IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20140005937 


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 his Change of Rater (COR) officer evaluation report (OER) covering the rating period 20 July 2010 through 31 January 2011 to show:

* his Rater rated his performance as "Outstanding Performance - Must Promote" instead of "Satisfactory Performance - Promote" 
* his Senior Rater rated his promotion potential as "Best Qualified" instead of "Fully Qualified" 

2.  In the alternate, he requests this OER be expunged from his records. 

3.  The applicant states:

	a.  His appeal is based on substantive inaccuracy regarding block checks in Part V and VII.  Based on supporting evidence included in the appeal, he believes that the OER should reflect a left justified performance.  

	b.  He was informed by his branch manager that this OER was detrimental to his career and would affect his ability to be selected for promotion to Major. Shortly after, he found out from several other officers who had the same Rater and Senior Rater that they had also received "Fully Qualified" OERs.  There were a total of five officers.  At the time that this OER was issued, the Block Check section only applied to Company Commanders and up.  However, according to the Squadron S-1 at the time, the Rater and Senior Rater would use the "Fully Qualified" rating for officers they believed were deserving of a Center of Mass (COM) rating.  This information, combined with the negative impact this OER has had on his promotion chances, has led him to appeal this particular OER.

	c.  He does not believe that either his Rater or Senior Rater at that time had any intention of identifying him as an officer who should be separated from the Army due to a derogatory OER.  He simply believes that they used the OER system in a manner inconsistent with its purpose.  This, combined with his accomplishments during the rated period and the enclosed statements from his peers as well as superiors, he believes shows that he is qualified to continue serving in the Army as a Major in the Armor Branch.  

4.  The applicant provides:

* Contested OER
* Subsequent OER (20110201 through 20111003)
* Supporting statement from MAJ K. J. Rxxd
* Supporting statement from Captain (CPT) H. Y. S--g
* Supporting statement from R. C. H-----n
* Other individuals’ OERs with consent statements
* Self-authored accomplishments
* Supporting statement from the former S-1
* Letter from the U.S. Army Human Resources Command (HRC)
* Statement from the former Senior Rater 

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 appointed as a Reserve commissioned officer of the Army and entered active duty on 19 February 2004.  He completed the Armor Officer Basic Course.

3.  He served in a variety of stateside or overseas assignments, including Kuwait/Iraq and Afghanistan, and he was promoted to CPT on 1 April 2007.  

4.  In February 2011, he received a COR OER for the rating period 20 July 2010 through 31 January 2011, for his duties as Assistant S-3, while assigned to Headquarters and Headquarters Troop, 4th Squadron, 2nd Cavalry Regiment, Afghanistan.  His Rater was MAJ CMR, the Squadron S-3, and his Senior Rater was Lieutenant Colonel (LTC) AIG, the Squadron Commander.  The OER shows:

	a.  in Part IVa (Performance Evaluation – Professionalism – Army Values), the Rater placed an "X" in the "Yes" block for all Army values.

	b.  in Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the Rater placed an "X" in the "Yes" block for all attributes, skills, and actions. 

	c.  in Part Va (Performance Potential Evaluation – 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 in Part Vb (Comment on Specific Aspects of the Performance):

[Applicant] has performed admirably both in garrison and while deployed to Afghanistan.  As the senior captain in the Squadron S3 shop, he quickly stepped in, took charge, and became a strong contributor to the preparation and tracking of the squadron deployment.  Once in Afghanistan, [Applicant] immediately began the relief in place with the outgoing unit's TOC [Tactical Operating Center] and set the standard for a smooth transition between cavalry formations.  His attention to detail greatly improved the TOC's ability to track and control Squadron operations.  This was evident during the Wolesi Jirga elections as the TOC tracked 32 patrolling stations and every platoon in the Squadron.  He tracked and synchronized operations to bring about a great success of the Squadron and Afghanistan.  [Applicant] is ready to take command of a cavalry troop and will do well leading cavalry troopers.  He has a great future ahead of him.  

	d.  in Part Vc (Comment on Potential for Promotion), the Rater entered the following comment, "Clear potential for promotion to major"; and

	e.  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, indicated he senior rated (at the time) 16 officers of this grade, and in Part VIIc (Senior Rater – Comment on Performance/Potential), the Senior Rater entered the following comments:

[Applicant] has performed extremely well while serving in the critical role of Squadron Battle Captain while deployed to Operation Enduring Freedom.  He continues to expand his capacity as a combat leader and has been adept at anticipating and then solving the myriad of unique problems presented by our diverse COIN [Counterinsurgency] mission set.  He performed a critical leadership role in conducting a thorough analysis and subsequently developing a detailed system by system plan for the jump of the Squadron TOC to an unprepared new FOB [Forward Operating Base].  He will do well as a troop commander and is a must for promotion to major.  No Box Check was assigned. 

5.  The COR OER was digitally signed by his Rater on 11 February 2011, the Senior Rater on 24 February 2011, and the applicant on 16 March 2011.  It was then posted by Headquarters, Department of the Army (HQDA) to his Army Military Human Resource Record (AMHRR) on 16 March 2011. 

6.  On 24 March 2014, HRC notified him that the DA Fiscal Year 2014, Major, Maneuver, Fires and Effects, Operations Support, and Force Sustainment Promotion Selection Board considered his records for promotion but did not select him.  In accordance with Title 10, U.S. Code, section 532a, he must separate from the Army no later than 1 October 2014. 

7.  He submits multiple statements as follows: 

	a.  A supporting statement from MAJ K. J. R—d, dated 22 January 2014.  He states during the period of 20090701 through 20110201 he served as the Squadron Executive Officer for 4th Squadron, 2d Cavalry Regiment, the unit to which the applicant was assigned.  In that position, he observed him daily and found him to be an outstanding leader of Soldiers and a very professional officer. His receipt of a non-left justified OER for his service as Squadron Assistant Operations Officer was undeserved.  His primary duty during this time was Squadron Battle Captain while the Squadron was deployed to Spin Boldak, Afghanistan.  In this capacity, he prepared the daily orders directing actions of the Squadron, coordinated the activities of three reconnaissance troops, and coordinated with other DOD elements operating around the Afghanistan-Pakistan border crossing at Wesh.  He observed his work daily and found him to be a capable, conscientious officer.  His actions significantly contributed to the Squadron's excellent performance in that area of operations.  He believes the applicant's evaluation is due to the use of non-left justified blocks on the OER by the Squadron Commander and Squadron Operations Officer to facilitate subordinate development.  He does not believe this evaluation is commensurate with his performance during that time, or potential for continued service to the Army.  He has the potential to lead Soldiers as a field grade officer.  He believes his selfless service and loyalty to the men and women in his charge will serve him well as an Executive Officer or Operations Officer in an Armor Battalion or Cavalry Squadron.  He wholeheartedly recommends his non-left justified evaluation be removed from his record in order to continue his service to our Army.  He will contribute to organizational success anywhere he serves. 

	b.  A statement, dated 21 January 2014, from CPT H. Y. S---g, who states during the period 20100720 to 20110131 he served as the 4th Squadron, 2nd Stryker Cavalry Regiment Senior Signal Officer (S6 OIC).  In that position, he observed the applicant on a daily basis and had close interaction with him, the members of his S3 Section, and the rating chain of command.  His performance as the Assistant S3 and especially the Battle Captain can only be characterized as exemplary.  His leadership, perseverance, and synchronization of all combat power assets as the Battle Captain were a major factor in the success of the Squadron.  His efforts helped to save the lives of Soldiers on a daily basis and the Non-Left Justified performance evaluation which he received was not commensurate with his performance.  He performed his duties diligently and admirably on a daily basis.  As the Day Time Battle Captain he was responsible for the synchronization and employment of the combat forces.  He quickly integrated and leveraged the Advanced Field Artillery Targeting and Direction System and Command Post of the Future by integrating the Fire Support NCOIC, Joint Terminal Attack Controller, and the S2 Section to conduct reconnaissance of current target packets while aligning these missions with the reconnaissance needs of the S2 and the Future Operations Section.  His ability to manage the distribution of information from the Squadron Staff and the Companies made him a vital information node to everyone who entered their Battle Space.  His maneuver and coordination efforts far extended beyond the Squadron as he worked with Special Reconnaissance Services and NATO forces in Kandahar to support the myriad of missions being conducted in our area of operations and influence.  He was a vital asset in supporting both the Troop Commanders and the Battalion Commander exploit the enemy while providing all key leaders vital knowledge to foresee the operational expectations of follow on missions.  He is an officer who is without a doubt capable in his profession and a leader who genuinely cares about the lives of the Soldiers under his charge.  He was instrumental in serving the needs of the Squadron, whether spearheading the relocation of the Squadron from three different FOBs or to the daily demands of synchronization of the Squadron assets as it conducted its missions.  He was fortunate to observe the pride and due diligence in which the applicant  performed his duties on a daily basis.  Through his actions he understands there is no mission that a group of dedicated individuals cannot accomplish.  He is a leader who performed with immense dedication and he does not deserve this OER.  He has always demonstrated unlimited potential and has always been an asset to the Army.  

	c.  A statement from Mr. R. C. H------n, dated 14 January 2014.  Mr. H-----n states during the period from 20100201 through 20110119 he served as the 4th Squadron, 2nd Stryker Cavalry Regiment, Headquarters and Headquarters Troop Commander (4/2 SCR HHT CDR).  During that time, he had daily and direct observations of the applicant’s performance while serving as the Squadron's Battle Captain.  His non-left justified performance evaluation while serving as the Squadron Battle Captain was unquestionably not commensurate with his superior performance.  He was one of the most dedicated staff officers in the Troop.  As the senior officer in his section and in charge of running current operations for the Squadron, he set the tone and precedence for a highly-efficient and effective organization.  The OER he received during the reporting period in question does not accurately reflect the responsibility or the manner of performance with which he conducted himself.  He was one of the first members of the Squadron to deploy and ensured the reception of the Squadron went off without incident.  Throughout the rating period, he performed no less than three Relief-in-Place/Transfers of Authority (RlP/TOA) between transitioning units without degradation in operations or force projection capability.  As the voice of the Squadron, he coordinated and de-conflicted more than 500 different operations throughout the Squadron's Area of Operations, often times between Coalition and Special Mission Units.  His performance was truly deserving of a "Best Qualified" performance evaluation during the rating period in question.

	d.  A statement, dated 31 December 2013, from CPT DWK who states during the period from 20081105 through 20111105 he served as the Squadron S-1 for 4th Squadron, 2nd Cavalry Regiment in Vilseck, Germany.  In that position, he observed the applicant during his time as a staff officer.  With regard to non-left justified OERs given to officers in the Squadron during his time serving under LTC G---n, they were in no way, shape, or form reflective of marginal performance for the applicant.  "Satisfactory Performance" and "Fully Successful" blocks were used with the intent to show solid performance by an officer, and contained the intent to promote and recommend for positions of increased responsibility.  There was no intent for these evaluations to be derogatory.  There were several officers in the unit who received non-left justified OERs during his time as the S-1.  The rating officers within the unit used the Satisfactory Performance block to denote just that, and the recommendation to further promote the officers who received the ratings.  The understanding of the ratings given in the Squadron was that "Satisfactory Performance" blocks were acceptable under that chain of command.  Again, derogatory or derelict performance was not implied by receiving this rating. 

	e.  A statement, dated 25 January 2014, from the former Squadron Commander and Senior Rater, LTC G---n.  He states the applicant was the Assistant S-3 in his Squadron and he was developing his leadership style and gaining confidence and maturity in the position.  Because the OER system at the time did not contain a block in Part VIIb for pre-command captains, he consulted with the Armor Branch chief to get his advice on using the part VIIa "Fully Qualified" block to show a "Center of Mass" equivalent blocking.  He specifically asked if this blocking would be potentially career threatening for pre-command captains.  He was told that it would send a strong signal that he needed to improve his performance, but it would still allow the officer to recover especially if he received good command OER.  That was exactly his intention.  It has come to his attention that following this assignment in his Squadron, the applicant performed well as a Support Headquarters and Headquarters Troop Commander.  His command OERs reflect his growth into a competent, exceptionally caring Soldier and focused officer, ready for promotion to Major and greater responsibility and service.  He would ask the Board members reviewing his file to take this into account and put this OER into prospective when evaluating his potential for promotion. 

	f.  A letter, dated 31 January 2014 from HRC returning his appeal without action because he used OERs belonging to other Soldiers without their consent and because the appeal is outside the 3-year window.  

	g.  Listing of his achievements. 

	h.  Two OERs that belonging to other officers, with consent statements from those officers.  The other officers were rated and senior rated by the same Rater and Senior Rater and received similar rating on their OERs.  

8.  Army Regulation 600-8-104 (AMHRR) governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  Appendix B-1 states an OER is filed in the performance folder of the AMHRR.

9.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  In order to justify deletion or amendment of an OER under this regulation, 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.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant received a successful OER for the rating period 20100720 through 20110131.  This OER is neither derogatory nor referred.  On the contrary, it contains excellent comments.  It appears to be administratively accurate and it was timely processed.  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.  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.

3.  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.

4.  Promotion boards do not divulge the reason for non-selection for promotion of officers.  As such, the belief that this OER was the reason for his non-selection for promotion to MAJ is speculative at best.  Furthermore, ratings are judgment calls made by the rating officials who are in the best position to render a rating and within the totality of the situation.  The ABCMR does not rate or senior rate officers.  This is the rating officials' function and it will not be upset by the ABCMR unless the rating is clearly unsupported by the evidence.  This is not the case here. 

5.  After a comprehensive review of the evidence in the applicant's AMHRR, the applicant's contentions and arguments, and the evidence submitted in support of his application, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that this OER should be removed.  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)                                         AR20140005937



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ABCMR Record of Proceedings (cont)                                         AR20140005937



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