IN THE CASE OF:	

		BOARD DATE:	    13 May 2014

		DOCKET NUMBER:  AR20140005612 


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 correction of Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) of his DA Form 67-9 (Officer Evaluation Report (OER)) (herein referred to as the contested OER) covering the period 11 December 2008 through 15 July 2009 to show "Outstanding Performance, Must Promote" instead of "Satisfactory Performance, Promote" based on the memorandum from his rater requesting the change and his senior rater's (SR) evaluation of "Best Qualified."

2.  He states:

   a.  his performance throughout his Army career has been the best he can provide on a daily basis.
   
   b.  he has never received even a negative counseling statement.
   
   c.  his rater at that time has sent him a memorandum for record (MFR) stating his desire for the change to properly reflect his performance and the mistake that was recently caught needs to be changed. 

3.  He provides an MFR and eight DA Forms 67-9.

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 the applicant submitted his application, he was serving on active duty in the Regular Army in the rank of Chief Warrant Officer Three (CW3).  

3.  After completing prior enlisted service in the Regular Army, the applicant was appointed as a Reserve warrant officer on 8 August 2002 in the rank of warrant officer one (WO1).  

4.  He was promoted to CW3 on 1 April 2009.

5.  He provided three OERs for the periods ending 9 December 2006, 9 December 2007, and 9 December 2008 which show he was consistently evaluated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his SR.  

6.  The contested report is a permanent change of station (PCS) OER covering the period 11 December 2008 through 15 July 2009.  This report indicates the applicant was rated as a UH-60L (Blackhawk) Pilot in the 4-6 Air Cavalry Squadron's Assault Helicopter Troop, Fort Lewis, WA.  This contested report shows:

	a.  the rater is listed as Captain (CPT) JBR, Platoon Leader, and he digitally signed the report on 13 October 2009;

	b.  the intermediate rater is listed as CPT JCB, Troop Commander, and he digitally signed the report on 14 October 2009;

   c.  the SR is listed as Lieutenant Colonel (LTC) CSB, Squadron Commander, and he digitally signed the report on 20 October 2009;
   
	d.  the applicant digitally signed the report on 20 October 2009;

	e.  the rater placed an "X" in all the "Yes" boxes in Part IV (Performance Evaluation - Professionalism (Rater));
	f.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Satisfactory Performance, Promote" box; 

	g.  in Part Vb (Performance Narrative), the rater entered positive comments such as "He [applicant] is an asset to the Army and a professional officer." ;

	h.  in Part Vc (Potential for Promotion Narrative), the rater stated,  "CW3 [applicant] is an excellent officer and pilot.  Promote with peers";

	i.  in Parts VIIa and c (SR – Comment on Performance/Potential), the SR rated the applicant's promotion potential to the next higher grade as "Best Qualified" with all positive comments, a recommendation for promotion to CW4, and selection for developmental schooling; 

	j.  in Part VIIc (Potential Compared with Officers Senior Rated in the Same Grade), the SR rated the applicant as Center of Mass; and

	k.  in Part VIId, the SR listed three future assignments for which the applicant was best suited as: Company Safety Officer, Tactical Operations (TACOPs) Officer, and Aviation Life Support Equipment (ALSE) Officer.

7.  He also provided four OERs he received subsequent to the contested OER which all show he was evaluated as Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his SR.  

8.  He provided an MFR, dated 19 March 2014, from his rater (CPT JBR) at the time in question who states:

	a.  this memorandum is in reference to the applicant's thru date 2009 OER.  He would like to make corrections to the contested OER discrepancy due to the redo of the OER and lateness on the part of two changes of command within such a short timeframe causing mistakes to occur which were not caught until recently.

	b.  Part V (Performance and Potential Evaluation (Rater)), section a, was inaccurately marked "Satisfactory Performance, Promote" and should have been marked "Outstanding Performance, Must Promote" by him.  

	c.  this error was not caught by numerous personnel throughout the chain of command or by the applicant.  

	d.  he requests this MFR or other be attached along with the contested OER and retained within the applicant's Interactive Personnel Electronic Records Management System (iPERMS) as correction for this oversight.

9.  A review of the applicant's performance folder of his Army Human Resource Record (AMHRR) on the iPERMS revealed a copy of the contested OER. 

10.  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 will produce evidence that clearly and convincingly establishes that: 

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

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

11.  Army Regulation 600-8-104 (AMHHR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by certain agencies, including the Army Board for Correction of Military Records; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, Human Resources Command (HRC); AMHRR custodian (when documents have been improperly filed); Commander, HRC, (as an approved policy change to this regulation); and Chief, Appeals Branch, National Guard Personnel Center. 

12.  Army Regulation 600-8-104, table B-1 (Composition of the AMHRR), states an OER will be filed in the performance section of the AMHRR.  

13.  DA Pamphlet 623-3 (Evaluation Reporting System (ERS)) prescribes the procedures for completing evaluation reports that support the ERS.  Paragraph 6-2b(3) states that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection or other unfavorable personnel action claimed to be the sole result of the contested report.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests amendment of the contested OER on the basis of his performance throughout his Army career and the MFR from his rater.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. 

2.  The applicant failed to show by clear and convincing evidence that the OER contained an inaccurate assessment by his rater. 

3.  An OER accepted for filing in the AMHRR is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.  Although he contends the OER is inaccurate, his application must be supported by substantive evidence. 

4.  The rating officials have the discretion of what information will be entered on the OER.  It is understandable that the applicant believes his performance was not accurately reflected on the contested OER.  However, the fact that the applicant felt that the report did not reflect a true view of his duty performance is not sufficient to amend the rating official's assessment of his performance.  The “Satisfactory Performance, Promote” rating appears to agree with the rater’s narrative comments, promotion potential comments, and the SR’s rating of center of mass.

5.  The governing regulation states, in part, statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an applicant's non-selection or other perceived unfavorable personnel actions.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report.  Given the available evidence, the rating official's recommendation is considered retrospective thinking which does not invalidate the ratings on the contested OER.

6.  The applicant has not provided sufficient evidence to show that the ratings on the contested OER were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Therefore, there is no basis for granting 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)                                         AR20140005612





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ABCMR Record of Proceedings (cont)                                         AR20140005612



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