BOARD DATE:	  12 November 2013

		DOCKET NUMBER:  AR20130015970 


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, correction of his records by masking the senior rater profiles of the four officer evaluation reports (OER) he received during the period 2 December 2007 through 12 May 2010 and promotion consideration to the rank of colonel by special selection boards.

2.  The applicant states, in effect, his rater at the time he received the four OER's in question was his brigade commander and it was rumored that he was having an extramarital affair with a junior officer under his (the applicant's) command.  In March 2009, he approached the brigade commander with his concerns and the commander told him there was no reason for concern.  He states the commander appeared to have considered him a threat to his professional career and took retaliatory measures that have had a devastating impact on his career by ensuring that he did not receive an above center of mass (ACOM) evaluation as a battalion commander.  He also states the commander has since admitted publicly to having extramarital affairs and is pending legal action which is sufficient cause to question his ability to make objective and informed judgments.

3.  The applicant provides a self-authored memorandum and the supporting documents indicated on his application form.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a Regular Army Engineer Corps second lieutenant upon graduation from the U.S. Military Academy at West Point, New York, on 31 May 1990.  He continued to serve through a variety of assignments and was promoted to the rank of lieutenant colonel on 1 January 2007.

2.  The applicant was serving as the commander of a combat engineer battalion in Germany when he received a senior rater (SR)-option OER covering the period 2 December 2007 through 23 November 2008.  His rater, the brigade commander in the rank of colonel, rated him as "Outstanding Performance, Must Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion).  His rater recommended promotion of the applicant to colonel and selection for senior service college (SSC).

3.  His SR, the commanding general in the rank of lieutenant general, rated him as "Best Qualified" in Part VII (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) and placed him in the center of mass (COM) of his SR profile.  He also recommended the applicant for promotion to colonel and selection for SSC.

4.  On 10 May 2009 while deployed to Iraq, the applicant received an SR-option OER covering the period 24 November 2008 through 20 May 2009.  His rater, the same brigade commander, rated him as "Outstanding Performance, Must Promote" in Part Va.  He recommended promotion of the applicant to colonel and selection for SSC.

5.  His SR, the division commander in the rank of major general, rated him as "Best Qualified" and placed him in the COM of his SR profile.  He also recommended the applicant for promotion to colonel, selection for SSC, and commented that the applicant had great potential for brigade-level command.

6.  On 25 November 2009 while still deployed to Iraq, the applicant received an SR-option OER covering the period 21 May 2009 through 1 November 2009.  His rater, the same brigade commander, rated him as "Outstanding Performance, Must Promote" in Part Va.  He recommended promotion of the applicant to colonel and selection for SSC.

7.  His SR, the commanding general in the rank of major general, rated him as "Best Qualified" and placed him in the COM of his SR profile.  He also recommended the applicant for promotion to colonel, selection for SSC, and commented that the applicant had clear potential for brigade-level command.

8.  On 20 July 2010 while serving in Germany, the applicant received a change-of-rater OER covering the period 2 November 2009 through 12 May 2010.  His rater, the same brigade commander, rated him as "Outstanding Performance, Must Promote" in Part Va.  He recommended promotion of the applicant to colonel and selection for SSC.

9.  His SR, the commanding general in the rank of brigadier general, rated him as "Best Qualified" and placed him in the COM of his SR profile.  He also recommended the applicant for promotion to colonel, selection for SSC, and brigade-level command.

10.  A review of his Army Military Human Resource Record (AMHRR) shows he received one COM report and two ACOM reports since receiving his last OER as a battalion commander.

11.  The statement from the SR of his second contested report covering the period 24 November 2008 through 20 May 2009 provided by the applicant states, in effect, that he relied on the recommendation of the brigade commander when he rendered the COM rating and, given that the brigade commander has admitted to displaying flawed judgment, he believes the applicant should receive the benefit of any doubt.  He supports the applicant's efforts to appeal the report and his challenge to the SR box check.

12.  The applicant also provides a statement from the former Engineer Branch Chief of the U.S. Army Human Resources Command who indicated the applicant's rater had called him and questioned him on the impact receiving a COM rating would have on the applicant's promotion potential.  He advised the brigade commander that the applicant's chances for promotion would vanish if he did not receive an ACOM rating.

13.  The remaining third-party statements serve to praise the applicant's leadership abilities and his qualities as an officer and a Soldier.

14.  There is no evidence to show the applicant appealed the contested reports to the Officer Special Review Board.

15.  The former brigade commander who was the applicant's rater during the contested period is now a general officer who is currently under charges and has pled not guilty to the charges.

16.  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.

17.  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, the applicant must produce evidence that clearly and convincingly overcomes the aforementioned presumptions 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.

18.  Paragraph 6-11 of Army Regulation 623-3 provides that in evaluating the whole Soldier, rating officials may consider the fact that a rated individual is in a zone of consideration for promotion, command, or school selection.  Accordingly, a subsequent statement from a rating official that he or she rendered an inaccurate rating in order to preserve ratings for other officers in a zone of consideration will not be a basis for appeal.

19.  Army Regulation 600-8-29 (Officer Promotions) provides that Department of the Army Selection Board members are not allowed to divulge information related to the selection or non-selection of members considered by the board.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant comes to the Board with a letter of support from the SR of his second contested OER 4 years after the fact stating that he gave the applicant a COM rating based on the recommendations of the rater, the governing regulation provides that statements from rating officials do not serve as the basis for an appeal.

2.  The applicant also provides a memorandum from the former engineer branch chief who indicates the rater called to confer on the applicant's promotion potential if he received another COM report.  However, the brigade commander was not the person who would make the box check reserved for the SR.  Ultimately, it was the SR who made the decision.

3.  The first contested OER was rendered for the period 2 December 2007 through 23 November 2008.  The applicant claims he confronted the brigade commander (rater) in March 2009 which was outside of the period covered by his first COM OER; this suggests the rater was unaware that the applicant knew of his actions, if any, at the time the rating was rendered and that there was no reprisal involved.

4.  The rater gave the applicant the highest possible evaluations in each of the contested reports and the applicant's appeal is based on the SR's box check, which he contends was influenced by the rater.  Each of his SR's were general officers who were responsible for making their own evaluations and managing their profiles.  While one SR who is now retired has come forward in support of the applicant's appeal and admits that his rating was driven by the rater's input, there is insufficient evidence to show the rating rendered by the SR was incorrect or that it was not a valid appraisal at the time.

5.  Inasmuch as the applicant received four COM ratings from four different general officers – and one was completed before the applicant confronted his rater – it appears unlikely that the rater could unduly influence them into rendering a rating that was incorrect, especially given the laudatory remarks made by all of the officers in the applicant's rating chain.

6.  The applicant's contention that the SR ratings were unjust and served to prevent his selection for promotion to the rank of colonel appears to be speculative on his part at best.

7.  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 who is not a member of the board.  While it is unfortunate that the applicant has not been selected for promotion to colonel, he failed to show sufficient basis to amend the OER's in question.

8.  Additionally, the fact that an officer is charged with violations does not necessarily imply that his professional actions prior to being charged were unjust or in error.  There is simply insufficient evidence to support the applicant's assumption that the rater engaged in reprisal against him, especially since he is contesting the SR ratings.

9.  Accordingly, there appears to be no basis to grant his request to change the contested OER's.



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)                                         AR20130015970



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ABCMR Record of Proceedings (cont)                                         AR20130015970



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