IN THE CASE OF:	  

		BOARD DATE:	  29 October 2014

		DOCKET NUMBER:  AR20140014942 


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:

	a.  Amendment or removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 24 July 2001 through 23 July 2002 from his Official Military Personnel File (OMPF).

	b.  Removal of the OER covering the period 24 July 2002 through 28 February 2003 from his OMPF.

2.  The applicant states:

	a.  When reviewing the OER covering the period 24 July 2002 through 28 February 2003 compared to the OER covering the period 24 July 2001 through 23 July 2002, there are clearly issues with the signatures (rater and senior rater) not being the same.  He did not see this OER until after he had out-processed from the unit.

	b.  He was never counseled and should have had more substantive comments – if they were even actually from the rater and senior rater – to justify the rating.

	c.  Due to his commissioning source (Early Commissioning Program), he needed to finish his bachelor's degree prior to attending the Infantry Officer Basic Course (IOBC).  His unit at the time was deploying to Kosovo and he was non-deployable because of the lack of IOBC completion.  This should not have been held against him in either of his ratings.

	d.  His first OER (24 July 2001 through 23 July 2002) is also derogatory in that the comments do not justify a "Satisfactory Performance, Promote" rating.  The evaluation discusses his tactical proficiency at annual training and leading his unit to mission accomplishment through sound judgment, his initiative in completing three correspondence courses, the Army Commendation Medal he earned while working for the Mobilization Support Cell, his platoon's 95-percent execution rate for the Army Physical Fitness Test (APFT) and weapons qualification, and his score of 293 on the APFT.  These comments do not justify a "Satisfactory Performance, Promote" rating.

	e.  The OER from 24 July 2002 through 28 February 2003 is a "non-left justified" OER (meaning a check in any box other than the one that says the rated officer is superior to his or her peers) and was fraudulently signed and causes a great injustice to his otherwise competitive file.

	f.  The OER from 24 July 2001 through 23 July 2002 comments do not justify being a "non-left justified" report either.  This also causes a great injustice to his file.

	g.  These injustices were brought upon him because he was unable to attend IOBC because of his commissioning source, which required him to complete his bachelor's degree prior to attending IOBC and because of a fraudulent and forged report.  He would like to ask that these two reports not be held against him.  Second lieutenant OER's which were previously masked are now being considered by separation boards and he does not want a fraudulent and unjustified report to minimize his career achievements.  He was fortunate enough to be promoted below the zone to major and takes his career very seriously.

3.  The applicant provides:

* OER covering the period 24 July 2001 through 23 July 2002
* OER covering the period 24 July 2002 through 28 February 2003

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a major in the Regular Army.

2.  The first contested OER is a 12-month annual OER covering the period 24 July 2001 through 23 July 2002 for duties as a rifle platoon leader for Company A, 2nd Battalion, 112th Infantry Regiment, Pennsylvania Army National Guard, in Huntingdon, PA.  The OER was authenticated by the rater on 24 September 2002, senior rater on 22 October 2002, and the applicant on 14 November 2002.

3.  He was rated "Satisfactory Performance, Promote" in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by his rater.  In Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion), his rater stated:

[Applicant] demonstrated tactical proficiency during AT [annual training] 2002 at Fort Stewart, Georgia.  [Applicant] led his platoon to mission accomplishment by using sound judgement [sic] and good decision making.  [Applicant's] tactical proficiency is commendable despite having not completed IOBC.  [Applicant] is eager to learn, completing 3 Army Correspondence Courses during this rating period.  [Applicant] showed good initiative by seeking summer employment at FTIG [Fort Indiantown Gap] in the Mobilization Support Cell, for which he was awarded an ARCOM [Army Commendation Medal].  [Applicant] was also successful in executing his plan to achieve IWQ [individual weapons qualification] and APFT at or above 95% of soldiers available in his platoon.  [Applicant] scored 293 on the APFT.  Assist the Commander in Recruiting and Retention.  [Applicant] has [an] A.A. [Associate in Arts] Degree in Criminal Justice.  He needs to [be] enrolled in IOBC as soon as possible.  Promote to 1LT [first lieutenant] upon completion of IOBC.

4.  The second contested OER is a 7-month change-of-duty OER covering the period 24 July 2002 through 28 February 2003 for duties as a rifle platoon leader for Company A, 2nd Battalion, 112th Infantry Regiment, Pennsylvania Army National Guard, in Huntingdon, PA.  The OER was authenticated by the rater on 16 June 2003, senior rater on 18 June 2003, and the applicant on 30 June 2003.

5.  He was rated "Satisfactory Performance, Promote" in Part Va by his rater.  In Part Vb, his rater stated:

[Applicant] has demonstrated potential to be an effective leader.  [Applicant] is thorough in planning and evaluation of platoon training.  [Applicant] should continue to develop communication with the chain of command.  [Applicant] conducted a successful showdown inspection which resulted in a positive outcome at CIF [central issue facility] during Pre-SRP [Soldier readiness process].

6.  A review of the restricted folder of his OMPF on the integrated Personnel Electronic Records Management System (iPERMS) revealed copies of the OER's in question.

7.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF.  It states the purpose of the OMPF is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  OER's are required for filing in iPERMS.

DISCUSSION AND CONCLUSIONS:

1.  In order to justify amendment of an OER, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

2.  The applicant contends the OER for the period 24 July 2001 through 23 July 2002 is derogatory in that the comments do not justify the "Satisfactory Performance, Promote" rating.  However, clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of substantive error or factual inaccuracy.  He has not met this threshold of proof with the type of evidence he submitted.  There was no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the rating officials when the OER's were prepared 12 years ago.  Therefore, there is an insufficient basis for granting the applicant's request to amend or remove this OER from his OMPF.

3.  He contends the OER for the period 24 July 2002 through 28 February 2003 was fraudulently signed by his raters.  However, there is no evidence and he provided no evidence to support this contention.

4.  Although he contends the OER's cause a great injustice, the OER's are not unfavorable.

5.  The contested OER's appear to have been prepared by the 
properly-designated rating officials and are properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that they were improperly prepared or filed.

6.  An OER accepted for filing in the OMPF is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.

7.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20140014942



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ABCMR Record of Proceedings (cont)                                         AR20140014942



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