IN THE CASE OF:	  

		BOARD DATE:	       30 September 2014

		DOCKET NUMBER:  AR20140014241


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 correction of his military records by removing, in part or in whole, his Officer Evaluation Report (OER) for the rated period ending on 31 December 2004.

2.  The applicant states that since the Board's previous denial of his request, he has sought legal advice and is more aware of the regulatory guidance governing OER processing.  He contends there are several illegal inconsistencies surrounding the preparation and processing of the subject OER.

	a.  He contends that the processing of this OER was entirely illegal and did not comply with the guidance set forth by the governing regulation.  He found several examples in the regulation that clearly say evaluations must be processed and signed prior to the first day of transition leave.  The regulation does not say to do this "when convenient," "if possible," "or any other ambiguous terms."  Furthermore, it explains that the officer's signature will verify the administrative data and ensure that the officer has reviewed the evaluation to reduce appeals.

	b.  He contends that his legal adviser pointed out that the permanent change of station (PCS) orders the applicant provided were enough to determine that he was ordered to PCS as stated.  The OER he received in West Virginia also confirms his PCS during the period in question.  His orders and OER with matching dates should be enough evidence to show the subject OER was produced after his departure from the unit.  The memorandum provided by the senior rater, a retired lieutenant colonel (LTC), also shows the subject OER was produced after the applicant had left the unit.

	c.  He contends that the senior rater's memorandum provides additional information confirming the processing errors.  More importantly, the memorandum provides information showing that his performance was exceptional and merited a "best qualified" rating.  The senior rater addresses the administrative error that caused this evaluation to be substandard.  It was not the rating he planned to give to the applicant for his performance.

	d.  He provides a counseling statement from his current brigade commander.  This statement is important because it refutes the Board's earlier decision saying that his "fully qualified rating" is not derogatory.  The counselor contends that in today's downsizing of the Army, such a rating is discriminating and could end his career.  The Board should "get in touch" with current procedures and policies because this single item is enough of a discriminator.

	e.  He requests that his "fully qualified" rating be blocked out on the subject OER based on OER regulatory violations; fraudulent signature; administrative error; and misrepresentation of "best qualified" performance.  He argues that these violations were the result of the U.S. Army Human Resources Command (HRC) directing that the subject OER be processed as a measure to close a gap in his evaluation.  Those violations included his denial to review the OER before or after completion, preventing him from confirming the administrative data.  He suspects that his rater forged his signature on the subject OER.  He also contends that the subject contains unproven derogatory information in violation of the governing regulation.

	f.  He contends that due to multiple violations of the governing regulation, the subject OER should be removed.  His rating of "fully qualified" should not be held against him.  He is the victim of inappropriate actions by the personnel office (S1).  He is extremely disappointed with the handling of this action.  The subject OER is a ghost report that was added to his record without his consent and that it does not reflect the person he really is.  He wants the senior rater's portion removed due to unethical action and misrepresentation of information.  The subject OER was placed in his record years after he left the unit.  He never had any negative actions against him which explains why he had never searched his restricted folder for anything.  Failure to remove the subject OER will result in reports to the Inspector General and to Congress, who have the authority to investigate and intervene in unethical practices including the Board's inability to act.  There are other means of action such as an attorney's office that with a $4,000.00 retainer guarantees removal, but he would prefer that $4,000.00 toward his son's education. 
3.  The applicant provides copies of:

* HRC Assignment Instructions, dated 28 March 2005
* DA Form 4856 (Developmental Counseling Form) dated13 January 2014
* Record of Proceedings (ROP), Army Board for Correction of Military Records (ABCMR) with cover letter, dated 26 March 2014
* Army Regulation 623-3 (Evaluation Reporting System), pages 15, 28, 44, 49 and 53, dated 31 March 2014
* Memorandum for Record, dated 10 July 2014 from a retired LTC
* An Official Handwriting Analysis Report, undated, from Handwriting University International with enclosure of the subject OER

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 ABCMR in Docket Number AR20140001449, dated on 25 March 2014.

2.  The applicant has provided new documentary evidence and different argument that now requires consideration by the Board.

3.  The original ROP shows that the Board considered the applicant's request to remove an OER for the 10-month period 13 March to 31 December 2004.

	a.  This was an HRC-directed report.  It was prepared by the same rating officials who rendered his previous OER for the period 1 January to 4 July 2005.  The OER is not considered adverse because it does not contain any derogatory information.  The applicant was given an "Outstanding Performance, Must Promote" and "Fully Qualified" ratings.

	b.  It appeared that the applicant had signed the OER and it was properly filed in his Official Military Personnel File (OMPF).  The Board had no documentary evidence showing the applicant's signature was forged.  Furthermore, the applicant had not provided evidence showing the OER did not properly and accurately reflect his performance and potential.  The Board considered the applicant's contention that his rating of "fully qualified" placed his career in jeopardy as being speculative at best.  

	c.  Accordingly, the available evidence was insufficient to show that the OER was in error or unjust.  The Board denied his request.


	d.  It is noted that the analyst cited Army Regulation 623-3 (Evaluation Reporting system) vice Army Regulation 623-105 (Officer Evaluation Reporting System) that was still in effect when the subject OER was rendered.  However, both regulations contain the same guidance concerning the issues of this case.

4.  A DA Form 4856, provided by the applicant and dated 13 January 2014, indicates that his brigade commander informed him that the promotion board would discriminate using various criteria.  Included was "Any Non-Left Justified OERs in his OMPF."  The commander identified the applicant's subject OER as being a document that the board would use as a discriminator.  This was based on the "Fully Qualified" rating even though the overall write-up was very strong.  The commander recommended that the applicant submit copies to this Board of his 2004 and 2005 OERs and the senior rater philosophy because both reports were strong write-ups.  It was thought that the "Fully Qualified" rating was an error in judgment/understanding.

5.  In a Memorandum for Record, dated 10 July 2014, the applicant's senior rater for the subject OER requests the Board correct the OER because of administrative errors.  The senior rater explains:

	a.  The applicant's unit lost track of the suspense for this OER due to his permanent change of duty station and non-rated time due to convalescence leave for knee surgery.  Therefore, a directed request was received from HRC to process an OER for the unrated period between the previous and subsequent OERs.

	b.  Army Regulation 623-3 (Evaluation Reporting System) section 1, 3-2, paragraph G1 states that a Soldier must be presented their OER prior to making a permanent change of station (PCS).

	c.  The OER Standard Operating Procedure (SOP) for Fort Bliss, TX requires a general officer's review and counseling concerning any OER which merits less than "Best Qualified."

	d.  The applicant was unable to review the subject OER or to confirm the administrative data.  It also was posted late and placed in his restricted folder.  Normally, an officer with an impeccable record would have no reason to look in the restricted folder which would explain why he did not know about the error until it was brought to his attention; by being informed he was in jeopardy of being selected for separation because the rating is considered derogatory.


	e.  The senior rater argues that he is extremely disappointed in this situation because of the delay in processing and the posting of the OER a year after the rated period had ended.  This is wrong and does not meet the guidelines set forth by HRC for evaluation timeliness.

	f.  The senior rater contends that in today's changing times a "Fully Qualified" rating is considered a derogatory discriminator.  He further states that it was always his intention to grant the applicant a "Best Qualified" rating.  Accordingly, the senior rater now wants the Board to change this rating because the applicant had performed all assigned tasks and duties in an exemplary manner.  His service should reflect this effort.

	g.  The senior rater urgently requests that this error be corrected because it is the right thing to do.  He contends that the applicant possesses unlimited potential for continued service.  The Soldier and the U.S. Army should not be negatively affected by an administrative oversight.

6.  In a report titled "Official Handwriting Analysis Report" a "certified investigator" states he conducted a detailed analysis of the applicant's writing and a review of the subject OER.  He made a determination of the applicant's handwriting style and developed a baseline.  Taking into consideration his style, spacing, and psychology of the writing, he concluded that the signature presented in the subject OER was not that of the applicant.

7.  The following documents are currently filed in the applicant's OMPF.  Each contains an exemplar of his signature.  A comparison of each signature clearly shows that the style and spacing of his signature has undergone considerable change from one document to the other.  The signatures on the subject OER and the OER immediately following it were very much alike.

* DA Form 71 (Oath of Office - Military Personnel) dated 21 May 2001
* DA Form 67-9, for the rated period ending on 26 October 2002
* DA Form 67-9, for the rated period ending on 26 October 2003
* DA Form 67-9, for the rated period ending on 12 March 2004
* DA Form 67-9, for the rated period ending on 31 December 2004
* DA Form 67-9, for the rated period ending on 4 July 2005
* DD Form 93 (Record of Emergency Data) dated 2 September 2010

8.  Army Regulation 623-105 provides that when HRC decides there is a need for a report and other provisions do not apply, HRC may direct that a report be submitted.  The basis for the report will be indicated in Part Ih (Reason for Report).

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by either removing, in part or in whole, the subject OER, or by changing the senior rater's evaluation of "Fully Qualified" to "Best Qualified."  He bases his contention on several illegal inconsistencies surrounding the preparation and processing of the subject OER.  Furthermore, he contends that the report was produced after he had departed his organization and that the signature on the report is not his.

2.  The evidence shows that an OER was not rendered in conjunction with the applicant's PCS.  This oversight was not recognized until after a subsequent OER had been processed.  Accordingly, HRC directed a report be processed to evaluate the unrated period of service.  The governing regulation provides guidance for this action and states that other provisions of the guidance do not apply to directed reports.

3.  Because the subject OER was processed after a subsequent report had been completed, it is completely understandable that the timeline and normal processing procedures in the governing regulation could not be followed.  However, this in and of itself does not make the subject report illegal, invalid, or inappropriate.

4.  The senior rater has provided a supporting memorandum wherein he contends that it was his intention from the beginning to render a "Best Qualified" rating for the applicant.  He argues that anything less than a "Best Qualified" rating is derogatory and would be a discriminating factor used by the promotion board.  However, there is no convincing documentary evidence showing that the senior rater's evaluation as "Fully Qualified" was made in error, or that this rating was not what he intended to do at the time, and he does not contend that he did not sign the report.  It appears more likely that the senior rater has taken a deeper look at his previous actions and, in retrospect, now believes he erred.  His subsequent thoughts and concerns about the applicant's career are not sufficiently mitigating to overturn the rating he rendered.  There is no documentary proof that his decision to rate the applicant as "Fully Qualified" was simply a mistake.

5.  The applicant contends that he did not sign the subject OER and, therefore, did not have the opportunity to verify the administrative data and to review the evaluation.  The handwriting analysis was based on a comparison of the signature on the subject OER and samples of the applicant's handwriting 


provided for this purpose.  However, when reviewing documents in the applicant's OMPF that he signed between 2001 and 2010 it became very apparent that his signature has changed dramatically over time.  It is particularly noteworthy to point out that the signature on the OER rendered for the rated period immediately following the period of the subject OER, has a signature very similar to the signature on the subject OER.  However, the applicant has not contested the later signature.

6.  In view of the above, the applicant's request should be denied.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ____X___  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the majority of the Board determined that partial relief should be granted.

2.  The majority of the Board noted that the applicant stated he never signed the OER, and he provided evidence from a certified investigator who concluded he did not sign the OER but someone else did.  

3.  More importantly, the majority of the Board noted that the senior rater did not just contend that he changed his mind but rather that the rating of “Fully Qualified” was due to “administrative error” and his intention “has always been to” rate the applicant as “Best Qualified.”  Further, the senior rater’s narrative written rating supports a “Best Qualified” rating, not a “Fully Qualified” rating.

4.  Therefore, the majority of the Board determined the overall merits of this case warrant partial recommendation of his request to amend the decision of the ABCMR set forth in Docket Number AR20140001449, dated 25 March 2014, by blocking out the rating in Part VIIa of the contested OER.



5.  The Board determined that the overall merits of this case are insufficient as a basis to remove the entire contested OER.



      _______ _  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)                                         AR20140014241



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ABCMR Record of Proceedings (cont)                                         AR20140014241



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