IN THE CASE OF:	  

		BOARD DATE:	  26 November 2013

		DOCKET NUMBER:  AR20130015734 


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, in effect, that a relief-for-cause (RFC) officer evaluation report (OER) covering the rating period 25 December 2009 through 12 March 2010 be removed from his records.  

2.  The applicant states the referred OER has "several inaccurate subjects and errors of injustice."  He disagrees with the whole of the evaluation.  In Part Va "Satisfactory Performance, Promote" is checked and in Part VIIa "Fully Qualified" is checked.  DA Pamphlet 623-3 (Evaluation Reporting System) explains that "Other" or "Do Not Promote" should be checked for RFC evaluations.  The fact that "Satisfactory Performance, Promote" and "Fully Qualified" were checked makes the OER false.  A service member who receives an RFC OER cannot be given a "Satisfactory Performance, Promote" by the rater and "Fully Qualified" by the senior rater (SR).

3.  Several statements in the rater's comments and SR's comments are false.  Part Vb states, "He served as the 1st Platoon leader for D CO 3rd Battalion, 
187 Infantry, for one month during an intensive training cycle."  His Officer Record Brief (ORB) shows the date he signed into the unit.  He became the platoon leader on 20 December 2009, Christmas block leave went from 
21 December 2009 to 6 January 2010, and his unit left on 24 January 2010.  There is no way he could have trained for one month during an intense training period.


4.  Part Vb states, "He conducted 11 patrols in Afghanistan, where because of poor leadership and judgment, he lost the trust and faith of his subordinates."  His rater, who was his company commander recommended him for the Combat Infantryman Badge (CIB).  Army Regulation 600-8-22 (Military Awards), paragraph 8-6a, states for award of the CIB a Soldier must be an infantryman satisfactorily performing infantry duties, assigned to an infantry unit, and actively participating in such ground combat.  The fact that his rater recommended him for the CIB disproves the remarks in the OER.

5.  He states there are additional inaccuracies in the rater and SR remarks.  He did not receive multiple counselings and he never received initial counseling or event counseling from the rater or SR.

6.  He was given the RFC OER without the benefit of any counseling statements.
Prior to deploying to Afghanistan he was assigned to a heavy weapons company to be a platoon leader and because he was prior service combat support and not combat arms he was singled out.

7.  After being non-selected for promotion to captain (CPT) twice, he realizes that the RFC OER serves as a catalyst for why he hasn't been promoted to CPT.

8.  The applicant provides:

* RFC OER 
* ORB
* DD Form 41 (Oath of Office - Military Personnel), dated 29 January 2009
* Permanent Orders Number 099-020, dated 9 April 2010, issued by the 3rd Brigade Combat Team (BCT), 101st Airborne Division (Air Assault)
* 4-pages from DA Pamphlet 623-3
* 2-pages from Army Regulation 600-8-22
* 4 OER's covering the rating periods from 25 May 2009 through
29 December 2012

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Regular Army commissioned officer on 29 December 2009.  He completed the Infantry Officer Basic Leader Course.  

2.  At the time of the contested OER, he was assigned as the Weapons Company Platoon Leader, D Company, 3rd Battalion, 187th Infantry, 3rd BCT, 101st Airborne Division (Air Assault), Fort Campbell, KY.

3.  Permanent Orders Number 099-020, dated 9 April 2010, issued by the 3rd BCT, 101st Airborne Division (Air Assault) show the applicant was awarded the CIB for being engaged by or engaging the enemy on 7 March 2010. 

4.  He received an RFC OER for the period 25 December 2009 through 12 March 2010 for his duties as Platoon Leader.  His rater was the company commander and his SR was the battalion commander.  The OER shows:

	a.  in Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributes and skills; however, he placed an "X" in the "No" block for "Execution";

	b.  in Part Va (Performance Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments in Part Vb (Comment on Specific Aspects of the Performance):

[Applicant's] performance as a platoon leader to date has been ineffective to the point where it is necessary that he be relieved of his duties.  He served as the 1st Platoon Leader for D CO, 3rd Battalion, 187th Infantry, for one month during one month during intensive training cycle in preparation for counterinsurgency operations in Afghanistan.  He also led the platoon for one month during RIP and initial combat operations in Afghanistan.  He conducted 11 patrols in Afghanistan, where because of his poor leadership and judgment, he lost the trust and faith of his subordinates.  This is unacceptable by a platoon leader in the toughest district in the battalion's area of operation and is below the standard required to complete the mission.  [Applicant] is an extremely hard worker and has truly done his best to improve himself as a leader.  If the Company was still in a garrison environment, I would work with him to continue his development.  However, after multiple counselings, [Applicant's] learning curve was just too steep for a combat environment.  [Applicant's] improvements are not enough to meet the demanding requirements of leading soldiers in combat.  

	c.  in Part Vc (Comment on Potential for Promotion), the rater entered the following comment, "Shows potential for promotion, but in a field outside of MFE"; and

	d.  in Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR placed an "X" in the "Fully Qualified" block and in Part VIIc (Senior Rater – Comment on Performance/
Potential), the SR entered the following comments:

[Applicant] has not been able to meet the challenges of leading a platoon in a COIN fight.  He has been given ample guidance and plenty of opportunities to succeed, but has failed to demonstrate the initiative, mental and physical toughness, judgment and leadership required to serve as an Infantry Platoon Leader in combat.  As a result of his poor performance the BCT Commander has removed him from his position.  He does have potential for promotion and future service outside MFE.

5.  The RFC OER was referred to the applicant for comments.  He elected not to make any comments.  The RFC OER was digitally signed by his rater on 12 March 2010, by the SR on 26 March 2010, and by him on 1 April 2010.  It was then posted by Headquarters, Department of the Army (HQDA) to his Army Military Human Resource Record (AMHRR) on 2 April 2010. 

6.  He submits four OER's he received after the RFC OER.  Each shows ratings of "Satisfactory Performance, Promote." Two show SR ratings of "Fully Qualified"
and two show SR ratings of "Best Qualified."

7.  There is no indication the applicant appealed the contested OER through the U.S. Army Human Resources Command to the Officer Special Review Board.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B-1 states an OER is filed in the performance folder of the AMHRR.

9.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was 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 burden of proof in an appeal of an OER rests with the applicant.

	b.  In order to justify deletion or amendment of an OER under this 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.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

10.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army's the Evaluation Reporting System.  Paragraph 2-13 states, if a rated officer or warrant officer is officially relieved the following specific instructions apply to completing a RFC evaluation report:
   
   a.  The potential evaluation in Part Va of report must reflect "Do Not Promote" or "Other."  A "Do Not Promote" recommendation is consistent with relief action and does not need further explanation.  However, raters who want to make some other recommendation must check "Other" and explain their recommendation
and reasons in view of the action to relieve.
   
   b. The rating restriction in paragraph a, above, does not apply to a rater who has not directed the relief and does not agree with the relief. However, he or she must state his or her non-concurrence in the proper narrative portions of the OER.
   
   c.  The evaluation report will identify the rating official who directed the relief. This official will clearly explain the reason for relief in his or her narrative portion of DA Form 67–9.
   
   d.  If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for the relief in an enclosure to the report.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the BCT Commander removed the applicant from his position as the platoon leader because of poor performance.  Also as a result, he received an RFC OER.  He was assessed as "Satisfactory Performance, Promote" and "Fully Qualified" by his rating officials.  The OER was referred to him for comments but he elected not to submit any.  The OER was filed in his official records and again he elected not to appeal it.  
2.  The applicant asserts that the RFC OER is false because the rater checked "Satisfactory Performance, Promote" and the SR checked "Fully Qualified," instead of checking the boxes "Other" or "Do Not Promote," which is mandatory when a RFC OER is issued.  However, the rule applies if relieved by officials in his direct rating chain.  He was relieved from his duties by the BCT Commander who was not in his designated rating chain.  It appears that the rater and SR agreed with the relief and, in spite of this, checked “Satisfactory Performance, Promote”, and “Fully Qualified.”  While this is technically an error, it is not, as the applicant contends, evidence that the OER in question is false.  In fact, it is an error in his favor.

3.  The applicant states his rater stated because of poor leadership and judgment, he lost the faith and trust of his subordinates.  He also notes that his rater, who was also his commander, recommended him for award of the CIB.  For award of the CIB, an infantryman must satisfactorily perform his infantry duties.  He states that the fact that his rater recommended for award of the CIB disproves the negative remarks in the OER.  Notwithstanding his contentions, the record shows his award of the CIB was based on his performance as an infantryman while being engaged by or engaging the enemy on 7 March 2010.  The award is not evidence of his overall performance as an infantry platoon leader during the period in question.

4.  The comments provided by his rater and SR mirror each other.  Furthermore, the RFC OER was referred to him for comment and he elected not to comment.  The contested OER appears to be administratively correct.  An OER is a measure of an officer's performance and potential during a specified period of time.  There is no evidence, and the applicant provided insufficient evidence, to show his rater and SR did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner.

5.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  This is not the case here.

6.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that his RFC OER should be removed.  Therefore, he is not entitled to 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)                                         AR20130015734





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ABCMR Record of Proceedings (cont)                                         AR20130015734



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