IN THE CASE OF:	  

		BOARD DATE:	  15 July 2014

		DOCKET NUMBER:  AR20140004237 


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 his officer evaluation report (OER) covering the period 7 March 2010 through 6 March 2011 from his Official Military Personnel File (OMPF) and Board-directed acceptance of his application for attendance at the senior service college (SSC).

2.  The applicant states he received a somewhat negative evaluation from a general officer who was found to be a toxic leader and caused the SSC selection board not to select him for attendance at the SSC.  He did not appeal the OER because he thought it would not affect him, but it did and he desires removal of the OER and acceptance of his application for SSC.

3.  The applicant provides copies of a Washington Post article, the contested OER, and additional OER's.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was serving as a U.S. Army Reserve (USAR) Military Police (MP) lieutenant colonel and was commanding a USAR MP Battalion in California when he was ordered to active duty in support of Operation Enduring Freedom on 15 May 2010.

3.  He deployed to Kyrgyzstan/Afghanistan during the period 10 July 2010 through 8 May 2011.

4.  On 31 May 2011, he received an annual OER covering the period 7 March 2010 through 6 March 2011 evaluating him as the commander of an MP battalion directly responsible for the instruction (Police Transition Team) support for two Afghan National Army battalions.

5.  In Part IV (Performance Evaluation – Professionalism), he received all "YES" ratings.

6.  In Part V (Performance and Potential Evaluation), his rater, a brigadier 
general, rated him as "Satisfactory Performance, Promote."

7.  In Part VII (Senior Rater), his senior rater, a vice admiral, rated him as "Best Qualified" and placed him "Center of Mass" in his senior rater profile.

8.  The OER was not considered adverse and as such was not referred to the applicant for comment.

9.  The applicant was honorably released from active duty to the control of his USAR unit in California.

10.  There is no evidence in the available records to show the applicant appealed the contested OER to the Officer Special Review Board.

11.  The Washington Post article submitted by the applicant speaks of investigations being conducted on generals and admirals accused of being abusive leaders and names the applicant's rater as one of the officers being investigated.

12.  The applicant was promoted to the rank of colonel on 28 February 2014.

13.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

14.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been carefully considered.  However, the allegations made by the applicant are not supported by sufficiently convincing evidence to show his allegations are valid.

2.  The mere act of conducting an investigation does not serve as sufficient evidence to show the contested OER is unjust or tainted and the applicant has not provided any evidence that supports his allegations.  Allegations of wrongdoings must be supported by valid verifiable evidence.

3.  In the absence of evidence to the contrary, the contested report appears to represent a fair, objective, and valid appraisal of his performance and potential during the period in question.

4.  The applicant's contention that the contested OER served as the basis for nonselection for attendance at the SSC is speculative at best.  It is a well known fact that promotion boards and other selection boards do not reveal the basis for selection or nonselection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that he was not deemed the best qualified to meet the needs of the Army when compared to his peers.  Additionally, his selection for promotion to the rank of colonel appears to dispel his contention.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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 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)                                         AR20140004237



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ABCMR Record of Proceedings (cont)                                         AR20140004237



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