IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140013894 


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:

   a.  removal of the Officer Evaluation Report (OER) for the period 16 June 2010 through 1 June 2011 from his Official Military Personnel File (OMPF); and
   
   b.  if the OER cannot be removed, he requests that the last sentence in Part Vb, be removed or masked.

2.  The applicant states:

   a.  The OER is defective on the basis of administrative error, substantive inaccuracy, and it is simply unjust:
   
   (1)  the senior rater committed an administrative error by failing to put an X 
in Block IId (This is a referred report, do you wish to make a comment);
   
   (2)  the OER contains negative comments in block Vb, and as such makes 
the subject report a referred OER; 
   
   (3)  when he was given the subject OER he was specifically told by his 
rater (MAJ Txxxxx X. Pxxxxx) that the OER was not a referred OER and he had no rights to comment or appeal;
   
   (4)  the major's opinion that the OER was not a referred OER was not true, 
the language at block Vb is clearly derogatory; 
   (5)  had he known at the time, or any time since, that the evaluation 
system was not followed in accordance with (IAW) the regulation, he would have made comments, appealed the subject OER, and/or requested a Commander's Inquiry.
   
   b.  Because of the actions of his raters he was not afforded his due process and was prevented from commenting on the derogatory language or having his comments filed with the evaluation IAW Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-36.  
   
   c.  He has not appealed the subject OER sooner because he only recently discovered that the subject OER should have been a referred OER and his due process rights were violated. 
   
   d.  Since the OER, he has been subject to prejudice and suffered an injustice due to being passed over in three separate promotion boards to Major (O-4) in Fiscal Year (FY11) (Active Army), FY12 (Active Army), and FY13 (Army Reserve).

   e.  He has no other negative information in his OMPF.
   
   f.  If this error is not corrected before the FY15 Army Reserve Judge Advocate General’s (JAG) Corps promotion board he will be forced to resign.

3.  The applicant provides copies of: 

* his 1 August 2013 DD Form 214, 
* four OER's 
* three letters of support 
* MILPER Message Number 11-188, subject: FY11 (September) Major, JAG Corp Zones of Consideration
* Selection Board Results FY11 (September) Major, JAG
* four thank you letters 
* Army Regulation 623-3, paragraph 3-36

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned a captain (CPT) in the JAG Corps on 1 June 2004.




2.  The 1 June 2011 OER provides the following –

* he was serving as Deputy Command Judge Advocate for the Warrior Transition Command 
* it is not marked as a referred report at Part IId
* the rater marked him, at Part V - Performance and Potential Evaluation, as "Outstanding Performance, Must Promote"
* the last line of the comments section is "With additional experience, (the applicant) will learn how to properly interface with senior civilian and military staff members."
* the rater recommended he be promoted with his peers
* the senior rater marked him as "Best Qualified"
* the senior rater recommended him as a "must" select for promotion 

3.  In a statement of support, Lieutenant Colonel (LTC) Jxxxx Hxxxxxx opined that the statement in question was a backhanded dig that should not have been included and warrants consideration as a referred OER.

4.  In her statement of support, LTC Fxxxx L. Jxxxxxxx, states: 

The report should have been referred for comment and was not.  As a result the subject OER is defective on the basis of administrative error, substantive inaccuracy, and unjustness. First, the substantive inaccuracy is not providing the officer with proper counseling addressing such stated behaviors during the year only highlights alleged actions at the time of annual evaluation.  Second, the evaluation system was not properly used due to the OER containing clearly negative comments in Block Vb, by the rater, without notification.  In keeping with her toxic leadership, MAJ Pxxxxx glaringly shirked her duties as a rater and underhandedly punished [the applicant] in a vindictive manner. Major Pxxxxx' actions were not in accordance with the Army values.

At the time of this evaluation I was the Executive Officer the Army Wounded Warrior (AW2) Program.  I have firsthand knowledge of both MAJ Pxxxxx and [the applicant] during this time.  While working at Warrior Transition Command, MAJ Pxxxxx was in [the] role as lead counsel for the command her approach towards senior military leaders in the command was combative and abrasive with her interactions with staff who were non-directors.  In my opinion she created a hostile work environment for everyone she came in contact with.  In her time with the command, two civilian legal employees (one counsel/one paralegal) left citing her lack of professionalism as a reason.  In place of shaping her subordinates interactions with senior leaders, she would leave [the applicant] to intercede on her behalf to soothe the abrasively ruffled workings and degrading tone she established.

5.  In his statement, Colonel Pxxxx M. Cxxxxxx opines that the statement in question was clearly adverse information warranting the OER being a referral.

6.  Army Regulation 623-3, as then in effect, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.

	a.  Paragraph 1-10 (Changes to an Evaluation Report), provides that members of the rating chain, the appropriate administrative personnel office, or HQDA will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  After needed corrections are made, the original forms, with authenticated signatures, will be sent to the appropriate HQDA processing office or State Adjutant General (AG).

	b.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-9 (Rater assessment), provides that the rater will assess the performance and potential of the rated officer using all reasonable means to prepare a fair, correct report that evaluates the officer's duty performance, values/ officer responsibilities, and potential.

   	(2)  paragraph 3-11 (Senior rater assessment), provides that the senior rater's role is primarily to evaluate potential, over watch the performance evaluation, and mentor subordinates.  The senior rater will use all reasonable means to become familiar with the rated officer's performance throughout the rating period and prepare a fair, correct report evaluating the officer's duty performance, professionalism, and potential.

   	(3)  paragraph 3-20 (Evaluation parameters), provides that rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.

		(4)  paragraph 3–34 (Referred reports) states the types of reports to be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA include –

* a relief for cause report 
* any report with negative remarks about the rated officer’s Values or Leader Attributes/Skills/ Actions in rater’s narrative evaluation
* any report with a rating of "NO" in Part IVa – c 
* any report with a performance and potential evaluation in Part Va of "Other" where the required explanation has derogatory information 
* any report with a performance and potential evaluation in Part Va of "Unsatisfactory performance.  Do not promote" or narrative comments to that effect from any rating official
* report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa
* any report with a senior rater potential evaluation in the bottom two boxes of Part VIIbza
* any report with negative comments in Parts Vb, Vc, VI, or VIIc
   
   c.  paragraph 3-37 (Preparation and submission procedures), provides that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part 1, to include nonrated time; the rating officials in Part II; the Army Physical Fitness Test and height and weight data; and that he/she has seen the completed report.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.
   
   d.  paragraph 3–39 (Modification to previously submitted reports) provides that:
   
   (1)  an evaluation report accepted by HQDA and included in the official 
record of a rated Soldier is presumed to –
   
* Be administratively correct.
* Have been prepared by the properly designated rating officials.
* Represent the considered opinions and objective judgment of the rating officials at the time of preparation.
   
   (2)  Requests that an evaluation report in a Soldier’s OMPF be altered, 
withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual’s OMPF –
   
* Statements from rating officials that they underestimated the rated Soldier.
* Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did.
* Requests that ratings be revised.
* Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential. Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded prior to signing the report.
* Statements from rating officials claiming OERs were improperly sequenced from the field to HQDA.
* A subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier’s performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal.
   
   e.  An exception to paragraph 3–39b is granted for OERs only when –
   
* Information that was unknown or unverified when the report was prepared is brought to light or verified.
* This information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.
   
   f.  Chapter 6 (Evaluation Report Redress Program):
   
     (1)  section II (Commander's or Commandant's Inquiry), paragraph 6–4 
(Purpose), provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated Soldier or anyone authorized access to the report.  The primary purpose of a Commander’s Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. 
     
     (2)  paragraph 6-7 (Policies), places the burden of proof on the applicant 
to provide clear and convincing evidence to justify deletion or amendment of an OER.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to –
     
* Be administratively correct.
* Have been prepared by the proper rating officials.
* Represent the considered opinion and objective judgment of the rating officials at the time of preparation (see para 3–39).
     
     (3)  paragraph 6-7h(3) states 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.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  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.

DISCUSSION AND CONCLUSIONS:

1.  With the exception of the statement the applicant is objecting to, the OER is a very favorable evaluation with strong favorable recommendations.  It would be a disservice to the applicant to completely remove this OER as doing so would raise more questions than it solves.  

2.  The question then lies in whether or not the last sentence in the rater's narrative meets the criteria to be considered a negative or derogatory comment requiring the OER to be considered a referral.

3.  The OER was reviewed by not only the applicant, the rater, and the senior rater but also when it was sent to HQDA prior to inclusion in his record.  There is no evidence that the statement was considered to meet the criteria for triggering the OER as a referral.

4.  The applicant has provided no discussion on the merits of the statement or why it was included in the OER.

5.  The statement can be read as either a veiled warning of a nonspecified problem or as an inartfully worded constructive criticism. 

6.  Notwithstanding the opinions of the applicant's supporters, it does not rise to the level of a negative or derogatory statement warranting removal.






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)                                         AR20140013894



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ABCMR Record of Proceedings (cont)                                         AR20140013894



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