IN THE CASE OF:	  

		BOARD DATE:  5 February 2014

		DOCKET NUMBER:  AR20130018102 


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 his referred change-of-rater officer evaluation report (OER) for the period 15 January 2008 through 18 November 2008 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

* the contested OER is an unjust and biased evaluation with substantive errors
* the evaluations and remarks in Part IVa (Army Values), Part IVb (Leader Attributes/Skills/Actions), Part V (Rater Performance and Potential Evaluation), and Part VII (Senior Rater) stating "Do Not Promote" should be removed and corrected in the contested OER
* he was recently notified he was non-selected for promotion to captain based on the errors contained in the contested OER and without correction of the errors he will be non-selected for promotion again and possibly eliminated
* his rater fails to provide sufficient detail or explanation as to how he does not possess or exhibit the value of integrity
* to attest that an individual fails to "possess high personal moral standards; honest in word and deed," the rater must first support such a derogatory evaluation with sufficient evidence
* the evaluation for "Interpersonal" skills contained in Part IVb (Skills) is marked "No" which is a completely inaccurate and unsupported description of his performance during the rated period
* the evaluations for "Communicating" and "Executing" in Part IVb are unsupported, inaccurate, and obviously a product of bias and/or animosity
* the "Unsatisfactory Performance, Do Not Promote" performance marking in Part V was improperly concluded because there was an insufficient basis to form a conclusion by the rater
* the fact that he received an Army Commendation Medal for his performance during the relevant rating period shows that the ratings on the contested OER are clearly erroneous and without support
* the comments, "Minimal potential.  Do not promote at this time.  Retain and retrain" in Part Vc (Comment on Potential for Promotion) are inaccurate and apparently the result of bias and/or animosity
* the comments provided by the senior rater in Part VII are directly contradicted by the statements provided by his peers
* he did not receive a DA Form 67-9-1a (Developmental Support Form) or any counseling regarding his purported shortcomings and this denied him the opportunity to discuss any deficiencies in his performance
* his raters fail to include any objective evaluations on matters that would be positive inclusions on his contested OER
* comments provided by his rater and senior rater are confined to negative subjective perceptions of his performance without any specific reference to actions that would warrant or support the negative comments contained in the contested OER
* he will have difficulty attaining the rank of captain and will be unduly prejudiced by the inaccurate ratings based on the raters' subjective opinions and unjustified negative perceptions of his performance if the contested OER remains in his records

3.  The applicant provides:

* self-authored statements
* contested OER
* 3 character letters
* Army Commendation Medal Certificate
* Officer Record Brief (ORB)
* counsel appointment letter, dated 6 September 2013
* counsel cover letter, dated 23 September 2013

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 enlisted in the Regular Army on 22 August 1996 and was honorably discharged on 18 January 2006 to accept an appointment as a warrant officer.  On 19 January 2006, he was appointed as a Reserve chief warrant officer.  He was promoted chief warrant officer two (CW2) in the Regular Army on 19 January 2008.

3.  The contested OER for the period 15 January 2008 through 18 November 2008, during which period the applicant was a CW2, currently filed in his AMHRR shows in:

   a.  Part IId (Authentication), the applicant acknowledged the contested OER, indicated comments were attached, and authenticated the form.

	b.  Part IVa, the rater placed an "X" in the "No" block for "integrity."

	c.  Part IVb, the rater placed an "X" in the "No" blocks for "interpersonal," "communicating," and "executing."

	d.  Part IVd (Were Developmental Tasks Recorded on DA Form 67-9-1a and Quarterly Follow-up Counselings Conducted?" the rater placed an "X" in the "No" block.

	e.  Part V, the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.  His comments state:

…This officer possesses a satisfactory amount of technical knowledge on maintenance and has taken the initiative to seek self-improvement from time to time.  These achievements were overshadowed by interpersonal difficulties and failure to meet daily mission standards.  During this rating period, he lacked the interpersonal skills to professionally co-exist with the other senior maintenance officers on FOB Rustamiyah, resulting in complications obtaining professional development, vehicle parts and safety messages.  He was unable to effectively communicate with motor sergeants and Company XOs on ordinary tasks such as controlled exchanges, maintenance meetings, ordering parts and battle damaged/battle loss packets.  His reports were oftentimes incorrect resulting in false reporting to the 18th Military Police Brigade BMO, not meeting mission standards.  [Applicant's] integrity has also come into question during this rating period.  He has given out questionable guidance on maintenance matters, forcing the staff to look elsewhere for assistance on a daily basis…

Minimal potential.  Do not promote at this time.  Retain and retrain.

	f.  Part VII, the SR placed an "X" in the "Do Not Promote" block in his evaluation of the applicant's promotion potential to the next higher grade.  His comments on the applicant's performance and potential state:

"[Applicant's] performance has been marginal during this rating period.  …Although he possesses a satisfactory amount of technical knowledge on maintenance, he lacked the personal drive, integrity and interpersonal skills needed to set the standards for others to emulate.  He required constant supervision when completing administrative tasks and his personal performance and integrity did not meet the expectations of a chief warrant officer.  He is unable to work harmoniously with others and does not promote good morale in his subordinates.  [Applicant] displayed some potential, continue to groom this officer for promotion and increased responsibilities."

4.  On 8 October 2009, the applicant was appointed as second lieutenant in the Regular Army.

5.  On 16 November 2010, the contested OER was filed in his record in the interactive Personnel Records Management System.

6.  On 8 April 2011, he was promoted to first lieutenant.

7.  The applicant provides self-authored statements and 3 statements of support from former Soldiers who observed his performance and interaction with his rater during the rating period of the contested OER.  The statements of support show his rater was deemed inexperienced with regard to maintenance issues and that his contested OER is unjust and does not accurately reflect his performance and abilities.  He also provides a copy of his Army Commendation Medal Certificate awarded to him on 11 August 2008.

8.  There is no indication the applicant requested a Commander's Inquiry with regard to the contested OER or that he submitted an appeal within a 3-year period.
9.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 1-10a stated performance evaluations were assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance was evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.

	b.  The senior rater must be an officer of the U.S. Armed Forces or an employee of the Department of Defense.  Normally, the senior rater must be a supervisor above the rater in the rated officer's chain of command or supervisory chain.  The senior rater uses his or her position and experience to evaluate the rated officer from a broad organizational perspective.  His or her evaluation is the link between the day-to-day observation of the rated officer’s performance by the rater and the longer-term evaluation of the rated officer’s potential by Department of the Army selection boards.

	c.  Paragraph 3-57 stated evaluation reports accepted for inclusion in the official record of a Soldier were presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

	d.  To justify deletion or amendment of a report, the appellant 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 appellant.

	e.  Chapter 6 prescribes the policies and procedures pertaining to managing the OER redress program.  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 of administrative error or factual inaccuracy.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER is unjust, has substantive errors, and is the product of bias and/or animosity.  He further contends the contested OER will affect his promotion to captain.

2.  OER's accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

3.  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 burden of proof rests with the appellant.

4.  An OER is a measure of an officer's performance and potential during a period of time.  There is no evidence and the applicant provided insufficient evidence to show his rater and senior rater did not comply with the regulatory requirements for evaluating him in a fair and unbiased manner.

5.  In view of the above, there is an insufficient basis to remove the contested OER from the applicant's 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)                                         AR20130018102



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ABCMR Record of Proceedings (cont)                                         AR20130018102



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