IN THE CASE OF:	  

		BOARD DATE:  31 December 2013

		DOCKET NUMBER:  AR20130017622 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 16 June 2010 through 16 June 2012 (hereinafter referred to as the contested OER) be reevaluated or removed from his Army Military Human Resource Record (AMHRR).  

2.  The applicant states the contested OER contains at least six administrative errors and 18 rating violations of Army Regulation 623-3 (Evaluation Reporting System).  These errors include his non-rated time/codes which were incorrect/inaccurate, an incorrect rating chain, and other administrative and substantive errors in the contested OER.  He submitted an appeal to the Officer Special Review Board (OSRB) in March 2013.  His appeal contained over 50 pages of graphs, emails, computer screenshots, excerpts from Army regulations, counseling statements, and written statements from staff members regarding his rater’s penchant for favoritism.  The OSRB denied his appeal on 15 August 2013, stating that the evidence he provided was not "clear and convincing" enough to justify correcting the administrative errors.  The OSRB noted the contested OER contained minor administrative errors but refused to acknowledge any necessity to correct these errors, even though the U.S. Army Human Resources Command (HRC) was willing to make the appropriate changes.  All of the evidence he provided to the OSRB came directly from the guidance published in Army Regulation 623-3, chapter 6 (Evaluation Redress Program).  Nevertheless, the OSRB made no suggestions for additional supportive evidence and his request for correction of the administrative errors contained in the contested OER was denied.  The OSRB is blatantly using ambiguity to their advantage.  

3.  Army Regulation 623-3 clearly describes the roles of the rater and the senior rater.  His original rater, the Battalion Executive Officer, (BN XO) was removed from the unit after an investigation determined he was guilty of favoritism.  The BN XO falsely acted as his rater, claiming that the rating chain was “uncertain” until his OER was due, at which time he conceded that he was not the applicant's rater, wrote a substandard OER, and passed it off to his new rater, the Battalion Commander (BN CDR).  He met with the BN CDR and argued that he had been a victim of the BN XO’s favoritism and showed him the forged counseling statements used as substance for the BN XO's rating.  The BN CDR considered his plea, but ultimately sided with the BN XO.  This was a result of the BN XO being an excellent XO when it came to work.  At that time, he believed that he did not have any rights or avenues available and reluctantly accepted the OER.  After discussions with senior leaders, he was told by HRC, legal, and the Inspector General (IG), that with the favoritism aside, the rating process was a blatant violation of Army Regulation 623-3 and should be thrown out.  He later submitted his appeal to the OSRB through HRC and was denied.

4.  The applicant provides:

* Email, dated 18 October 2013
* Six self-authored statements, 11 September 2013
* Memorandum from the OSRB, dated 27 August 2013
* OER timeline
* Orders Number 141-5064, dated 21 May 2010
* Two DA Forms 31 (Request and Authority for Leave), dated 16 July 2010 and 11 July 2011
* OER for the rating period 16 June 2009 through 15 June 2010
* Two DA Forms 1059 (Service School Academic Evaluation Report (AER)), dated 7 March 2010 and 16 June 2011
* Orders Number 356-317, dated 22 December 2010
* Two DA Forms 4187 (Personnel Action), dated 1 July 2011 and 
13 October 2011
* Orders Number HO-223-0044, dated 11 August 2011
* The contested OER
* Orders Number L152-025, dated 31 May 2012
* 13 pages of email traffic, ranging in date from 2-3 October 2012 to 
28 November 2012
* Spreadsheet entitled Army Regulation 623-3 compliances
* DA Form 67-9-1 (OER Support Form), dated 15 December 2010
* DA Form 2823 (Sworn Statement), dated 2 November 2012
* DA Form 638 (Recommendation for Award), date on or around 1 May 2012
* Four memoranda issued by staff members ranging in date from 
1 December 2012 to 26 February 2013
* Four DA Forms 4856 (Developmental Counseling Statement), ranging in date from 9 January 2012 to 28 April 2012
* Computer screen shot
* Blank DD Form 2875 (System Authorization Access Request (SAAR))
* Excerpt from Field Manual (FM) 5-0 (Exercising Command and Control in an Era of Persistent Conflict), Appendix B (Military Decision Making Process)
* PowerPoint slide entitled "S-6 COMMEX"
* Excerpt from Operational Order (OPORD) Number 12-02, undated
* PowerPoint slide entitled "Signal Annex H"
* Three DD Forms 689 (Individual Sick Slip), ranging in date from 
5 November 2010 to 25 February 2012
* Two displays of patient appointments from 15-24 November 2010 and 
7 December 2012-16 January 2013
* Two DA Forms 3349 (Physical Profile), dated 30 March 2012 and 7 June 2012
* Memorandum for Record, Standard Operating Procedures (SOP), dated, 1 May 2012

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer on 
15 December 2006 and entered active duty on 16 January 2007.  He is currently serving in the rank of captain (CPT).

2.  During the month of June 2012, he received the contested OER, an annual OER, covering the rating period 16 June 2010 through 16 June 2012, for his duties as Signal Officer while assigned to Headquarters and Headquarters Company (HHC), 2nd Squadron, 5th Cavalry, 1st Cavalry Division, Camp Buehring, Kuwait.  His rater was Lieutenant Colonel (LTC) JMH, the Battalion Commander, and his senior rater was Colonel (COL) SLE, the Brigade Commander.  The contested OER shows in:

	a.  Part I(i) (Administrative Data – Period Covered), 20100616 through 20120616. 

	b.  Part I(j) (Rated Months), 12

	c.  Part I(k) (Nonrated Codes), E (leave in excess of 30 days), Q (lack of rater qualification), and S (student at military/civilian school).
	d.  Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed an "X" in the "Yes" block for all values.

	e.  in Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributes, skills, and actions.

	f.  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 his comments in Part Vb (Comment on Specific Aspects of the Performance). 

	g.  in Part Vc (Comment on Potential for Promotion), the rater entered the comment "promote with peers."

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

3.  The following documents have been provided by the applicant or were contained in his record.  These documents have been listed in order by date in an attempt to provide a logical sequence of events with respect to the nonrated time and codes entered in the contested OER.  Additionally, the documents listed in this sequence address the block marks and comments his rating chain entered on the contested OER.   

	a.  He was assigned to Korea and received an OER for the rating period 16 June 2009 through 15 June 2010 prior to leaving Korea on or around 3 August 2010 to execute a permanent change of station (PCS).  

	b.  The period of time between 16 June 2010 and 2 August 2010 was not accounted for; however, it appears to have been coded as non-rated time due to a lack of rater qualification (Code Q).  

	c.  He provided a DA Form 31 dated 16 July 2010 which shows he took PCS leave from 3 August 2010 to 31 August 2010.  His DA Form 31 shows he signed out on leave on 3 August 2010.  However, this form does not include an annotation showing when he signed in to his new unit.  Additionally, the period between 31 August 2010 and 26 September 2010, which was unaccounted for, seems to have been lumped together with his PCS leave.  These two periods appear to have been coded as nonrated due to leave in excess of 30 days (Code E).  However, if he failed to extend his PCS leave this time could have been considered in-transit time (Code I).

	d.  His AER for the period 27 September 2010 through 7 March 2011 shows he was in attendance at the Signal Captains Career Course at Fort Gordon, GA.  This period was coded as non-rated time due to school (Code S).

	e.  PCS Orders Number 356-317, issued by Headquarters, U.S. Army Signal Center of Excellence, Fort Gordon, GA on 22 December 2010 assigned him to HHC, 1st Brigade, 1st Armored Division, with a report date of 16 July 2011.

	f.  The period of time between 8 March 2011 and 9 May 2011 was not accounted for; however, this period appears to have been coded as nonrated time due to a lack of rater qualifications (Code Q).

	g.  His AER for the period 10 May 2011 through 16 June 2011 shows he was in attendance at the Battalion S-6 Officer Course at Fort Gordon, GA.  This period was coded as non-rated time due to school (Code S).

	h.  The period of time between 17-30 June 2011 appears to be unaccounted for; however, he provided a spreadsheet indicating he was on PCS leave from 18-30 June 2011.  Additionally, his record contains a DA 4187, dated 1 July 2011, which supports this data point on his spreadsheet.  It appears this nonrated period was coded as leave in excess of 30 days (Code E) even though his leave was for less than 30 days.  Since his leave was less than 30 days and he was in transition between assignments this time should have been nonrated due to in-transit time (Code I); however, he provided a DA Form 4187, dated 
1 July 2011, which shows he was reassigned from HHC 1st Armored Division, Fort Hood, TX to Headquarters and Headquarters Troop (HHT), 1st Brigade Combat Team (BCT), 1st Calvary Division, Fort Hood, TX with a report date of 
1 July 2011.  

	i.  His ORB shows he was assigned to HHT, 1st BCT, 1st Calvary Division, Fort Hood, TX as the automation management officer from 8 June 2011 to 
12 August 2011.

	j.  Temporary change of station (TCS) Orders Number HO-223-0044, issued by Headquarters III Corps and Fort Hood, TX on 11 August 2011 assigned him to HHC, 1st Armored Brigade, 1st BCT, 1st Calvary Division, Kalsu, Iraq with a proceed date of on or about 13 August 2011.

	k.  His ORB shows he was assigned to HHC, 1st BCT, 2nd Cavalry Regiment, 1st Cavalry Division, Iraq as the Automation Management Officer from 13 August 2011 to 12 October 2011.

	l.  He provided a DA Form 4187, dated 13 October 2011, showing he was reassigned from Headquarters, 1st BCT, 1st Cavalry Division, Kalsu, Iraq to 1st BCT, 2nd Cavalry Regiment, 5th Brigade, 1st Cavalry Division, Kalsu, Iraq with a report date of 10 October 2011.

	m.  His ORB shows he was assigned to HHC, 1st BCT, 2nd Cavalry Regiment, 1st Cavalry Division, Iraq as the Battalion S-6 from 13 October 2011 to 12 December 2011.

4.  The contested OER does not contain any derogatory, negative, or prohibited comments and, therefore, in this regard, is in compliance with Army Regulation 623-3.

5.  On 17 June 2012, the applicant digitally signed the contested OER and in doing so acknowledged that the administrative data contained in Part II (Authentication) was correct.  It was filed in the performance folder of his AMHRR on or about 18 June 2012.

6.  On 27 August 2012, the OSRB denied his request for removal and/or correction of the contested OER based on administrative and substantive errors.

7.  He submitted:

	a.  Email traffic, dated 2-3 October 2012, between himself and the BN S-1 showing he had asked if the Brigade CDR had established a rating scheme, in writing, for CPTs who had graduated from the CPT career course and were working in branch-qualified positions.  The S-1 informed him no written memorandum was in place; however, the rating scheme had been established through a vocal command (VOCO) issued to all the BN S-1s from the previous Brigade CDR.  Additionally this VOCO was reiterated in an email.  The official who responded to his email indicated that neither she nor her predecessor had a copy of that email.

	b.  DA Form 67-9-1, dated from 15 December 2010 and showing that the BN XO was listed as his rater.  This form also shows he acknowledged receiving face-to-face counseling on 1 December 2011 and 12 January 2012.

	c.  DA Form 2823, dated 2 November 2012, wherein he stated he received his initial face-to-face counseling on 11 January 2012, not on 1 December 2011 as stated in his DA Form 67-9-1.  He also stated he unknowingly initialed next to the counseling dates (1 December 2011 and 12 January 2012) indicated in the DA Form 67-9-1

	d.  DA Form 638, dated on or around 1 May 2012.  This form shows the BN XO recommended him for award of the Army Commendation Medal.

	e.  Four memoranda issued by fellow staff members ranging in date from 
1 December 2012 to 26 February 2013.  Each staff member indicated that they had a chance to observe the applicant and acknowledged that the BN XO showed favoritism toward certain subordinates.  These staff members also indicated that the applicant was not among the subordinates favored by the BN XO.

	f.  Various email traffic ranging in date from 2 October 2012 to 28 November 2012.  These emails are from fellow staff members and other Soldiers within the command.  Most of the emails show that there appeared to be an issue with the BN XO showing favoritism to certain individuals and that the BN XO berated or humiliated some of his personnel to include the applicant.  

	g.  Several DA Forms 4856 ranging in date from 9 January 2012 to 28 April 2012.  These forms show the BN XO counseled the applicant for sending out 
e-mail taskings, falling out of a run, disobeying a lawful order, and dereliction of duty.

8.  Army Regulation 623–3 (5 June 2012) in:

	a.  Paragraph 1-4 states commanders at all levels will ensure reports are prepared by the individuals named in the published rating chain.  Rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by names, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any changes to rating chains will also be published and distributed.  No changes may be retroactive.

	b.  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 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 relative experience of the rated officer, the efforts made by the rated officer, and 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 Headquarters, Department of the Army (HQDA).

	c.  Paragraph 2-5 states the rater will normally be the immediate supervisor of the rated Soldier.  The rater will normally be senior by grade or date of rank (DOR) to the rated individual.  The (immediate supervisor) is the individual that directs and is most responsible for the rated Soldier’s performance.  The rater will be the immediate supervisor who monitors/observes the day-to-day performance of the rated individual and directly guides the rated Soldier’s participation in the organization’s mission.  The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days.

	d.  Paragraph 2-7 states a senior rater will be a commissioned officer of the U.S. Armed Forces, U.S. Coast Guard, or a DOD civilian employee.  The minimum grade for a senior rater will be in accordance with table 2–1 (COL/O-6 in this case).  The senior rater will normally be the immediate supervisor of the rater and a supervisor above all other rating officials in the rated officer’s chain of command or chain of supervision.  To render a written evaluation report, the senior rater will have been designated as the rated officer’s senior rater for a minimum period of 60 calendar days.

	e.  Paragraph 3-2 states rating officials will prepare evaluation reports that are forthright, accurate, and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army’s mission.  With due regard for the rated Soldier’s current rank or grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Evaluations normally will not be based on a few isolated minor incidents.  Rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated Soldier for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be honest and discriminating in their evaluations so Army leaders, HQDA selection boards, and career managers can make intelligent decisions.

	f.  Paragraph 3-4 states that although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers.  Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report.  The senior rater will ensure that a completed support or counseling form is returned to the rated Soldier when the evaluation report is forwarded to HQDA.

	g.  Paragraph 3-17 states that comments must pertain exclusively to the rating period of the report; comments related to nonrated periods will not be included (that is, schooling, duties performed while suspended, and so forth).  In preparing their comments, rating officials will convey a precise but detailed evaluation to communicate a meaningful description of a Soldier’s performance and potential.  In this manner, both HQDA selection boards and career managers are given the needed information on which to base a decision.  Rating officials may consider including in their comments the degree of professionalism demonstrated by the rated Soldier in his or her particular area of expertise.  

	h.  Paragraph 3-20 states comments that are prohibited will not be included in evaluation reports.  The use of inappropriate or arbitrary remarks or comments that draw attention to differences relating to race, color, religion, gender, age, or 
national origin is prohibited.  Subjective evaluation of a rated Soldier will not reflect a rating official’s personal bias or prejudice.  When nonjudicial punishment is given and filed in the restricted portion of the AMHRR or locally rating officials may not comment on the fact that such nonjudicial punishment was given to a rated Soldier.  This does not preclude mentioning the rated Soldier’s underlying misconduct, which served as the basis for the nonjudicial punishment.  Negative comments about a Soldier making protected communications will not be made in an evaluation report.  Such comments could be perceived as a retaliatory action. 

	i.  Paragraph 3-33 states the rated Soldier will always be the last individual to sign the evaluation report.  The rated Soldier’s signature will verify the accuracy of the administrative data in part I, including the accuracy of the name and social security number on the evaluation report, rank and date of rank, branch or MOS data, period covered and nonrated time; the rating officials in part II; APFT and height and weight entries.  This procedure ensures that the rated Soldier has seen the completed report.  It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  

	j.    Paragraph 4-7 states that an evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR is presumed to be administratively correct, have been prepared by the proper rating officials, represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an OER or AER will normally be returned without action unless accompanied by additional substantiating evidence.  The rated Soldier may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  

		(1)  Appeals based on administrative error only will be adjudicated by HQDA, Evaluation Appeals Branch for active Army OERs.  Claims of administrative error pertain to the DA Form 67–9, parts I, II, III, block a, III, block b, and IV, block c.  Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the APFT and/or height and weight entries.  However, it should be noted that the rated Soldier’s authentication in part II of a DA Form 67–9 verifies the information in part I.  It also confirms that the rating officials named in part II are those established as the rating chain and authenticates the accuracy of the APFT and height and weight entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (parts I, II, and III, block a) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies that the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude the correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

		(2)  Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB).  Claims of inaccuracy of a substantive type pertain to the DA Form 67–9, parts IV, blocks a, b, and d, V, VI, VII, and OER addenda.  These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials.

	k.  Paragraph 4-11 states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3–36a and 4–7a will not be applied to the report under consideration and 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 of 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.


DISCUSSION AND CONCLUSIONS:

1.  With respect to his non-rated time and nonrated codes, the applicant provided a spreadsheet/OER time line and a leave form which does not indicate when he signed in off of leave.  His record also included numerous sets of orders and AERs.  

	a.  The contested OER includes the nonrated codes E (leave in excess of 30 days), Q (lack of rater qualifications), and S (student at military/civilian school) and lists his rater as the BN CDR and his senior rater as the Brigade CDR.

	b.  The evidence of record shows there were several periods of nonrated time which could be interpreted as necessitating an E or an I (In-transit) code.  However, he did not provide and his records did not contain any evidence to show when he signed in to various installations off of leave.  Therefore, he could have extended his leave to over 30 days or he may have been in-transit.  

	c.  Regardless of the code used, it appears that if a mistake was made, it was minor in nature and the appropriate amount of nonrated time was included in his report.  Therefore, absent clear and convincing evidence to the contrary, his nonrated codes are considered to be correct.

2.  With respect to the rating chain, the applicant, as the rated Soldier, was the last individual to sign the evaluation report.  His signature, as with all rated Soldiers, was only necessary to verify the accuracy of the administrative data in part I, including the period covered and nonrated time and the rating officials in part II.  When he signed the contested OER he was in fact ensuring that he had reviewed the administrative data and found it to be correct.  Nevertheless, the BN XO identified himself as the applicant's rater.  However, the applicant has stated that the BN XO was removed from his chain of command/supervision.  Unfortunately, he did not provide clear and convincing evidence to show when his rater changed from the BN XO to the BN CDR.  Therefore, regularity must be presumed in that nonrated codes were used to account for any nonrated time due to lack of rater qualifications and that the BN CDR had sufficient time to act as the applicant's rater at the time the report was rendered.  

3.  The applicant stated that the BN XO wrote a less than complimentary OER and handed it off to the BN CDR at the last minute.  However, the BN CDR was under no obligation to accept comments entered into the OER in the rater's portion.  These comments would have been a suggestion only.  If the BN CDR accepted the comments as written then he would have done so because he agreed with what was written based on his own observations regarding the applicant's performance during the rating period.  Additionally, the contested OER did not contain any derogatory or prohibited comments.  His dissatisfaction with the OER block marks or comments therein is not a reason for making changes or removing the evaluation from his AMHRR.  

4.  The applicant has not provided clear and convincing evidence or argument to show that there was a substantive or administrative error in the contested OER.  Therefore, based on the foregoing evidence, there is insufficient evidence to grant 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.


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