BOARD DATE:	  3 March 2015

		DOCKET NUMBER:  AR20140006981 


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 his change of duty (COD) officer evaluation report (OER) covering the rating period 1 July 2000 through 31 May 2001, herein referred to as the contested OER, to show:

	a.  the OER was not a referred report in Part IId  (Authentication - This is a referred report, do you wish to make comments?); and 

	b.  removal of derogatory statements in:

* Part IVb (Performance Evaluation - Professionalism):

* (b.2.2) Interpersonal
* (b.2.4) Tactical
* (b.3.1) Communication

* Part Vb (Performance and Potential - Rater Comments)
* Part VIIc (Senior Rater - Comments on Performance/Potential)

2.  The applicant states that he would like a review of the contested OER received when he was a first lieutenant stationed in Camp Hovey, Korea.  He contends that he was rated unjustly because he is not a native speaker of English.



3.  The applicant provides:

* the contested OER
* DA Forms 67-9 (OER) for the period 1 June 2001 through 10 October 2008
* Army Achievement Medal Certificate
* DA Form 1059 (Service School Academic Evaluation Report), dated 
30 June 2000
* Permanent Orders 126-2942, dated 5 May 2004

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty as a major, pay grade O-4.

2.  On 19 June 2001, the applicant acknowledged receipt of the contested OER which contained the following entries in:

	a.  Part IId, the rater placed an "X" in the block indicating the report was referred.

	b.  Part IVb.2 (Skills), the rater placed an "X" in the "NO" block for interpersonal skills and tactical skills.

	c.  Part IVb.3 (Actions)(Leadership), the rater placed an "X" in the "NO" in the communicating block. 

	d.  Part Vb, the rater placed an "X" in the Satisfactory Performance, Promote block, and entered the following comments:

Although he is a first lieutenant, he has not attained a level of technical, tactical knowledge usually seen from an officer of his rank or a strong ability to lead soldiers.  [The applicant] has struggled to properly plan and execute Field Training Exercises which has resulted in the marginal performance of his platoon.  This is primarily a result of poor communication skills.  English is his second language and he has difficulty in understanding, reading, and speaking English.

	e.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block and entered the following comments:

However, his performance as platoon leader has been marginal.  I attribute his difficulties to his lack of satisfactory communication skills.  English is his second language and he has difficulty understanding and disseminating orders to subordinates.

3.  The contested OER was signed by his rating officials and the applicant on 
19 June 2001 and subsequently referred to the applicant.  It was filed in the restricted portion of his Official Military Personnel File (OMPF) on 24 November 2002 in accordance with Army Regulation 600-8-104 (Military Personnel Information Management/Records).

4.  His record is void of a rebuttal statement or evidence that he appealed the contested OER to his senior rater/commanding officer or the U.S. Army Human Resources Command (HRC). 

5.  The applicant argues:

	a.  His rater’s own written evaluation contradicts the “NO” ratings he received for interpersonal skills, technical skills, and communicating.

	b.  His productivity did not suffer because English was not his native language which was demonstrated by his next OER, in the same unit (but with a different rating scheme).

6.  He further argues that his achievements and his overall military career demonstrate that even though English was not his primary language, it did not interfere or stop him from sequential success.  His achievements include:

* the award of the AAM for his service in the unit upon departing Korea
* being awarded Honor Graduate, Active Duty Officer Basic Course 
* graduating from Army Ranger Course less than three years after receiving the contested OER
* selection as a Reserve Officers' Training Corps (ROTC) instructor which demonstrates that he had the skills to coach, mentor, counsel, motivate, and empower others by graduating over 250 cadets
* successful execution of six air assault operations with two infantry battalions
* completion of a Department of Defense Ammunition Holding Area inspection that resulted in a "NO Faults Noted" rating

7.  Finally, he contends that the comments listed in his subsequent OERs show he possessed interpersonal, communication, and tactical skills.  These comments include:

* he planned and executed several Unit Basic Load (UBL) swaps
* he developed a thorough training plan to ensure all teams qualified on the Avenger weapon system during the battalion live fire exercise in Chulmae
* his dedication, hard work and tactical prowess enabled one of his teams to qualify second in the battery
* he demonstrated his increasing ability to assimilate knowledge required of a professional Air Defense officer and leader
* his accomplishments have been nothing short of superb

8.  Army Regulation 600-8-104 governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF 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 623-105 (Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by Headquarters, Department of the Army (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.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

   c.  Stipulates that any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the Senior Rater for acknowledgment and comment before they are sent to HQDA. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the negative comments listed in the contested OER are unjust and, as such, they should be deleted.

2.  His achievements are noteworthy but there is no evidence to show the contested OER did not accurately reflect his performance during the period covered.

3.  The fact that he received awards, completed schooling, and his performance and potential was rated differently in subsequent evaluations does not amount to sufficiently compelling evidence to show the contested OER was substantively inaccurate and did 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.  Further, there is no evidence that he provided rebuttal comments to his rating chain or appealed the OER to HRC at the time the OER was submitted.

4.  An OER is an assessment of an officer's performance and potential during a specified period of time.  During that particular period of time, his rating officials assessed his performance and potential for his assigned duties as indicated in the contested OER.

5.  After a comprehensive review of the evidence in the applicant's OMPF, 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 the negative comments contained in the 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)                                         AR20140006981



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ABCMR Record of Proceedings (cont)                                         AR20140006981



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