IN THE CASE OF:  

		BOARD DATE: 7 July 2015

		DOCKET NUMBER:  AR20140020235 


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 removal of a referred Officer Evaluation Report (OER) from his Official Military Personnel File (OMPF).  

2.  The applicant states he has exhausted all administrative remedies, such as the Commander's Inquiry and the Army Special Review Board, to address the issues in his referred OER.  The various "No" ratings in the report are contrary to the statements of support he included with his OER appeal. 

3.  The applicant provides copies of:

	a.  A referred Complete the Record OER for the period 25 March 2012 through 1 December 2012.

	b.  His OER appeal, dated 5 February 2013.

	c.  Officer Special Review Board (OSRB) Record of Proceedings (ROP) for Docket Number AR20140002085, dated 10 July 2014.

	d.  Memorandum of support from Captain (CPT) C__________ T. T________, dated 2 April 2015.


CONSIDERATION OF EVIDENCE:

1.  Following prior Regular Army enlisted service, the applicant enlisted in the 
U. S. Army Reserve (USAR) as a sergeant/E-5 on 13 July 1999.  He was appointed as a second lieutenant in the USAR on 12 May 2001.  He was deployed in support of Operation Enduring Freedom/Operation Iraqi Freedom from 1 November 2005 to 3 February 2007.  He was promoted to CPT on 4 April 2007. He was ordered to active duty in the Active Guard Reserve (AGR) Program effective 4 June 2007.

2.  He received a referred complete the record OER for his performance of duty as the Personnel Management Officer in Headquarters, 103rd Expeditionary Sustainment Command (ESC), Des Moines, Iowa.  This report covered 8 rated months between 25 March 2012 and 1 December 2012.  His rater was the Senior Human Resources (HR) Officer, a major (MAJ), and his senior rater (SR) was the Assistant Chief of Staff, G1 (ACofS, G1), a lieutenant colonel (LTC).  The OER shows his rater signed the report on 
20 January 2013, the SR signed the report on 29 January 2013, and the applicant signed it on 5 February 2013.

	a.  In part IV (Performance Evaluation – Professionalism (Character)) the following entries are noted in:

* part IVb (Leader Attributes/Skills/Actions), subsection b.2 (Skills – (Competence), the rater placed an "X" in the "No" block for "Technical" and an "X" in the "No" block for "Tactical"
* part IVb, subsection b.3 (Actions (Leadership) – Influencing), the rater placed an "X" in the "No" block for "Communicating" and in "Operating" the rater placed an "X" in the "No" block for "Assessing" and in "Improving" the rater placed an "X" in the “No” block for "Learning"

	b.  In part V (Performance and Potential Evaluation (Rater)) the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered the following remarks:

		(1)  "Unfortunately, [the applicant] lacks the technical expertise necessary to find solutions to human resources challenges requiring more than fundamental knowledge and research.  Although he has access to many HR systems, he must be reminded to use them prior to asking questions of his coworkers.  [The applicant's] tenure reports frequently contained significant errors which, if utilized as prepared, would have caused a leadership gap for several units.  [The applicant] failed to regularly review email correspondence prior to sending it and many times the recipients called to ask for clarification on the intended message.  When provided professional feedback and with recommendations for improvement (the applicant) routinely deflected the input or refuted the basis for being approached."

		(2)  In part Vc the rater entered:  "[The applicant] is not ready for promotion but rather should be retained in his current grade and allowed to attain 20 years active federal service."

 	c.  In part VII (SR), the SR placed an "X" in the "Fully Qualified" block.  Part b shows "Below Center of Mass Retain."  The SR entered, in part, the following remarks in part VIIc:  "At times, [the applicant] struggled to fully analyze complex situations.  Although he has attended all resident AG/42B professional military education for his rank, his technical expertise still needs to develop."

3.  On 5 February 2013, he appealed the referred OER to the U.S. Army Human Resources Command.  In his appeal he indicated that:

	a.  During the rating period there was undue command influence on his rating chain by the 103rd ESC Commander, Brigadier General (BG) A____ M. D_______.  In a meeting BG D_______ direct the applicant's rater to generate a referred complete the record OER on the applicant to ensure he did not get promoted to MAJ by an upcoming board. 

	b.  He disagreed with many of the ratings and pointed out flaws in the report.  He provided seven letters of support from other Soldiers attesting to his professional abilities and his willingness to accept professional feedback.

4. The referred complete the record OER is filed in the performance section of his OMPF.

5.  In support of his request, he provides:

	a.  A memorandum in which he points out that:

		(1)  The "No" entries in Part IVb are not correct based upon the statements of support attesting to his Tactical, Technical, Communicating, and Learning abilities.

		(2)  A string of email notes include laudatory comments from his rater  attest to his technical expertise, the accuracy of reports he prepared, clarity of his email correspondence, and his openness to professional feedback, with recommendations for improvement.
		(3)  The seven statements from third parties who have first-hand knowledge of his performance during the rating period show the substantive inaccuracies in the OER.  The rater and SR submitted inaccurate accounts of his duty performance during the rating period and the OER should be removed from his OMPF. 

	b.  A memorandum of support from CPT C__________ T. T________, who states that during the period 2 December 2012 to 16 May 2013, he had weekly interaction with the applicant regarding the 103rd ESC Suicide Prevention Program, Master Resiliency Training (MRT), and Applied Suicide Intervention Skills (ASIST) programs.  He believes several of the ratings on the referred complete the record OER are not correct:

		(1)  The "No" entry in Part IVb.2 (3, TECHNICAL) is not correct, the entry should be "YES."  The applicant was a great asset who has shown his ability to find solutions with many technical challenges.  He also showed his technical knowledge in dealing with budget issues.

		(2)  The "NO" entry in Part IVb.3 (1.COMMUNICATION) is not correct, the entry should be "YES."  The applicant's email notes are concise and accurate.  There is no ambiguity is what the applicant is trying to convey.

		(3)  The "NO" entry in Part IVb.2(4) (TACTICAL) is not correct, the entry should be "YES."  Te applicant is very attentive in putting together classes, and making sure the funds were allocated for the training and orders were published for all Soldiers attending classes.

		(4)  In Part Vb, the entry is marked for "Unsatisfactory Performance, do not Promote", the entry should be "Satisfactory Performance-Promote."  He has known the applicant for two years, and the applicant has performed at a high standard, and even exceeded the standards.

6.  AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System which includes the OER.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

	a.  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 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, counseling forms, and as explained in other directives.  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.

	b.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 6-7 states an evaluation report accepted by HQDA and included in the official record of an officer is presumed to:

		(1)  be administratively correct,

		(2)  have been prepared by the properly designated rating officials, and

		(3)  represent the considered opinions and objective judgment of the rating officials at the time of preparation.

	d.  Paragraph 6-11 provides guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-7 should not be applied to the report under consideration and 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.

7.  AR 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  A document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include the ABCMR.  Appendix B (Documents Authorized for Filing in the OMPF and/or interactive Personnel Electronic Records Management System (iPERMS), Table B-1 (Authorized Documents) states the DA Form 67-9 (Officer Evaluation Report) is to be filed in the performance section and DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers is to be filed in the restricted section of the OMPF.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the referred complete the record OER should be removed from his OMPF because it contains substantive inaccuracies. 

2.  The evidence of record shows the applicant's appeal of the referred OER was denied.  The referred OER is properly filed in his OMPF.

3.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

4.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant’s contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice, or that his OER should be removed.  Therefore, he is not entitled to the requested relief.  His rebuttal evidence consisted almost entirely of unsubstantiated opinions of selected supporters.

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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20140020235



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