011.  He repeatedly emailed his rater and SR to work on the contested report because his branch needed it for the CPT's board; however, none of them took this seriously.  

	h.  the rater's disregard for the truth and obvious intention of using the contested report to kill his Army career tainted his SR.  The findings and recommendation of the Commander's Inquiry were without substance and the unit didn't properly use the governing regulation for this investigation.  

8.  Counsel provided two memoranda indicating the applicant received Executive Officer counseling on 25 July and 20 September 2011.  

9.  In a 7 February 2012 memorandum, the IO revealed his findings and recommendations resulting from an informal investigation in response to the Commander's Inquiry (not present in his record) by stating:  

	a.  the applicant's rater provided him excellent initial counseling statements within his first 30 days of his assuming the job as company Executive Officer.  The rater counseled him formally, in writing, numerous times, with very explicit feedback regarding his performance and needs for improvement.  

	b.  the applicant never received an OER the entire time he was in the 701st BSB.  CPT P. provided a letter of continuity to the rater after having the applicant as his Brigade Distribution Center Officer-In-Charge for 7 months.  He should have completed an OER for the applicant, having rated him for more than 90 days.

	c.  the applicant's rebuttals to the contested OER are without substance and border on lies.

	d.  while there are a few grammatical errors in the applicant's report, it is justified and substantiated by both formal counseling and by testimony from multiple sources.  It was recommended the 701st BSB's leadership submit his contested OER as-is.  The IO further stated the applicant's contested OER needs to have the Army Multi-Source Assessment and Feedback (MSAF) blurb per AR 350-1, in part V(b) of the report:  "the officer has completed or initiated an MSAF/360 as required by AR 350-1."

10.  In a memorandum, dated 29 March 2012, the Executive Officer, Company B, 701st BSB, 41st BCT stated he served as the Transportation Platoon Leader with the applicant.  The official testified that LTC N.H. was their SR according to the rating scheme from November 2010 to October 2011 and Major (MAJ) T. H-N became acting battalion commander from October 2011 to 15 January 2012.  The applicant was described as an outstanding officer who always took great care of Soldiers within and outside his platoons and he was an outstanding professional with a good working relationship amongst his peers within the unit.

11.  In a second memorandum, dated 29 March 2012, SGT A.G. of Company A, 701stst BSB, 41st BCT, stated he served as the Assistant Truck-Master NCO of Company A, 701st BSB during the August 2011 field training exercise.  At that time, the applicant was the Executive Officer with HHC, 701st BSB.  SGT A.G. also stated he had known the applicant for 3 years and served with him when he was the Brigade Distribution Center Officer-in-Charge from October 2010 through June 2011.  Also, he was part of the convoy crew on 3 convoy missions with the applicant.
12.  In a third memorandum, dated 29 March 2012, SGT O.A. of HHC, 701st BSB, 41st BCT, stated he served with the applicant during the August 2011 field training exercise while CPT A.T. was the company commander.  SGT O.A. also stated he had known the applicant for 6 years and they both served with the 35th Signal Brigade.  In addition, SGT O.A. stated the applicant picked up the meals during the field training exercise and he never received any complaint from higher [officials] or from CPT A.T. that the applicant was late on these missions.  

13.  In a memorandum, dated 9 July 2012, 1LT T.M. of HHC, 701st BSB, 4th Infantry BCT, verified the validity of HHC's rating scheme for the months of July and August 2011 while the applicant was the Executive Officer.  1LT T.M. also verified that the applicant's maintenance slides indicate services and maintenance conducted during the period he served as an Executive Officer.  

14.  On 17 May 2013, the OSRB denied the applicant's request for removal of the contested OER.

15.  A review of his personnel records in the interactive Personnel Electronic Records Management System (iPERMS) revealed the contested OER was filed in the performance section of his AMHRR.  

16.  AR 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, the military personnel records jacket, the 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, among other agencies, the ABCMR and Department of the Army Suitability Evaluation Board (of which the OSRB is a component).  Table 2-1 of AR 600-8-104 states an OER will be filed in the performance section of the AMHRR.

17.  AR 623-3 prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9.  The regulation states that the rated individual has considerable responsibility in the evaluation process and will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments and a final evaluation and should discuss the duty description and performance objectives with the rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  It notes that rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

   a.  Paragraph 1-8c states the primary function of the ERS is to provide information to Headquarters Department of the Army (HQDA) for use in making personnel management decisions.  Components of this information include evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   b.  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 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.
   
   c.  Paragraph 2-6 states to render a written evaluation report, the senior rater will have been designated as the rated officer’s senior rater for a minimum period of 60 calendar days.
   
   d.  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.

	e.  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.

   f.  Paragraph 3-36 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the Soldier 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 Soldier.

		(1)  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.

   (2)  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.  

	g.  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.  

18.  AR 623-3, paragraph 1–11 (Commander's or Commandant's Inquiry) states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that Commander or Commandant will conduct an inquiry into the matter.  The Commander's or Commandant's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  The procedures used by the Commander or Commandant to process such an inquiry are described in chapter 4.

19.  DA Pamphlet 623-3 defines nonrated time as time periods when the rated Soldier cannot be evaluated by the rating officials.  Such time periods include but are not limited to school attendance, in-transit travel, hospitalization or patient status, convalescent leave, leave periods of 30 days or more, and periods when the rater has not met minimum qualifications.  Periods such as breaks in service or time spent in an IRR, Ready Reserve, or ING status are not ratable periods; therefore, these periods will appear as gaps in a rated Soldier’s evaluation report history.

20.  AR 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the contested OER is substantively flawed, incorrect, and does not have counseling to back up some of the comments cited on the OER were carefully considered.  However, 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, the applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removing the contested OER.  

2.  The applicant contends the rater and SR refused to counsel him and to send him the contested OER, which would have prepared him for the CPT Promotion Board.  However, his service record is void of evidence and he has not provided sufficient evidence to support this clam.  Therefore, administrative regularity is presumed in the referral process inasmuch as the contested OER shows it was referred and the applicant elected to submit a response.  

3.  Although counsel contends an improper officer senior rated the applicant, the 29 March 2012 letter of support provided by the applicant indicates the SR on the contested report became the acting battalion commander from October 2011 to 15 January 2012.  An SR only needs 60 days to qualify as an SR.  With a through date of 15 December 2011 it is not impossible that this SR met the qualifying criteria.  In addition, the applicant digitally signed the OER verifying the accuracy of the administrative data.  

4.  It is noted the applicant was an Army 1LT and Company Executive Officer for HHC, 701st BSB at the time the contested report was rendered.  Therefore, he should have been intimately familiar with the evaluation report process and the need for him to be actively involved in that process.  When the applicant's rater failed to complete face-to-face counseling, or provide feedback to him regarding his duty performance, he should have sought counseling and feedback.  One cannot argue after the fact that the rater failed in his responsibilities, when they themselves took no active role in their own evaluation process.

5.  The applicant's contentions regarding the Commander's Inquiry are acknowledged.  Even though the Commander's Inquiry is not present in his record, an IO conducted an informal investigation in response to the Commander's Inquiry which revealed:

* the rater provided initial counsel statements within the applicant's first 30 days of his assuming position of commander Executive Officer
* the rater counseled him formally, in writing, numerous times, with very explicit feedback regarding his performance and needs for improvement
* the applicant didn't receive an OER while he was in the 701st BSB
* the applicant's rebuttals to the contested OER are without substance
* the contested OER was justified and substantiated by formal counseling and by testimony from multiple sources

6.  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.  The applicant does not provide compelling evidence to show that the contested OER shows other than the rating official’s honest evaluations of him.

7.  The applicant's contentions in regard to the findings and recommendation of his OER appeal at the OSRB are acknowledged.  However, his service record is void of evidence to substantiate his claims.  The OSRB properly evaluated his case and determined the available evidence did not support the removal of the contested report.  

8.  The applicant contends the counseling packet submitted in response to his Commander's Inquiry had errors.  The evidence shows that in August 2011 the applicant received counseling due to convoy manifests for the August FTX not being submitted on time.  In September 2011, he received counseling for his inability to execute property management during the months of July, August, and September 2011.  In addition, in July and September 2011, he received a memorandum from his rater that outlined his duties and responsibilities as an Executive Officer.  The applicant signed his counseling statements confirming he agreed with the counseling.  His service record does not include evidence and he has  not provided sufficient evidence which shows his counseling contained errors. 

9.  The applicant contends the contested OER was prepared to punish rather than set him up for success.  Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Evaluation reports are not prepared or used as a form of punishment.  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.  

10.  Counsel also has not provided sufficient evidence to show the ratings on the contested OERs were in error or that they were not the opinions and objective judgments of the rating officials at the time the report was rendered.  Further, counsel has not provided any compelling evidence to refute the ratings and evaluations rendered by the rating officials.

11.  Additionally, counsel has not provided sufficient evidence showing the contested OER was inaccurate, unjust, or otherwise flawed.  Therefore, there is an insufficient evidentiary basis for removing the contested OER from the applicant's AMHRR or that the period covered by the contested OER be recorded as nonrated time or that rater and SR's block checks be masked.

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)                                         AR20130013933





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013933



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1