IN THE CASE OF:	  

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20140011201 


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 DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 26 October 2000 through 27 March 2001 to reflect his senior rater rated him as "best qualified" vice "fully qualified."  This OER is hereafter referred to as the contested OER.

2.  The applicant states:

   a.  In preparation for the Enhanced Selective Early Retirement Board (ESERB), it was brought to his attention that the contested OER was non-left justified and therefore considered to have negative content.  On the OER located in his official military personnel file (OMPF), the senior rater checked the "fully qualified" block in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) and not the "best qualified" block as he intended to do.  
   
   b.  After reviewing his personal records, he found that on his copy of the contested OER Part VIIa had no blocks checked by his senior rater but all parties signed the OER.  Upon further review of the contested OER in the interactive Personnel Electronic Records Management System (iPERMS), it was apparent that the block in Part VIIa was handwritten by an unknown person after all parties had signed the OER.  This marking conflicts with the comments made by the senior rater which stated that he had "unlimited potential" and to "definitely promote now."  This marking also conflicts with the rater’s checking the "outstanding performance, must promote" block of Part Va (Performance and Potential Evaluation - Rater) when he evaluated his potential for promotion. 
   
   c.  For clarity, he contacted his senior rater for the contested OER and asked him to clarify his portion of the OER.  The senior rater wrote a letter stating that the box checked was an error and he would work with him to correct the problem.  The contested OER has been in his OMPF for the past 13 years.  Since he had progressed in his career neither he, nor his leadership, identified the issue with the contested OER.  The current reduction of forces has brought greater scrutiny to all documents in a Soldier's file and Soldiers with non-left justified OERs have greater potential for removal from the service.  There are no other documents [in his OMPF] that have negative contents and the contested OER with an errant box checked has the potential to end his career.

3.  The applicant provides DA Form 67-9, two letters, and the second page of a DA Form 67-9.

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a second lieutenant (2LT) Reserve officer in the Field Artillery (FA) Branch on 13 April 2000 with a concurrent call to active duty.

2.  He attended and successfully completed the FA Officer Basic Course from 5 June 2000 to 25 October 2000 at Fort Sill, OK.  He held area of concentration (AOC) 13A (FA Officer).  

3.  In or about November 2000, he was assigned to C Battery, 6th Battalion, 37th FA, Korea.

4.  The applicant provides and his records contain the contested OER, a change of rater OER, covering 4 months of rated time for the period 26 October 2000 through 27 March 2001 that he received for his duties as platoon leader.  His rater was Captain (CPT) JFB and his senior rater was Lieutenant Colonel (LTC) LFS.  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 (Comment on Performance/Potential) the senior rater, in part, stated, "[The Applicant] is a very capable young officer and an outstanding Multiple Launch Rocket System (MLRS) platoon leader," "he consistently exceeds all requirements and expectations," "his potential is unlimited," and "definitely promote now." 
5.  On 7 May 2001, this contested OER was signed by the rating officials and the applicant, processed at the U.S. Army Human Resources Command (HRC), and is currently filed in the restricted folder of his OMPF.

6.  The applicant provides the second page to the contested OER wherein it shows that none of the blocks in Part VIIa of the OER were checked.

7.  He attained the rank/grade of major (MAJ)/O-4 in the Regular Army on 1 October 2009 and is currently serving on active duty.

8.  The applicant also provides a letter, dated 11 April 2014, to the President, ESERB, wherein now retired Colonel (COL) LSF stated:

	a.  He wanted to explain an error he made on the applicant's OER for the rating period 26 October 2000 to 27 March 2001 that was signed on 7 May 2001.  At the time, the applicant was a 2LT and he was the applicant's battalion commander and senior rater.  After reviewing the contested OER, his copy of the OER, and the applicant's follow-on OER from his personal files, and knowing his standardized method for evaluating officers and completing the senior rater portion of OERs, the contested OER was, without question, incorrectly marked as "fully qualified" instead of his intended rating of "best qualified."

	b.  His personal method for checking the block in Part VIIa of his subordinates' OERs was to rate all officers who demonstrated potential for promotion as "best qualified" and provide senior rater comments in Part VIIc that clearly articulated the officer's demonstrated potential for promotion.  In his rating method, he reserved the "fully qualified" rating for those officers he assessed as having very minimal potential for promotion and considered it as a de facto "do not promote" message to the promotion board.  One hundred percent of his "fully qualified" ratings were accompanied by comments that clearly articulated the officer's limited or no potential for promotion.  

	c.  This was not the case with the applicant's contested OER.  He clearly assessed him as having "great potential for promotion" which was consistent with his method of providing a "best qualified" rating.  His comments and the rater's comments were consistent in articulating the applicant's great potential for promotion.  He would NEVER intentionally give a "fully qualified" rating with the comments he wrote on the applicant's contested OER.

	d.  A second indicator of the error is that the X in Part VIIa of the contested OER is handwritten and not typed.  His conclusion is that this section of the OER was inadvertently left blank when the OER was processed.  When the error was discovered, most likely by HRC, the block was checked.  After discussing the situation with him over the phone or by email the "fully qualified" box was mistakenly checked instead of the "best qualified" block.

	e.  Throughout his career, he took his senior rater responsibilities extremely serious.  His intention was to never send mixed or ambiguous signals to the board and he used specific rating methods to avoid any ambiguity.  While he cannot definitively account for the reason the error occurred, he can without any reservation say that the "best qualified" block was the rating he intended for the applicant's contested OER

9.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the officer evaluation system.  It also provided guidance regarding redress programs including commander inquiries and appeals.

	a.  Paragraph 6-6 stated, in part, an evaluation report accepted by Headquarters, Department of the Army and included in the official record of an officer was presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical errors in box selections in Part Va or Part VIIa of the DA Form 67-9 would normally be returned without action unless accompanied by additional substantiating evidence (emphasis added).

	b.  Paragraph 6-10 stated the burden of proof rested with the appellant to justify deletion or amendment of a report.  The appellant would produce evidence that established clearly and convincingly that the presumption of regularity would not be applied to the report under consideration, and action was warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence would be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority was convinced that an appellant was correct in some or all of the assertions, the clear and convincing standard had been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be altered to show his senior rater rated him as "best qualified." 

2.  The evidence of record shows the contested OER is facially correct, complies with Army Regulation 623-105, and sufficiently addresses his performance and potential during the rated period.  In addition, the contested OER has been in his OMPF for over 13 years and there is no evidence that shows he exercised due diligence and questioned the senior rater's rating in all that time.  He stated he is only now questioning the accuracy of the OER because it was recently brought to his attention it was considered to have negative content.  

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.  Unfortunately, it cannot be determined if the senior rater’s statement is now retrospective thinking.

6.  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)                                         AR20140011201





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ABCMR Record of Proceedings (cont)                                         AR20140011201



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