IN THE CASE OF:	  

		BOARD DATE:  3 April 2014

		DOCKET NUMBER:  AR20140002112 


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 a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 27 August 1999 through 26 August 2000 from his Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File (OMPF)).

2.  The applicant states:

	a.  the OER is dated 26 August 2000 and was written as a "Non-Left Justified" OER from the Louisiana Army National Guard (LAARNG).  This OER was written immediately following his departure from the ARNG to the U.S. Army Reserve (USAR) as an undergraduate college student.

	b.  he believes the ARNG OER was both an error and unjust, but he would like this OER removed from his OMPF as a Regular Army officer.

	c.  as a Reserve Officers' Training Corps active duty service obligation scholarship recipient, an unit administrative official from within the 256th Infantry Brigade of the LAARNG wanted to ensure that the OER was filed within his OMPF.

	d.  the OER was written on 26 August 2000, he graduated from college with his bachelor's degree on 13 December 2002, and he entered the Regular Army on 20 May 2003.        

3.  The applicant provides no additional documentary evidence.
CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant in the USAR on 22 May 1999.  He was appointed as a second lieutenant in the LAARNG on 27 August 1999.  

2.  The contested OER is a 12-month annual OER covering the period 27 August 1999 through 26 August 2000 for duties as a tactical intelligence officer for the 256th Military Intelligence Company, in Lafayette, LA.

3.  In Part IV (Performance Evaluation – Professionalism), Part A (Army Values), the rater placed a checkmark in the "No" block of numbers 6 (Selfless-Service) and 7 (Duty), indicating a deficiency in those rated areas on the part of the rated officer.

4.  In Part IV (Performance Evaluation – Professionalism), Part B (Leader Attributes/Skills/Actions), the rater placed a checkmark in the "No" block of item b.2. (Skills) number 3 (Technical) and number 4 (Tactical).  These checkmarks indicate a deficiency in these particular rated areas on the part of the rated officer.

5.  He was rated "Unsatisfactory Performance, Do Not Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.  His rater stated, "2LT [Applicant's name] has performed in an unsatisfactory manner during this rating period.  Numerous efforts, time and energy were spent in trying to have him attend his Military Intelligence Officer Basic Course, which he has yet to complete nor even make a decision on when to attend.  2LT [Applicant's last name] did not keep me informed of any conflicts he may have had with attending IDT [inactive duty training] periods, resulting in his unsatisfactory attendance during this rating period.  He claims to have had work conflicts one week prior to Annual Training 2000 and asked to be excused from the AT [annual training] period.  Even after counseling by myself and the Brigade S-1, Major J- B-, to provide documentation to support his excusal request, he failed to provide the required documentation and then failed to report for AT as he was ordered to do.  This obviously put the unit at a severe disadvantage, as we are only authorized/assigned 3 officers for this company.  This lack of selfless service and failure to fulfill his professional obligation is a reflection of an officer putting his own personal needs above that of the unit.  2LT [Applicant's last name] does not have the experience within the military to make technical or tactical decisions.  Although he expresses a desire to learn, I have not seen the necessary exchange of information required for success.  Possibly after a few years and after attending whichever Officer Basic Course he desires upon, 2LT [Applicant's last name] may become a satisfactory leader."  

6.  He was rated "Do Not Promote" in part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by his senior rater.  "BELOW CENTER OF MASS – DO NOT RETAIN" was entered in part VIIb (Potential Compared with Officers Senior Rated in Same Grade) by his senior rater.  His senior rater stated, "2LT [Applicant's last name] has shown less than acceptable desire and dedication during this rating period.  He has put his personal wishes and wants above the needs of the unit.  He has not conducted himself as befits an officer of the Brigade and should not be retained.  Officer did not sign OER."

7.  He was discharged from the ARNG on 30 November 2000 and transferred to the USAR.  He was ordered to active duty on 25 October 2003 to fulfill an Active Army requirement.  

8.  His subsequent OERs covering the period September 2003 through January 2012 show he was rated "Outstanding Performance, Must Promote" by his raters and "Best Qualified" by his senior raters.  His DA Forms 67-9 for the periods 
26 September 2003 through 8 March 2004, 9 March 2004 through 15 August 2004, and 16 August 2004 through 31 December 2004 show he was rated as a first lieutenant.   

9.  He was promoted to captain on 1 March 2005 and major on 1 July 2011. 

10.  A review of the applicant's AMHRR on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the OER in question is filed in the performance folder.  There is no restricted folder in his AMHRR. 

11.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly-designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity should not be applied to the report under consideration and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

12.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

13.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) further states DA Forms 67-9 will initially be filed in the performance section of the AMHRR.  The regulation also states DA Forms 67-9 for second and first lieutenants will be moved to the restricted folder upon promotion and/or selection to captain.

DISCUSSION AND CONCLUSIONS:

1.  Evidence shows the applicant was promoted to captain on 1 March 2005 and to major on 1 July 2011.

2.  Since the governing regulation states DA Forms 67-9 for second and first lieutenants will be moved to the restricted folder upon promotion and/or selection to captain, it would be appropriate to move the applicant's DA Form 67-9 for second lieutenant covering the period 27 August 1999 through 26 August 2000 from his performance folder to the restricted folder of his AMHRR.  In addition, his DA Forms 67-9 for first lieutenant covering the periods 26 September 2003 through 8 March 2004, 9 March 2004 through 15 August 2004, and 16 August 2004 through 31 December 2004 should be moved to the restricted folder of his AMHRR. 

3.  The contested OER was prepared by the properly-designated rating officials.   He has not provided sufficient evidence to show the OER in question did not represent the considered opinion and the objective judgment of the rater and senior rater at the time of preparation.  Therefore, there is an insufficient basis for granting his request to remove this OER from his AMHRR.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X__ _  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 partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the following DA Forms 67-9 from his performance folder to the restricted folder of his AMHRR:

* 27 August 1999 through 26 August 2000
* 26 September 2003 through 8 March 2004
* 9 March 2004 through 15 August 2004
* 16 August 2004 through 31 December 2004

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the DA Form 67-9 covering the period 27 August 1999 through 26 August 2000 from his AMHRR.




      _______ _  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)                                         AR20140002112





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ABCMR Record of Proceedings (cont)                                         AR20140002112



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