IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140015271 


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.  correction of Part VIIa (Senior Rater-Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 November 2011 through 31 October 2012, hereafter referred to as the contested OER, to show he was rated as "Best Qualified;"

	b.  reinstatement in the United States Army Reserve (USAR); and

	c.  immediate promotion to major (MAJ)/O-4, or in the alternative, promotion reconsideration by a special selection board (SSB) without the contested OER.

2.  The applicant states, in effect, that his senior rater's (SR) lack of supervisory time and his lack of candor denied him his due process and his actions created a hostile work environment.

3.  The applicant provides:

* two OERs
* two letters of support
* supplemental statements authored by the applicant
* email correspondence, dated 5 November 2013



CONSIDERATION OF EVIDENCE:

1.  The applicant was a captain in the USAR at the time he received the contested OER.  This annual report covered the period 1 November 2011 through 31 October 2012.  This document shows:

	a.  he was performing the duties of an Administrative Law Attorney, while assigned to the 807th Medical Command (Deployment Support), Office of the Staff Judge Advocate, Fort Sheridan, IL.

	b.  his SR, LTC Dxxxx, placed an "X" in the block "Fully Qualified" in Part VIIa of this report.

2.  The contested OER was digitally signed by his rater on 13 December 2012, the SR on 7 February 2013, and the applicant on 26 February 2013.  It was then posted by Headquarters, Department of the Army (HQDA) to his Official Military Personnel File (OMPF) on 1 March 2013. 

3.  The record is void of evidence showing the applicant requested a Commander's Inquiry (CI) to address any administrative errors or disputed inaccuracies with the overall assessment of his performance.

4.  After being twice non-selected for promotion to MAJ, he was discharged from the USAR on 1 December 2013.  There is no indication that he was offered selective continuation.

5.  He provided:

	a.  his OER for the period 1 November 2012 through 30 September 2013 which shows while serving as the S-4 (Logistics)/Administrative Law Attorney and team leader, he was rated as "Best Qualified" by a different SR.

	b.  letters of support from his previous rating chain.  His SR, LTC Kxxxx, indicated that if he had been able to complete an evaluation for the eight-month period from 1 October 2011 through 27 May 2012 when he was the applicant's SR, that he would have evaluated the applicant as "Best Qualified."  Further, the applicant's performance during this period remained consistent with his assessment in his 2011 evaluation.  The applicant's previous rater stated the applicant completed his tasks in a timely and efficient manner and his strongest quality was his calming influence during stressful situations.

	c.  email correspondence wherein he requested that LTC Dxxxx, the SR on the contested OER reconsider his "Fully Qualified" rating.  Specifically, he asked his SR to take into consideration the rater's comments because the rater had completed two previous evaluations and best knew his performance.  He also asked that the current SR consider input from the previous SR.  The SR denied this request and stated that he was not inclined to change the report because he had taken into account and evaluated the applicant against what he expected of a senior company grade officer under consideration for promotion to MAJ.  Further, he would not be upholding his obligation as a leader in the Army and of other Judge Advocates to rate the applicant as "Best Qualified."

	d.  two memorandums wherein he contends that:

* he was passed over for the second time by the Fiscal Year 2013 MAJ/O-4 Promotion Selection Board
* officials at the U.S. Army Human Resources Command (USAHRC) informed him that he was not considered or selected for promotion to MAJ because he was rated as "Fully Qualified" by his SR
* the SR's assessment (narrative) was equivalent to a "Best Qualified" rating
* his SR stated in an email that "he had a duty to the Army to get him [the applicant] out"; however, the contested OER stated to promote him
* the SR comments were written in a manner that denied him his due process to appeal and his opportunity to go before a promotion board which cost him his career
* he was never counseled as implied in the SR's email
* the SR's comments are not reliable and should be disregarded because he never informed his subordinates of his goals or objectives as outlined in Army Regulation 623-3 (Evaluation Reporting System) 
* that because of the applicant's work schedule he only physically worked with his SR a total of three days which is not enough time to measure progress
* his SR once told him that he needed to "work harder just to be average"
* his SR only rated him for five months and should have consulted with his previous SR as to his duty performance during other seven months
* he had a poor interpersonal relationship with his SR but he continued to work hard
* none of the SR's negative email comments are reflected in the contested OER
* the termination of the Selective Continuance Program during the 2013 promotion selection process denied him the opportunity to remain in the USAR and it effectively afforded his peers who were denied promotion but selectively continued in the USAR to be considered for promotion by later Boards and amounts to discrimination and unequal treatment
* when his record is looked at in full, he is fully qualified and capable for promotion to MAJ

6.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  Paragraph 1-9 states Army evaluation reports are independent assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

   c.  In order 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.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a CI or to appeal referred/disputed reports.

	d.  When it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter.  The Commander or CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

7.  Army Regulation 600-8-29 (Officer Promotions) states:

	a.  An SSB will be convened under Title 10 U.S. Code (USC), section 628 to consider or reconsider commissioned or warrant officers based on erroneous non-consideration or material administrative error.

	b.  A Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuation board following their second failure of selection for promotion.

	c.  Material error is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual's non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered for promotion, a reasonable chance would have resulted that the individual would have been recommended for promotion. 

	d.  An officer will not be considered or reconsidered for promotion by an SSB for immaterial administrative errors.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the contested OER be corrected to show his SR evaluated him as "Best Qualified."  In addition, he requests reinstatement in the USAR and promotion to MAJ, or in the alternate, promotion consideration by a SSB.

2.  The applicant has not provided sufficient evidence to show a rating of "Fully Qualified" on the contested OER was in error.  In fact, the email correspondence between the applicant and the SR clearly shows this was the SR's intent.  The applicant also contends that he was not counseled, that the SR had insufficient supervisory time, and that he was denied due process to appeal the OER because it was not a referred report.  All these discrepancies are matters that could have been appropriately addressed as part of a CI.

3.  Regulatory guidance states evaluation ratings represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The fact that his previous rating chain indicated that the applicant warranted a "Best Qualified" rating is noted; however, this does not make the SR's assessment of "Fully Qualified" on the contested OER inaccurate, unjust, or otherwise flawed.

4.  The evidence presented does not establish clearly and convincingly that the presumption of regularity should not be applied to the contested OER under consideration; accordingly, there is no basis to approve his request for an SSB to be reconsidered for promotion to MAJ/O-4 or to reinstate him in the USAR.

5.  In view of the above, his request should be denied.

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)                                         AR20140015271



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ABCMR Record of Proceedings (cont)                                         AR20140015271



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