IN THE CASE OF:	  

		BOARD DATE:	    29 October 2015

		DOCKET NUMBER:  AR20140018356 


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.  a "Complete the Record" Officer Evaluation Report (OER) he received for the period 3 December 2008 through 18 [sic] July 2009 (hereafter referred to as the contested report) be removed from his Official Military Personnel File (OMPF) and replaced with a corrected OER;
   
   b.  correction of his military record to reflect all of his active federal service; and
   
   c.  promotion with his peers.

2.  The applicant states:

   a.  the contested report shows he was evaluated by the wrong rating chain and contains an inaccurate description of the duties he performed;
   
   b.  while the contested report shows he was evaluated for 9 months, the record rating official listed thereon observed his performance for only 8 days before he departed on a permanent change of station reassignment;
   
   c.  the record senior rater listed on the contested report had no personal contact nor sight of him during the 4 days of drill, 4 days of annual training, or during the 9 months he performed Military Funeral Honors duties.  The senior rater had no records or reports on the applicant to know his background during the rating period;
   
   d.  In particular, Part I (Administrative Data) of the contested report contains the following discrepancies:
   
* block g.1 (Unit ...or Major Command) – the correct unit is Deputy Chief of Staff for Operations (DCSOPS), Columbus, Ohio  43235, Ohio Army National Guard (OHARNG)
* block g.2 (Status Code) – the correct code is “ADOS” (Active Duty Operational Support) because he was on Full Time National Guard-Operational Support status at that time
* block h. (Reason for Submission) – should reflect “Transferred to another Component" because he was leaving the National Guard  for active duty at that time;
* block i. (Period Covered) – should list “20081203 – 20090716” as shown on his previous OER thru date which mirrors the date he returned from his combat deployment thru the date he processed out of the ARNG

	e.  Army Regulation 623-105 (Officer Evaluation Reporting System) requires officials to ensure all reports which the senior rater and his or her subordinates write are complete and provide a realistic evaluation.  The senior rater had no opportunity to realistically assess his performance and should not be listed on the contested report;

	f.  the regulation further states that the rated officer is required to sign the report after it is completed.  In this case, the senior rater signed the contested OER 7 months after the rater and immediately forwarded it to the Human Resource Command (HRC) where it was entered into his record 6 days later;

	g.  he was never afforded an opportunity to review or sign the contested report that was signed by the senior rater just one month prior to the thru date shown on his subsequent OER of 30 August 2010;

	h.  the evaluation does not fairly assess his performance.  It indicates his performance was satisfactory when his true performance was “outstanding” as reflected based on the awards he received while performing military funeral honors along with letters of recommendations from current and previous commands and other OERs;

	i.  Part Vb (Performance and Potential Evaluation) - while it contains accurate performance content, it only covers 4 days of drill and 4 days of preplanning.  It incorrectly shows no support form was received for this rating period; however he did not submit a support form since the listed rating officials were not the ones who supervised or observed his performance.

	j.  Part VII (Senior Rater) - 

* VIIc (Potential Compared with Officers Senor Rated in Same Grade) – contains misspellings and he indicates he did not submit a support form to the rating chain listed on the contested report because he forwarded it to the actual chain of those who rated him; it is obvious he was not available to sign the report because he signed out of the unit on 16 July 2009; and
* VIId (List Three Future Assignments for Which This is Best Suited) – did not realistically address positions for the best interest of the Army and by the time the senior rater signed the contested report he had been on active duty for several months and becoming a State Food Service Officer was not an option

	k.  his previous supervisor recommended him for a Meritorious Service Medal (MSM) for his combat deployment; however, he learned through preparing his application to this Board, the senior rater listed on the contested report, downgraded that recommendation resulting in the Army Commendation Medal he received for that service, while his colleagues received MSMs for their service;

	l.  the erroneous and poorly drafted OER prejudices his ability to advance in the Army for which he has been twice passed over for promotion, however if it is removed, he intends on requesting a special promotion board for reconsideration;

	m.  his prior request for a special selection board (SSB) for promotion to chief warrant officer three (CW3) was denied and a review of his personnel file indicates the only reason for his non-selection was the erroneous contested OER;

	n.  had the correct evaluation been a part of his Board File, his true performance and accomplishments would have been considered favorably and resulted in his promotion;

	o.  a certification in his file had a year date of 1901 instead of the correct year of 1985 which prevented him from certifying his service.  Thus, his active federal service was incorrect at the time the promotion board convened.  His active federal service was so inaccurate that he received letters notifying him he had to separate from the Army on 1 March 2013, 1 November 2013, and following the final update of his active federal service on 31 August 2015.

	p.  while he provides evidence of his corrected active federal service, these errors were sufficient in preventing him from certifying his Board File and form the basis for his retroactive promotion to CW3 under the 2011 promotion board criteria;

	q.  upon his return from combat deployment he expected to return to the work he was doing before he deployed, but the NG and State did not have the funds.  When his request to be released to active duty was denied, he sought congressional help and seven days later, his paperwork was completed allowing his return to active duty.  The OHARNG was so upset to lose him, they initiated the contested report without his signature.

	r.  he indicates his many accomplishments and outstanding OER’s received prior to and subsequent to the contested report and states that he loves what he does in the Army and cannot give up and leave the military because his paperwork was done unjustly.

3.  The applicant provides a 7 page affidavit and an indexed list of 46 enclosures as indicated on his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant initially served in the U.S. Marine Corps from 25 September 1980 to 23 April 1985 and 22 July 1985 to 5 July 1989, as a food service specialist.

2.  On 21 October 2000, he enlisted in the OHARNG for a period of 6 years in the rank of private first class/E-3.  On 17 November 2005, he was honorably discharged from the ARNG and as a Reserve of the Army to accept a commission or warrant in the Army.

3.  On 18 November 2005, the applicant was appointed a Reserve warrant officer of the Army in the grade of warrant officer one (WO1) and assigned the duty of command food service technician.  He swore his oath of office on 18 November 2005.

4.  State of Ohio, Adjutant General’s Department, published Orders Number 
304-051 dated 31 October 2007, announcing the applicant’s promotion to chief warrant officer two (CW2) effective 18 November 2007.

5.  The applicant’s official military personnel file (OMPF) contains the contested report which shows it was issued as a “complete the record” report covering the rating period 3 December 2008 through 30 August 2009.  It evaluated the applicant as an "M-DAY" Soldier in the principle duty of “Command Food Service Technician” with the 37th Infantry Brigade Combat Team (IBCT), Columbus, OH. 

	a.  Part II (Authentication) of the contested report shows the applicant’s rater was the brigade S-4 in the rank of major and his senior rater was the brigade executive officer (XO), a lieutenant colonel, pay grade O-5.  The contested report was signed by the rater on 9 December 2009, and by the senior rater on 9 July 2010.  The applicant’s signature is not included on this report.

	b.  Part IV Performance Evaluation – Professionalism-Character shows in:

* Part IVa (Army Values) the rater placed an "X" in all "Yes" blocks.

* Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in all "Yes" blocks.
* Part IVd (Officer Development) the rater placed an "X" in the "NO" block to indicate developmental tasks were not recorded on a DA Form 67-9-1 and quarterly follow-up counseling were not conducted.

	c.  Part V (Performance and Potential Evaluation (Rater)) shows in Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) the rater placed an "X" in the "Satisfactory Performance, Promote" block

	d.  Part Vb (Comment on Specific Aspects of the Performance) contained the following comments"
   
This rating cycle provided limited opportunity for [Applicant] to showcase his talents as 90 days of the period was focused on post-deployment reintegration events.  His primary focus was the planning and OPORD development in support of the 37th IBCT’s Annual Training period at Camp Grayling, MI.  Using his recent deployment experience, [Applicant] crafted a successfully executed Food Service plan that ensured the brigade’s Soldiers received sufficient, well-prepared rations in multiple dining facilities while overcoming food service personnel shortages.  His efforts identified additional equipment requirements that facilitated the execution of field feeding operations in support of battalion training events. [Applicant] is extremely knowledgeable in food service operations and keeps himself up-to-speed on the relevant developments and regulations in his field.  No support form received for this rating period.”
   
	e.  In Part Vc (Comment on Potential for Promotion) shows the rater indicated "[Applicant] is a capable officer who possesses the tools to perform well in positions of greater responsibility.”

	f.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows the senior rater placed an "X" in the "Fully Qualified" block

	g.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) contains a "No Box check." 

	h.  In Part VIIc (Comment on Performance/Potential) the senior rater states:

[Applicant] performed in a competent and professional manner during this rating period.  [Applicant] provided invaluable assistance to the S4 in the development of both the AT-09 logistic/sustainment plan and attendant OPORD generation for the Brigade S4.  [Applicant] is very proficient and accomplished in food service operations.  He is dedicated, engaged officer concerned with Soldiers welfare and the welfare of the organization. No support form received during this rating period.  [Applicant] is unavailable to sign due to being on active duty.

6.  The applicant’s OMPF does not include comments the applicant made in response to this OER.

7.  On 30 August 2009, the applicant was honorably separated from the OHARNG and appointed in the Regular Army.

8.  The applicant provides a completed OER that he wants added to his OMPF to replace the contested report.  It evaluated him as a “brigade food advisor” during the period 3 December 2008 through 16 July 2009 and contains favorable rater and senior comments.  It also shows the rater placed an "X" in the "Outstanding Performance, Must Promote" block in Part Va and the senior rater placed an "X" in the "Best Qualified" block in Part VIIa.

9.  The applicant submits an undated self-authored memorandum addressed to the AG, OHARNG, wherein he requests a Commander’s Inquiry into the injustices and illegalities regarding the contested report.  He provides no evidence and his OMPF contains no evidence to show this request was ever received by his command or ever acted upon.
10.  The applicant provides a memorandum, dated 4 March 2009.  It shows the applicant’s unit commander delegated his leave approval authority to include schools, OER, promotions, line of duty, and pay over the applicant to the Commander, Military Funeral Honors while he performed an ADOS tour from 15 March to 30 September 2009.

11.  The applicant provides three Officer Record Briefs prepared on14 January 2011, 30 November 2011, and 23 January 2014.  These documents show his Basic Active Service Date (BASD) differently as 17 July 2009, 24 August 1997, and 28 August 1995, respectively.

12.  The HRC issued the applicant three memoranda, subject:  Notification of Separation Due to Non-Selection for Promotion, dated 10 September, 23 October, and 17 December 2012.  These memoranda notified the applicant that based on his non-selection for promotion, he must be honorably separated from the Army no later than 1 March 2013, 1 November 2013, and 31 August 2015, respectively. 

13.  On 21 February 2013, the Chief, Officer Promotions, notified the applicant he was considered for promotion by a special selection board to CW3 under the fiscal year 2012 criteria but not selected.  The reason for his non-selection is unknown.

14.  During the processing of this case an advisory opinion was obtained from the Chief, Personnel Policy Division, National Guard Bureau (NGB).  The Chief states:

	a.  The applicant states the contested report for the period 3 December 2008 thru 30 August 2009, listing the current rater and senior rater is erroneous and should be replaced with an OER covering the period 3 December 2008 through 16 July 2009 signed by a different rater and senior rater in the ranks of captain and major, respectively.  The applicant also contends during this period he was serving on Active Duty Special Work Orders (ADSW) performing Military Funeral Honors and should have been rated by his superiors at that time.

	b.  An email from the OHARNG dated 24 August 2015, indicates 
CPT M______ (rater of the replacement OER) resigned on 27 April 2009, per order number 139-901, due to adverse action.  Additionally, the senior rater listed on the replacement OER was the assistant brigade S3, not the S3 as the OER lists.  MAJ W______ (senior rater) transferred out of the 37th IBCT on 27 April 2009; therefore, he was not available to senior rate the applicant through July 2009 as requested.

	c.  Army Regulation 623-3, chapter 2-10(1) states, “Normally, to be eligible for an evaluation report, a Soldier will complete 90 calendar days in the same position under the same rater.  Nonrated periods are not included in the 90-day period (see DA Pam 623-3).  Note.  For USAR TPU, DIMA, and drilling IRR Soldiers and ARNG Soldiers, the minimum rating period will be 120 calendar days versus 90 calendar days (see appendixes G and H.)

	d.  ARNG Special Actions Branch is not in a position to opine regarding the applicant's promotion request and to adjust his active federal service records as he was not a member of the ARNG at the time in question.

15.  On 15 September 2015, the applicant provided a rebuttal to the NGB advisory opinion indicating his initial concern that it has taken over 10 months for action to proceed in his case and then only after he sought congressional assistance.  He has been twice non-selected for promotion, given a mandatory retirement date, and therefore his case should have been first priority as outlined in paragraph 4-10a, Army Regulation 623-3.  He further states:

	a.  The NGB would have us believe that the rater and senior rater listed on the replacement OER both left the NG on 27 April 2009.  However,
CPT M_____ (rater) retired from the NG on 30 June 2009 as shown on a copy of his NGB 22 (Report of Separation and Record of Service) he provides.

	b.  Additionally, MAJ W_______, continued to perform military funeral honors until he was transferred from the NG to the USAR on 15 September 2009, as shown on a copy of his orders and his Retirement Points History Statement and Report of Separation that he includes.

	c.  He reiterates his previous position that the 37th IBCT released authority concerning OERs to the State of Ohio, DCOPS and therefore, the individuals listed on the entered (contested) report should not have rated him.

	d.  The NGB advisory opinion does nothing to alter the facts that he only worked for the rater listed on the contested report for only 8 days.  Normally, to be eligible for an OER, a Soldier will complete 90 calendar days in the same position under the same rater.  He worked for the State of Ohio for 6 months.

	e.  He was made aware the NGB is not in a position to adjust his active records during his commander’s inquiry which is why he submitted his application to the ABCMR.

	f.  He suggests that based on information received from NGB, the replacement report be modified to show 17 unrated days, as the rater departed on 30 June 2009.  Also the report could have been a change of rater, close the record, or transfer to another component report to more accurately reflect his service.

	g.  Further suggest, the position of MAJ W______ be amended to reflect Assistant S3 as he may have gotten his exact position wrong.

	h.  The important facts to consider is the rater listed on the contested report never counseled him nor was in a position to observe him during the rated period; similarly the senior rater had no personal contact with him nor ensured he received any counseling, and the report was forwarded without his review.

	i.  The evidence submitted with the application is sufficient to overcome the presumption of regularity that the original (contested) report should stand.  There are material errors and inaccuracies, and the report serves as an injustice to the U.S. Army and himself.  The injustice is that the Army may possibly be deprived of the services of a dedicated and committed Soldier who has expended substantial time and energies to his military service.  Such errors and inaccuracies has deprived him of earned promotions, for which he continues to show the kind of potential required and needed for his career choice.

16.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  Paragraph 1-4 (5) states rating schemes show the rated Soldier's name, indicate the effective date for each designated rating official, and are published within the unit and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to rating schemes will also be published and distributed. No changes may be retroactive. 

	b.  Paragraph 1-4 further states in subparagraphs 6, 7, 8, and 9 for the Army National Guard (ARNG) (not Active Guard Reserve (AGR) or full-time National Guard duty), official rating schemes are published by duty position and posted in the unit so all Soldiers are familiar with their rating chain. The published rating schemes will include the effective date of each of the rating officials in the rating chain. The rating scheme for all ARNG or AGR Soldiers will be by name.  Rating officials give timely counseling to subordinates on professionalism and job performance, encouraging self-improvement, when needed.   Each rating official knows how the subordinates whom they evaluate performed during the rating period.  Rating officials provide candid assessments of rated Soldiers.

	c.  Paragraph 1-4 (10) states each senior rater (and reviewer or supplementary reviewer, if any) understands that he or she will examine the entries on the evaluation reports to ensure that objectivity and fairness have been maintained. When doing so, he or she will keep in mind the interests of both the Army and the rated Soldier. The senior rater will also understand that if he or she notes any errors or omissions on evaluation reports, corrections must be made prior to completion and submission to HQDA (or the State enlisted personnel manager (EPM) for ARNG NCOERs).

	d.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army Officer Corps.  Performance will be evaluated by observing actions, 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.

	e.  Paragraph 3-34 states any report with negative comments in Parts Vb or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army.

	f.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	g.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

	h.  Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report.

17.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the  OMPF) and states the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the OER for the period 3 December 2008 through 30 August 2009 should be removed from his OMPF and replaced with the corrected OER he provides.

2.  Although the applicant asserts that the rating officials listed on the contested report did not observe his performance for more than 8 days nor provided him any counseling during the rating period and are therefore ineligible to rate him, he did not provide and the evidence of record does not contain a copy of his rating scheme for the period in question to confirm this claim.  The published rating scheme would have identified the rater and senior rater at the beginning of the rated period and any changes thereafter would have been appropriately published and distributed. No changes may be retroactive any changes would have been published.  Absent a copy of the official rating scheme, there is insufficient evidence to show that the contested report lists the wrong rating officials.

3.  He provides insufficient evidence to show that the contested report is untrue.  As a result, there remains an insufficient evidentiary basis to support amendment, removal, or replacement of this report.

4.  An OER accepted for inclusion in the official record of a Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide such evidence.

5.  As it relates to the applicant’s request for correction of his total active federal service, he states that this service was finally corrected and is now properly shown on his ORB issued in November 2014.  Therefore, previous action was taken on this portion of the requested relief and no further action is required.
6.  Absent a reason to remove the contested OER from his records, there is also no reason to authorize an additional SSB; especially when he was already considered by an SSB and denied.  (Unless he is authorized based on the corrected BASD shown on his ORB dated November 2014.  However, it is hard to believe he would not have sought a correction to this date earlier having been appointed in the ARNG in October 2000).

7.  The contested OER is not negative and did not require referral.  On the contrary, it is a positive OER; both the rater and senior rater provided favorable comments and he was recommended for promotion.

8.  Based on the foregoing, there is no evidentiary 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 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)                                         AR20140018356





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ABCMR Record of Proceedings (cont)                                         AR20140018356



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