IN THE CASE OF:	  

		BOARD DATE:	  21 May 2015

		DOCKET NUMBER:  AR20140013857 


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 reconsideration of his earlier request for removal of his officer evaluation report (OER) for the period 2 January through 31 December 2006 (hereafter referred to as the contested OER) from his records.  He also requests correction or masking of the contested OER if it cannot be removed.

2.  The applicant states:

	a.  The contested OER caused his non-selection for promotion to lieutenant colonel (LTC) in his primary and secondary promotion board considerations.  His appeal of the contested OER is based on administrative and substantive error.  The following are administrative errors in the contested OER:

		(1)  Part Il (Number of Enclosures) is marked "0" and should be changed to "2" because two documents were enclosed.

		(2)  Part IVa7 (Army Values – Duty) was rated "No" and should be rated "Yes" because the comments in Part Vb (Performance and Potential Evaluation – Comment on Specific Aspects of the Performance) by the rater were wholly and grossly inaccurate reflections of what transpired during the rating period that do not support the "No" rating.  The rater had not performed the required observation in accordance with the Army regulation to come up with his conclusions.  He also created a "hostile work climate" for the staff.  The rater's comments should be changed to correctly reflect his actual accomplishments in accordance with the governing regulation.

		(3)  Part IVb (Army Values – Leader Attributes/Skills/Actions) contains "No" ratings and should all be changed to "Yes" ratings because the comments provided in Part Vb and Part VIIc (Senior Rater – Comment on Performance/
Potential) were wholly and grossly inaccurate reflections of what transpired during the rating period and do not support the "No" ratings.

		(4)  His rater was in a probationary status as an Active Guard Reserve (AGR) officer in his first assignment and he had never been deployed to either the Iraq or Afghanistan theaters of operation.  He only supervised the applicant.

	b.  The following are substantive errors in the contested OER:

		(1)  Part V comments were not in accordance with regulatory guidance.  His rater spent 75 to 90 percent of his time traveling to different missions in the U.S. Pacific Command theater of operations which severely hampered his ability for good observation, coaching/mentoring, and advising on the best practices and did not provide a complete representation of the applicant's performance.

		(2)  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) should be rated "Outstanding" or "Satisfactory" instead of "Unsatisfactory."

		(3)  In Part Vc (Comment on Potential for Promotion), the rater's comments were incorrect and comments in Part Vb need to be corrected because they were wholly and grossly inaccurate.

		(4)  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) should be rated "Center of Mass" or "Above Center of Mass" instead of "Below Center of Mass."

		(5)  In Part VIIc, the senior rater's comments were not in accordance with the governing regulation.  The senior rater rarely observed him during the rating period which severely impacted his ability to know who he was or what he was doing.  The applicant never received an initial counseling or any other counseling sessions with him and there was no effort to examine or discover the reasons for the contested OER.  The senior rater's comments should be corrected to reflect his actual accomplishments in accordance with the governing regulation.

		(6)  The preferred potential assignments should be changed to show Brigade Plans Officer, Engineer Command (ENCOM) Force Development Officer, and ENCOM Mobility Officer.

		(7)  The correct procedures were not followed in the OER referral process.  There is no evidence the senior rater reviewed his rebuttal and he did not receive an official memorandum stating his options.

	c.  He never had a change-of-rater or senior rater evaluation and he never received guidance from the senior rater regarding his expectations.

	d.  His rater never requested any feedback from members of the U.S. Army Pacific Command (USARPAC) Deputy Chief of Staff for Engineering section.  His rater had an issue with his engagement and marriage to a foreign national even though he checked with the USARPAC G-1 and G-2 and the 412th ENCOM and was told his marriage would not jeopardize his military career.

	e.  He should be granted a waiver in light of this new evidence and the failure of both his rater and senior rater to following the governing regulation regarding the contested OER.

3.  The applicant provides:

* a letter of support, dated 3 August 2014
* OER for the period 4 June 2005 through 1 January 2006 (previously considered)
* contested OER (previously considered)
* OER for the period 1 January through 31 December 2007 (previously considered)
* Record of Counseling, dated 9 February 2006
* two DA Forms 4856 (Developmental Counseling Form)
* three self-authored plans for self-improvement
* four letters of support (previously considered)

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20120022158 on 8 August 2013.

2.  The applicant provided new arguments, a letter of support, records of counseling, and three self-authored plans for self-improvement which were not previously considered by the Board that warrant consideration at this time.

3.  On 18 May 1991, the applicant was commissioned as a second lieutenant in the U.S. Army Reserve (USAR).  On 16 February 1995, he accepted an appointment as a first lieutenant in the Virginia Army National Guard.

4.  On 1 December 1996, he resigned his Army National Guard commission and he was transferred to the USAR Control Group (Reinforcement).

5.  He was promoted to captain effective 18 April 2000 and he was promoted to major effective 7 June 2006.

6.  He was serving on active duty in the USAR AGR Program as an assistant plans officer in Hawaii when he received the contested OER covering the period 2 January through 31 December 2006.

7.  The contested OER shows in:

* Part IVa7 – "No"
* Part IVb1 (Attributes) – "No" ratings for Mental and Emotional
* Part IVb2 (Skills – Competence) – "No" ratings for Conceptual, Interpersonal, and Technical
* Part IVb3  (Actions – Leadership) – "No" ratings for Communicating, Decision-Making, Motivating, Planning, Executing, Assessing, Developing, and Learning
* Part IVd (Officer Development) (Were developmental tasks recorded on a DA Form 67-9-1a (Developmental Support Form) and quarterly follow-up counseling conducted?) – "NA"
* Part Va – "Unsatisfactory Performance, Do Not Promote"

8.  The rater stated the applicant's performance had been substandard during the rated period.  He also stated the applicant was ineffective in providing value to the missions, he failed to take the initiative to support the missions in any significant way, he required a level of guidance above that expected of a field-grade officer, he required extreme following up on all actions, he failed to manage multiple tasks simultaneously, and he failed to demonstrate the requisite interpersonal skills to coordinate with higher headquarters staffs and inter-agencies.  The rater further stated the applicant did not possess the potential for promotion and failed to show improvement despite counseling in September 2006 and a detailed performance improvement plan.

9.  His senior rater rated him "Fully Qualified" and stated the applicant had been somewhat overwhelmed by the scope and intensity of his duties.  He further stated the applicant acknowledged he needed to apply himself more diligently to his duties during the next rating period to show he has the ability to perform to the levels required of the program.  He rated the applicant "Below Center of Mass" compared with officers senior-rated in the same grade.

10.  On 21 March 2007, the contested OER was referred to the applicant.  On 17 April 2007, the applicant submitted a memorandum wherein he stated his accomplishments and acknowledged he had some personal challenges during the rating period that affected his performance which included moving two times within a 6-month period and family situations on the mainland.

11.  The applicant remained in his position and he was rated by a different rater in his subsequent OER covering the period 1 January through 31 December 2007.  His new rater rated his performance and potential for promotion as "Satisfactory Performance, Promote."  His senior rater, the same senior rater as in the contested OER, rated him "Fully Qualified" and placed him "Center of Mass" compared with officers senior-rated in the same grade.

12.  On 1 April 2014, the applicant was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).

13.  The applicant provided:

	a.  a letter of support from a former officer who served with him at the time of the contested OER, dated 3 August 2014, who stated the contested OER was undeserved and the rater at the time had insufficient observation time during the applicant's first year;

	b.  copies of his documented counseling sessions with his rater that show he was counseled on his performance, duty description, responsibilities, and expectations; and

   c.  three self-authored plans for improving his deficiencies.

14.  His records are void of any evidence showing he appealed the contested OER to the Department of the Army Suitability Evaluation Board.

15.  There is no indication the applicant requested a commander's inquiry regarding the contested OER.

16.  Army Regulation 623-3 (Evaluation Reporting System) establishes policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

17.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, 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.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

18.  Army Regulation 623-3 further provides that if referral of a report is required, the senior rater will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of his earlier request for removal, masking, or correction of his contested OER was carefully considered.

2.  An OER is an assessment of one's performance and potential during a specified period of time.  During the contested period, his rating officials assessed his performance and potential as indicated in the contested OER.  His dissatisfaction with his rating is not grounds to change or mask the rating or remove the contested OER from his records.

3.  His submission of other OERs completed during his military career is noted.  However, the fact that the contested OER appears to be inconsistent with the other reports he previously received has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, stands alone.

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.

5.  After a comprehensive review of his records, the applicant's contentions and arguments, and the evidence submitted in support of his request, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that the contested OER should be changed, masked, or removed.  Therefore, there is no evidentiary basis for 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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120022158, dated 8 August 2013.



      ____________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)                                         AR20140013857



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ABCMR Record of Proceedings (cont)                                         AR20140013857



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