BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20140003312 


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 permanent removal of three DA Forms 67-9 (Officer Evaluation Report (OER)) (hereafter referred to as the contested reports) covering the rating periods 1 June 1998 – 31 May 1999, 1 June 1999 - 31 May 2000,and 1 June 2000 – 1 January 2001 from his official military personnel file (OMPF).

2.  The applicant states:

	a.  The contested reports were issued in contravention to Army 
Regulation 623-3 (Evaluation Reporting System), paragraph 3-2i, Appendix H-4, and the older version of this directive found in Army Regulation 623-105 (Officer Evaluation Reporting System), paragraphs 3-2d and 3-43d, which state an officer who has not attended an officer basic course (OBC) should not be rated on a DA Form 67-9.

   b.  He was commissioned under the Early Commissioning Program and had a contractual obligation to complete his undergraduate degree within 36 months while serving in the Army National Guard (ARNG).  He did not have time to complete his degree and attend OBC and did not receive OERs while in the ARNG.  However, when he in-processed in the OBC in 2001, he was informed he was required to have OERs from his time in the ARNG.  At the time he was a new second lieutenant (2LT/O-1) and did not know the regulations on evaluations.  He requested ARNG officials complete the necessary OERs so he could in-process on to active duty (AD).
   
   c.  Accordingly, the appropriate ARNG officials produced the three contested reports and he turned them into the OBC personnel section.  He did not realize this error until now because these reports were maintained in his restricted file and were never called into question.  The contested reports were accepted by Headquarters, Department of the Army (HQDA) on 12 April 2001, after he was already on AD.

3.  The applicant provides:

* Contested OERs
* DA Form 1059 (Service School Academic Evaluation Report)
* Extract of Army Regulation 623-3, dated 5 June 2012
* Extract of Army Regulation 623-105, dated 1 April 1998
* ARNG Discharge Order
* Temporary Duty (TDY) Order
* AD Order

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the U.S. Army Reserve (USAR) on 20 July 1995.  He appears to have executed a DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Non-Scholarship Cadet Contract).

2.  On 15 May 1998, Headquarters, U.S. Army Second Region, published Orders 135-4 releasing him from the 2nd ROTC Accessions Detachment, Fort Knox, KY, effective 23 May 1998, and assigning him to the USAR Control Group (Officer Active Duty Obligator), St. Louis, MO, by reason of initial assignment pending transfer to the ARNG.  The instructions read:  "You were commissioned early in the USAR from the ROTC scholarship program." 

3.  On 28 May 1998, the applicant was appointed a 2LT in the Oklahoma ARNG (OKARNG) and executed his oath of office.

4.  During the period 1 June 1998 through 1 January 2001, the applicant received the three contested reports, each of which was an annual OER covering the rating periods 1 June 1998 – 31 May 1999, 1 June 1999 - 31 May 2000, and 1 June 2000 – 1 January 2001.  These reports evaluated him for his duties as a Rifle Platoon Leader and show:

	a.  In Part IV(a) and (b) (Performance Evaluation-Army Values-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.

	b.  In Part Va (Evaluate the Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance-Promote" block, and in Part Vb, he entered all favorable comments indicating that the applicant should be promoted as soon as possible.

	c.  In Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Qualified" block; placed an "X" in the "Yes" block to indicate he senior rated 3 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review; and rated the applicant as "Center of Mass (COM)."  He entered only favorable comments in Part VIIe (Comments on Performance/Potential).

5.  The contested reports were signed by the Rater on 7 September 1999, 25 October 2000, and 3 February 2001, respectively upon the end of each rating period.  The Senior Rater and applicant each signed the contested reports on 8 September 1999, 26 October 2000, and 4 February 2001.  All three OERs were accepted by HQDA and were entered into his OMPF on 3 April 2001.

6.  He was promoted to first lieutenant in the USAR on 2 March 2001.

7.  On 15 March 2001, the USAR Personnel Command, St. Louis, MO, published orders ordering him to AD as an obligated volunteer for 4 years effective 
12 December 2001 with assignment to the XVIIIth Airborne Corps, Fort Bragg, NC.

8.  On 26 March 2001, the OKARNG published Orders 085-014, honorably separating him from the ARNG effective 25 March 2001.  On 18 June 2001, the NGB published Special Orders Number 161, which announced the withdrawal of the applicant's Federal Recognition and his transfer to the USAR.

9.  He attended and successfully completed the Field Artillery OBC from 18 June to 7 November 2001. 

10.  He served in a variety of staff or command assignments and he was promoted to captain on 1 March 2003 and major (MAJ) on 6 April 2011.  He was appointed a Regular Army commissioned officer on 24 February 2011.  He is currently serving on AD in the rank of MAJ.


11.  There is no indication he:

* requested a commander's inquiry at the time the contested reports were rendered
* appealed the contested reports through his higher headquarters to the National Guard Bureau or the U.S. Army Human Resources Command

12.  Army Regulation 623-105, dated 1 April 1998, established the policies and procedures for the Officer Evaluation Reporting System:

	a.  Paragraph 3-2 states reports will not be submitted unless authorized by this regulation.  A newly-commissioned officer or newly-appointed warrant officer programmed for attendance at an OBC will not be rated under the provisions of paragraph 3-40, 3-41, 3-43, 3-44 (except Army Medical Department officers), or 3-55 prior to attendance at the OBC.  Unless a report is required by another paragraph, the period prior to attending the basic course will be non-rated.  This non-rated time will be accounted for in the initial academic evaluation report. 

	b.  Paragraphs 3-40, 3-41, 3-43, and 3-44 describe the change of duty, change of rater, temporary duty and/or special duty OERs respectively.  Paragraph 3-55 describes rater option OERs. 

	c.  Paragraphs 3-57 provided the basic rule applicable to modifications of previously-submitted reports.  It stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer was 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.  It also stated that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions were only authorized when information that was unknown or unverified was brought to light or verified and the information was so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

	d.  Chapter 6 contained the policies and procedures pertaining to managing the OER redress program.  Section III contained guidance on OER appeals and paragraph 6-10 outlined the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer 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.
	e.  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, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that established clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action was 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.

13.  Army Regulation 623-105, chapter 5, established policies and procedures for applying the OER system to the ARNG.  Paragraph 5-1a stated this chapter covers the differences between ARNG and Active Army officers and should be consulted first when preparing OERs on ARNG officers.

	a.  Paragraph 5-21 (Mandatory reports - 120 days):  Reports listed in this section and in chapter 3 are required if the rated officer has completed at least 120 calendar days, excluding non-rated periods, in the same duty position under the same rater during the same rating period.

	b.  Paragraph 5-25 (Modifications to Previously Submitted Reports):  An evaluation report accepted by the Officer Management Branch and included in the official record of an officer is presumed to be administratively correct, have been prepared by properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of completion.  Request that an official report be altered, withdrawn, or re-placed with another report will not be honored.  Administrative changes, once the OER has been placed on the officer's OMPF, will only be accomplished by the Officer Management Branch when requested by the State Military Personnel Office.  No changes will be made at State level.  

	c.  Paragraph 5-26: The Chief, NGB is responsible for screening and acting on, or forwarding, all appeals submitted by ARNG officers for periods of ARNG service.

	d.  Table 5-1 (Disposition of ARNG Officer OERs), for traditional ARNG officers, appeals are sent to the ARNG Readiness Center, ATTN: Officer Management Branch, National Guard Bureau (NGB), Arlington, VA. 





DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that in September 1999, October 2000, and February 2001, the rating officials rendered the contested OERs on the applicant. The OERs addressed the applicant's achievements and performance as required by the governing regulation.  The contested reports do not appear to contain any administrative or substantive errors and appear to have been rendered in accordance with chapter 5, which pertained to ARNG officers, of Army Regulation 623-105, in effect at the time. 

2.  Paragraph 3-2d of Army Regulation 623-105, dated 1 April 1998, and cited by the applicant, applies to Active Army officers.  Chapter 5 of this regulation covers the differences between Active Army and ARNG officers and should be consulted first since there are special requirements for ARNG officers which are found in chapter 5.

3.  Chapter 5 mandates an OER when the rated officer has completed at least 120 days in the same duty position under the same rater for the same rating period.  This is the case here.  The applicant's arguments do not show any material error, inaccuracy, or injustice related to the contested reports at the time the reports were rendered.

4.  The evidence of record also shows the raters and senior raters appear to have complied with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal of a report there must be evidence that establishes clearly and convincingly 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 applicant did not meet the burden of proof in this case.

5.  In view of the circumstances in this case, the applicant is not entitled to any of the requested relief. 

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)                                         AR20140003312





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ABCMR Record of Proceedings (cont)                                         AR20140003312



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