IN THE CASE OF:	  

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20140003712 


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, in effect, removal of the Officer Evaluation Report (OER) for the rating period 16 October 2010 through 15 February 2011 from his records. 

2.  The applicant states he believes this is unjust because there was no counseling at all to support the rating.  He feels that this OER was used for counseling instead of an evaluation.  He was never initially counseled nor was his performance recorded on a support form to show him the areas that needed improvement.  The OER was also sent to him 3 months after he left the unit so he was under the assumption that he was leaving the unit to become an Executive Officer as part of career progression instead of rehabilitation.

3.  The applicant provides the contested OER.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant attended the Officer Candidate Course from 26 February to 28 May 2008.  

2.  He was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 29 May 2008 with concurrent call to active duty.  He completed the Armor Basic Officer Leader Course.   He was promoted to first lieutenant (1LT) on 30 November 2009. 

3.  He was assigned to I Company, 3rd Squadron, 2nd Stryker Cavalry Regiment, Germany.  

4.  During February 2011, he received a Change of Rater OER (the contested OER) covering the rating period 16 October 2010 through 15 February 2011 for his duties as the Assistant Squadron S-4.  His rater is listed as Major MWB, the Squadron Executive Officer, and his Senior Rater is listed as Lieutenant Colonel BED, the Squadron Commander.  The OER shows in: 

	a.  Part IV (Performance Evaluation/Professionalism) the rater placed an "X" in the "Yes" block to all Army Values, Attributes, Skills, and Actions. 

	b.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated 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 entered the following comments:

A good performance by a company grade officer with the potential necessary to perform as a captain.  With exposure to new responsibilities at the squadron staff level, [Applicant] developed as an officer during this rating period.  His performance as the Squadron Assistant S4 was solid, as he was able to meaningfully contribute to our operations in Afghanistan on many occasions.  Time and time again, [Applicant] played a role in the section's efforts to procure required equipment, supplies and services to enable the squadron's operations.  [Applicant] also demonstrated a good ability to handle special projects and complete assigned tasks, despite their inherent difficulty.  His efforts in defining and improving the squadron's container management program are of particular note.  [Applicant] possesses the intellect and experience to succeed at any task he puts his mind to accomplish.  As he continues to seek more responsibility and mature as an officer, I have no doubt we should expect a superior performance.

	c.  Part Vc (Performance and Potential Evaluation (Rater), Comment on Potential for Promotion), the rater entered the following comments:  "Promote with peers and send to the Maneuver Captain's Career Course. "

	d.  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 and in Part VIIc (Senior Rater – Comment on Performance/
Potential), the senior rater entered the following comments:

During this rating period [Applicant] transitioned to duties as the Assistant Squadron S4.  [Applicant's] overall performance as the Assistant Squadron S4 was imperfect as he deliberately avoided attending the Container Control Officer Course the Squadron scheduled for him at Kandahar Air Field (KAF).  He was deceitful as to his attendance at the course and what his activities were the week he continued to remain at KAF.  I am returning him to the Regiment's Reconnaissance Squadron where he will have a second chance to demonstrate why he should be allowed to remain an officer in the United States Army.  I hope [Applicant's] performance will improve with this new assignment.

5.  The OER was referred to the applicant for his comments but he appears to have elected not to make any comments as indicated by the "X" in the "No" block where it says "This is a referred report, do you wish to make comments?"

6.  The OER was digitally signed by the rating officials on 3 April 2011 and by the applicant on 14 May 2011.  It was processed by the U.S. Army Human Resources Command (HRC) on 20 May 2011. 

7.  There is no indication the applicant appealed this OER through HRC to the Officer Review Board within 3 years of the Thru date. 

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers.  It includes policy statements, operating tasks, and rules in support of operating tasks.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and other pertinent regulations.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 2-10 states the rated Soldier is the subject of the evaluation and has considerable responsibility in the evaluation process including participation in counseling and providing and discussing with the rating chain the duty description, performance objectives, academic standards, and/or course requirements with the rater, as appropriate.
.
	c.  Paragraph 3-36 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, has been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represents the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests for modifications to evaluation reports already posted to a Soldier’s Army Military Human Resources Record (AMHRR) requires use of the Evaluation Report Redress Program.  Requests that a completed evaluation report filed in a Soldier’s AMHRR be altered, withdrawn, or replaced with another report will not be honored if the request is based on certain criteria (that doe snot apply in the applicant's case).  

	d.  Paragraph 3-4 states although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers.  Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report.  

	e.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as the Assistant Squadron S-4 in a Stryker Cavalry Regiment.  He received a rather negative OER.  An OER is an assessment of his performance and potential during a specified period of time.  During that particular period of time, his rating officials assessed his performance and potential as indicated in the contested OER.  

2.  Despite the OER being a referred OER, for unknown reasons, he did not provide any comments to his rating officials.  Likewise, he neither requested a commander's inquiry nor appealed this OER to the appropriate authority within the allotted time. 

3.  There is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.

4.  By regulation, to support removal or amendment 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.  This is not the case here.  The applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that necessitates its removal.  Therefore, he is not entitled to 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)                                         AR20140003712





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ABCMR Record of Proceedings (cont)                                         AR20140003712



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