IN THE CASE OF:	  

		BOARD DATE:	  27 March 2014

		DOCKET NUMBER:  AR20130019806 


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 period “02” April to 7 November 2012 (hereafter referred to as the contested OER) be removed from his Army Military Human Resource Record (AMHRR). 

2.  He states:

	a.  His immediate and senior rater's (SR) prejudicial OER statements do not accurately or honestly rate his ministry or job performance.  This rating period covered a majority of a combat deployment and the rating officials' remarks in the blocks checked are retribution as verified by the Commander's Inquiry (CI) and supporting sworn statements.

	b.  The CI by the 82nd Airborne Division Chaplain addressed his recent Operation Enduring Freedom deployment which covered the majority of the period in question.

	c.  The CI determined there was indeed "a bias" and a lack of adequate objectivity and fairness, which was inconsistent with the requirements of Army Regulation (AR) 623-3 (Evaluation Reporting System (ERS))," and other specific violations and irregularities in the challenged report.  This is "official" evidence supporting his allegations of unfairness and injustice.  


	d.  He included the CI in his 2 April 2013 appeal to the U.S. Army Human Resources Command (HRC) Evaluation Appeals.  The appeals board acknowledged the CI, but denied the appeal because they said his evidence did not justify altering or withdrawing the OER.  He reapplied to the same board noting the CI provided the evidence overcoming the presumption of regularity.  The appeals board also failed to address the lack of counseling on the major aspect of a chaplain's role in providing religious ministry in the context of a lower OER following a higher-rated report.  

3.  He provides:

* Contested OER
* DA Form 67-9-1 (OER Support Form)
* First OER appeal 
* Officer Special Review Board (OSRB) Record of Proceedings
* Second OER appeal and response
* CI by the acting 82nd Airborne Division Chaplain
* Sworn statements
* Email
* Officer Record Brief
* Four DA Forms 67-9
* Air Force (AF) DD Form 214 (Certificate of Release or Discharge from Active Duty)
* AF Form 707 (Officer Performance Report)
* AF Commendation Medal
* Global War on Terrorism Service Medal
* Meritorious Unit Award
* Certificates 
* Army Achievement Medal
* Combat Action Badge
* Army Commendation Medal
* North Atlantic Treaty Organization (NATO) Medal
* DA Form 4856 (Developmental Counseling Form)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of captain (CPT)/O-3.

2.  After completion of prior commissioned service in the U.S. Air Force, the applicant was appointed as a Regular Army commissioned officer on 9 January 2011 in the rank of CPT.  He provided several documents which show the achievements and commendations he received during his service in the U.S. Air Force.

3.  In January 2012, he was deployed to Afghanistan in support of Operation Enduring Freedom.

4.  He provided two OERs, for the periods ending 9 January and 20 April 2012, in which he was rated as the Battalion Chaplain for the 2nd Battalion, 321st Airborne Field Artillery Regiment.  These reports indicate his rater evaluated him as "Outstanding Performance, Must Promote" and his SR assessed him as "Best Qualified" and "Center of Mass."

5.  His service record is void of an Army Physical Fitness Test (APFT) scorecard.  

6.  On 12 October 2012, he received counseling for meeting the requirements to be a paratrooper in the 82nd Airborne Division.  Part III (Summary of Counseling) of this form indicates:

   a.  If a Soldier holds a coded airborne position, a Soldier is required to be airborne qualified or be on orders to Airborne School in order to remain within that position based on Modified Table of Organization and Equipment (MTOE).
   
   b.  The applicant's position was an airborne coded position.  
   
   c.  Upon redeployment, all non-airborne personnel (NAP) are required to go to Airborne School or decline to go.  If the latter is chosen, each Soldier will be reassigned at the needs of the Army.  
   
   d.  The applicant elected to go to Airborne School.  He was informed he needed to attend the first available date in order to meet the requirement for Soldiers to serve in the 82nd Airborne Division and that is to be airborne qualified.
   
   e.  The applicant was advised of the requirements to attend Airborne School, including taking an APFT.  He was informed that failure to complete this within 90 days of return would place him at risk for PCS [permanent change of station] to a non-airborne unit.  
   
   f.  The applicant marked the "I agree" box indicating he agreed with the information on counseling form and he stated "I humbly decline attendance at ABN School and accept whatever changes may come in accordance with that decision."  He and the counselor signed the form on 17 October 2012.  

7.  The contested report is a SR Option OER covering the period 21 April through 7 November 2012.  This report indicates the applicant was rated as the Battalion Chaplain and Pastor to the 2nd Battalion, 321st Airborne Field Artillery Regiment, Fort Bragg, NC.  

8.  The contested OER shows:

	a.  the rater is listed as Major (MAJ) CJC, Battalion Executive Officer, and he digitally signed the report on 30 October 2012;

	b.  the intermediate rater is listed as MAJ KLO, Brigade Chaplain, and he digitally signed the report on 30 October 2012;

	c.  the SR is listed as Lieutenant Colonel (LTC) PJR, Battalion Commander, and he digitally signed the report on 30 October 2012;

	d.  item Part IId, the report was not referred to him; 

	e.  the applicant digitally signed the report on 1 November 2012;

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

	g.  in Part Vb (Comment on Specific Aspects of the Performance), the rater made the following comments, "CH [applicant] lacks the physical stamina to maintain airborne standards.  He has declined to attend Airborne School."

	h.  in Part VII (SR), the SR assessed the applicant as "Fully Qualified"/"Center of Mass" and made the following comments:

CPT [applicant] is a tremendous counselor, caring and empathetic to the needs of the Soldiers in the Battalion.  Throughout the deployment to Afghanistan, [applicant] availed himself to the Paratroopers, often placing himself at personal risk when he traveled to the austere outposts.  Willing to learn and accepting of recommendations, CPT [applicant] warmed to the idea of providing updates to the company and battalion command teams which greatly increased their ability to isolate and solve emerging soldier issues before they had an adverse impact on the mission.  As the unit transitioned from theater, the BCT (Brigade Combat Team) Chaplain selected CPT [applicant] over all others to provide counseling and training to the Paratroopers.  Assign this officer duties that promote his strengths as an instructor or counselor.  CPT [applicant] possesses the potential for continued service.  Promote with peers to Major and send to the career course.

9.  A review of the applicant's military record in the interactive Personnel Electronic Records Management System (iPERMS) revealed the applicant's contested OER was filed in the performance section of his AMHRR.

10.  In a 30 March 2013 memorandum, the 82nd Airborne Division Chaplain reported the results of the CI on the applicant's contested OER.  As a result of his inquiry, he determined there was a bias and a lack of objectivity and fairness, which is inconsistent with the requirements of AR 623-3 and required administrative correction.  The Chaplain stated:

	a.  The rater/SR failed to provide written and timely verbal reports of a failed APFT to the rated officer, as substantiation for the OER comments, "…lacks physical stamina to maintain airborne standards."  Therefore, the rater provided unproven, unfounded derogatory comments.

	b.  The rater used inadmissible evidence through the use of an "isolated incident" in part Vb.  In addition, the comment is ethnocentric and not in the best of interest of the Army.

	c.  The rated officer was not given the opportunity to request referral prior to the OER.

	d.  He recommended the applicant appeal the contested OER and this OER be stricken from the applicant's record.

11.  On 2 April 2013, he submitted his first appeal to HRC, Evaluation Appeals, wherein he stated the contested OER:

* was unjust and inaccurate
* was a retributive OER
* was rendered three weeks after he declined to return to Airborne School
* reflected a narrow view of the Army needs and his ability to serve those needs
* focused on a lack of Airborne qualification and minimizes the combat ministry he provided for seven months
* slandered his service and the service of non-Airborne Soldiers in the Army 
* painted an inaccurate picture of his service to God and country
   


12.  In his 2 April 2013 appeal, he also stated:

* He was a CPT with 8 years of time in grade as of 2 July 2012, he was up for promotion, and was not pending personal or legal action
* He should be in the second priority category for appeals
* He was non-Airborne qualified, but filled the need for a Chaplain in an Airborne unit for two years
* He was counseled to return to Airborne School after he returned from Afghanistan
* He originally started Airborne School in June 2011, but he didn't pass the APFT 
* The standard for APFT was unjust and he didn't pass in the retest area

13.  On 18 July 2013, the Officer Special Review Board (OSRB) denied the applicant's request for removal of the contested OER from his AMHRR.  

14.  In a 7 August 2013 memorandum, a Human Resources Assistant, Appeals and Corrections Section informed the applicant that the Army Special Review Board had determined the evidence he submitted did not justify altering or withdrawing the contested report.  He was advised he could resubmit another appeal with additional evidence to this Board.  

15.  On 21 August 2013, he submitted a second appeal to HRC, Evaluation Appeals.  He requested reconsideration of his denial of his appeal to the Army Special Review Board.  He stated reconsideration is requested because the denial was internally inconsistent.

	a.  The denial acknowledged the CI's determinations that there was "a bias, and a lack of adequate objectivity and fairness, which was inconsistent with the requirements of AR 623-3."

	b.  The denial concluded he provided no evidence to challenge the presumption of regularity attached to the challenged report.

	c.  The Special Review Board also failed to address the lack of counseling of a chaplain's role in providing religious ministry for all and other aspects of the evaluation, but focused on his failure to qualify for Airborne.

	d.  The "presumption of regularity" must also attach to the commander's inquiry whose purpose is to evaluate the validity of his challenges to the OER comments and evaluations.

	e.  The CI provided evidence in support of his contentions pertaining to the contested OER being a retribution report.

	f.  The denial of the CI validity or the truthfulness of its determinations was a rejection of the integrity or competence of the investigating officer.  
In a 3 September 2013 memorandum, a Human Resources Assistant, Appeals and Corrections Section informed the applicant his appeal was returned without action due to insufficient evidence.  According to the Board Proceedings, dated 18 July 2013, he did not have any new evidence for them to resend his appeal back to the OSRB for adjudication.  

16.  On 28 October 2013, he submitted another appeal to the Army Review Boards Agency.  He reiterated the contentions submitted in his 21 August 2013 appeal to HRC.  In essence, he stated the CI clearly supports his allegations of unfairness and injustice in the contested OER.  He stated the disregard of the CI is an invitation for abuse and trouble because it results in official duplicity that will eventually undermine faith in the system.  The CI was included in his initial appeal to the Army Special Review Board, which denied his appeal because he had not provided evidence to overcome the presumption of regularity that attaches to the evaluation report.  The OSRB's denial of his appeal is inconsistent with the CI findings and AR 623-3.  The Special Review Board's apparent dismissal of the CI without explanation conveys the clear message that it places no weight on the OER appeal process.  His declination of Airborne School was not due to his intent to avoid training, but it was about timing.  It was immediately after his return from deployment and with no advance notice or preparation.  This had the potential to disrupt his integration back into family which would have compromised his ability to effectively minister to families undergoing the same types of issues.  The contested OER covers a significant portion of his performance in Afghanistan.  He contends it is unfair and improper that the declination of Airborne School influenced his report on his performance in Afghanistan as a unit chaplain.  There was no record of counseling or other indicators of the performance of his primary duties.  

17.  AR 600-8-104 (AMHRR 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 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, among other agencies, the ABCMR and DASEB.



18.  AR 623-3 prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9.

   a.  Paragraph 1-8c states the primary function of the ERS is to provide information to HQDA for use in making personnel management decisions. Components of this information include, evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   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 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, and as explained in other directives.  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.
   
	c.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

   d.  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.

    e.  Paragraphs 6-3 and 6-4 state that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the evidence in the applicant's official record, his contentions, arguments, and the evidence submitted in support of his application, he did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removal of the contested OER.  

2.  The applicant contends the rating officials' remarks in the blocks checked are retribution.  However, the evidence of record does not support the applicant's claims.  

3.  He contends his immediate and SR's prejudicial OER statements do not accurately or honestly rate his ministry or job performance.  However, he has not provided sufficient evidence to show that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  The reviewer concurred with the rating officials’ assessment of the applicant's performance.

4.  He contends the CI determined there was "a bias" and a lack of adequate objectivity and fairness regarding the contested OER.  However, as noted in the governing regulation, a CI is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

5.  The rater's comments regarding the applicant "lacks the physical stamina to maintain airborne standards and he has declined to attend Airborne School" were acknowledged.  Although his service record is void of his APFT scorecard, he provided statements indicating he twice failed the APFT.  

6.  He has not provided sufficient evidence to show that the OER was not processed in accordance with applicable laws and regulations.  


7.  In the absence of compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

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)                                         AR20130019806





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019806



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1