BOARD DATE:	11 December 2014  

		DOCKET NUMBER:  AR20140001638 


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 a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 January 2005 to 1 August 2005 (hereafter referred to as the contested OER) be removed from his official military personnel file (OMPF).

2.  The applicant states he received the contested OER with his signature forged on it.  The contested OER appears to be retaliatory and punishment in nature, based on supporting e-mail documentation.  It was only after his rater became his senior rater and he was eligible to do a final OER that issues surfaced.  There was no record of derogatory counseling or reports in his file prior to the contested OER.  His concerns appear to have been swept under the rug by the command, ultimately limiting his options.  He never authorized anybody to sign on his behalf.  The command climate was not the best and resulted in a number of officers leaving the Army.  He is requesting the contested OER be expunged from his record due to improper procedures and it being a forged document.

3.  The applicant provides:

* an OER for the period 3 Jun 2003 to 2 June 2004
* an OER for the period 3 June 2004 to 31 December 2004
* the contested OER
* an incomplete copy of the contested OER
* email dated from 20 September to 18 December 2005 
* a memorandum, dated 30 January 2006, from the Office of the Staff Judge Advocate, Fort Jackson SC
* a memorandum, dated 28 February 2006, requesting a commander's inquiry

CONSIDERATION OF EVIDENCE:

1.  On 27 June 1997, he was commissioned a second lieutenant in the U.S. Army Reserve (USAR) and ordered to active duty to report on 24 July 1997. 

2.  He was promoted to captain on 1 December 2000.

3.  On 29 June 2004, he signed an OER for the period 3 June 2003 to 2 June 2004.  His rater was Lieutenant Colonel (LTC) JSF and his senior rater was Colonel (COL) REK.  In Part VII (Senior Rater) the senior rater placed an "X" in the "Best Qualified" block in his evaluation of the applicant's promotion potential.

4.  On 27 March 2005, he signed an OER for the period 3 June 2004 to 
31 December 2004.  His rater was LTC JSF and his senior rater was COL GSP.  In Part VII the senior rater placed an "X" in the "Best Qualified" block in his evaluation of the applicant's promotion potential.

5.  The applicant provided an unsigned copy of the contested report that appears to be a draft of the final OER.

6.  The contested OER was completed on 13 December 2005.  This was not a referred report.  His rater was Major TEM and his senior rater was LTC JSF, his rater on his two previous OERs.  All signatures are dated 13 December 2005 and a copy of the OER was forwarded to the rated officer on 13 December 2005.

	a.  In Part IVa (Army Values) the rater place an "X" in the "YES" blocks for all items.  

	b.  In Part IVb (Leader Attributes/Skills/Action) the rater placed an "X" in all of the "YES" blocks.

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Outstanding Performance, Must Promote" block.  His comments included:

[The applicant] is a capable Assistant Brigade Fire Support Officer for 2d Brigade Combat Team, 2d Infantry Division deployed in support of OPERATION IRAQI FREEDOM.  He has provided lethal fires in support of the brigade's counterfire fight against insurgent mortar and rocket crews.  Additionally, he has learned the value of the intelligence, surveillance, and reconnaissance (ISR) assets available to the brigade and facilitates the daily fires and ISR synchronization meeting.  [The applicant] is a proven member of the Brigade [tactical operations center] and experienced in the functions of each of the battlefield operating systems elements represented.  He has been instrumental in executing terrain denial fires targeting historic insurgent weapons locations.  [The applicant] has the potential to develop into a solid field grade officer.  After promotion to major, he should attend schooling commiserate [sic] to his rank.

	d.  In Part VII (Senior Rater) the senior rater placed an "X" in the Fully Qualified block in his evaluation of the applicant's promotion potential.  His comments in the Comment on Performance/Potential block included:

[The applicant] performed admirably as the Assistant Brigade Fire Support Officer during combat operations in Iraq.  [The applicant's] always attentive nature allowed successful monitoring of ongoing brigade operations.  During his tour, the brigade suppressed numerous enemy mortar and rocket teams.  [The applicant] is an energetic officer who is value added to brigade fire support operations.  Excellent potential.  Consider for promotion to major.

7.  The applicant's signatures on the above OERs appear similar.

8.  Email dated 7 - 8 November 2005 appears to concern awards the applicant felt he was entitled to.

9.  In an email, dated 22 November 2005, to LTC JSF the applicant was concerned about being "blocked Fully Capable vs Best Qualified" in the senior rater portion of the contested OER.  He stated that after reviewing all of his OERs it was the first time in his career he had ever been "blocked Fully Capable" and he did not have any derogatory counseling for the rating period 31 December - 
1 August.

10.  The applicant provided an email, dated 18 December 2005, in which 
LTC JSF responded to his concern.  He stated:

You are fully qualified to be a field grade officer, however, you are not best qualified.  That is my assessment of you as a battery commander and as assistant [brigade fire support officer].  The OER is not a referred report.  You didn't have a great battery command and your performance as the assistant FSO was on par with a non-branch qualified captain.  Frankly, I don't feel you should be a field grade officer given my assessment of your potential.  There are four lieutenants in the battalion who were found liable for equipment you had them sign for but failed to train them in proper accountability procedures. This came out of your change of command [report of survey] after your command OER.  I cannot say you are best qualified to be a field grade officer knowing your past performance.  That is about as straight as I can give it to you.

11.  On 30 January 2006, a legal assistance attorney requested a Commander's Inquiry on behalf of the applicant into the contested report.  On 28 February 2006, the applicant requested a Commander's Inquiry into the contested report.  There is no evidence in his OMPF of any follow-up action taken concerning these two requests.

12.  The applicant was promoted to major on 1 February 2007.

13.  There is no indication he submitted a substantive appeal to the U.S. Army Human Resources Command (HRC) within 3 years of the completion date of the contested OER.

14.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System.  

	a.  Paragraph 1-10a stated performance evaluations were assessments of 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.  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.  

	c.  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.

	d.  Chapter 6 contained the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-10 contained guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated that the burden of proof rests with the appellant.  Accordingly, to 
justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-57 should not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.

	e.  According to Table 6-1 (Steps in Conducting a Commander's Inquiry) if the commander, after looking into the allegations, no error, violation of the regulation or wrongdoing is found, advise the individual requesting the inquiry and take no further action other than ensuring that the OER is forward to Headquarters, Department of the Army as expeditiously as possible.  If the command wishes, he or she may retain a written record of the inquiry (for example, a memorandum for record).

	f.  Paragraph 6-7 states substantive appeals must be submitted within 3 years of the completion date to the U.S. Army Human Resources Command.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his signature on the contested OER was forged.  However, the signatures on his two previous OERs closely resemble his signature on the contested report.  He has provided no substantive evidence to support his contention.  Therefore, there is no evidence showing his signature was forged on the contested OER.

2.  If, during a commander's inquiry, the commander found no error, violation of the regulation or wrongdoing then no further action was required.  The request or the commander's determination are not required to be filed in the applicant's OMPF.  Therefore, there is insufficient evidence to show proper procedures were not followed.

3.  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.

4.  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.

5.  The contested OER contains no derogatory information.  There is no evidence the contested OER was not a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.  The applicant has failed to provide clear and convincing evidence to overcome the presumption of regularity.  

6.  For historical purposes, the Army has an interest in maintaining the accuracy of its records.  The data/information contained in those records should reflect the conditions and circumstances that existed at the time the records were created.  In the absence of a showing of material error or injustice, those records should not be changed.

7.  In view of the above, there is no basis for removing the contested OER from the applicant's OMPF.

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)                                         AR20140001638



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001638



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1