BOARD DATE:	  19 February 2014

		DOCKET NUMBER:  AR20140001258 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 16 June 2007 through 15 June 2008 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).  As an alternative, he requests redaction of the rater's comments pertaining to the evaluation of his duty performance.  However, due to the senior rater's comments that address the inaccuracy of the rater's comments, the OER should be removed from his records.

2.  The applicant states the rater should have been removed from his rating chain due to damaging evidence the applicant provided against him to the investigating officer (IO) in an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.  He adds that the information he provided to the IO was verified by both his senior rater and the battalion commander.

   a.  He states the rater used the OER as a means of reprisal against him.  His comments on the OER should have deemed it a referred report allowing for the possibility of a commander's inquiry and correction of the evaluation.  However, without the OER being referred to him, he was not provided an opportunity to comment on or appeal the OER until after it was accepted by the Evaluations Branch at the U.S. Army Human Recourses Command (HRC).  That process took two years due to inaction by both the rater and senior rater.

   b.  He states the OER posted to his AMHRR after he was selected for promotion by the Major (MAJ) Army Promotion List Selection Board.  He's been advised that an OER for his performance of duty as a captain (CPT) would not affect his selection for promotion to lieutenant colonel (LTC).  However, he didn't foresee the implementation of the Officer Separation Board process.

3.  The applicant provides a copy of the OER and four memoranda in support of his appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant had prior honorable active duty, enlisted service in the Army from 23 June 1994 through 15 August 1996 and as a cadet in the U.S. Army Reserve from 16 August 1996 through 28 December 1998.

2.  He was appointed as a Reserve commissioned officer in the rank of second lieutenant in the Adjutant General (AG) Corps on 29 December 1999.

3.  He was ordered to active duty on 7 January 2000 and promoted to CPT on 
1 June 2003.

4.  A review of the applicant's AMHRR maintained in the Interactive Personnel Electronic Records Management System (iPERMS) revealed, in pertinent part, three DA Forms 67-9 (OERs) documenting his duty performance as Commander,
19th Replacement Company (Airborne), 18th Personnel Services Battalion, Fort Bragg, NC, that are filed in the performance folder of his AMHRR, as follows:

   a.  a Senior Rater Option report for the period 1 January 2006 through 7 July 2006 that shows in:

* Part II (Authentication):

* Rater:  LTC Michael G----, Battalion Commander
* Senior Rater:  Colonel (COL) Mark A. M----, Group Commander

* Part III (Duty Description):

* block a (Principal Duty Title):  Commander
* block b (Position):  42B

* Part V (Performance and Potential Evaluation - Rater):

* block a (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion):  Outstanding Performance, Must Promote
* block b (Comment on Specific Aspects of the Performance and Potential for Promotion):  [The rater's comments are all favorable.]

* Part VII (Senior Rater):

* block a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade):  Best Qualified
* block b (Potential Compared with Officers Senior Rated in Same Grade - Overprinted by Department of the Army):  No Box Check (18 July 2006)
* block c (Comment on Performance/Potential):  [The senior rater's comments are all favorable.]

   b.  a Change of Rater report for the period 8 July 2006 through 15 June 2007 that shows in:

* Part II:

* Rater:  LTC Donald E. M----, Deputy Commander
* Senior Rater:  COL Eric C. S----, Group Commander

* Part III:

* block a:  Company Commander
* block b:  42B

* Part V:

* block a:  Outstanding Performance, Must Promote
* block b:  [The rater's comments are all favorable.]

* Part VII:

* block a:  Best Qualified
* block b:  No Box Check (19 June 2007)
* block c:  [The senior rater's comments are all favorable.]





   c.  an Annual report for the period 16 June 2007 through 15 June 2008 that shows in:

* Part II:

* Rater:  LTC Robert L. W----, Jr., Director
* Senior Rater:  COL Lorraine E. T----, Director
* block a (This is a referred report, do you wish to make comments?):  no entries (i.e., none of the blocks have an "X" or checkmark)

* Part III:

* block a:  Commander/Joint Military Mail Terminal (JMMT) Officer in
       Charge (OIC)
* block b:  42A/AG

* Part V:

* block a:  Satisfactory Performance, Promote
* block b:  [The rater's comments are favorable, except as follows:  "As OIC of the largest JMMT in theater supporting Operation Iraqi Freedom, with much prodding and continued oversight from his supervisor, [he] aided in the over [sic] success of the mission."]

* Part VII:

* block a:  Best Qualified
* block b:  No Box Check (6 March 2009)
* block c:  [The senior rater's comments are all favorable, except as follows:  "[Applicant] and his rater suffered through an incident at the end of the rating period which tainted his rater's comments towards mediocracy [sic] which is not an accurate reflection of this fine officer."]

5.  A review of the applicant's AMHRR failed to reveal any evidence of a Commander's Inquiry or an appeal pertaining to the OER under review.

6.  The applicant was promoted to MAJ on 1 October 2009.

7.  In support of his application the applicant provides the following documents:

	a.  A memorandum from COL Lorraine E. T----, Assistant Chief of Staff, Personnel and Administration, Joint Interagency Task Force West, dated 
27 November 2013, subject:  Evaluation Report Appeal [pertaining to the applicant], Report Period Covered:  16 June 2007 through 15 June 2008.  She states she was the applicant's senior rater for the report in question.  The rater portion of the OER is not an accurate reflection of the applicant's performance as OIC, JMMT.

    	(1)  She states she received only positive feedback from supported commanders in theater regarding the applicant's performance.  She believes that the applicant's participation in an investigation pertaining to his rater is what led to the "passable" comments from the rater.

    	(2)  She notes the investigation was still on-going when she redeployed from Iraq and also when she completed her portion of the OER.  She spoke with the rater about his evaluation, but he could not provide specific examples of any decline in the applicant's performance or record of counseling, and he refused to change his portion of the OER.  She adds that the entire leadership chain in theater had either redeployed or was redeploying with a scheduled change to the task order.  As the senior rater, she attempted to provide a true reflection of the applicant's performance and potential with her comments.

   b.  A memorandum from COL Sherrie L. B----, Director, Land Customer Operations, Defense Logistics Agency Land and Maritime, dated 19 December 2013, subject:  Evaluation Report Appeal [pertaining to the applicant], Report Period Covered:  16 June 2007 through 15 June 2008.  She states she served as the applicant's battalion commander for his entire deployment and period of the report and found him to be an outstanding and respectfully honest officer.

    	(1)  She states the rater was investigated for allegations of misconduct and the applicant's testimony and witness statements supported wrongdoing on the rater's part.  As such, she believes that the rater's evaluation of the applicant was inaccurate and retaliatory.

    	(2)  She states the OER was not processed through her battalion prior to her change of command in August 2008.  She adds that, to her knowledge, the negative report was not properly processed as a referred report or addressed in the form of a commander's inquiry.

   c.  A memorandum from LTC Timothy W. Z----, Assistant Chief of Staff, G-1, 1st Sustainment Command (Theater), Fort Bragg, NC, dated 22 November 2013, subject:  Letter of Endorsement for [the applicant].  He states he served as the executive officer of the applicant's battalion and observed him on multiple occasions in his role as company commander charged with operating the JMMT at Baghdad International Airport.  His performance and that of his team was always first rate.  He adds he personally witnessed the rater laud the applicant's duty performance, including during a visit by the Commanding General, HRC.

   d.  A memorandum from COL Jeffery D. B----, Commander, 2nd Armored Brigade Combat Team, Fort Riley, KS, dated 2 December 2013, subject:  Evaluation Report Appeal [pertaining to the applicant], Report Period Covered:  16 June 2007 through 15 June 2008.  He states the applicant is an outstanding officer who has performed at an extremely high level while under his command.

    	(1)  He states that having served on the Army Evaluations Appeal board, he has seldom seen such a clear case for the removal of an evaluation.  The senior rater's comments on the OER confirm the alleged retaliation by the rater.  The battalion commander confirms the rater was under investigation and that the applicant's testimony proved to be damaging.  Therefore, the rater should have been removed from the rating chain or, at the very least, the completed OER should been more closely scrutinized during its processing.

    	(2)  He concludes the applicant was not afforded the opportunity to address the negative comments as a referred report prior to departing the theater of operations or request a commander's inquiry.  As a result, the OER was filed in his AMHRR without due process.

8.  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.  It shows in:

   a.  Chapter 2 (The Rating Chain), paragraph 2-15 (The senior rater or reviewing official), will ensure the evaluation reports that the senior rater and subordinates write are complete, provide a realistic evaluation of the rated Soldier, and are submitted to Headquarter, Department of the Army (HQDA) in a timely manner.

   b.  Chapter 3 (Army Evaluation Principles), paragraph 3-26 (Referred evaluation reports), provides that an OER with any negative or derogatory comments in Part V, blocks b or c; Part VI; or Part VII, block c, will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to HQDA.

	c.  Chapter 4 (Evaluation Report Redress Program):

    	(1)  section II (Commander's or Commandant's Inquiry), paragraph 4-3 (Applicability), that commanders or commandants are required to look into alleged errors, injustices, and illegalities in evaluation reports;

    	(2)  section III (Evaluation Appeals):
   
    	(a)  paragraph 4-7 (Policies), 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, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered;

    	(b)  paragraph 4-8 (Timeliness), 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.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 67-9 for the period 16 June 2007 through 15 June 2008 should be removed from his AMHRR or, in the alternative, redaction of the rater's comments pertaining to the evaluation of his duty performance.

2.  The applicant's contention that the OER should be removed from his AMHRR was carefully considered.

3.  Records show that for the applicant's two earlier OERs as Commander, 
19th Replacement Company (Airborne), 18th Personnel Services Battalion, his two previous raters and two previous senior raters provided evaluations of outstanding performance/must promote and best qualified, respectively.

4.  The evidence of record shows that for the OER in question, the rater provided a satisfactory evaluation, along with a comment that the applicant required reminders and continued oversight from him in order to perform the mission. However, the senior rater provided the applicant with an outstanding evaluation that is dramatically at odds with the rater's evaluation.  In addition, she indicated in her evaluation that the rater's evaluation was tainted because he was being investigated for allegations of misconduct and the applicant provided testimony that supported wrongdoing on the rater's part.  Thus, the rater's portion of the OER is not an accurate reflection of the applicant's duty performance.

5.  The evidence of record shows that officers serving as the applicant's senior rater, battalion commander, and executive officer of the battalion during the period of the report in question, all independently attest to positive feedback from supported commanders in theater regarding the applicant's performance and they each offer their assessment of his performance as outstanding.

6.  The evidence of record shows that the OER in question should have been referred to the applicant for comment as a referred report; however, there is no evidence that this occurred.  In addition, there is no evidence of a commander's inquiry with respect to the OER in question.  Thus, the applicant was not afforded due process.

7.  Therefore, in view of all of the foregoing, it would be appropriate to remove the OER in question from the applicant's AMHRR and replace it with a document showing the period of service from 16 June 2007 through 15 June 2008 was non-rated time.

BOARD VOTE:

___X__  ____X____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  removing from his Army Military Human Resource Record the
DA Form 67-9 for the period 16 June 2007 through 15 June 2008; and

   b.  placing in his Army Military Human Resource Record an appropriate document showing the period of service from 16 June 2007 through 15 June 2008 was non-rated time.

2.  To ensure this decision results in no unintended harm to the individual concerned, this Record of Proceedings and all documents related to this appeal will be returned to this Board for permanent filing.  The Record of Proceedings and associated documents (with the exception of the document showing the non-rated period of service from 16 June 2007 through 15 June 2008) will not be filed in the individual's Army Military Human Resource Record.




      __________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)                                         AR20140001258



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ABCMR Record of Proceedings (cont)                                         AR20140001258



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