IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130019930 


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 an officer evaluation report for the period 8 November 2007 through 19 April 2010 from his file in agreement with the senior rater (SR) and rater of this evaluation.

2.  The applicant states:

   a.  His appeal is based on substantive inaccuracy on the contested OER.  His raters at the time of the OER did not have the necessary perspective for the scope of the assigned duties and key tasks in order to assess his performance against his peers.  He was the first officer that his evaluators had seen at the time in the assigned duty slot and it was not understood what his functional area (FA) was supposed to provide at the Brigade level.  This is important because there was no standard or peers to compare him by as his FA was new to the Brigade at the time of the evaluation.

   b.  At the time of the evaluation, it would not have kept him from being promoted and at the time he did not have an understanding of how the OER potentially would affect his promotion status.  He did not feel great about the OER, but he accepted it believing he could recover at the time.  As drawdowns began, information was disseminated to officers going before the promotion boards that officers who had “fully qualified” OER’s were at risk of not being promoted.  With this new knowledge of evaluations and after being passed over and counseled it was explained to him that the contested OER was more hurtful to his career than he truly understood.
   c.  He reached out to his raters because he believes and understands the ramifications of the OER.  After talking to the SR and rater, they now have a greater understanding of the greater perspective in comparison of him to others.  His raters were in disbelief that he missed being promoted.  They wanted to correct this and helped him as quickly as they could.  His SR was hard to find since he had retired.  His rater was in Korea, making communication coordination complicated due to the 13-hour time difference.  He was able to get everything from both individuals, but he was passed over again for promotion five months ago.

3.  The applicant provides copies of three Evaluation Report Appeal memoranda.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed in the South Carolina Army National Guard, Military Police Corps, as a second lieutenant, on 10 August 2004.  He was promoted to captain on 1 November 2007.

2.  He received an "Extended Annual" OER for the period 8 November 2007 through 19 April 2010 for his duties as a Brigade Information Assurance (IA) Officer, FA53.  The Brigade S6, in the rank of major, was his rater and the Brigade Deputy Commanding Officer, in the rank of lieutenant colonel, was his SR.  The OER shows in:

	a.  Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments:

[Applicant's] performance in his duties over the last year has been commendable.  He is a hardworking and dedicated officer that will stop at nothing to accomplish the mission.  Upon his arrival to the unit, the Brigade S6 shop was undermanned.  He immediately took responsibility for running the Brigade's IA Section.  He built the section from scratch, ensuring all Soldiers were trained, all regulations were enforced, and all systems were running optimally protecting the network from threats.  His efforts saw the unit through a smooth rotation at the National Training Center (NTC) where the IA section met all expectations and ensured that the network was secure.  During deployment to Operation Enduring Freedom VII he took the IA section to the next level, being the first Brigade in the U.S. Division South to become fully IA compliant by implementing and integrating Host Based Security Systems (HBSS).  This ensured that over 700 computers, located over ten remote sites were protected from network threats and compliant with all Army and theater IA policies.  His technical skills were key in the development of the Brigade portal and information sharing systems.  [Applicant] is an asset to any team and that [sic] will always complete the mission and ensure that his unit is a success.  

	b.  In Part Vc (Comment on potential for promotion) the rater entered the following comments:

[Applicant] is a dedicated professional with excellent potential for future and greater responsibility.  Promote him at first opportunity and assign to more technically demanding positions with greater levels of responsibility.

	c.  In Part VII(a) (SR), the SR placed an "X" in the "Fully Qualified" block and stated he currently rated 17 officers in this grade.  In Part VIIb, the applicant was not assessed.  In Part VIIc (Comments on Performance/Potential), the SR entered the following comments:

Solid performance.  [Applicant] has grown tremendously as a FA53 and the results are self-evident in his section's superb performance during numerous communications exercises, a Mission Rehearsal Exercise at the NTC, and the brigade's execution of full spectrum operations across 5 provinces in Southern Iraq.  [Applicant] met all measurable expectations and ensured uninterrupted service to the brigade ensuring commanders had a robust and protected means to conduct operations.  He has served as an invaluable advisor to the S6 on IA issues and he continued to seek self-improvement to better serve the Brigade.  Continue to develop his potential and promote with peers.

3.  The OER was digitally signed by the rater on 20 August, the SR on 22 August, and the applicant on 25 August 2010.

4.  There is no evidence of record the applicant submitted a commander's inquiry or appealed this OER to the Officer Special Review Board.

5.  He received an "Annual" OER for the period 20 April 2010 through 19 April 2011 for his duties as a Brigade IA Officer.  He was rated by the same rater and SR as the previous OER (contested).  The OER shows in:

	a.  Part Va, the rated placed an "X" in the "Outstanding Performance, Must Promote" block and entered the following comments:

[Applicant's] performance as the Brigade IA Officer has been exceptional.  His efforts in building and implementing the Brigade's IA SOP were essential in protecting the network from internal and external threats.  The 3rd Brigade's IA section continued to excel while in theater resulting in the 1st Infantry Division G6 commending his section and coining his Soldiers for their performance.  His planning and training was [sic] essential as the 3rd Heavy Brigade Combat Team transferred the network in Iraq to the follow-on unit.  [Applicant] spent countless hours training the incoming IA Officer and their [sic] Soldiers on the HBSS as well as sharing a year's worth of lesson learned and best practices setting the unit up for success.  His efforts were key in ensuring a smooth transition for the Brigades' Soldiers back to the Garrison network.  [Applicant] ensured the Battalion's network administrators and IA Security Officers were certified by arranging a Security Plus mobile training team to provide training and certification at Fort Benning.  [Applicant] willingly accepts the toughest missions and is willing to do what it takes to ensure that his unit is a success.

	b.  In Part Vc, the rater entered the following comments:

[Applicant] has unlimited potential for future service and responsibility.  Promote [applicant] ahead of peers and assign to more technically demanding positions.

	c.  In Part VII(a) the SR placed an "X" in the "Best Qualified" block and stated he currently rated 21 officers in this grade.  In Part VIIb, the applicant was not assessed.  In Part VIIc, the SR entered the following comments:

A great performance from a talented IA Officer who has contributed immeasurably to the Brigade both in Iraq and during the Brigade's transition to its homestation network.  [Applicant] is truly a technical expert in his field.  His tireless efforts to protect the network and training Soldiers have enabled commanders and Soldiers to communicate without exception or fear of compromise.  [Applicant] is a subject matter expert who is able to clearly articulate a myriad of policies and regulations and ensure all users are compliant.  He is a trusted advisor to the Brigade S6 and the Brigade Commander.  [Applicant] has great potential.  Promote to Major and continue to challenge him with more demanding assignments.

6.  The OER was digitally signed by the rater, the SR, and the applicant on 20 May 2011.
7.  He provided copies of the following:

   a.  An Evaluation Report Appeal memorandum, dated 7 October 2013, wherein the applicant’s rater for the contested OER stated:

        (1)  The basis of this appeal was substantive inaccuracy.  He is in agreement with the applicant’s decision to remove the report.  As the applicant’s rater he would be the most knowledgeable observer to support the appeal.  According to regulatory reasoning that OER would be based on erroneous perception.  At the time of the report, evaluating and mentoring the applicant was challenging.  The applicant becoming a 53 was a new phenomenon as that career functional designation process was reserved for field grades to transfer into at the eight-year mark.  The role of FA53 captains was not solidified at the Brigade level and that was a discovery process for the applicant and him during the applicant’s first evaluation.  The applicant’s first OER did not capture his true potential and worth to the Army.  He was also the rater for the subsequent OER, which truly reflected the applicant’s potential.

        (2)  The applicant arrived to the unit as a new Information Systems Management (FA53) officer having transitioned from the Military Police Corps.  The transition from a non-technical branch and mission to being a leader and expert in a technical field was a demanding transition.  In the 3rd Brigade Combat Team (BCT), 3rd Infantry Division, the applicant had no FA53 counterparts as it was an autonomous BCT at Fort Benning, GA.  The BCT was in heavy preparation for deployment and the Brigade had not had any previous FA53’s.  That made rating the applicant challenging with no previous comparison or set standards available at the time.  

        (3)  That first rating period was a discovery process for applicant and the BCT to understand what his role was.  During the deployment the applicant’s functioned as the deputy S6, while striving to understand and excel at integrating and managing mission command/information systems.  With hard work, perseverance, and dedication, the applicant excelled and clearly demonstrated the leadership and potential for greater levels of responsibility.

        (4)  Over the past two year he served at the NTC as the Senior Signal Trainer and the Brigade S6 Observer Controller Trainer.  He had the responsibility to observe, assess, and validate BCT’s during their mission rehearsal exercise prior to deploying to combat in Iraq and Afghanistan.  He observed, coached, and mentored 17 BCT S6’s and FA53’s in preparing their mission command systems and developing their teams.  The trends he observed strengthened his belief that the applicant was among the best at understanding and executing the role of an FA53 in a BCT.
        (5)  As a rater and mentor it is their job to understand and help the Army promote officers based on demonstrated potential.  It would be a discredit to the applicant to keep a branch transition developmental evaluation report in his board file.  As the applicant’s rater he requests the later OER be kept and the contested OER signed in August 2010 (fully qualified) be removed.

   b.  An Evaluation Report Appeal memorandum, dated 10 October 2013, wherein the applicant’s SR for the contested OER stated:

		(1)  The basis of the appeal was substantive inaccuracy.  The rater and he wrote and signed the contested OER based on their erroneous perception of the duties associated with the applicant’s FA.  The applicant came to them as a re-branch and assumed an FA that was new to the Army at the Brigade level and rank in which he served.  That left them without realistic expectations for the scope of his assigned duties and without a sense of relativism as to how his performance compared to that of others assigned to the FA. 

		(2)  He was the SR for both the contested OER and the subsequent OER. He is in agreement with the summation of the challenges involved with the rating period as stated by rater and the applicant.  He shares in the belief that the contest evaluation report does not project the true potential and capability of the applicant.  Therefore, he supports the applicant in his appeal to have the contested OER removed from his file.  The subsequent OER truly reflected the applicant’s work ethic and potential.

   c.  An Evaluation Report Appeal memorandum, dated 1 November 2013, wherein the applicant requested an appeal of the contested OER based on his non-selection by the Fiscal Year 2013 promotion board and his above the zone re-look scheduled for 21 October 2013. 

8.  Army Regulation 623-3 (Personnel Evaluation - Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.  The regulation states:

	a.  An OER accepted by Headquarters, Department of the Army (HQDA), and included in the official record of an officer, was presumed to had been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rest with the applicant.

	b.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Paragraph 1-10 specified except to comply with the regulation, no person could require changes be made to an individual's OER.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  The regulation also provided the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

   c.  A rating official who becomes aware of information that would have resulted in a higher evaluation of a rated Soldier will take action to alter or remove the report in accordance with the appeal policy.  Rating officials will specify the new information precisely, how it was obtained, whether it was factually confirmed, or how it would change the evaluation had it been considered in writing the original report.

   d.  Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.

   e.  Paragraph 4–8 - because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within 3 years of an OER “THRU” date. 

9.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR Management Program and it composition.  The regulation states once a document is placed in the AMHRR it become 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 proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant submitted statements from the former rater and SR of the contested OER wherein they both stated, in effect, this OER didn't capture the applicant's true potential and worth to the Army.  Statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by a Soldier's non-selection or other unfavorable personnel action claimed to be the sole result of the contested report.  Such claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report. 

2.  There is no evidence of record and he did not provide sufficient evidence showing this OER contains material error or is inaccurate.  There is also no evidence he requested a Commander's Inquiry of this OER as was his right to do so.  It appears this OER represents a fair analysis of the applicant in a new duty position at the time.  When compared with the subsequent OER it appears the applicant found his footing in the position and continued to perform an outstanding job.  He also has not provided sufficient evidence the contested OER was the reason for his non-selections for promotion.  

3.  There is no evidence of record and he did not provide sufficient evidence showing he used due diligence and appealed this OER through the administrative appeals process.  There is also no evidence his rater submitted information which would have resulted in a higher evaluation in a timely manner. 

4.  In accordance with regulatory guidance there must be compelling evidence to support the removal or transfer of a properly-completed, facially-valid DA Form 2627 from a Soldier’s records.  Absence evidence meeting this regulatory standard there is an insufficient evidentiary basis to support his request. 

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)                                         AR20130019930





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ABCMR Record of Proceedings (cont)                                         AR20130019930



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