BOARD DATE:	  9 July 2014

		DOCKET NUMBER:  AR20140009455 


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 removal of the Release from Active Duty (REFRAD) officer evaluation report (OER) covering the rating period 26 September 2010 through 8 March 2011 from his records. 

2.  In the alternative, he requests this OER be revised to correct inaccurate portions.  Further, he requests the OER corrected to reflect the evaluation originally given to him in an OER prepared by his supervisor who then refused to sign it. 

3.  The applicant states his appeal is based on administrative and substantive errors.

	a.  He is presently an Alabama Army National Guard (ALARNG) Soldier serving on active duty in the grade of major (MAJ) at "Fort Knox, TX."  There are no pending personnel actions involving him.  This is a third priority appeal.  The basis of this appeal is substantive inaccuracy and administrative errors.  This appeal "extends entries" on this OER both by the rater and the senior rater.  Part IV (Performance Evaluation - Professionalism) evaluations made by the rater are not accurate, and do not adequately present a picture of his performance as Chief of Contract and Fiscal Law for the U.S. Army Division - South (USD-S), Iraq.  The ratings by both the rater and senior rater do not accurately reflect his performance and demonstrated potential during the rating period.  

	b.  The OER was submitted into the interactive personnel management system (IPERMS) at the same time it was emailed to him without prior notice on 23 May 2011.  

		(1)  The OER was not submitted for his signature but was instead directly put into IPERMS.  The unit had his current email and contact information.   

		(2)  He was not allowed to submit a support form for the OER.  

		(3)  Neither initial counseling nor quarterly counseling was conducted during the rating period.  

		(4)  Part I(g) (Administrative Data-Status Code) lists his status as MDAY.  He was mobilized and deployed to Iraq on active duty and was not in a MDAY status at any point during the rated period. 

		(5)  Part III (Duty Description). The section does not correctly state his duties as Chief of Contract and Fiscal law.  He represented the Staff Judge Advocate (SJA) office on the Division Assessment Review Board (DARB) and FARB (unknown acronym) boards which reviewed requirements for USD-S in Iraq.  He advised the command on giving support to the State Department and independently worked with the senior State Department officials.  He reviewed the Commander's Emergency Response Program (CERP) requests and all other contract and fiscal issues for the USD-S and the subordinate commands.  He also supervised and mentored a JAG captain (CPT) and a paralegal.  He requests that the Duty Description be amended to include the before-mentioned in order to properly describe his duties. 

		(6)  Part V (Performance and Potential Evaluation).  The section does not properly describe his performance.  He regularly worked independently with little supervision.  The comments include: "[Applicant] is most productive when he works closely with his legal supervisors.  With additional focus direction, and leadership training [Applicant] can be a positive addition to any JAG office."  The statement is not based on reality.  Lieutenant Colonel (LTC) W-------- (the Rater) wrote a recommendation on 2 February 2011 for him to attend the JAG Graduate Course in which he strongly praised his performance.  

		(7)  Also in Part V, the comments omitted specific accomplishments.  He prepared well over 100 legal reviews for requirement requests for the USD-S and took part in DARB reviews and votes for said requests, totaling several hundred million dollars in value.  He prepared dozens of other legal reviews on other contract and fiscal issues.  He took an active role in senior-level meetings that included senior Department of State officials.  He briefed senior leaders including the Commanding General (CG) of USD-S and the 36th Infantry Division (ID).  He supervised and mentored a JAG CPT and paralegal and put together a productive cohesive team.  He requests that the performance be amended to add this language to reflect his specific accomplishments.  

	c.  An OER had been prepared for the period of 1 December 2009 through 30 November 2010.  He submitted a support form which was used to help prepare the OER.  His performance was checked as outstanding on Part V(a) (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) and "Best Qualified" in Part VII(a) (Senior Rater-Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  The specific accomplishments mentioned in the previous paragraph were included.  The original OER evaluation should be restored along with the original language. On 9 May 2011, he attempted to resolve the problems with his former Rater by having a legal assistance attorney write a letter to him asking for the proper OER to be signed.  On 28 May 2011, the former Rater responded to the letter.  His response did not address the substance of the letter including why he refused to sign the OER nor the request to provide a copy of the original OER.  Instead, he makes the unsupported statement that [Applicant] had "a pattern of inappropriate behavior and deficiencies in his work product."  He cites his memorandum to Colonel (COL) N---- (the Senior Rater) recommending the applicant's REFRAD but does include said memo despite the letter’s request for a copy of the memo. 

	d.  The former Rater's failure to respond to the request for a copy of the OER and/or to explain why he refused to sign the OER is evidence that he did not have a valid reason to refuse to sign the OER.  He is enclosing the 5 March 2011 REFRAD memo and the email from the USD-S legal assistance attorney confirming that she was told by the G-1 that the language came from LTC W-----, the former Rater.  The language was the same and was not supported by anything but a baseless insult by LTC W----- directed against him (the applicant). The CG of USD-S did not sign a negative REFRAD based on "inappropriate behavior" or "deficiencies in work product."  The REFRAD was for completion of mission.  LTC ------'s baseless comments about him impeach his credibility.  

	e.  Further, the rater's comments are evidence that he completed the OER in bad faith.  Part V(c) (Comment on Potential for Promotion), comments state that he should obtain additional leadership training, skills and experience before being considered for further promotion.  The language is code for do not promote and cannot be properly entered without making the report referred, which the rater did not do.  Further, the language is not supported by the reality of his job performance and responsibility.  The language should be removed.  The first OER drafted by LTC W----- had the language – "Promote Now" and should be restored. 
	f.  Part V(d) (Identify Any Unique Professional Skills or Areas of Expertise  of Value to the Army That This Officer Possesses.  For Army Competitive Category CPT Also Indicate a Potential Career Field for Future Service), the section contains the language "with the proper supervision and focus are beneficial to the army."  The language is inappropriate for this section and should be removed.

	g.  Further, in the first OER prepared by LTC W----- the section mentions his Masters studies in the Seminary which gave him knowledge of the cultures and history of the Middle East.  The original also mentioned "extensive private litigation experience both in trial and appellate brief writing."  The original language should be restored to Part VII Senior Rater comments.  The original OER was checked best qualified.  COL N---- would not have been able to properly rate him due to LTC W-----’s failure to supply accurate information of his work performance and his prevention of him submitting an OER support form. 

4.  The applicant provides:

* Contested OER
* DD Form 214 (Certificate of Release or Discharge from Active Duty) 
* Recommendation for JAG Graduate Course (from LTC W------)
* Email from a CPT in the 36th ID
* Authorization to Depart Theater of Operations
* Request for Redress Under Article 138, Uniform Code of Military Justice
* Reply to Article 139 memorandum
* Inspector General Action Request

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 the ALARNG and executed an oath of office on 27 May 2004.  He completed the Judge Advocate Officer Basic Course.
3.  He served in a variety of stateside or overseas assignments, including multiple periods on active duty and/or service in Kuwait/Iraq and Afghanistan, and he was promoted to CPT on 7 November 2005 and MAJ on 2 November 2010. 

4.  During the period 1 July 2010 to 24 September 2010, he was serving as an MDAY Soldier in the Joint Force Headquarters of the ALARNG. 

5.  On 14 August 2010, the ALARNG published Orders 226-174 ordering him to active duty as a member of his Reserve unit for deployment in support of Operation New Dawn.  He entered active duty on 26 September 2010 and subsequently served in Iraq from 8 December 2010 to 17 March 2011.  He was honorably released from active duty on 29 April 2011.  

6.  In March 2011, he received a REFRAD OER for the rating period 26 September 2010 through 8 March 2011, for his duties as Chief, Contracts and Fiscal Law, while assigned to the USD-S, 36th ID, Iraq.  His Rater was LTC W---, the SJA, and his Senior Rater was COL N----, the Chief of Staff.  The OER shows:

	a.  in Part I(g), the entry "MDAY." 

	b.  in Part II(D) (Authentication-This is a referred report, do you wish to make comments?), all blocks are unmarked, indicating this was not a referred report. 

	c.  in Part IV(c) (Significant Duties and Responsibilities.  Refer to Part IV(a), DA Form 67-8-1 (OER Support Form)), supervises the provision of legal advice concerning Army and fiscal law issues arising within the USD-S.  Attend working group meetings and coordinates related legal issues among division staffs.  

	d.  in Part IV (Performance Evaluation – Professionalism), the Rater placed an "X" in the "Yes" block for all Army values, attributes, skills, and actions. 

	e.  in Part V(a), 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] volunteered to deploy with the 36ID as an Individual Mobilization Augmentee (IMA) to Combat Operation Base (COB) Basra, Iraq.  He was assigned as the chief of contracts and fiscal law for USD-S.  This was a challenging detailed oriented position.  [Applicant] functions best in an environment where he can ponder the broad implications of assigned tasks.  This officer is strategically focused and keenly knowledgeable in the area of world events.  His intellectual capacity sets him apart from his fellow JAG officers.  [Applicant] is most productive when he works closely with his legal supervisors.  With additional focus, direction, and leadership training [Applicant] can be a positive addition to any JAG office.  Due to operational tempo in a deployed environment officer did not take the Army Physical Fitness Test (APFT) during this period.      

	f.  in Part Vc, the Rater entered the following comment, "[Applicant] is newly promoted to MAJ.  He should obtain additional leadership training, skills, and experience before being considered for promotion."

	g.  in Part V(d), the Rater entered the following comment, "[Applicant] has an eclectic education and skill sets which with the proper supervision and focus are beneficial to the Army." 

	h.  in Part VIIa, the Senior Rater placed an "X" in the "Fully Qualified" block, indicated he senior rated (at the time) 15 officers of this grade, and that a completed DA Form 67-9-1 was received with this report and considered in his evaluation and review.  

	i.  in Part VII(b) (Potential Compared with Officers Senior Rated in same Grade), the Senior Rater placed a "Center of Mass" rating and in Part VII(c), the  Senior Rater entered the following comments:

[Applicant] performed to the best of his abilities during this rating period.  He volunteered for the 36th Infantry Division mobilization and quickly integrated into the team.  He served on the Division Assessment Review Board (DARB) for all contracts as the fiscal legal advisor.  He was my primary legal advisor on all contracts that were reviewed for USD-S bases and units.  [Applicant] was an asset during this phase of deployment.  Officer is not available for signature. 

7.  The REFRAD OER was digitally signed by his Rater and Senior Rater on 7 and 10 May 2011 respectively.  The applicant's signature block is blank.  The OER was then posted by Headquarters, Department of the Army (HQDA) to his OMPF on 10 May 2011. 

8.  There is  no indication he appealed the contested OER to the National Guard Bureau or the U.S. Army Human Resources Command (HRC) as required by Army Regulation 623-3 (Evaluation Reporting System). 

9.  He submits: 
	a.  An authorization to depart the theater of operations that confirms in March 2011, his chain of command cleared him to depart Iraq. 

	b.  Correspondence, dated May 2011 between himself and LTC W-----, his former Rater, in relation to the refusal of his Rater to sign what appears to be a previously-prepared annual OER from 1 December 2009 to 30 November 2010. 

10.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) governs the composition of the OMPF 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 OMPF.

12.  Army Regulation 623-3 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.

	c.  Paragraph 3-37, in the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments.

	d.  Chapter 5 establishes policies and procedures for applying officer evaluations to the ARNG.  Paragraph 5-15 provides for the requirement to have developmental support form for office revaluation.

	e.  Paragraph 5-25 (Modifications to previously submitted reports), an evaluation report accepted by the ARNG officer for processing to completion and inclusion in the official record of a rated individual presumed to be administratively correct; to have been prepared by properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of completion.  Any request that an official report be altered, withdrawn, or replaced with another report will not be honored.  Once the evaluation has been placed on the officer’s OMPF, administrative changes will be accomplished only by the Officer Management Branch when requested by the State military personnel officer.  No changes will be made at State level.  

	f.  Paragraph 6-7 states an appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.  The determination regarding adequacy of evidence may be made by HRC; National Guard Bureau (NGB) (Appeals Section); or the appropriate State Adjutant General. 

	g.  Paragraph 6-7(h), appeals based on administrative error only will be adjudicated by the National Guard Bureau for guard officers.  Claims of administrative error pertain to DA Form 67–9, Parts I, II, IIIb, c, d, and IVc.
It should be noted that the rated Soldier’s authentication in Part II of a DA Form 67–9 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the APFT performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. 

13.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing the OER form.  It states Part I(g) of the DA Form 67-9 shows the "Status Code."  For USAR or ARNG, enter component status code as follows:

* IRR—Individual Ready Reserve (or IRR–MOB for mobilized IRR Soldier)
* IMA—Individual Mobilization Augmentee (or IMA–MOB for mobilized IMA Soldiers)
* DIMA—drilling individual mobilization augmentee (or DIMAMOB for mobilized DIMA Soldiers)
* TPU—troop program unit
* ADOS–active duty for operational support
* AGR—active guard reserve
* MOB—mobilized Soldier
* CO–ADOS—contingency operations-active duty for operational support
* ADOS–RC—active duty for operational support-Reserve Component
* M–DAY—man-day ARNG traditional Soldiers

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant received a successful OER for the rating period 26 September 2010 through 8 March 2011.  This OER is neither derogatory nor referred.  On the contrary, it contains very good 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.  The applicant refers to a different duty description than the one shown on the contested OER but fails to provide the support form to show a different duty description.  Additionally, his senior rater indicated a support form was completed and considered in his evaluation of the applicant.  

5.  The applicant argues there was a lack of counseling on the part of his rating officials.  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.  The applicant fails to recognize that he, as an officer, is an equal partner in the counseling process

6.  The applicant argues the statement "with additional focus, direction, and leadership training [Applicant] can be a positive addition to any JAG officer" is derogatory.  The Rater felt, as a new MAJ, the applicant needed additional training to sharpen his leadership style.  Soldiers need and require continuous training, whether refresher, sustainment, or any type of training to hone their leadership style and improve their skill level.  This is not a derogatory statement despite the applicant's belief.  

7.  The applicant mentions another OER the rater refused to sign.  He does not provide it and even if he did, the fact that his rater opted to rate him differently is a prerogative of the rater.   

8.  The applicant refers to circumstances and situations which occurred in Iraq but fails to provide documentary evidence in support of such contention.  The Board is neither an investigative agency nor is it privy to what occurred in Iraq.  Additionally, he fails to provide a commander's inquiry or an appeal through the NGB and/or HRC. 

9.  In order to support a successful appeal, evidence should include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials.  

10.  Appeals of administrative data in Part I of the contested OER, such as the status code in Part I(g), should be addressed to his chain of command or State Adjutant General.

11.  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 failed to 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)                                         AR20140009455



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ABCMR Record of Proceedings (cont)                                         AR20140009455



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