IN THE CASE OF:	   

		BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130016729 


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 removal of the DA Form 67-9 (Officer Evaluation Report (OER)) for the period ending 25 June 2009 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR). 

2.  The applicant states that the contested OER was not processed in accordance with the provisions of paragraph 2-18d(2) of Army Regulation 623-3 (Evaluation Reporting System), dated 10 August 2007, which shows "Supplementary review requirement.  Supplementary reviews will be conducted if the senior rater for an OER is not a U.S. Army officer or Department of the Army (DA) civilian.  A supplementary review will be conducted by the first U.S. Army officer or DA civilian above the senior rater in the chain of command or supervision.  This officer will be designated by the commander establishing the rating chain and identified in the published rating chain at the beginning of the evaluation period."

3.  Additionally, the applicant states he was assigned to a joint billet at the time he received the contested OER and the rater and the senior rater were both U.S. Naval Officers.  The applicant was the first Army officer or Army noncommissioned officer that the rater had ever rated during his career.  Therefore, he did not have a frame of reference or proper counsel to develop an Army OER.  The applicant contends there are substantial differences in the rating philosophies between the Navy and Army, so the contested OER was formulated with Navy fitness report beliefs.

4.  The applicant attests that an evaluation that is standard for a Navy officer is devastating for an Army officer.  He contends that the mechanism to ensure this does not occur is the supplementary review which allows the commander to have someone above the senior rater review and make certain that there is full disclosure of the effect of what is placed into the evaluation; he was denied the supplementary reviews as directed by Army regulation. 

5.  The applicant states he requested a Commander's Inquiry on 9 October 2009 which was never routed through the European Command (EUCOM) commander's office and was denied by the Director, Manpower, Personnel, and Administration in an inconclusive and evasive response.  He submitted a request for clarification on 10 December 2009 which was answered by the same authority who admitted that the contested OER did not receive a supplementary review, but countered that it was reviewed by Headquarters, DA (HQDA) which is in compliance with Army Regulation 623-3.

6.  The applicant further states that at the time of the processing of the contested OER, there were several U.S. Army officers above the senior rater including the EUCOM Commander and the supplementary review could and should have been conducted at EUCOM prior to being submitted to the U.S. Army Human Resources Command (HRC).  He opines that by not conducting the supplemental reviews at EUCOM prior to submission to HRC, the commander is denied a key capability to manage this critical personnel action.

7.  He concludes that this appeal would not be necessary if the supplementary review had been conducted at EUCOM.  He started this appeal process in 2009 by requesting the Commander's Inquiry, but was advised by HRC that his current file was not competitive for command and key billet, senior service college (SSC), and/or promotion to the rank/pay grade of colonel/O-6 and a successfully adjudicated appeal would only result in a moral victory for the applicant and have no bearing on his career progression.  However, this dynamic changed when he became a nonselect for promotion and the Army convened the Fiscal Year (FY) Selective Early Retirement Board (SERB) and is expected to convene successive SERBs in the coming FYs and that the contested OER will have a substantial effect on the likelihood of selection for early retirement.

8.  He provides:

* Contested OER
* Request for Commander's Inquiry and response from EUCOM
* Request for Commander's Clarification and response from EUCOM
* Evaluation Report Appeal and response from HRC

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 is a Regular Army officer currently serving in the rank/pay grade of lieutenant colonel/O-5.

3.  The contested report is a "Senior Rater Option" OER covering the period 1 July 2008 through 25 June 2009.  This report indicates the applicant was rated as the Operations Branch Chief in the Engineering Division, Logistics Directorate for the United States European Command (ECJ4).  The contested OER is filed in the "Performance" folder of the applicant's AMHRR.

4.  The contested OER shows:

	a.  the rater is listed as a Navy captain serving as Chief, ECJ4, and he digitally signed the report on 15 June 2009;

	b.  the senior rater is listed as a Navy Rear Admiral serving as Director, ECJ4, and he digitally signed the report on 15 June 2009;

	c.  the applicant digitally signed the report on 17 June 2009;

	d.  in Part IId, the OER was not a referred report;

	e.  the rater placed an "X" in each "Yes" box in Part IV (Performance Evaluation – Professionalism (Rater)), item a (Army Values).  The rater indicated the following six attributes, skills, and actions best described the applicant:

* Physical
* Interpersonal
* Technical
* Decision-Making
* Motivating
* Planning

	f.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Satisfactory Performance, Promote" box; 

	g.  in Part Vb (Performance Narrative), the rater provided very positive comments about the applicant's performance during the rated period, with the possible exception of the following:  "[applicant's name] performs well in targeted, well defined assignment areas";

	h.  in Part Vc (Comment on Potential for Promotion), the rater stated:  "With additional time and development in current grade, [applicant] will possess the potential and intellect for promotion and attendance at SSC in the future"; and 

	i.  in Part VIIa, b and c (Senior Rater – Comment on Performance/Potential), the senior rater marked the "Fully Qualified" box and evaluated him as center of mass.  The senior rater provided positive comments about the applicant's performance during the rated period.  However, he recommended "Retain at current grade to allow his potential to develop, then consider for promotion and SSC."

5.  On 9 October 2009, the applicant rendered a memorandum addressed to Commander, Supreme Headquarters Allied Powers Europe, subject:  Request for Commander's/Commandant's Inquiry.  He attested the contested OER was processed through EUCOM to HQDA in regulatory violation of paragraph           2-18d(2) of Army Regulation 623-3 and cited the aforementioned requirements for supplementary reviews.

6.  On 2 November 2009, the Director, Manpower, Personnel, and Administration, EUCOM, informed the applicant that the EUCOM Personnel Directorate (ECJ1) had reviewed his request for a Commander's Inquiry and had found no errors, injustices or illegalities.  The Director stated that although a supplemental review was not conducted prior to the evaluation being signed and submitted to HRC, upon receipt of the OER by OER Branch, HRC, this discrepancy was noted, and HRC had an HQDA review of the OER completed before the OER was processed and posted to his AMHRR.  The HQDA review, indicated by the stamp "DAREVIEW 20090806 MB" on the bottom of page two of the OER, meets the additional review requirements of paragraph 2-18d(2) of Army Regulation 623-3, and this had been verified with OER Policy Branch, HRC.


7.  On 10 December 2009, the applicant rendered a memorandum addressed to Commander, Supreme Headquarters Allied Powers Europe, subject:  Request for Clarification of Commander's/Commandant's Inquiry.  He attested he was in receipt of the response to his initial request and had been advised by legal counsel to respectfully request clarification of the findings.  He stated EUCOM's response to the initial inquiry implied that an Army officer or DA civilian was not available above the senior rater in the chain of command to provide a supplementary review of the contested OER.  He requested "If this is the case please clearly state so in written documentation."

8.  On 2 February 2010, the Director, Manpower, Personnel, and Administration, EUCOM, responded to the applicant's request for clarification of Commander's/Commandant's Inquiry, dated 10 December 2009.  He informed the applicant that the ECJ1 had reviewed his request.  He stated:

	"To clarify EUCOM's response to the initial inquiry, a supplemental review should have been done prior to submission to HRC, but was not, and this oversight was not caught until HRC received and began to process the OER, at which time a HQDA review was completed before the OER completed processing and was posted to the officer's official military personnel file.  EUCOM's response does not imply that a U.S. Army officer or Department of Army civilian was not available; it only states that the required supplemental review was not accomplished at Headquarters, EUCOM prior to submission, and was instead accomplished by HQDA, in compliance with AR 623-3."

9.  On 5 July 2013, the applicant submitted an appeal for removal of the contested OER to HRC.  On 8 August 2013, a Human Resources Assistant, Appeals and Correction Section, HRC, advised the applicant that in accordance with the time restrictions of Army Regulation 623-3, paragraph 4-8b, his request was being returned without action because it was not submitted within three years of the OER's "thru" date of 25 June 2009.  He was further advised that he should submit his request to this Board.

10.  Army Regulation 623-3 provides in part:  For OERs, supplementary reviews will be conducted in certain situations, to include:  "If the senior rater for an OER is not a U.S. Army officer or DA civilian, a supplementary review will be conducted by the first U.S. Army officer or DA civilian above the senior rater in the chain of command or supervision.  This officer will be designated by the commander establishing the rating chain and identified in the published rating chain.  When such a review is conducted, the supplementary reviewer will prepare an enclosure, as described in figure 2–2.  If necessary, the enclosure will contain comments on the accuracy or clarity of the completed OER.  The comments will not include evaluative statements about the rated officer and statements that amplify, paraphrase, or endorse the ratings of the other members of the rating chain.  If there are no comments, indicate in the enclosure that no added comment is necessary.  If no U.S. Army officer or Department of Army civilian is available above the senior rater in the chain of command, an additional review by HQDA will be requested by the appropriate organizational personnel or administrative office."

11.  Army Regulation 623-3 further states, “If no U.S. Army officer or DA civilian is available above the senior rater in the chain of command, the submitter will request a review by HQDA.”

12.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.

   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.  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.  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.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

   b.  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.


13.  Army Regulation 600-8-104 (Army Military Human Resources Record 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 of this regulation 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 the ABCMR, the Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of HRC, the AMHRR custodian when documents have been improperly filed, HRC, as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided sufficient evidence to show the contested OER was not processed in accordance with applicable laws and regulations.

2.  Although the OER could and should have received a supplementary review by a senior Army officer or DA civilian at Headquarters, EUCOM prior to being forwarded to HRC, evidence shows the appropriate review was conducted by HQDA prior to the completion of processing of the report by HRC.  The regulations states if no U.S. Army officer of DA civilian is available above the senior rater in the chain of command, HQDA may act as the reviewer.  “Availability” could mean many things, including a designated reviewer being out of the area (e.g., on leave or deployed) or, as may be likely in this case, that because the OER was forwarded to HQDA prematurely the reviewer was not available at HRC.

3.  The applicant has not provided sufficient evidence showing the contested OER was improperly processed.  Therefore, there is an insufficient evidentiary basis for removing the contested OER from the performance portion of his AMHRR or transferring it to the restricted portion of his AMHRR.

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)                                         AR20130016729





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ABCMR Record of Proceedings (cont)                                         AR20130016729



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