IN THE CASE OF:	  

		BOARD DATE:  7 November 2013

		DOCKET NUMBER:  AR20130015740 


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 reconsideration of a previous application to amend Part VII (Senior Rater) of his Officer Evaluation Report (OER) for the period 20060413 through 20070412 (hereafter referred to as the contested report) as follows:

* Part VIIa (Evaluate The Rated Officer's Promotion Potential To The Next Higher Grade) to show "Best Qualified"
* Part VIIc (Comment on Performance Potential) to include "He is ready for Company Command and has demonstrated the potential to serve as a Battalion Operations Officer"
* Part VIId (List Three Future Assignments For Which This Officer Is Best Suited) to reflect "BDE assistant S3, Company Commander, Battalion Operations Officer"

2.  He states the basis for his appeal is substantive inaccuracy in regard to his assessed promotion potential in Part VII.  His former senior rater was unaware of information that would have caused him to give the applicant a higher rating and would have also made more positive comments in his senior rater block and recommended the applicant for better positions.  

3.  The applicant adds that during his deployment to Iraq, he represented his unit at Camp Arifjan, Kuwait, accounted for the entire unit's equipment, and supervised the movement of the entire brigade's rolling stock.  Colonel (COL) W (his former senior rater) was unaware of these facts since the applicant was geographically separated from the battalion and reporting to him only occurred through the Battalion Supply Officer and Battalion Executive Officer.  COL W was not briefed that he performed these actions.

4.  He states he also played a critical role in the processing of the unit Concept of Operations (CONOPS) and spent most of his time working at the brigade.  As a result, he had very little interaction with COL W.  

5.  He contends that during the conduct of the senior rater's inquiry his rater (Major (MAJ) P) did not respond as stated by COL W.  However, MAJ P did respond to the last attempt made on 21 August 2013.  MAJ P stated he would not support an appeal of his comments and did not agree to examine new information presented by COL W.  

6.  The applicant provides:

* two self-authored memoranda
* two memoranda from COL W
* four letters of support from various military officers
* a DA Form 2823 (Sworn Statement)
* a DA Form 67-9 (OER) (contested report)
* a DA Form 67-9-1 (OER Support Form)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130005410, on 2 July 2013.

2.  The applicant has provided new evidence in the form of memoranda and letters that the Board will use in consideration of his request.  The previous Board findings show there was no input regarding the "new information" which was obtained from the applicant's rating chain or from any other officer in the chain of command.  There was also no indication of how the then senior rater was made aware of this "new information" which could have been supplied to the senior rater by the applicant including it in his support form.  There was insufficient evidence to support granting the applicant's requested relief. 

3.  The OER Support Form, dated 12 February 2007, he provides contains a Continuation Sheet which is presumed to have been attached to the original OER Support Form.  These documents show, in part, that the applicant listed his significant contributions, specific to his deployment as depicted below:

	a.  During deployment served as a liaison officer (LNO) during "SPOD" detail. Assigned as the battalion LNO for "SPOD" operations, was selected to serve as the deployment yard officer in charge (OIC).  Planned and supervised the loading of the brigade's entire rolling stock.  Planned and supervised the movement of equipment from port to the brigade's theater staging site at Camp Buerhing.  Convoy commander for a convoy of a battalion's equipment from port to Camp Buerhing.  Convoy commander for brigade "SPOD" detail movement from port to Camp Buerhing. 

	b.  During Relief in Place/Transfer of Authority at Forward Operating Base (FOB) Merez, tracked the arrival of battalion personnel and equipment.  While assigned to the plans shop, maintained a battalion patrol tracker and drafted daily tasking updates.

	c.  While assigned as the battalion LNO coordinated battalion operations with brigade staff, staffed Concept of Operations and deconflicted operations between battalion and brigade.  Briefed battalion operations to brigade command group and staff during meetings and battlefield update briefs.  Consolidated information from brigade meetings and briefings and compiled notes and briefed battalion staff.  

4.  The contested report is an Annual evaluation report and covers the period 20060413 through 20070412.  His date of rank (DOR) to the grade of captain (CPT) is listed as 20070120.  This report also shows the senior rater was serving as the battalion commander in the grade of lieutenant colonel (LTC) at the time he rendered the report.  The rater, senior rater, and the applicant all authenticated the report on 14 May 2007.  This report is not a referred report. 

	a.  Part VIIa shows COL W senior rated eight officers in the grade of CPT at the time and placed an "X" in the "Fully Qualified" box. 

	b.  Part VIIc contains the following write-up:

CPT PB has great potential in any capacity that the Army might place him in for future assignments.  P works diligently on every project or mission given to him.  He is perceptive, smart, and technically proficient.  P performed superbly as the battalion FECC during the first Battalion Live Fire Exercise conducted at Ft. Bliss, Texas since the inception of the Brigade.  Since then, he has been an integral part of the staff as the IO officer and LNO to Brigade.  P has proved himself worthy in both positions.  CPT B has worked in a myriad of different and challenging duty positions and was always counted on to produce results.  In every assignment he did his best and never disappointed.  Give P the tough jobs and groom for future assignments of greater responsibility. 

	c.  Part VIId lists "FA Battery Platoon Leader, HHB XO, BDE Assistant S-3." 

5.  The applicant submitted a Sworn Statement, dated 13 March 2013, which shows the provided OER Support Form is his original OER Support Form submitted for the contested report.  The senior rater at the time the form was prepared was Major R because at the time it was unclear who would senior rate him (the battalion S3 or battalion commander).  He brought forth this support form to convince his former chain of command to investigate if the facts stated within had been considered during the creation of the contested report.  He also states that no change had been made to the OER Support Form and accurately represented the duties he performed while serving in the 2-7 Cavalry. 

6.  A memorandum, subject:  Senior Rater's Supporting Statement for Evaluation Report Appeal of [Applicant], dated 7 August 2013, states:

* the applicant's performance and potential during the period of the contested report was that of a "Best Qualified" officer
* he recently received information that upon deploying, the applicant represented 2-7 Cavalry at Camp Arifjan, Kuwait and was responsible for receiving and inventorying all equipment at a port of debarkation
* he was selected to escort convoys consisting of the entire brigade's rolling stock from the port to Camps Buehring and Virginia
* the applicant supervised 12 Soldiers with 4 "TMPs" and 118 local national truck drivers with 94 trucks
* liased with Kuwait security forces and coordinated with the brigade and battalions in order to ensure 100% accountability during delivery of all equipment to the appropriate units
* he processed and staffed 267 CONOPs through both battalion and brigade
* his efforts facilitated the approval, resourcing and execution or 2-7 Cavalry's combat operation in Iraq
* the applicant ensured that operations conducted by the battalion and subordinate companies were nested with the battalion and brigade commanders' guidance and priorities for Mosul and Ninewa province
* until recently, the applicant's role in the approval process was unknown to him (COL W)
* if he had been aware of the applicant's contributions at Camp Arifan and FOB Merez, he would have rated him as "Best Qualified" and would have stated that "he is ready for Company Command"
* he also would have stated "the applicant has demonstrated the potential to serve as a Battalion Operations Officer"
* he would have recommended the applicant's future positions be "BDE assistant S3, Company Commander, Battalion Operations Officer"

7.  A second memorandum, subject:  Inquiry into [Applicant], OER for the rated period starting 20060413 ending 20070412, dated 7 August 2013, from COL W includes the following:

	a.  Facts:  Explains how he became the senior rater for the applicant during the period of his deployment.  He adds that the applicant contacted him in March 2013 asking if he (senior rater) would reconsider the evaluation he gave him.  He asked the applicant to provide evidence to support his appeal.  He further explains how he went about the inquiry process and he identifies who provided letters of support.

	b.  Findings:  He compiled the input from the four letters of support and lists the accomplishments of the applicant while deployed during the period of the contested report.  This new information was provided by the applicant as well as from the authors of the letters of support.

	c.  Recommendation:  Based on the preponderance of evidence, he recommended the following changes to the contested report:  Part VIIa to reflect "Best Qualified";  Part VIIc add "he is ready for Company Command and has demonstrated the potential to serve as a Battalion Operations Officer"; and Part VIId to reflect "BDE Assistant S3, Company Commander, Battalion Operations Officer."

8.  The four letters of support list the additional duties and the performance of those duties by the applicant during the period of the contested report.  All comments are positive and recommend the amendment of the contested report as requested.  The duty positions of the officers who wrote the letters and who were serving in the 2-7 Cavalry at the time the contested report was rendered are:  Executive Officer (XO), Brigade S-4, XO and later Battalion S-3, and XO.

9.  A review of his record shows the two OERs he received prior to the period of the contested report were in the grade of first lieutenant and he received ratings of "Outstanding Performance, Must Promote" from his raters and "Best Qualified" from his senior raters. 

10.  The applicant's record also contains four OERs which he received subsequent to the period of the contested report.  All reports show he received ratings of "Outstanding Performance, Must Promote" from his raters and "Best Qualified" from his senior raters.  The report for the period:

* 20070412 through 20080413 shows he had the same senior rater as on the contested report

* Part VIIc of this report shows, in part, "he can now count himself as one of the seasoned veteran CPTs in the battalion" and "with more grooming will make a good future commander"
* Part VIId lists one of his future positions as field artillery battery commander (which equivalent to a company commander)

* 20081231 through 20090706 shows a different senior rater

* Part VIIc shows, in part, "P has shown that he possesses the skills necessary to be a good staff officer and potentially a battery commander" and "will require more mentoring and experience prior to taking battery command
* Part VIId lists "Battery Commander" as one of his future assignments

* 20090707 through 20100515 shows the senior rater at that time stated that the applicant "is prepared now (emphasis added) to command"

11.  Army Regulation 623-3 (Evaluation Reporting System (ERS)), in effect at the time, prescribed the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9 (OER).

      a.  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.  Consideration will be given to the following:  (a) the relative experience of the rated officer; (b) the efforts made by the rated officer; and, (c) the results that could be reasonably expected given the time and resources available.  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.  

      b.  Paragraph 2-15 states that senior raters will use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in Department of the Army Pamphlet 623-3 (ERS).
      
      c.  Paragraph 3-4f states the DA Form 67-9-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate.  Specifically, the senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the rated individual.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

      d.  Paragraph 3-39 provides that 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.  
      
      e.  Paragraph 3-39b states for requests that an evaluation report in a Soldier's Army Military Human Resource Record (AMHRR) be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's AMHRR:

	(1) Statements from rating officials that they underestimated the rated Soldier.

	(2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did.

	(3) Requests that ratings be revised.

	(4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.

      f.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

12.  Department of the Army Pamphlet 623-3 states that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

DISCUSSION AND CONCLUSIONS:

1.  The contested OER is neither referred nor negative; on the contrary, it is a positive OER.  Nevertheless, the contested OER contained comments and/or markings that the applicant perceived to contain alleged errors and/or injustices.  

2.  In May 2007, the rating officials rendered an annual evaluation report on the applicant.  The OER addressed the applicant's performance and potential for promotion to the next higher grade.  The senior rater portion of the contested report specifically states, in part, "[Applicant] has great potential in any capacity that the Army might place him in for future assignments" and "Give [Applicant] the tough jobs and groom for future assignments of greater responsibility."  It also shows that the senior rater listed "FA Battery Platoon Leader, HHB XO, and BDE Assistant S-3" for the three future assignments for which the applicant was best suited at the time the contested report was rendered.  This report was signed by all parties concerned on 14 May 2007, verifying the accuracy of the date contained therein.

3.  The contested report shows the applicant was promoted to the rank of CPT on 20 January 2007, less than 3 months prior to the "Thru" date of the report.  Although the senior rater provides his supporting comments for alteration of the senior rater portion of the contested report in two memoranda, these after-the-fact letters of support are not sufficient to prove that an error or injustice occurred at the time he rendered the report, nor do these memoranda provide a valid explanation why this new information could not have been provided by the applicant at the time he completed his OER Support.  

4.  The senior rater stated in both memoranda, dated 6 years after the period of the contested report, that had he been aware of the applicant's contributions at Camp Arifjan and FOB Merez, he would have rated him as "Best Qualified" and stated "he is ready for company command and has demonstrated the potential to serve as a battalion operation officer.  He also would have recommended the applicant's future positions be "BDE assistant S3, Company Commander and Battalion Operations Officer."  This is evidence of retrospective thinking, or second thoughts.

5.  The regulation states that senior raters will use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation.  Given the fact that the senior rater was an LTC serving as a battalion commander at the time, it is presumed that he had the experience necessary to properly assess the applicant's performance and potential and render what he would consider a fair assessment.  

6.  The applicant's record contains an OER for the period 20070412 through 20080413 in which he had the same senior rater as on the contested report.  In this particular report, the senior rater states "[Applicant] can now count himself as one of the seasoned veteran Captains in the battalion."  He also stated "with more grooming will make a good future commander."  Having made these comments an entire year later, it is inconceivable to think that he now (through retrospect thinking) as a retired COL/O6 would say that the applicant was ready for company command on a previous report.  If this is the case, it would rendered his evaluation and comments ineffective on the report ending 20080413 and contradicts his own assessment during this period.

7.  By regulation, to support removal or amendment of a report there must be evidence that clearly and convincingly establishes 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.  The applicant’s arguments and statements of support he provided in this case address his overall performance and the impact the contested report will have on his future, but fail to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.

8.  Based on the applicable regulations, the contested OER is correct as constituted.  Therefore, there is no basis for removing or redacting the contested OER.
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 to amend the decision of the ABCMR set forth in Docket Number AR20130005410, dated 2 July 2013.




      _______ _  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)                                         AR20130015740





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130015740



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1