IN THE CASE OF:	  

		BOARD DATE:  3 December 2013

		DOCKET NUMBER:  AR20130014509 


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 the removal of a relief for cause officer evaluation report (OER) ending on 15 October 2007 from his Army Military Human Resource Record (AMHRR) or as an alternative that it be transferred to the restricted section of his AMHRR.

2.  The applicant states that the OER should be removed because it has served its purpose and puts him at a disadvantage before a promotion board.  The OER does not reflect the actual assumption of command date and all he ever received was a memorandum from the Warrior Transition Unit (WTU).  He was awaiting a seat in the next Maneuver Captains Career Course (MCCC) because his class had been cancelled and was afforded an opportunity to assume command for 6 months.  He had only 35 days in command and was still assessing his situation as he stood up a new company in the WTU Battalion with less than 50% of the manning needed to run such a company.  In addition, he had no proper training, guidance or manning to run such a company.  The report does not reflect who he is or his abilities as an Army officer and Soldier.  

3.  The applicant provides a list of documents with his application which includes a three-page memorandum explaining his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned as a U.S. Army Reserve infantry second lieutenant on 11 June 2004 and was ordered to active duty on 28 July 2004.  He completed his training and was transferred to Fort Hood, Texas for his first assignment.

3.  The applicant received an OER as a first lieutenant covering the period 20070119 – 20070701.  He departed Fort Hood for assignment to Fort Knox, Kentucky to attend the MCCC.  He arrived at Fort Knox to find that the course had been cancelled.   He was promoted to the rank of captain on 1 September 2007.  

4.  On 3 March 2008, he received a relief for cause OER covering the period 20070702 – 20071015 evaluating him as a company commander of a warrior transition company.  He was evaluated for 2 rated months.

5.  In Part IV, under performance evaluations – professionalism, the applicant’s rater gave him all “Yes” ratings.  In Part V, under performance and potential evaluation, his rater gave him an “Other” rating and stated that despite his relief, he was an outstanding young officer.  He also stated that the battalion commander failed to provide him guidance and mentorship resulting in little formal structure for a young, inexperienced officer  He went on to state that following the death of a WTU Soldier, the applicant was relieved of his command for actions a more seasoned commander would have quickly identified and corrected.  His rater opined that he had the potential to become an outstanding company commander and he should definitely be promoted to major.  He also stated that the applicant would make an excellent psychological operations (PO) officer. 

6.  His senior rater gave him a “Fully Qualified” rating and also praised his attributes.  He also stated that the applicant should be promoted to major.

7.  The report was considered adverse and was referred to the applicant for acknowledgement.

8.  The applicant attended and completed the MCCC during the period 20080107 – 20080603 and was transferred to Fort Bragg, North Carolina where he branch transferred to the PO branch and served as a detachment commander.

9.  There is no evidence in the available records to show that he ever appealed the contested OER to the Officer Special Review Board (OSRB).

10.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

11.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

12.  Army Regulation 623-3 further provides that if referral of a report is required, the senior rater will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The contested report correctly covers the period from his last OER to the date he was relieved for cause and properly reflects 2 months of rated time.

2.  The applicant’s contention that the report should be removed from his records or transferred to the restricted section of his AMHRR because it has served its intended purpose has been noted and appears to lack merit.

3.  The OER was not rendered as a form of punishment such as nonjudicial punishment to teach the applicant a lesson, but simply a means to document his performance and potential during the period specified by the report.

4.  While the report was considered adverse by the very nature of the reason for the report, the rating officials did an excellent job of explaining the circumstances surrounding the relief and at the same time preserving the integrity and highlighting the applicant’s future potential.

5.  It is a well-known fact that not everyone considered for promotion will be selected.  If such were the case, there would be no need for selection boards.  It is also a well-known fact that statutory requirements prevent the disclosure of board proceedings to anyone not a member of the board.  While it is unfortunate that the applicant has not been selected for promotion to major, he has failed to show a sufficient basis to remove or transfer the contested OER.

6.  Therefore, inasmuch as he has failed to show any error or injustice associated with the contested OER, there appears to be no basis to grant his 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)                                         AR20130014509





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ABCMR Record of Proceedings (cont)                                         AR20130014509



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