IN THE CASE OF:	  

		BOARD DATE:	  15 April 2014

		DOCKET NUMBER:  AR20140005001 


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, correction of the following administrative errors pertaining to his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 16 July to 3 December 2007:

	a.  failure to ensure he was informed that the OER contained negative or derogatory information;

	b.  failure to afford him an opportunity to sign the OER; and

	c.  failure to afford him an opportunity to submit comments.

2.  The applicant states that in accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph “3-28,” the referral process ensures the rated Soldier knows his OER contains negative or derogatory information and affords the Soldier an opportunity to sign the evaluation report and, if desired, submit comments.  For the evaluation which is the subject of this appeal, his senior rater failed to do the actions listed above.

	a.  The applicant further states that his military records are in error or unjust because the subject OER was not properly referred in writing.  He argues that a referral memorandum should have been included with the evaluation upon submission to HRC showing he had acknowledged the report as having derogatory information and that he may submit comments in response to the evaluation.  He contends that he was never provided a memorandum of notification, depriving him of his due process right to respond.
	b.  He argues that even though Part II d. and e. of the subject OER indicate it was referred and that he had elected not to submit comments, he was never afforded the opportunity to sign the evaluation much less provide comments in rebuttal.

	c.  The senior rater's signature is in Part IIe.  This is where he (the applicant) was to sign.  If the rated officer refuses to sign, the senior rater is to annotate in part VII, block d, “the rated officer refused to sign.”  The senior rater failed to annotate the form indicating the applicant's refusal to sign.  However, he did not refuse to sign; rather, he was denied the opportunity to sign.

	d.  This report was preceded by a four-month evaluation for the same duty position under the same senior rater.  Only difference was that the rater had changed.  In that OER ending on 15 July 2007, his rater noted he was one of the best personnel officers (S1) with whom he had worked, and the senior rater stated the applicant should be considered for command of a company at the earliest opportunity and be considered for promotion from below the zone.  He was executing the same requirements and tasks after his rater had changed.  However, he was never counseled concerning the new rater's requirements and priorities of the position.  The products and priorities he was working on were not the same priorities and areas of emphasis of his rater.  At no time did his rater make him aware that his performance was not to his standards.  At no time did the rater afford him the opportunity to address his concerns.

3.  The applicant provides copies of:

* OER for period 9 February to 15 July 2007
* OER for period 16 July to 3 December 2007
* Memorandum, subject: Evaluation Report Appeal for OER for period 
16 July to 3 December 2007, dated 19 February 2014.

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.  At the time of his application, the applicant was a major, pay grade O-4, serving in Europe.

3.  A Relief for Cause OER was rendered for the applicant's duty performance for the period 16 July to 3 December 2007 (5 rated months).  It shows the following:

	a.  The applicant was rated as an Adjutant General Corps officer in the rank of captain, pay grade O-3.  His date of rank was 1 January 2005 and his specialty was 42B (Human Resources Officer).  His duty assignment was located on Schofield Barracks in Hawaii.

	b.  His rater was the battalion executive officer and his senior rater was the battalion commander.  Both officers signed the OER in the proper location.  The senior rater also signed the OER in the space provided for the rated officer's signature.

	c.  The OER indicated it was referred and indicated no comments from the applicant were attached.

	d.  The applicant's duty position was the battalion personnel officer (S-1).

	e.  The applicant's duties included:

* Responsibility for personnel management
* Unit strength management
* Legal administration
* Sponsorship program
* Family readiness group support
* Administrative actions of over 560 assigned personnel
* Direct supervisor and officer-in-charge of a battalion S-1 section of eight persons
	
	f.  The applicant's performance evaluation for professionalism indicates he failed to fulfill his professional, legal, and moral obligations.

	g.  The applicant's evaluation of his leadership attributes/skills/actions indicates he failed to possess technical expertise, tactical proficiency, sound decision-making judgment and logical reasoning, and proficiency to execute to meet mission standards and to take care of people and resources.

	h.  The applicant's evaluation of performance and potential indicates he was not to be promoted.

	i.  The applicant's rater stated he was ineffective as the battalion S-1 during the battalion deployment and its subsequent redeployment from Operation Iraqi Freedom V.  He was unable to perform a variety of mission-essential tasks including:

* production of a company grade officer slate for the battalion
* management of the battalion rating scheme
* effective support for company commanders and battalion commander with routine and time-sensitive administrative actions
* manifest the battalion for redeployment to home station

	j.  The senior rater indicated that he received and considered the applicant's DA Form 67-9-1 (Support Form) in rendering his evaluation.  The senior rater evaluated the applicant's potential as not worthy of promotion.  His comments included:

* His performance as battalion S-1 was not acceptable during the unit's period of deployment
* His lack of performance and understanding of all required tasks as the S-1 negatively impacted the entire unit
* He was not ready to be a primary staff officer
* He required more training and mentorship to become an effective staff officer and to accomplish mission essential tasks as an adjutant general officer

4.  The evidence of record shows that on or about 22 February 2008, the applicant was reassigned within the 25th Infantry Division as a brigade strength manager and had remained on Schofield Barracks.

5.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army's Evaluation Reporting System.

	a.  Paragraph 1-8 states counseling will be conducted within 30 days of the beginning of the rating period and quarterly thereafter.

	b.  Paragraph 1-9 states an OER is an assessment of 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 as explained in the governing pamphlet.

	c.  Paragraph 1-9 also states potential evaluations will be performance-based assessments of rated Soldiers of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters, Department of the Army (HQDA).

	d.  Paragraph 3-4 states the support form communication process is characterized by initial and follow-up face-to-face counseling between the rater and the rated Soldier throughout the rating process.  This process is used to achieve the purposes of DA Form 67-9-1.  The initial face-to-face counseling assists in developing the elements of the rated officer's duty description, responsibilities and performance objectives.  The follow-up counseling enhances mission-related planning, assessment, and performance development.

	e.  Paragraph 3-34 states a relief for cause report will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army.

	f.  Paragraph 3-36 states the senior rater will place an "x" in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "x" in the appropriate box in Part IId indicating whether he did or did not wish to make comments.

	g.  Paragraph 3-39 states evaluation reports 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.

	h.  Paragraph 3-58 states an OER is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty.

	i.  Paragraph 6-8 states that administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

	j.  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 of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his OER for the period ending on 
3 December 2007 is in error or unjust and should be corrected because of the following administrative errors pertaining to his OER for the period 16 July to 
3 December 2007:

	a.  failure to ensure he was informed that the OER contained negative or derogatory information;

	b.  failure to afford him an opportunity to sign the OER; and

	c.  failure to afford him an opportunity to submit comments.

2.  The subject OER is a relief for cause report.  It indicates that it was referred to the applicant.  The report shows the rater and senior rater each had concerns about the applicant's ability to competently accomplish the duties of a battalion personnel officer.  These concerns, which were reflected throughout the report, included his failure to:

* produce a company grade officer slate for the battalion
* manage the battalion rating scheme
* effectively support company commanders and battalion commander with routine and time sensitive administrative actions
* manifest the battalion for redeployment to home station

3.  The applicant contends that the OER was not referred to him in writing, implying that he was not given the opportunity to provide rebuttal comments.  He points out that there is no referral memorandum filed with the OER in his Army Military Human Resource Record (AMHRR) and offers that as proof of his contention.  His argument is not sufficiently convincing.  The memorandum not being on file is not proof the OER was not referred to him in writing.  This merely means that the document was not placed in the file.

4.  The applicant argues that he did not refuse to sign the OER but instead was not afforded the opportunity to sign it.  The OER does show that the senior rater signed the form in the space intended for the applicant's signature.  Accordingly, this error should be corrected by removing the senior rater's signature and adding a statement in the senior rater's performance/potential block explaining that the applicant did not sign the report for reason(s) now unknown.

5.  The applicant argues that he had a change of raters between the subject OER and the OER that immediately preceded it.  He further states that his duty position had not changed during these two rated periods.  He was rated as outstanding by the first rater but because his subsequent rater did not express his standards and priorities and had not counseled the applicant accordingly, he was not aware of and was not afforded the opportunity to address his rater's concerns.  This argument is without merit.  The applicant's military specialty as an Adjutant General Corps officer clearly shows that he should have been very familiar with the regulatory guidelines of performance evaluations.  As such, he should have known when he was due for a counseling session.  If such counseling had not occurred when required, he should have taken the initiative to make it happen.

6.  The subject OER indicates that the support form was used by the senior rater in making his evaluation.  This is contradictory to the applicant's contention that he had not been counseled by his rater, or otherwise made aware of the rater's priorities and standards.  The applicant has not provided any documentary proof of his contention concerning a lack of counseling.

7.  The available evidence shows the applicant's follow-on assignment was to another organization on the same installation where he received the subject OER.  Therefore, it is difficult to understand why the applicant did not raise concerns about the subject OER at the time.

8.  The applicant has not provided any documentary evidence or made any arguments concerning the accuracy of the evaluation itself.  He has not denied or confirmed any of the rater's or senior rater's comments in the OER concerning his performance of duty.  Accordingly, the administrative errors advanced by the applicant, even if they were completely substantiated, would not rise to the level of removing the OER.

9.  The burden of proof rests with the applicant to justify deletion or amendment of a report.  Other than the senior rater's signature in the space intended for the applicant, no documentary evidence shows that the presumption of regularity should not be applied to the OER under consideration.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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:

	a.  deleting the senior rater's electronic signature from Part IIe; and

	b.  adding in Part VIIc: "The rated officer did not sign the report for reason(s) now unknown."

2.  The Board further determined that the evidence presented is 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 making any other amendments to or removal of the subject OER from the 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)                                         AR20140005001





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140005001



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1