BOARD DATE:	4 August 2015

		DOCKET NUMBER:  AR20140019066 


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.  In an electronic mail (email) message to a United States Senator, the applicant requests reconsideration for correction of Part Va (Performance and Potential Evaluation (Rater)) of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 11 December 2008 through 15 July 2009 (henceforth referred to as the subject OER) to show the rater marked the "Outstanding Performance, Must Promote" box rather than the "Satisfactory Performance, Promote" box.

2.  The applicant states that his rater, Captain R___ (CPT R), rendered a Memorandum for Record (MFR) wherein he states that he erroneously marked the "Satisfactory Performance, Promote" box rather than the "Outstanding Performance, Must Promote" box in Part Va of the subject OER.  The applicant further states that, according to many higher ranking officers in and outside of his unit, the subject OER was the cause for him being passed over for promotion to chief warrant officer four (CW4) by the last selection board.

3.  The applicant contends that the statement "Satisfactory Performance, Promote" is an indication to many that an officer has not conducted himself properly in some manner and/or has been negatively punished and at that time, at least, should not be considered relevant for promotion.  Due to the current downsizing of the military, this is a detractor for future military service in the eyes of those who see the write up in this manner.

4.  The applicant attests that he had never done anything wrong throughout his military career worthy of this block being checked on his OER.  He asked the rater for the aforementioned MFR to provide as support for his appeal to the Army Review Board Agency's Board for Correction of Military Records to either have the subject OER removed or transferred to the restricted portion of his Army Human Resource Record (AMHRR) prior to the next promotion board, but his request was denied.  Regulatory policy states this is not normally a reason to change an OER also, due to the fact that it is thought to be correct once sent to the Department of the Army for inclusion in a Soldier's permanent records.  The applicant would normally agree with that stance except for the fact that the rater requested it to be done due to an error which, due to recent changes of command at that time allowed for an oversight on the part of the officers appointed over him; and the fact that by the time the OER was sent to him it was approximately 90 days past the due date.  It had to be signed and sent back quickly to get it turned in so no "Red Flags" were sent up.  This caused all concerned parties to overlook the box check at the time.  Typically if this happens (bad box check) someone would go back to the rater and ask if the service member did something wrong or otherwise ask if the box check was correct before sending the OER up for signatures, this never happened.

5.  He has served his country for almost 17 years and this will undoubtedly end his career the next promotion board unless it is corrected.  He has tried to do this through the Army channels as required, but was declined.  As a last resort, he decided to go outside of his military chain to try to save his military career for the last time possible.  He loves what he does and has sacrificed much in order to serve to this point, family, body and almost life on a few occasions; and his only regret will be if he did nothing to try to stop this from happening.

6.  The applicant informed the Senator that he has supporting documentation to provide for the Senator and his team to review and was in the process of mailing it to the address provided, but it is not enclosed with his application.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140005612, on 13 May 2014.

2.  Although the applicant provides no new evidence or argument his request for reconsideration was forwarded through a United States Senator within 1 year of the denial of his initial request; therefore, it warrants reconsideration by the Board.

3.  The applicant is serving on active duty in the Regular Army in the rank of chief warrant officer three (CW3).  He was promoted to CW3 on 1 April 2009.

4.  His OERs for the periods ending 9 December 2006, 9 December 2007, and 9 December 2008 show he was consistently evaluated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his senior rater (SR).  

5.  The subject OER is a permanent change of station OER which indicates the applicant was rated as a UH-60L (Blackhawk) Pilot in the 4-6 Air Cavalry Squadron's Assault Helicopter Troop located at Fort Lewis, WA.  This OER shows:

	a.  his rater was CPT JBR, Platoon Leader, who digitally signed the OER on 13 October 2009;

	b.  his intermediate rater was CPT JCB, Troop Commander, who digitally signed the OER on 14 October 2009;

   c.  his SR is listed as Lieutenant Colonel CSB, Squadron Commander, who digitally signed the OER on 20 October 2009;
   
	d.  the applicant digitally signed the OER on 20 October 2009;

	e.  the rater placed an "X" in all the "Yes" boxes in Part IV (Performance Evaluation - Professionalism (Rater));

	f.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Satisfactory Performance, Promote" box; 

	g.  in Part Vb (Performance Narrative), the rater entered positive comments;

	h.  in Part Vc (Potential for Promotion Narrative), the rater stated,  "CW3 [applicant] is an excellent officer and pilot.  Promote with peers";

	i.  in Parts VIIa and c (SR – Comment on Performance/Potential), the SR rated the applicant's promotion potential to the next higher grade as "Best Qualified" rendered positive comments, and recommended him for both promotion to CW4 and selection for developmental schooling; 

	j.  in Part VIIc (Potential Compared with Officers Senior Rated in the Same Grade), the SR rated the applicant as Center of Mass; and

	k.  in Part VIId, the SR indicated the three future assignments for which the applicant was best suited as:  Company Safety Officer, Tactical Operations Officer, and Aviation Life Support Equipment Officer.

6.  The applicant's next three OERs each show he was evaluated as "Outstanding Performance, Must Promote" by his rater and "Best Qualified" by his SR.  

7.  The MFR rendered by CPT JBR, dated 19 March 2014, shows he was the applicant's rater for the subject OER.  CPT JBR states the following in reference to the subject OER:

	a.  He would like to make corrections to the subject OER discrepancy due to the redo of the OER and lateness on the part of two changes of command within such a short timeframe causing mistakes to occur which were not caught until recently.

	b.  Part V (Performance and Potential Evaluation (Rater)), section a, was inaccurately marked "Satisfactory Performance, Promote" and should have been marked "Outstanding Performance, Must Promote" by him.  

	c.  this error was not caught by numerous personnel throughout the chain of command or by the applicant.  

	d.  he requests this MFR or other be attached along with the subject OER and retained within the applicant's interactive Personnel Electronic Records Management System (iPERMS) as correction for this oversight.

8.  A review of the applicant's AMHRR on the iPERMS revealed the subject OER is filed in the performance folder of his AMHRR. 

9.  Army Regulation 623-3 (Personnel Evaluation - Evaluating Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.  The version of this regulation in effect at the time stated in:

	a.  Paragraph 3-39 that evaluation reports accepted for inclusion in the official record of a Soldier were presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the Soldier 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.

	b.  Paragraph 3-39b that requests that an evaluation report in a Soldier's Official Military Personnel File (OMPF) be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF:

		(1)  Statements from rating officials that they underestimated the rated Soldier.

		(2)  Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did.

		(3)  Requests that ratings be revised.

		(4)  Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.

10.  DA Pamphlet 623-3 (Evaluation Reporting System), paragraph 6-2b(3) states that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

11.  Army Regulation 600-8-104 (AMHHR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by certain agencies, including the ABCMR; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, Human Resources Command (HRC); AMHRR custodian (when documents have been improperly filed); Commander, HRC, (as an approved policy change to this regulation); and Chief, Appeals Branch, National Guard Personnel Center. 

12.  Army Regulation 600-8-104, table B-1 (Composition of the AMHRR), states an OER will be filed in the performance section of the AMHRR.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the subject OER should be corrected because his rater intended to place an "X" in the "Outstanding Performance, Must Promote" box rather than the "Satisfactory Performance, Promote" box.

2.  The rater, SR, and the applicant each signed the subject OER verifying the accuracy of the data contained in the OER.

3.  The governing regulation states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection or other perceived unfavorable personnel actions.  As a result, claims by rating official they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report

4.  The rater provided an MFR, dated almost 5 years after the subject OER was authenticated, indicating he did not intend to rate the applicant the way he did.  Given the available evidence, the rater's recommendations are considered retrospective thinking which does not invalidate the ratings on the OER.

5.  The applicant has not provided sufficient evidence to show that the OER was not processed in accordance with applicable laws and regulations or that the report was inaccurate, unjust, or otherwise flawed.  He also has not provided evidence showing the rating officials lacked objectivity or fairness.  As a result, there is no basis to grant the relief requested.  

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 to amend the decision of the ABCMR set forth in Docket Number AR20140005612, dated 13 May 2014.



      _______ _   _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)                                         AR20140019066





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