IN THE CASE OF:	  

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20140007181 


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: 

* amendment of his DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 8 April through 8 September 2006 to reflect his senior rater rated him as "best qualified" vice "fully qualified" (hereafter referred to as the contested OER)
* consideration by a special selection board (SSB) for promotion to major (MAJ) in the primary zone

2.  The applicant states:

	a.  He will be considered for promotion to MAJ in Fiscal Year 2015 (FY15) above the zone.  The basis for his request is due to substantive inaccuracy.  Although in the written commentary, OER counseling at the time, subsequent promotion to troop executive officer (XO) ahead of his peers, and OERs from the same unit before and after [the contested OER] indicated he was ahead of his peers in evaluation, through an error admitted by the senior rater, Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) was checked as "fully qualified" instead of "best qualified" by the senior rater.

	b.  Although the senior rater checked the "fully qualified" block, his written comments included "promote to captain (CPT) as soon as possible, send to Armor Career Course, and assign to command a troop ahead of his peers."  The rater's comments stated "promote ahead of peers" and that he was the "best platoon leader.
	c.  His counseling at the time of the contested OER was consistently positive from both his rater and senior rater.  They told him he was doing great and based on his performance he would be advanced over nine others to serve as the troop XO during the deployment to Iraq.  As a first lieutenant (1LT), he believed the "fully qualified" rating was not detrimental and did not count more than the written comments of his senior rater.  

	d.  It is apparent he was the only one who thought this and that his rater and senior rater believed the "best qualified" block had been checked.  The senior rater has stated that this was his mistake and his admission of the error and statement of his true intentions are attached.

	e.  He was unaware at the time that a masked OER in his Official Military Personnel File (OMPF) file could be adverse beyond the promotion to the rank CPT.  It was only after the results of the current MAJ's promotion board that he was made aware by the U.S. Army Human Resources Command (HRC) that this OER had been viewed as adverse.  When he was promoted to CPT, HRC made no indication that masked OERs may at some point in the future be considered.  Had he been informed of this, he would have appealed the contested OER within the 3-year timeframe. 

3.  The applicant provides three DA Forms 67-9 and a memorandum.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a second lieutenant (2LT) Reserve officer in the Armor (AR) Branch on 7 May 2004 and he executed an oath of office on that date.

2.  He entered active duty on 13 November 2004.  He attended and successfully completed the Armor Officer Basic Course from 16 November 2004 to 8 April 2005 at Fort Knox, KY.  He held area of concentration (AOC) 19A (Armor Officer, General).

3.  On 9 April 2005, he was assigned to C Troop, 1st Squadron, 89th Cavalry, Fort Drum, NY.

4.  The applicant provides and his records contain an annual OER, covering 12 months of rated time for the period 9 April 2005 through 8 April 2006 he received for his duties as platoon leader.  His rater was CPT AMS and his senior rater was Lieutenant Colonel (LTC) MWS.  This OER shows:

	a.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) the rater checked the "outstanding performance, must promote" box.

	b.  In Part VIIa his senior rater checked the "best qualified" box.  In Part VIIc (Comment on Performance Potential) the senior rater, in part, stated, "superb performance by a talented young officer," "promote ahead of his peers and send to career course immediately after redeployment," and "he will be an outstanding troop commander."

5.  On 12 May 2006, the applicant was promoted to the rank of 1LT.  On 7 July 2006, the OER for the period ending 8 April 2006 was signed by the rating officials and the applicant, processed at HRC, and is currently filed in the restricted folder of his OMPF.

6.  The applicant provides and his records contain the contested OER, a change of rater OER covering 5 months of rated time for the period 9 April 2006 through 8 September 2006 he received for his duties as platoon leader.  His rater was CPT AMS and his senior rater was LTC MWS.  This OER shows:

	a.  In Part Va the rater checked the "outstanding performance, must promote" box.

	b.  In Part VIIa his senior rater checked the "fully qualified" box.  In Part VIIc the senior rater, in part, stated, "[The Applicant's] performance as a platoon leader puts him above his peers," "I have personally selected him to serve as a troop XO" and "promote to CPT as soon as possible, send to AR career course and assign to command a troop ahead of his peers."

7.  On 15 September 2006, he was assigned to A Troop, 1st Squadron, 89th Cavalry, Fort Drum.  On 5 October 2006, the contested OER for the period ending 8 September 2006 was signed by the rating officials and the applicant, processed at HRC, and is currently filed in the restricted folder of his OMPF.

8.  The applicant provides and his records contain a change of rater OER, covering 10 months of rated time for the period 9 September 2006 through 20 June 2007 he received for his duties as XO.  His rater was CPT RFL and his senior rater was LTC MWS.  This OER shows:

	a.  In Part Va the rater checked the "outstanding performance, must promote" box.

	b.  In Part VIIa his senior rater checked the "best qualified" box.  In Part VIIc the senior rater, in part, stated, "superior performance as a troop XO in combat," "[The Applicant] also demonstrated his superb ability to tactically command his unit in the absence of his commander while he was on leave" and "applicant has a high level of potential for future assignments of greater responsibility."   

9.  On 17 June 2007, he was assigned to B Troop, 1st Squadron, 89th Cavalry, Fort Drum.  On 30 July 2007, the OER for the period ending 20 June 2007 was signed by rating officials and the applicant, processed at HRC, and is currently filed in the restricted folder of his OMPF.

10.  In November 2007, he received a change of rater OER covering 5 months of rated time for the period 21 June through 11 November 2007 for his duties as platoon leader.  His rater was CPT CCC and his senior rater was LTC MWS.  He was rated by his rater and senior rater as "outstanding performance, must promote" and "best qualified" respectively.

11.  On 14 November 2007, he was assigned to Headquarters and Headquarters Troop (HHT), 1st Squadron, 89th Cavalry, Fort Drum.  

12.  On 1 February 2008, he was promoted to the rank of CPT in the Regular Army.  

13.  On 6 June 2008, he extended his active duty commitment under the Incentives Program for the Expanded Graduate School Program (EGSP). 

14.  He attended and successfully completed the Maneuver CPT's Career Course from 14 July to 11 December 2008 at Fort Knox.

15.  He attended and successfully completed a graduate program at Rutgers University, Newark, NJ, from 11 August 2009 to 27 January 2011.  He earned a Master of Science in Global Affairs degree.

16.  On 24 September 2012, he extended his active duty commitment for 3 years under the Voluntary Transfer Incentive Program and transferred his branch from AR to Field Artillery (FA).   

17.  The applicant provides a memorandum of support, dated 15 April 2014, wherein now retired Colonel (COL) MSW stated:

	a.  He served as the applicant's senior rater from May 2005 through December 2007 and observed and evaluated him as platoon leader, troop XO, and assistant operations officer, at home station and in combat.  At the time the contested OER was written, he checked the "fully qualified" block in error.  His written comments on the OER accurately reflected his evaluation of him as "best qualified."

	b.  He selected the applicant over nine of his peers to serve as a troop XO during the squadron's deployment to Iraq.  In fact, it was his promotion of him to this critical position that generated the OER in the first place.  The counseling he received at the time of the OER was extremely positive and in line with his "ahead of peers" written evaluation and his exemplary service.

	c.  His ratings of the applicant in the prior and following OERs also reflect his assessment of him as "ahead of peers" and "best qualified."  There was no reason other than the error for him to have checked the "fully qualified" block on the contested OER.  He only became aware of the error recently by officers from HRC who contacted him in reference to the obvious contradiction between his written assessment and the block checked.  They also indicated that his error may have caused the applicant significant harm during the last promotion board.

18.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned 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, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	c.  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 the presumption of regularity will not be applied to the report under consideration, and 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 or administrative error or factual inaccuracy (emphasis added).  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

19.  Army Regulation 600-8-29 (Officer Promotions) prescribes the policies and procedures for promotion of active duty officers.  Paragraph 7-2 of the regulation states SSBs may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.

20.  Army Regulation 600-8-29, paragraph 7-11, states officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration through HRC.  Reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  To determine if there is an error in the promotion file, the officer may request a copy of his/her file.

21.  Army Regulation 600-8-29 defines a material error as being of such a nature that, in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him or her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be altered to show his senior rater rated him as "best qualified" and he should be granted an SSB for reconsideration for promotion to MAJ.

2.  The evidence of record shows the contested OER is facially correct, complies with Army Regulation 623-3, and sufficiently addresses his performance and potential during the rated period.  In addition, he stated at the time he knew his senior rater had checked the "fully qualified" box but believed the rating was not detrimental and therefore, he did not question or appeal it.  It is only now, almost 8 years after he received the contested OER, that he questions the accuracy of the OER.

3.  The governing Army regulation clearly states an evaluation report 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 who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

4.  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, not merely proof of the possibility or administrative error or factual inaccuracy.  

5.  Although the applicant raises the possibility that an administrative error or factual inaccuracy may have occurred on the contested OER, he did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the OER under consideration and that action is warranted to correct a material error or injustice.  

6.  Since there is no material error in his record, he does not qualify for reconsideration for promotion to MAJ by an SSB.  Furthermore, even if his contention that the contested OER contained a material error had been supported, any claim that he would have been selected for promotion to MAJ but for the error is speculative.  

7.  In view of the foregoing, there is an insufficient basis to grant 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)                                         AR20140007181



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140007181



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1