IN THE CASE OF:  	  

		BOARD DATE:  2 October 2014	  

		DOCKET NUMBER:  AR20140014581 


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, in effect, changes to the misfired assessments from Center of Mass (COM) to Above Center of Mass (ACOM) on three of his DA Forms 67-9 (officer evaluation report (OER)) for the periods:

* 1 June 2009 through 31 May 2010
* 1 June 2010 through 14 March 2011
* 15 March 2011 through 25 June 2011

2.  The applicant states:

   a.  The senior rater (SR) failed to properly manage her profile and so she (the senior rater) misfired her profile.  It resulted in switching his rating from ACOM to COM administratively by the U.S. Army Human Resources Command. The job was a Key Developmental job.  With the report as an ACOM, he would have been competitive for lieutenant colonel (LTC) in the primary zone.  However, the switch to COM was a factor in his non-selection.

   b.  It is clear from the SR comments that her intent was to give him ACOM reports.  There were reasons why she misfired, such as her lack of understanding as to who she was senior rating and her belief she was retiring.  Specifically, he was working in the G2 and she (SR) was in the G4.  Normally, the G3 would senior rate all officers within operations, to include those in the G2. However, as a result of the G3 position unexpectedly not being filled, the G4 listed herself as the Senior National Representative (SNR) and senior rated all U.S. officers at the North Atlantic Treaty Organization (NATO), Headquarters, in Turkey (TU).
   
   c.  This lack of attention by his SR to her profile resulted in three consecutive COM OERs.  The SR comments should demonstrate he was clearly in the top 49 percent (%), the standard for ACOM reports.  Additionally, the OER prior to her as the SR was an ACOM report from the G3 prior to his departure.

3.  The applicant provides copies of four DA Forms 67-9 for the periods:

* 15 November 2008 through 31 My 2009
* 1 June 2009 through 31 May 2010
* 1 June 2010 through 14 March 2011
* 15 March 2011 through 25 June 2011

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are sufficient bases to waive the statute of limitations.

2.  The applicant was appointed in the U.S. Army Reserve, as a second lieutenant, on 13 December 1997.  He was ordered to active duty and entered active duty on 5 January 1998.  He was promoted to major on 2 October 2007.

3.  His record contains and he provided copies of the following:

   a.  A "SR Option" OER for the period 15 November 2008 through 31 May 2009 he received for his duties as the Chief, G2 All Source Cell, at the NATO Rapid Deployable Corps, Turkey (NRDC-T).  The Assistant Chief of Staff (ACOS) G2, in the rank of lieutenant colonel, was his rater and the ACOS G3/SNRB, in the rank of colonel, was his SR.  The OER shows the applicant was accessed as "Outstanding Performance, Must Promote" by the rater.  

		(1)  In Part VII (SR) (Evaluate the Rated Officer's Promotion Potential to the Next higher Grade), the SR placed an "X" in the "Best Qualified" block and entered the following comments "[Applicant] is in the top 1% of officers I have worked with in my 30-year army career.  [Applicant] has done a magnificent job of navigating through the challenges of working and leading within the NATO environment, resulting in a dramatic increase in the capabilities of the G2 section.  [Applicant] has demonstrated his ability to excel working in a LTC position and is ready to be a LTC now.  [Applicant] is a must select for battalion commander.  Promote below the zone to LTC and select for senior service college (SSC)."

		(2)  In Part VIIb, the SR accessed him as "ACOM" in comparison with 6 officers in the same grade.  

   b.  An "Annual" OER (first contested OER) for the period 1 June 2009 through 31 May 2010 he received for his duties as the Chief, Analysis and Collection Element, GS All Source Cell, at the NRDC-T.  The ACOS G2, in the rank of colonel, was his rater and the ACOS G4, in the rank of colonel, was his SR.  The OER shows the applicant was accessed as "Outstanding Performance, Must Promote" by the rater.  

		(1)  In Part VII (SR) the SR placed an "X" in the "Best Qualified" block and entered the following comments "In my opinion, [applicant] is the #1 of 51 majors assigned to the NRDC-T.  [Applicant] is a dedicated professional whose accomplishments are nothing short of superb.  He is recognized by peers, subordinates, and superiors as a "go to man" and has the technical and tactical knowledge to accomplish any mission with superior results.  BZ select to LTC is a must.  Must select for BN Command.  Select for SSC and national level fellowships."

		(2)  In Part VIIb, the SR accessed him as "COM" in comparison with 5 officers in the same grade.  

	c.  A "Change of Duty" OER (second contested OER) for the period 1 June 2010 through 14 March 2011 he received for his duties as the Chief, Analysis and Collection Element, GS All Source Cell, at the NRDC-T.  The ACOS G2, in the rank of colonel, was his rater and the SNR, in the rank of colonel, was his SR.  The OER shows the applicant was accessed as "Outstanding Performance, Must Promote" by the rater.  

		(1)  In Part VII (SR) the SR placed an "X" in the "Best Qualified" block and entered the following comments "[Applicant] is one of the top two of 71 majors assigned to the NRDC-T.  [Applicant] is a tremendous leader as evidenced by the stellar accomplishments of his 43 man Analysis and Collection Element (ACE).  His background of tactical and strategic knowledge has enabled him to excel within this multi-national HQ.  [Applicant] is a brilliant officer who is in tremendous physical condition and should continue to be groomed for senior army leadership.  Already performing outstanding[ly] in a LTC position, BZ select to LTC is a must.  Must select for BN Command.  Select for SSC and national level fellowships."

		(2)  In Part VIIb, the SR accessed him as "COM" in comparison with 8 officers in the same grade.  

   d.  An "SR Option" OER (third contested OER) for the period 15 March 2011 through 25 June 2011 he received for his duties as the Chief, G2 Plans and Operations/Deputy ACOS G2, at the NRDC-T.  The ACOS G2, in the rank of colonel, was his rater and the SNR, in the rank of colonel, was his SR.  The OER shows the applicant was accessed as "Outstanding Performance, Must Promote" by the rater.  

		(1)  In Part VII (SR) the SR placed an "X" in the "Best Qualified" block and entered the following comments "[Applicant] is the best of 71 majors assigned to the NRDC-T.  [Applicant] demonstrated an amazing range of talents and flexibility, assuming the position of Chief of G2 plans just prior to the Combat Readiness Certification Exercise.  A gifted strategic thinker, [applicant] accomplished an amazing amount of positive organizational change in a normally slow multi-national environment.  The Corps commander stated he had the utmost confidence in the analysis presented to him by [applicant].  Keep this brilliant officer leading troops and groom him for positions of senior leadership.  After his goal performance in a second consecutive LTC position, BZ selection to LTC is a must.  Select for BN Command now, he is ready!  Select for SSC and strategic level fellowships to harness this great officer's abilities."

		(2)  In Part VIIb, the SR accessed him as "COM" in comparison with 10 officers in the same grade.  

4.  None of the three contested OERs contain a “COM” label in Part VII.

5.  Army Regulation (AR) 623-3 prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System.  The regulation states in:

   a.  Paragraph 3-9(3) – the SR will enter the total number of Army officers of the same rank as the rated officer he or she currently senior rates.  This information, in conjunction with additional information contained on the Headquarters, Department of the Army (HQDA) electronically-generated label, will help HQDA selection boards identify SRs with small rating populations and weigh the report accordingly.
   
   b.  Paragraph 4–8 - because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within three years of an OER “THRU” date. 

   c.  Paragraph 4-11 – the burden of proof rests with the appellant accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.

6.  The HRC Webpage, SR Profile Policy and Processing (The Managed Profile Technique in Practice) section states:

   a.  SRs must maintain less than 50% for all reports written on officers in single grade in the ACOM top box.  An exception allows any one of the first four OERs written in any grade may be an ACOM even though the percentage will exceed or meet this percentage (i.e., be 100% or 50%).  Thereafter, OERs for a given grade must maintain an ACOM percentage less than 50%.

   b.  OER profiles are calculated based on date of receipt at HQDA.  Multiple OERs received on the same day will profile as one and receive the same profile, that which is a total of all reports at HQDA and those received that day. 

   c.  A profile “misfire” is one where an OER has an ACOM box check which is not supported by the profile on the date the OER is received at HQDA.  Misfired OERs receive a COM label and the profile builds as an ACOM.  Misfires only happen after coordination with senior raters.  They don’t process automatically.  HQDA runs a list of reports in potential misfire situations.  An HRC point of contact contacts SRs to make sure the OERs process in accordance with their intent.

   d.  The profile for any single grade may only be restarted if at least 3 OERs on the same grade have processed, if one OER in this grade has already misfired, if the SR’s senior rater is notified, and when coordination is made with HQDA Evaluating Systems Office.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention and the documents he provided were carefully considered.
2.  In accordance with HRC policy, OER profiles are calculated based on the date of receipt at HQDA.  Misfired OERs receive a COM label and the profile builds an ACOM.  

3.  None of the contested OERs contain a “COM” label, indicating the SR knew she could not provide any more ACOM ratings.  Based upon the SR comments in all three OERs, it appears his SR did fail to properly manage her profile.  Nevertheless, by regulation her ratings cannot be changed.

4.  However, senior officers sit on LTC promotion selection boards.  They are fully aware some SRs have not managed their SR ratings properly and tend to rely more heavily on the written comments than the SR’s profile.  To presume that the COM ratings were the only reason he was non-selected for promotion is purely speculative.

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)                                         AR20140014581





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140014581



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1