BOARD DATE:	  20 March 2014

		DOCKET NUMBER:  AR20140000046 


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)) ending 1 June 2008 (hereafter referred to as the contested OER) be corrected to show his senior rater marked him in the top "Best Qualified" block. 

2.  The applicant states the verbiage utilized on the OER warrants a "Best Qualified" notation.  The senior rater checked the block of fully qualified when the description to validate this block does not match up.  He understands that the length of time that has taken place from this report is over 5 years in time but within the last 5 years, he has always looked forward.  He has no excuse for overlooking this data but his only argument would be that of the operation tempo.  Within the last 5 years, he has deployed to Afghanistan as a Route Clearance Company Commander, successfully completed Pathfinder and Air Assault courses, completed his Regimental S3 time as a MPEP with the Australian Army, supported his mother through her battle with breast cancer, and spent time with his family (wife and 2 children).  He is currently at Command and General Staff College where he is further developing his education.  He plans on staying in the military for as long as he can make a positive impact and does not want a technicality to jeopardize that goal.  He asks that this block be changed and that from this, he will ensure that the attention to detail that he gives documents has heighten.

3.  The applicant provides copies of seven OER's.



CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned on 31 May 2003 with promotion to major effective 1 February 2013.

2.  On all of the applicant's OER's except the one in question, he is marked by the different senior raters as "Best Qualified". 

3.  The contested OER is marked by the Senior Rater as "Fully Qualified".  The narrative portion states: 

[The applicant] is an outstanding officer who completed all missions beyond expectations.  [The applicant] is a top performer in the top 33% of officers I rate.  He has been instrumental in ensuring that all training standards are understood and compiled with at every level.  His attention to detail and professionalism are well documented and recognized across the Division.  [The applicant] was selected to serve as an Engineer OC/T due to his specialized skills and knowledge of the battlefield.  Promote to Major and select for resident ILE ahead of peers. 

4.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army’s Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential.  Paragraph 4–11 (Burden of proof and type of evidence) state the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of an evaluation report, the appellant will have to produce evidence that establishes clearly and convincingly that:

   a.  The presumption of regularity referred to in paragraphs 3–36a and 4–7a will not be applied to the report under consideration.
   
   b.  Action is warranted to correct a material error, inaccuracy, or injustice.
   
   c.  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.
   
   d.  For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the comments on the contested OER does not match the level of rating.  He disregards the fact that the senior rater stated he was in the top third of the officers rated.  This does not mean that his qualifications are downgraded just that he wasn't the best of all rated officers.

2.  The applicant has not provided and the record does not contain any evidence that the contested OER contains any error based upon the existing senior rater evaluation.

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)                                         AR20140000046





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ABCMR Record of Proceedings (cont)                                         AR20140000046



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