IN THE CASE OF:	  

		BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140009925 


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:

The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect:
	
	a.  correction of Part VII (Senior Rater) of three Officer Evaluation Reports (OER) covering the periods 3 June 1996 through 2 June 1997; 3 June 1997 through 2 June 1998; and 3 June 1998 through 2 June 1999 to show "Above Center of Mass" instead of "Center of Mass," or, the OERs be removed from the applicant's Official Military Personnel File (OMPF).

	b.  the applicant be promoted to the rank of colonel (COL) effective 
21 December 2012 with pay and allowances; or, his case be considered by a special selection board (SSB) for promotion to COL.

2.  Counsel states:

	a.  The applicant requests the potential rating on three OERs issued when he was the commander of the 351st Ordnance Company be amended from "Center of Mass" to "Above Center of Mass" in order to accurately reflect his potential compared with other officers in the same grade.


	b.  On 11 April 2014, the applicant was notified he would be considered for release from active duty (REFRAD).  The REFRAD board was scheduled to convene on 14 July 2014.  The applicant requests a decision be rendered before 1 July 2014.

	c.  The applicant received the first OER in November 1997.  In April 1998, he filed an appeal through his chain of command challenging the first OER at issue; however, the command declined to take any corrective action.  He received the second OER in October 1999 and the third OER in February 2000.  He met with the Inspector General (IG) at Headquarters, U.S. Army Reserve (USAR) to discuss his concerns about the inaccuracies of his second and third OERs.  He appealed the OERs through the IG and not his chain of command because he felt he was being retaliated against due to his assignment and his first OER appeal.  At this time, the IG told him there was nothing that could be done to change the evaluations.    

	d.  After previous attempts to amend the three OERs, the applicant believed he had exhausted all available resources.  However, after being passed over for COL, he consulted with counsel to see if there was anything else that could be done to correct the inaccurate OERs.  After consultation with counsel in December 2013, he discovered he could file a petition for correction of his OERs and additionally discovered the OERs contain blatant procedural errors.   

	e.  The three OERs issued to the applicant during his time in command of the 351st Ordnance Company should be amended for the following reasons:

		(1)  The potential ratings on his OERs are inaccurate given his performance.  During his time as company commander, he successfully completed numerous training evolutions, was recognized on numerous occasions in memoranda of appreciation, and received several certificates of appreciation.  Nonetheless, when he received his OERs he was rated as "Center of Mass" with numerous reserve officers rated ahead of him.  Given his successes and overall ratings during the time periods directly contradict a "Center of Mass" potential rating. 

		(2)  His replacement of a Troop Unit Program (TPU) commander created hostility and let to retaliation.  His unique assignment in command of a TPU and replacement of a TPU commander placed him in a situation where his raters were biased against him in favor of traditional TPU company commanders.  This retaliation also formed part of the basis of his subsequent IG complaint.  Given the applicant's clearly established capabilities and successes during the rating periods, the "Center of Mass" potential ratings can only be explained as retaliation.  
		(3)  The OERs contain procedural errors, rendering them inaccurate and incomplete.  

		(4)  The applicant was denied a fair promotion evaluation.   His raters crafted "velvet glove" reports which were designed to harm his career while also withstanding scrutiny.  The facts and documentary evidence provided confirm the applicant was an outstanding officer and consistently exceeded expectations.  The inaccurate OERs, which recognize his successes and potential in one section while denying it in the next, have resulted in an unfair evaluation of his record for promotion.  Given the clear evidence that these OERs are inaccurate, they should be amended or removed from his OMPF.  It is wholly unjust to deny this officer promotion to COL given his outstanding career and devotion to the service.   

3.  Counsel also states:  

	a.  In the mid-1990s, contingency force pool units were consistently experiencing poor unit readiness.  In response to this issue, the Department of the Army placed Active Guard Reserve (AGR) officers into leadership positions within these troubled units.  The AGR officers replaced the then-current commanding officers at the end of his or her tour of duty.  This replacement of TPU commanders with AGR officers created instantaneous disdain and resentment toward the newly-assigned officers and caused the units to take a defensive stance.

	b.  In July 1996, then a captain, the applicant was assigned as an AGR officer in full-time support of a TPU as a part of the TPU commander replacement program.  He assumed command of the 351st Ordnance Company in Romney, WV.

	c.  In February 1997, both the applicant and the 351st were recognized by the Commanding General of the 99th Regional Support Command for their participation in the First Army Training Evaluation in February 1997.  In September 1997, the applicant was recognized in a letter of appreciation for his participation in the training exercise Golden Cargo 1997.  The 351st was recognized for exceptional performance and contribution to Exercise Golden Cargo 1997 in September 1997.

	d.  In December 1997, the senior rater signed the applicant's OER for the rating period from 3 June 1996 through 2 June 1997, over four months after it should have been forwarded to Headquarters, Department of the Army (HQDA).  Despite exemplary remarks on this OER and numerous rewards and recognitions received throughout the rating period, the applicant was rated "Center of Mass."
	e.  In early 1998, the applicant developed the 351st Ordnance Company's Class V Hands on Training (HOT) mission request, the first of its kind in either the 38th Ordnance Group or the 99th Regional Support Command.

	f.  He received a certificate of achievement in May 1998, a memorandum of appreciation in July 1998, a certificate of appreciation in July 1998, and a unit award, and he received the 38th Ordnance Group's "Outstanding Unit Award" for training years 1998 and 1999.

	g.  In October 1999, the senior rater signed the applicant's OER for the rating period of 3 June 1997 through 2 June 1998, over one year after it should have been forwarded to HQDA.  Despite exemplary remarks on this OER and numerous rewards and recognitions received throughout the rating period, the applicant was rated "Center of Mass."
       
	h.  In February 2000, the senior rater signed the applicant's OER for the rating period 3 June 1998 through 2 June 1999, over five months after it should have  been forwarded to HQDA.  Despite exemplary remarks on this OER and numerous rewards and recognitions received throughout the rating period, the applicant was rated "Center of Mass."

	i.   In May 2001, the applicant received an award for exceptional meritorious service while serving as the commander of the 351st Ordnance Company from 
3 June 1996 to 22 May 1999.

	j.  The applicant's service to the 351st was both innovative and exceptional.  This fact was noted in the commentary on his OERs, the various certificates and memoranda he received at the time, and by his meritorious service award recommendation for the time period.  Despite his superior performance and outstanding comments, he received a "Center of Mass" rating.  Because his three OERs from this period are undeniably inaccurate and unjust, they should be amended or removed from his OMPF.

4.  Counsel further states:

	a.  Examination of the applicant's 1996-1997 OER and recommendation for award reveals the applicant's service during the rating period was exceptional and unmatched by his fellow officers.  In his first year of command of the 351st, the 351st participated in the First U.S. Army Training Evaluation.  He successfully completed a number of challenging logistical assignments.  The "Center of Mass" rating he received during this time defies logic given his accomplishments and is inconsistent with the rater and senior rater's own comments.

	b.  Review of the applicant's 1997-1998 OER and recommendations for award indicate his service continued to be exceptional and unmatched by his fellow officers during the rating period.  During this rating period, the applicant was the first company commander in the 99th RSC to develop a Class V Hands on Training mission.  His exceptional performance and unwavering commitment to the readiness of his unit was discussed in his recommendation for award.  Both the applicant and the 351st received several letters and certificates of achievement.  Despite his overwhelming effectiveness and outstanding successes, his raters still placed him at the center of mass.  Given his superior performance during this rating period, a "Center of Mass" ranking is inaccurate given his service.

	c.  As indicated by the applicant's 1998-1999 OER and recommendation for award, his exceptional service continued to exceed expectations in the following evaluative period.  He received the 38th Ordnance Group's Outstanding Unit Award for the second consecutive year for greatly exceeding numerous command requirements.  He personally received a memorandum of appreciation and the 351st received a certificate of appreciation.  Additionally, throughout his innovative planning and training program, the 351st was the first unit in 99th RSC history to conduct an Annual Training mission split between the Sierra Army Depot and Fort Irwin, in California.  For his service during this evaluative period, he was awarded the Army Commendation Medal via a recommendation made by his rater.  Nonetheless, on the OER covering this period he received final marks of "Center of Mass."  Given his enormous successes during the rating period, his potential rating can only be described as inaccurate.  As such, this OER must be amended or removed from his OMPF to remedy this injustice.

	d.  The applicant's replacement of a TPU commander caused hostility and led to retaliation.

	e.  The OERs contain procedural errors.  The OERs in question failed to comport with the requisite regulations governing their production and approval.  These errors are material and render the OERs invalid.  Of equal importance, the errors contained within the OERs shed light on the level of importance and attention the command afforded these forms – forms which can (and have, in the applicant's case) detrimentally altered the career potential of a Soldier.  For these reasons, the OERs should be amended or removed.

	f.  His 1996-1997 OER should be removed for failure to conform with the timeliness requirements and failure to account for peculiar conditions associated with his appointment during this time.  These defects are material and fatally taint this OER.

	g.  This OER substantially failed to comply with the timeliness requirements of the regulation.  The regulation required the OERs to be completed and submitted to HQDA within 60 days of the through date.  The purpose of this requirement is to ensure the Soldier is rated while the events of the rating period are still fresh in the minds of the raters and is therefore more likely to be accurate.  In this case, the through date was 2 June 1997.  However, the senior rater did not sign off on the OER until December 1997 and the OER was not added to the applicant's OMPF until March 1998.  Therefore, this OER exceeded the time limitations by at least four months.  Given the extreme delay beyond the allotted amount of time, this OER should be considered invalid and removed.  Furthermore, this OER failed to describe the applicant's unique duty assignment.  He was an AGR officer in command of a TPU unit.  Per this reference, this peculiar condition should have been noted in his OER so that future promotion boards would be aware of the unusual and challenging conditions that the applicant faced while working as an AGR officer for a TPU with a command structure over 200 miles away.

	h.  The applicant's 1997-1998 OER should be removed for failure to use the appropriate evaluation criteria, failure to conform with the timeliness requirements, and failure to account for peculiar conditions associated with his appointment during this time.  These defects are material and fatally taint this OER.             
    
	i.  On 1 October 1997, the previous version of the OER (DA Form 67-8) was discontinued and a new version was introduced.  The new version implemented an entirely new system of metrics.  Despite the fact this new form had been put into effect over 10 months earlier, the applicant's 1997-1998 OER was completed on the old, and therefore incorrect, form.  The failure of his raters to use the correct form resulted in an evaluation that was neither accurate nor complete.  In addition, the senior rater did not complete his portion of the OER until October 1999 and the OER was not added to the applicant's OMPF until December 1999.

	j.  The applicant's 1998-1999 OER should be removed or amended for failure to conform with the timeliness requirements and failure to account for peculiar conditions associated with his appointment during this time.  This OER failed to comport with the timeliness requirements in that it was at least 5 months late.  The senior rater did not approve the applicant's OER until February 2000 and the OER was not added to the applicant's OMPF until March 2000.  This OER also failed to include the appropriate comments in his duty description. 

	k.  The applicant's raters carefully drafted the inaccurate reports so they would pass muster without scrutiny.  Although the intent may have been to signal to U.S. Army Reserve Command (USARC) that replacement commanders were unnecessary, the effect of these inaccurate reports was damaging to the applicant's career progression.  Hindering a Soldier's long-term advancement without counseling, documentation or affording the Soldier an opportunity to remediate the issue directly conflicts with the purpose of an OER and, in the applicant's case, has created an inaccurate record of his performance.  As a result of these inaccurate OERs, the applicant has not been afforded a fair evaluation of his record for promotion purposes.  For this reason, the OERs should be amended or removed from his OMPF. 

5.  In an affidavit dated 26 May 2014, the applicant states the three OERs while in command of the 351st Ordnance Company from June 1996 to June 1999 were erroneous and unjust for the following reasons:

* his last two OERs were completed after he left the command
* the Battalion and Group Commander's repeated failure to counsel him on his job performance
* his documented performance was at the "Above Center of Mass" level
* the consistent notation of "positive" instances in his OERs
* recommendation for award not completed until 22 May 2001, almost two years after he left the command

6.  Counsel provides 18 enclosures outlined on page 1 of his brief.

CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the U.S. Marine Corps, the applicant was appointed as a second lieutenant in the USAR on 25 June 1987.  He entered into an AGR status in 2006.  He was promoted to lieutenant colonel on 21 December 2007.

2.  The first contested OER is a 12-month annual OER covering the period 
3 June 1996 through 2 June 1997 for duties as a company commander for the 351st Ordnance Company, in Romney, West Virginia.  The rater signed this report of 20 November 1997 and the senior rater signed it on 16 December 1997.     

3.  In Part VII, the senior rater commented "Captain [applicant's last name] performed in an exemplary manner, particularly in light of commanding an FSP [Force Support Package] unit with four geographically dispersed detachments.  Under his supervision the unit consistently met or exceeded administrative requirements, maintained the appropriate readiness levels and successfully relocated a detachment from Huntington, WV, to Morgantown, WV.  He developed and implemented an exceptionally effective yearly Training Program as evidenced by the successful completion of a First Army Training Evaluation, the attainment of APFT [Army Physical Fitness Test], CTT [Common Task Test] and weapons qualification standards and the successful completion of the first Lanes Training Exercise conducted simultaneously with a real world ammunition mission at which the unit significantly exceeded its mission requirements.  Captain [applicant's last name] is an outstanding young officer who should be enrolled in CGSOC [Command and General Staff Officer Course] and assigned as a Battalion Executive Officer."

4.  The senior rater's rating profile was, from his best to lowest, 9/10/3/1/0/0/0/0/0.

5.  The second contested OER is a 12-month annual OER covering the period 
3 June 1997 through 2 June 1998 for duties as a company commander for the 351st Ordnance Company, in Romney, West Virginia.  The rater and senior rater signed this report on 27 October 1999.   

6.  In Part VII, the senior rater commented CPT [Captain applicant's last name] successfully completed a challenging year of command.  In addition to supporting the Golden Cargo ammunition exercise, his unit conducted a LANES during AT with excellent results.  CPT [applicant's last name] has been instrumental in developing alternative training opportunities for his unit at Letterkenny Army Depot and conducted a series of HOT missions that resulted in improved retention and readiness.  His unit readiness has been consistently the best among like units in the USAR.  CPT [applicant's last name] should be considered for a staff assignment in the Acquisition Corps or as a senior staff officer at the TSC [Tactical Support Center] or COSCOM [Corps Support Command] level." 

7.  The senior rater's rating profile was 5/14/5/0/0/0/0/0/0.

8.  The third contested OER, prepared on the new version, is a 12-month annual OER covering the period 3 June 1998 through 2 June 1999 for duties as a company commander for the 351st Ordnance Company, in Romney, West Virginia.  The rater signed this report on 28 January 2000 and the senior rater signed it on 6 February 2000.  

9.  In Part VII, the senior rater rated him "Center of Mass" and commented "Captain [applicant's last name] completed a successful year as commander of an FSP Tier 1A ammunition company.  His company planned and executed a demanding Golden Cargo ammunition mission, while simultaneously completing a successful LANES evaluation.  Captain [applicant's last name] aggressively pursued innovative HOT mission training opportunities and was instrumental in the development of a FASA concept at Letterkenney Army Depot.  His unit 
maintained a C3 readiness rating while struggling with recruiting and retention challenges.  Captain [applicant's last name] should be assigned to the Acquisition Corps."

10.  His OERs covering the periods 15 June 2007 through 31 May 2008, 1 June 2008 through 31 May 2009, and 1 June 2009 through 31 May 2010, received when he was a lieutenant colonel, show his senior raters rated him "Center of Mass."

11.  He was considered by the Fiscal Year 2012, 2013, and 2014 COL Promotion Selection Boards, but was not selected for promotion to COL.

12.  A review of the applicant's OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the contested OERs.

13.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect on 
1 January 1982 and 1 October 1997, stated:

	a.  A personality conflict between the Soldier and a rating official does not constitute grounds for relief; it must be shown conclusively that the conflict resulted in an inaccurate evaluation.

	b.  The purpose of the profile is to place the rated officer's OER in perspective by revealing the senior rater's normal rating tendency.
	
	c.  The responsible senior rater or administrative office would provide the rated officer a copy of the report when it was completed.  If the rated officer departed the organization before receiving a copy of the completed report, the senior rater or administrative office will send a copy to his or her forwarding address. 

	d.  Reports must be forwarded to reach HQDA not later than 90 days after the ending day of the report.

	e.  Because evaluation reports were used for personnel management decisions, it was important to the Army and the individual officer that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.

	f.  Appeals would be submitted in memorandum form directly to the Commander, Army Personnel Center (ARPERCEN).
14.  Army Regulation 623-105, change 1, effective 1 June 1998, stated this regulation is effective 1 October 1998 for all USAR officers.  Use of the DA Form 67-9-1 (Support Form) only was effective for USAR officers on 1 October 1997.

15.  Army Regulation 600-8-104 (Army Military Human Resource Record) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  The regulation states OERs are required for filing in iPERMS. 

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officer Other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

DISCUSSION AND CONCLUSIONS:

1.  Counsel contends the three OERs in question should be removed for:

* failure to conform with timeliness requirements
* failure to use the appropriate evaluation criteria on the 1997/1998 OER
* failure to account for peculiar conditions associated with his appointment during the rating periods

2.  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.

3.  Counsel claims the applicant filed an appeal with his command.  However, the regulation states appeals are filed directly to ARPERCEN.

4.  Counsel claims the applicant filed an IG complaint.  The IG could not have helped with the OER, but should have been able to comment on any retaliation if substantiated.  The applicant provides no evidence of an IG investigation. 


5.  Counsel claims the OER for the period June 1997 to June 1998 was completed on the wrong form because the new version of the OER was effective 1 October 1997.  However, Change 1 to Army Regulation 623-105 states that version was not effective for USAR officers until 1 October 1998. 

6.  The evidence supports counsel's contention the applicant's raters failed to conform with timeliness requirements on the three contested OERs.  Since they did not sign them within 90 days after the ending day of the reports, they were not forwarded to HQDA on time.  However, there is no evidence he appealed the OERs in question within a timely manner. 

7.  Counsel contends the applicant's last two OERs were completed after he left the command.  However, the governing regulation stated if the rated officer departed the organization before receiving a copy of the completed report, the senior rater or administrative office would send a copy to his or her forwarding address.  It appears he received these OERs in accordance with the governing regulation. 

8.  The contested OERs were prepared by the properly-designated rating officials and are properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that they were improperly prepared or filed.

9.  Essentially, the applicant failed to show by clear and convincing evidence that the OERS contained inaccurate assessments by his senior raters.

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

11.  Counsel's contention the applicant's documented performance was at the "Above Center of Mass" level was noted.  However, clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of substantive error or factual inaccuracy.  Counsel has not met this threshold of proof with the type of evidence he submitted.  There was no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the rating officials when the OERs were prepared almost 15-17 years ago.  Therefore, there is an insufficient basis for granting the applicant's request to amend or remove them from his OMPF.

12.  Further, it is noted that the applicant received three "Center of Mass" OERs while a lieutenant colonel.
13.  His request for promotion consideration to COL by an SSB was carefully considered.  However, he has provided insufficient evidence to show he should be considered for promotion to COL by an SSB.  

14.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140009925





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ABCMR Record of Proceedings (cont)                                         AR20140009925



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