IN THE CASE OF:	  

		BOARD DATE:	  2 July 2015

		DOCKET NUMBER:  AR20150003910 


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.  This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States District Court for the District of Columbia.  The Court directs the ABCMR to reconsider the issue of removing the DA Form 67-9 (Officer Evaluation Report) for the period 1 December 2003 through 22 June 2004 (hereafter referred to as the contested OER) from his official military personnel file (OMPF).

	a.  The applicant deployed to Iraq from 2 February 2004 to 16 October 2004.  He received the contested OER with "Unsatisfactory Performance," "Do Not Promote", and "Below Center of Mass" ratings.  He appealed the OER to the Officer Special Review Board (OSRB) and he was granted partial relief in the form of administrative corrections to the OER.  He then appealed the contested OER to the ABCMR but he was denied relief.  He argues that the Board's decision was arbitrary and capricious in that the Board did not consider and respond to all of his "potentially meritorious arguments."  For example: 

	a.  With respect to the issue of the one-day suspense date, the Board adopted the conclusion that one day was sufficient because he previously saw the OER.  But the Board did not even mention or grapple with his evidence that he was not physically present in Tikrit on 1 July 2004 when he was allegedly shown this evaluation.

	b.  The Board did not engage with his argument that a memorandum from Lieutenant Colonel (LTC) GPF (battalion commander and senior rater) stating he failed to respond by the November 2004 suspense date intentionally misrepresented the one-day suspense date given to him in August 2004. 

	c.  Similarly, the Board did not respond to the argument that the Commander's Inquiry (CI) showed the contested OER "seemed to have been influenced by intense pressure by Colonel (COL) [K]" on the rating official that interfered with the requirement that raters be objective and unbiased.  

	d.  The ABCMR concluded that he was rated by the correct supervisor; however, Major (MAJ) AB conceded that he was no longer his rater.  The rating scheme supplied to the Board reflected the same rating scheme as that by which he was rated.  

2.  In January 2015, he filed a civil action with the United States District Court for the District of Columbia.  On 15 January 2015, upon consideration of the motion, the Court ordered his case remanded to the ABCMR with a stipulation that the Board must consider his case, and without application of any presumption of regularity, reassess his claims, specifically addressing the following questions: 

	a.  Whether the applicant was shown the proposed evaluation on 1 July (all indications are that the raters claim to have done this in person), given that the documentation indicates the applicant was no longer physically present in Tikrit.  

	b.  If the ABCMR on remand concludes that the applicant was not shown the proposed evaluation on 1 July, it must then assess whether a one-day suspense date is reasonable.  In making this assessment, it must take into consideration that he was deployed in a war zone and heed the Board's conclusion that, in a war zone, "routine administrative functions, such as documenting counseling, became more difficult."  And, if it does thus conclude that he was not shown the proposed evaluation on or about 1 July, it must also assess the raters' credibility considering they made specific and unequivocal statements that the applicant was shown the evaluation then.

	c.  Whether there is any evidence concerning when the applicant's rating chain changed from MAJ AB to those who prepared the Iraq Deployment Evaluation, and whether those raters had been in place for the 90-day period that he claims is necessary.  This assessment must be made without any presumption and should address whether a change of rater evaluation had to be prepared as a result. 

	d.  The Board must also address his arguments concerning the subsequent OER that have never been thoroughly addressed.

3.  In the course of the Order, the Court noted several other issues that must be addressed.

	a.  Did LTC GPF’s November 2005 memorandum indicating that the applicant did not respond by the November 2004 suspense intentionally misrepresent the one-day suspense given to applicant in August 2004?

	b.  Was the OER improperly influenced by pressure from COL K?   

	c.  If the Board determines, without the presumption of regularity, that the numerous procedural errors discussed above do not require deletion of the OER, then the Board must assess the substance of the performance evaluation without any presumptions.

	d.  The [OSRB] concluded that conflicts of interest noted in the OER occurred during the reporting period, and the ABCMR appears to have implicitly adopted that conclusion.  But the record reflects no specific instances that occurred within the review period.  On remand, the ABCMR must further explain the basis for its conclusion after a searching review of the evidence and without the application of the presumption of regularity.

	e.  There is a factual dispute regarding his performance at a conference.  Unless the Kirkuk non-governmental organizations (NGO) conference referenced in Major (MAJ) AB’s letter of support is the same Sulaymaniyah NGO conference at issue in the contested OER, it appears that the administrative record does not contain evidence of the applicant’s specific contributions to the success of the conference.  On remand, the ABCMR must further explain the basis for its conclusion, based on a searching review of the evidence without the application of any presumptions.

	f.  If the ABCMR reaches conclusions that counter specific statements made by the raters (for example, that LTC GPF did not receive and consider the applicant’s support form in his review or that the applicant could not have been shown the proposed evaluation on 1 July despite the raters’ statements to this effect), it must specifically assess that rater’s credibility on all issues, not just that one.

4.  The applicant provides copies of documents in his OMPF (awards, OERs, orders, reports, etc…) together with all seven Records of Proceedings pertaining to his previous requests. 



CONSIDERATION OF EVIDENCE:

1.  Having had prior service in the U.S. Air Force (July 1978 to May 1980) and the U.S. Navy (March 1987 to September 1993), the applicant enlisted in the U.S. Navy Reserve on 16 May 1996.  He was discharged from the U.S. Navy Reserve on 2 June 1997.

2.  He was appointed as a Reserve commissioned officer of the Army, Judge Advocate General (JAG) Corps, in the rank of first lieutenant and executed an oath of office on 3 June 1997.  He was awarded 3 years of constructive service credit.  He was assigned to the 214th Legal Services, Madison, WI. 

3.  It appears he transferred to the 432nd Civil Affairs (CA) Battalion, Green Bay, WI, around May 2003.  

4.  He entered active duty as a member of the 415th CA Battalion on 1 December 2003 and subsequently served in Iraq from 2 February 2004 to 16 October 2004.  He was honorably released from active duty on 26 November 2004.  

	a.  The record reflects that applicant failed in the duties/tasks assigned to him. Some of the responsibility for mission failure rightfully falls upon applicant, despite his attempts to shift responsibility to the alleged indecisiveness of his commander.  

	b.  The record indicates that the1st Infantry Division (ID) was attempting to bolster its knowledge and possible military intelligence capabilities in certain subjects in the geographical area in question.  The Regional Advisor for Displaced Persons, CPA-North, stated that the 1st ID was fielding a “G2” team to collect data about internally displaced persons (IDP).   CPA-North officials objected to what they deemed an “ad hoc survey.”  The CPA was dissolving and support it had provided to the Army would cease at the end of June.  The 1st ID may have been attempting to compensate.  The record is not complete regarding the specific goals of the 1st ID.  We would not expect detailed information as, apparently, military intelligence issues were involved. 

	c.  The CPA recommended that the 1st ID cease its operations and defer to United Nations Designated NGOs.  On its face, it appears reasonable that military leaders would not want to place complete trust in UN-designated NGOs.  The applicant took the position that the CPA recommendation was correct.  The record shows that Army commanders determined that was not the correct course of action.  

	d.  The applicant stated he disagreed with the development of the mission.  The applicant stated that COL K wanted to have a G2 representative in CPA-N and CPA-N adamantly opposed. The applicant stated that the G2 representative “had no understanding of the history and geo-political issues that the Kurds faced.”  As stated above, it appears from the record that the 1st ID was attempting to develop its military intelligence capabilities.  Why the applicant disputed his assigned duties in favor of “UN designated NGOs” is not factually answered in the record.  Whatever the reason, mission failure resulted. 

	e.  An email from Dr. LS, the former Regional Coordinator, CPA–North, to applicant, dated 19 March 2005, indicated that the applicant had been sent to the area with an assigned mission with a specific security profile.  She stated, in effect, that the applicant worked well with her team, but that there were differences in his tasking and her requirements that she wished to resolve with his chain of command.  She suggested he remain as a liaison, but to her surprise the applicant and his team were recalled to headquarters.  She did not pursue the issue of retaining the applicant because the CPA remained in authority for only a short time longer.  

	f.  The applicant states that he was supervised by MAJ AB.  MAJ AB’s statement indicates that, a month prior to the deployment, the applicant was assigned to his battalion as the Government Team Chief.  The Government Team was part of the Civil Military Operations Center, which was part of Headquarters and Headquarters Company (HHC).  MAJ AB agreed that he supervised applicant prior to the deployment.  

	g.  MAJ AB also stated that during the initial deployment phase the unit’s organizational structure constantly changed and specific tasks assigned to HHC changed.  MAJ AB’s statement does not shed light on the specific duties of the HHC and whether or not the Government Team or the applicant were moved to another part of the organization.  MAJ AB stated that the applicant checked in with him regarding unspecified “HHC duties.”  He also stated “I am not a witness to·the discussions, decisions, or other occurrences between LTC GPF and [applicant] as it pertained to his assignments.”  This statement indicates the applicant had other duties assigned by other command functions.  MAJ AB stated he “maintained a working relationship” with the applicant.  This is not a description of a relationship between a subordinate and supervisor (rater).  
MAJ AB’s statements indicate that the applicant was not under the command of MAJ AB and MAJ AB would not have been his rater.  MAJ AB essentially disclaimed knowledge of the applicant’s duties and assignments. 

	h.  MAJ AB stated he was assigned to the G-3 section in late April 2004.  He also stated that “near the end of the deployment” he noticed the rating scheme changed and he was not rating the applicant.  This statement speaks more to MAJ AB’s inattentiveness to the rating scheme instead of providing a firm date regarding when the rating scheme changed.  

	i.  The OSRB does not provide a date when the rating scheme changed. 

	j.  It appears that the organizational structure went through numerous changes.  The regulation states that a change of rater report is mandatory when the rated officer ceases to serve under the immediate supervision of the rater AND the minimum rating qualifications are met.  To satisfy this requirement MAJ WBD (his rater) would have had to have been the applicant’s rater since on or before 22 March 2004.  MAJ AB’s statement does not provide any evidence to dispute that this change happened; it also does not provide evidence of when the change happened.  

5.  During November 2004, he received the contested OER – a change of rater OER which covered 7 months of rated time from 1 December 2003 through 22 June 2004 for his duties as International Law Officer, 415th CA Battalion, with duty in Iraq.  The OER reflected that his rater was MAJ WBD, the Battalion Executive Officer, and his senior rater was LTC GPF, the Battalion Commander.  The OER shows in:

	a.  Part II(d), an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed in item Part 2(d) next to the answer "No," indicating the rated officer did not desire to attach comments. 

	b.  Part IIa (Principal Duty Title) shows his assignment as International Law Officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq.  He was responsible for providing technical expertise, staff advice, and planning assistance to the supported command; conducting assessments of government resources and systems and determines how these may impact civil-military operations; coordinating with administrators and representatives from the Coalition Provisional Authority to support the commander's objectives; and identifying legal systems, agencies, services, personnel, resources, and laws to determine the effectiveness of legal systems and their impact on civil-military operations.    

	c.  Part  IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas and in Part IV(b) (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block in the areas that he saw appropriate to the applicant.

	d.  Part IV(c) (APFT), the entry is blank; Height: 69, Weight: 202, and the entry "No" (indicating he did not meet the height and weight standards of Army Regulation (AR) 600-9 (Army Weight Control System). 

	e.  Part IV(d) (Officer Development-Were Developmental Tasks Recorded on DA Form 67-9-1a (Developmental Support Form) and Quarterly Follow-Up Counseling Conducted?" the rater placed an "X" in the "NA" block.  

	f.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance" block and entered the following comments:

[Applicant] is an intellectually gifted officer who possesses a good understanding of government process, which made him a useful asset to the battalion.  He was entrusted to coordinate two major efforts for the division.  The first was a non-governmental agency conference which was designed to bring international assistance into the 1st Infantry Division area of operations.  The second was an effort to determine critical information requested by the division commanding general regarding the movement of the Kurdish population through Northern Iraq, and [sic] issue of national importance.  In both cases, [Applicant] required some assistance and, at times, repeated guidance, and was removed completely from one of these tasks.  However, he maintained a good attitude and was assigned to company level to assist in the legal claims process.  He is capable in his field of legal functions and performs adequately under supervision.  However, he possesses a disposition to act independently of the chain of command and should not be advanced.  Soldier is currently flagged for not being in compliance with the standards of AR 600-9.  Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations.  

	g.  Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate that a DA Form 67-9-1 (OER Support Form) was received with this report and considered in his evaluation and review.  

	h.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater listed "None" in the area for three future assignments for which the applicant was best suited, rated the applicant as "Below Center of Mass (BCOM)," and entered the following comments in Part VIIc (Comment on Performance/Potential):

[Applicant's] performance was less than satisfactory.  Given two high profile tasks, he needed constant supervision.  The planning and execution of the division NGO conference would not have been done had it been left to [Applicant].  Given the task of collecting information on Iraqi Displaced Persons Camps, [Applicant] ignored orders to coordinate the effort and was recalled by the Commanding General and subsequently relieved of his duties and given a letter of reprimand. [Applicant] also had difficulty distinguishing the duties of legal assistance to unit Soldiers and providing legal assistance to the command, attempting both simultaneously, clearly stepping outside his assigned duties.  Given his inability to follow orders and the requirement for constant supervision, do not retain in the United States Army. 

6.  The contested OER was signed by the applicant's rating officials on 1 July 2004.  The applicant did not sign the OER. 

7.  On 22 August 2004, his senior rater referred the OER to him for acknowledgement in view of the fact he received a rating of unsatisfactory performance/do not promote.  The senior rater assigned a suspense date of 23 August 2004.  There is no indication the applicant acknowledged the contested OER or provided feedback.

8.  Also on 22 August 2004, the Battalion S-1 Noncommissioned Officer in Charge (NCOIC) forwarded a copy of the OER with the referral memorandum to him and advised him that he still had time to respond. 

9.  On 28 August 2004, by email (previously provided by the applicant) and memorandum (also provided by him), he requested the 350th CA Command conduct a CI regarding the contested OER.  He did so again on 7 December 2004.  By reply email, the applicant was informed that the inquiry had been delayed because the general officer had been out for the past 2 months for medical reasons. 

10.  On 17 June 2005, he filed an Inspector General (IG) complaint in which he argued that the Commander failed to complete the requested CI in a timely manner and that this failure caused him not to be selected for a unit vacancy promotion.  However, on 15 August 2005, the IG notified him that his complaint was not appropriate for an IG inquiry because he had other means of redress which he must first utilize.  The IG closed his case. 
11.  On 5 November 2005, by memorandum to HRC, the applicant's senior rater stated that the applicant failed to respond to the referred report by the suspense date of 4 November 2004.

12.  The contested OER was ultimately forwarded to Headquarters, Department of the Army (HQDA) in May 2005 for filing in the applicant's OMPF.

13.  Following his deployment and release from active duty, he was assigned to the 432nd CA Battalion, Green Bay, WI.  Between June 2005 and June 2006, he served as an international law officer and received an annual OER reflecting a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater. 

14.  On 8 December 2006, COL MSH, Commander, 308th CA Brigade, Homewood, IL, appointed an investigating officer (IO) to conduct an AR 15-6 (Procedures for Investigating Officers and Board of Officers) investigation into allegations made by the applicant concerning his OER while he was in Iraq.  The appointing official referred to the AR 15-6 investigation as the equivalent to a CI.  The IO, COL GDB, 308th Civil Affairs Brigade, referred to the word "Sustained" to mean the evidence indicates the alleged infraction did occur; the word "Non-sustained" to mean insufficient evidence and the word "Exonerated" to mean the evidence indicates the alleged infraction did not occur.  The IO found: 

* The allegation the applicant was not given an appropriate amount of time to respond to a referred OER given to him by the 415th Civil Affairs Battalion: Sustained
* An attempt by the applicant's rater at the time to incorrectly reflect that the original suspense date for the applicant to respond with comments to the referred OER was 4 November 2004: Sustained
* The allegation the applicant was not given due process with his submitted request for a CI into his referred OER: Sustained
* The referred OER was received and processed by HRC in error: Sustained
* MAJ WBD (the rater) was not interacting daily with the applicant so he was not the best officer to rate him: Sustained
* The Support Form was not requested or utilized from the rated officer yet the box is checked "Yes": Sustained
* The "Referred" box was checked by someone other than the applicant: Sustained
* The applicant's height/weight were assumed from his previous OER: Sustained
* The body fat requirement is incorrectly checked "No" on the OER: Sustained
* The applicant alleges racial discrimination: Non-sustained

15.  Between June 2006 and June 2007, while still serving as an international law officer, he received an annual OER reflecting a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

16.  In October 2006, he appealed the contested OER to the OSRB, then part of HRC.  He requested removal of the contested OER from his records and claimed he should be evaluated fairly on the merits without regard to ethnic background.  He also requested HRC conduct an investigation into the discrimination and vindictive allegations.  

17.  On 27 January 2007, by memorandum to HRC (then in St. Louis, MO), following a legal review for sufficiency, COL MSH restated the IO's findings and recommended the contested OER be removed from his records and the non-rated time be covered with a memorandum designating this period as non-rated. 

18.  On 5 June 2007, by letter, HRC notified him that he was considered for promotion to MAJ by the Army Reserve Components Mandatory Selection Board that convened on 10 April 2007 but he was not selected. 

19.  The OSRB denied the removal of the contested OER from his records, and provided a thorough and detailed analysis of the reasons for the denial. 

	a.  With respect to the denial, the OSRB determined:

* the OER had been provided to the applicant on two occasions for the opportunity to rebut, which he elected not to do
* the applicant had not provided any evidence showing the OER contained anything other than the considered opinions and objective judgment of the rating officials at the time of preparation
* the applicant had not provided sufficient evidence to show his rating chain was incorrect
* there was no evidence showing the actual ratings were flawed, in error, or factually incorrect
* there was no evidence showing the non-referral documents for the 2005 and 2006 unit vacancy boards were inaccurate or unjust
* there was no evidence showing the non-select documentation for the 2007 and 2008 DA Mandatory Promotion Boards for MAJ was inaccurate
* there was no basis for granting the applicant's request for promotion consideration to MAJ based on the correction of administrative errors in the OER by the OSRB

	b.  The OSRB granted partial relief in that the OSRB directed HRC to make administrative corrections to his OER for the rating periods 20031201 through 20040622 (and another OER for the rating period 20040623 through 20050622). The OSRB determined promotion reconsideration was not warranted because of the administrative changes made to these two OERs.  The changes consisted of the following:

* delete the "X" in the "No" block from Part II(d) (the entry pertains to referral comments being attached or not attached)
* delete the "X" in the "Yes" block from Part VII(a) (the entry pertains to whether a support form was or was not received for evaluation and review))
* insert the entry "SM refused to sign: in Part VII(c) (the entry pertains to the applicant's signature block) 

20.  In the OSRB decision, the following is noted: 

	a.  The applicant states that AR 623-105, paragraph 6-8c provides that the OSRB will not usually take action that might worsen an appealed evaluation report.  The applicant states that the OSRB modified his subsequent OER by removing 5 months and showing instead a non-rated code of Q (lack of rater qualification) and a rating of only 7 months.  He claims this change placed him in a worse position and the change was made as punishment for appealing his OER.  

	b.  The applicant states that the OSRB did not consider that he had transferred back to his original TPU.  He states AR 623-105, paragraph 4-7e(5), states that the OER will include only periods of inactive duty training and active duty training with the unit of attachment.  A period of annual training with the unit of assignment will be covered in the report from that unit.  He states his unit of assignment was the 432nd Civil Affairs Battalion and it was that unit that provided that annual OER for June 2004 through June 2005.  

	c.  Applicant attached the corrected June 2005 OER at Exhibit 24.  The dates on the OER are 23 June 2004 through 22 June 2005. 

	d.  The OSRB found evidence that the subsequent OER (20040623-20050622) improperly covered both the end of the deployment period 
(June-November 2004) and the appellant's next assignment in reserve status not on active duty (December 2004-June 2005). The regulation requires the period for deployment to be covered by a separate rating from the reserve duty rating.  The OSRB opines that because of the significant time lapse since the additional deployed period, the preparation of a valid report for June-November 2004, will be impractical. Therefore, the only action is the administrative amendment to the subsequent OER to show a non-rated code of Q, and a rating period of 7 months.

	e.  In a separate, but related matter, the OSRB directed HRC to make the following administrative corrections to the appellant's subsequent OER for the period of 20040623-20050622.

* Delete in Part I.j. rated months of "12"
* Insert in Part I.j. rated months of "7"
* Insert in Part I.k. nonrated code of "Q"

	f.  The 2004 mobilization order is not in the file.  It is listed on the table of contents for the 2008 application, but it is not in that file either.  The 2004 
DD Form 214 indicates he was released from active duty on 26 November 2004.  AR 623-105, paragraph 6-6 a, states: An evaluation report accepted for inclusion in the official record of an officer is presumed to: (1) be administratively correct, (2) have been prepared by the proper rating officials, and (3) represent the considered opinion and objective judgment of rating officials at the time of preparation.

	g.  AR 623-105 states, “The board will not usually take action that might worsen an appealed evaluation report.”  The language of the paragraph does not prohibit modifying an OER that was not appealed to the detriment of an applicant.  Nor does it authorize modifying an un-appealed OER. The OER was clearly erroneous because it indicated he was part of the 432nd CA Battalion for the entire rating period, when in reality he was deployed with the 415th CA Battalion until 26 November 2004.  The OSRB did not cite the specific authority to change the OER.  

21.  Between October 2007 and April 2008, while still serving as an international law officer, he received two OERs (June 2007 through October 2007, October 2007 through April 2008) reflecting a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

22.  On 19 June 2008, HRC issued him a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  This letter notified him that he had completed the required years of qualifying Reserve service and would be eligible for retired pay on application at age 60.

23.  He entered active duty on 8 May 2008 and subsequently served in Iraq from 14 June 2008 to 25 April 2009.  He was honorably released from active duty on 11 June 2009.

24.  In November 2008 he received a "Complete the Record" OER covering the rating period 8 April 2008 through November 2008 for his duties as Brigade Judge Advocate with the 304th CA Brigade in Iraq.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

25.  In April 2009, he received a "Change of Rater" OER covering the rating period 22 November 2008 through 21 April 2009 for his duties as Brigade judge Advocate with the 304th CA Brigade in Iraq.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

26.  On 25 June 2009, in response to his October 2008 petition (ABCMR Docket Number AR20080016454) wherein he sought removal of contested OER (20031201 through 20040622), removal of the non-referral documents for the 2005 unit vacancy boards, removal of the non-select documentation for the 2007 and 2008 DA Mandatory promotion Board to MAJ, promotion consideration to MAJ with a DOR of 27 September 2005 (if promoted) by a unit vacancy board, and a letter of non-rated time for the period 20031201 through 20040622, the Board determined the evidence presented did not support the existence of an error or an injustice.  As a result, the Board denied his request. 

27.  On 9 July 2009, by memorandum, HRC notified him that he was considered for promotion to MAJ by the Army Reserve Components Mandatory Selection Board that convened on 10 March 2008 and adjourned on 14 March 2008 but he was not selected for promotion. 

28.  On 3 September 2009, in response to his June 2009 petition (ABCMR Docket Number AR20090010536) wherein he requested reconsideration of the ABCMR’s prior denial (ABCMR Docket Number AR2002066315) of his request to change his DOR (his case came before the ABCMR on remand from the United States Court of Claims), the Board granted relief (the previous denial was based on an obsolete regulation) by amending his effective date of promotion and DOR to CPT to 15 June 2000 and directing HRC to place his records before a special selection board (SSB). 

29.  In April 2010, he received an annual OER covering the rating period 22 April 2009 through 21 April 2010 for his duties as International Law Officer (back with the 432nd CA Battalion).  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

30.  On 26 August 2010, by memorandum, HRC notified him that an SSB was convened and examined the performance section of his OMPF.  He was considered under the Fiscal Year (FY) 2006 criteria but he was not selected for promotion.  His non-selection by the SSB constituted a failure of selection for promotion in accordance with Title 10, U.S. Code, section 14502. The specific reasons for his non-selection were not known because election boards do not record the reasons for non-selection.  In the absence of new evidence showing an error or injustice exists, further consideration by an SSB was not possible. 

31.  Also on 26 August 2010, in response to his July 2010 petition (ABCMR Docket Number AR20100018533) wherein he requested reconsideration of the ABCMR’s prior denial (Docket Number AR20080016454) of removal of the contested OER (20031201 through 20040622), removal of the non-referral documents for the 2005 unit vacancy boards, removal of the non-select documentation for the 2007 and 2008 DA Mandatory promotion Board to MAJ, promotion consideration to MAJ with a DOR of 27 September 2005 (if promoted) by a unit vacancy board, and a letter of non-rated time for the period 20031201 through 20040622, the Board again determined the evidence presented did not support the existence of an error or an injustice.  As a result, the Board denied his request. 

32.  In February 2011, through a court remand from the U.S. Court of Federal Claims, he and his counsel requested reconsideration of an earlier ABCMR request to:

* remove the OER for the period 20031201 through 20040622
* remove the non-referral documents pertaining to the 2005 and 2006 unit vacancy promotion boards
* remove the non-select documentation for the 2007 and 2008 DA Mandatory Promotion Board for MAJ
* promotion consideration with a DOR as if promoted by the 27 September 2005 USAR Unit Vacancy Board
* placement of a letter of nonrated time for the period covered by the OER listed above

33.  On 22 March 2011, the Board (ABCMR Docket Number AR20110001987) determined the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in ABCMR Docket Number AR20080016454, dated 25 June 2009.  As a result, the Board:

	a.  recommended his records be corrected by deleting the "NO" entry in Part IV(c) of the OER ending 22 June 2004 and replacing it with entry "YES" (in relation to meeting height/weight requirements).  The Board also recommended the following be added as the last sentence in Part Vb: "Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations."

	b.  recommended denial of so much of the application that pertained to removal of the contested OER from his official records and promotion reconsideration by a special selection board.

34.  In April 2011, he received an annual OER covering the rating period 22 April 2010 through 21 April 2011 for his duties as International Law Officer with the 432nd CA Battalion.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

41.  On 10 May 2011, in response to his petition to the Board (ABCMR Docket Number AR20110004092) requesting that the CI completed on 28 January 2007 pertaining to his OER ending in June 2004 be filed in his official records, the Board determined there was no error or injustice and denied him relief. 

42.  His record contains a DA Form 1059 (Service School Academic Evaluation Report) that shows he completed the Command and General Staff Officer Course from October 2009 to October 2011 and another DA Form 1059 that shows he completed the Intermediate Level Education Operations Course from 30 July 2012 to 21 June 2013. 

43.  In April 2012, he received an annual OER covering the rating period 22 April 2011 through 21 April 2012 for his duties as International Law Officer with the 432nd CA Battalion.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

44.  In November 2012, he received a change of rater OER covering the rating period 22 April 2012 through 22 November 2012 for his duties as International Law Officer with the 432nd CA Battalion.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

45.  in December 2012, he was granted an SSB for the FY2007 and FY2008 Army Reserve Active Guard Reserve and Army Reserve Non-Active Guard Reserve Judge Advocate General’s Corps Promotion Selection Boards due to the CI that reviewed his OER ending on 20040622 not being enclosed as part of his official military personnel file at the time of the original FY2007 and FY2008 boards that considered him for promotion to MAJ.  He was not recommended for promotion by either SSB.  The SSB actions were staffed and forward to the Principal Deputy Under Secretary of Defense (Personnel and Readiness) with a recommendation to approve the SSB that did not select him.  The staffing recommendation regarding approval or disapproval of the SSB that did not select him was as follows: 

* Office of The Judge Advocate reviewed for legal objection and found none
* Deputy Chief of Staff, G-1, recommended approval
* Assistant Secretary of the Army (Manpower and Reserve Affairs) recommended approval
* Vice Chief of Staff, Army, recommended approval
* Chief of Staff, Army, recommended approval
* Secretary of the Army recommended approval

46.  On 4 January 2013, the Principal Deputy Under Secretary of Defense (Personnel and Readiness) approved the SSB that did not select him for promotion, and on 16 January 2013, by letter, HRC notified him that he was considered for promotion to MAJ under the FY2007 and FY2008 Year criteria by a DA SSB due to omission of the CI in reference to the OER ending on 22 June 2004.  However, he was not selected for promotion to MAJ.  

47.  On 16 May 2013, by memorandum, HRC notified him that he was considered for promotion to MAJ under the FY2009 criteria by a DA SSB due to the omission of the CI related to his OER ending on 20040622.  However, he was not selected for promotion.  

48.  In November 2013, he received an annual OER covering the rating period 22 November 2012 through 22 November 2013 for his duties as International Law Officer with the 432nd CA Battalion.  This OER reflected a rating of "Outstanding Performance-Must Promote" by his rater and a rating of "Best Qualified/No Box Check (not required)" by his senior rater.

49.  On 25 June 2014, by letter, HRC notified him that a DA Reserve Components Promotion Selection Board convened to consider officers for promotion to MAJ.  He was not selected for promotion.  However, although he was not selected for promotion, the Selective Continuation (SELCON) Board selected and recommended him for continuation in his present grade and the Secretary of the Army approved this recommendation.  On the same date (25 June 2014), he accepted continuation of service on the Reserve Active Status List (RASL). 

50.  AR 623-3 (Evaluation Reporting System) establishes the policies and procedures for the OER system.  It provides that an OER accepted by Headquarters, DA, and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known at the time the OER was prepared.  It also provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Each report must stand alone (emphasis added).  The regulation also states: 

	a.  The burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent error or inaccuracy is warranted.

	b.  The primary purpose of the CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA.  To ensure the availability of pertinent data and timely completion of an inquiry done after the OER in question has been accepted at HQDA, the inquiry must be conducted by either the commander at the time the OER was rendered who is still in the command position or by a subsequent commander in the position.  The results of the CI that are forwarded to HQDA will include the findings, conclusions, and recommendations in a format that could be filed with the OER in the officer's OMPF for clarification purposes and will be limited to one page.

51.  AR 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) provides the policies and procedures for convening special selection boards.  It provides that SSBs are formed to prevent an injustice to officers or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined as one or more errors of such a nature that, in the judgment of the reviewing official or reviewing body, caused an individual's non-selection by a promotion board.  Had such errors been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  HQDA will normally not determine that a material error existed if the administrative error was immaterial; if the officer exercising reasonable diligence, could have discovered the error or omission; or if the officer could have taken timely corrective action by notifying officials at HQDA, of the error and providing any relevant documentation.

52.  AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.
The ABCMR considers individual applications that are properly brought before it. In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  Normally, 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, a Reserve JAG officer, entered active duty as a member of a Reserve unit on 1 December 2003 and subsequently served in Iraq from 2 February 2004 to 16 October 2004.  He was assigned to the 415th CA Battalion, as an International Law Officer.  His unit was task-organized under and assigned to the 1st Infantry Division.   

2.  During November 2004, he received the contested OER – a change of rater OER which covered 7 months of rated time from 1 December 2003 through 22 June 2004 for his duties as International Law Officer, 415th CA Battalion, Iraq. His rater was MAJ WBD, the Battalion Executive Officer and his senior rater was LTC GPF, the Battalion Commander.  The rater rated his performance as "Unsatisfactory Performance,” and entered his comments.  The senior rater rated his promotion potential as "Do Not Promote" and profiled him "BCOM." 

3.  He has appealed this OER multiple times through the OSRB and/or the ABCMR and requested its removal in entirety.  He was granted partial relief in relation to the referral block, weight information, and support form.  He believes the OER remains unjust and has filed a motion through the Court which remanded his case to this Board.  The Court directed the Board to consider his case, and without application of any presumption of regularity, reassess his claims, specifically addressing the following questions: 

	a.  Whether the applicant was shown the proposed evaluation on 1 July (all indications are that the rater's claim to have done this in person), given that the documentation indicates the applicant was no longer physically present in Tikrit. 

	b.  If the ABCMR on remand concludes that the applicant was not shown the proposed evaluation on 1 July, it must then assess whether a one day suspense date is reasonable.  In making this assessment, it must take into consideration that he was deployed in a war zone and heed the Board's conclusion that, in a war zone, "routine administrative functions, such as documenting counseling, became more difficult."  And, if it does thus conclude that he was not shown the proposed evaluation on or about 1 July, it must also assess the raters' credibility considering they made specific and unequivocal statements that the applicant was shown the evaluation then.

	c.  Whether there is any evidence concerning when the applicant's rating chain changed from MAJ AB to those who prepared the Iraq Deployment Evaluation, and whether those raters had been in place for the 90-day period that he claims is necessary.  This assessment must be made without any presumption and should address whether a change of rater evaluation had to be prepared as a result. 

	d.  The Board must also address his arguments concerning the subsequent OER that have never been thoroughly addressed.

4.  The ABCMR decides cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  As such, the ABCMR relied on the evidence of record and the evidence (argument and documents) provided by the applicant in reaching it previous decision.  This Record of Proceedings will attempt to address the four specific questions raised by the Court, and without application of any presumption of regularity.

5.  Regarding the issue of whether the applicant was shown the proposed evaluation on 1 July (all indications are that the raters claim to have done this in person), given that the documentation indicates the applicant was no longer physically present in Tikrit:  

	a.  In its analysis, the OSRB found clear evidence that the applicant was aware of the derogatory OER by the beginning of  July 2004.  The Senior Rater recalled it was in late June or early July.  The Senior Rater recalled that the applicant had in fact protested belligerently and refused to sign it when presented to him.  The Senior Rater recalled that the OER was presented to applicant in late June or early July 2004.  The command presented the OER to him again in August 2004, including the referral memorandum.  If the suspense was in fact short as he claims, it is unclear why he did not request an extension to prepare his comments.  

	b.  It is equally unclear why, on 28 August 2004, he immediately generated a request for a CI, albeit through the wrong chain of command and ironically rebutting the contested OER, instead of acknowledging receipt of the contested OER and indicating his desire to submit comments to bring up to the attention of his rating officials.  

	c.  It appears he never had any intention of acknowledging or rebutting this OER neither in July 2004 (without the referral memorandum) nor on 23 August 2004 (with the referral memorandum).  His failure to take action or even respond to the referred OER does not mean the OER was improperly referred.  

	d.  There is another suspense date that also requires explanation.  On 5 November 2005, by memorandum to HRC, the senior rater stated that the "applicant failed to respond to the referred report by the suspense date of 4 November 2004."  The senior rater stated that he never received the OER back from HRC to correct, but was told by HRC-STL to prepare a memorandum.  He did so at the request of HRC.  The record does not contain sufficient evidence to conclude that the “4 November 2004” suspense date was the product of an intentional misrepresentation or simply following instructions from HRC.  

6.  If the ABCMR on remand concludes that the applicant was not shown the proposed evaluation on 1 July, it must then assess whether one day suspense date is reasonable.  In making this assessment, it must take into consideration that he was deployed in a war zone and heed the Board's conclusion that, in a war zone, "routine administrative functions, such as documenting counseling, became more difficult."  And, if it does thus conclude that he was not shown the proposed evaluation on or about 1 July, it must also assess the raters' credibility considering they made specific and unequivocal statements that the applicant was shown the evaluation then.

	a.  Again, the OSRB found sufficient evidence to show the applicant did not act professionally and refused to sign or acknowledge the OER when it was initially presented to him in the late June or early July.  The OSRB also found evidence that the command again presented the OER to him in August including the proper referral memo, and that he again refused to sign the OER. 

	b.  The one-day suspense in August is reasonable because the applicant had been aware of this OER since at least 1 July 2004.  In effect, he was given from 1 July to 23 August 2004 to contemplate a response.  He appears to have been familiar with the referral and response to referral process, yet he took no action, made no acknowledgement, and did not submit an extension request.  

7.  The Court directed the Board address the issue of whether there is any evidence concerning when his rating chain changed from MAJ AB to those who prepared the Iraq Deployment Evaluation, and whether those raters had been in place for the 90-day period that he claims is necessary.  This assessment must be made without any presumption and should address whether a change of rater evaluation had to be prepared as a result. 

	a.  The applicant was assigned to the 415th CA Battalion which reported to the 1st Infantry Division.  His battalion did not have any authorizations for a JAG officer.  He performed duties as an International Law Officer, a staff officer within the battalion.  Like other staff officers at the battalion level, such as the S-1, S-2, S-3, and Chaplain, staff officers report directly to the Battalion Executive Officer who in turn reports to the Battalion Commander.  The rating scheme mirrors the chain of command despite the applicant's belief and insistence that he did not work for the Battalion Executive Officer or Battalion Commander. 

	b.  During its review, the OSRB contacted the rater who confirmed he and the senior rater were the correct rating chain as published on the rating scheme.  This is further confirmed by the former battalion S-1 who recalled the unit maintained a published electronic rating scheme showing the same rating officials as the report.  The battalion rating scheme is published and approved by the battalion commander.  It corresponds as nearly as practical to the chain of command and supervision within an organization.

	c.  The applicant, as a JAG officer, does not appear to have accepted the fact that he was being rated by non-JAG officer and has failed to provide a rating scheme that shows he should have been rated by any other rating officials.  But regardless of his dissatisfaction with his rating officials/supervisors, he failed to produce the necessary documentary evidence (such as a rating scheme) to support his claim that he should have been rated by other rating officials.  

	d.  The record indicates that MAJ AB was not his rater.  MAJ AB indicated that the command organization changed often. MAJ AB stated that he did not know what assignments applicant was receiving from LTC GPF.  MAJ AB stated he “maintained a working relationship” with applicant.  He stated that he did not know of the discussions and assignments between LTC GPF and applicant.   This is not a description of a relationship between a subordinate and supervisor (rater).   MAJ AB’s statements indicate that the applicant was not under his supervision or command. 

		(1)  The OER Support Form indicates that MAJ Bra---- is Rater and COL How-- (JAG) is Senior Rater.  The Form is apparently signed by applicant on 4 August 2004.  The support form is not complete.  AR 623-105 at paragraph    3-4c(3) states:  End of the rating period:  The rated officer completes support form, “SIGNIFICANT CONTRIBUTIONS,” Part IVc, and forwards to rater.  The rated officer should look back over the entire evaluation period to determine the most significant objectives and contributions in the preparation of the final Support form.  The rater uses the support form as input for the OER; writes comments to senior rater in Part Va and signs; and forwards support form and OER to intermediate rater or senior rater.  The intermediate rater also uses the support form as OER input and writes comments in Part Vb, signs, and forwards forms to senior rater.  The senior rater uses support form as OER input and returns support form to rated officer. 

		(2)  The comments in Part IV c are the applicant’s claimed accomplishments. His claims did not necessarily reflect the command’s perceptions.  Additionally, the public newsletter indicating that the conference was successful does not necessarily reflect the behind the scenes actions for which applicant were criticized.  

8.  The Board must also address his arguments concerning the subsequent OER that have never been thoroughly addressed.  

	a.  An OER is an assessment of an officer's performance and/or promotion potential during a specified period.  Rating officials’ evaluation of a rated officer is limited to the dates included in the rating period of an evaluation report.  Each OER is an individual stand-alone evaluation of the rated officer for a specific rating period.  An OER does not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time. 

	b.  The applicant's performance prior to or after the contested OER has no relationship to or impact on the contested OER.  His performance outside the contested period is not in question or being contested.  Performance evaluations are based on the date of the performance.  As discussed above, the record indicates the applicant did not execute his assigned duties adequately.  

9.  The applicant argues that the Iraq deployment evaluation should have been a Relief for Cause (RFC) OER.  AR 623-105 at paragraph 3-50 defines relief for cause as “as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in Part IV, DA Form 67-9.”  The OER in question indicates that he was removed completely from one task.  The 14 June 2004 reprimand indicated he was relieved of his ministerial duties.  It is possible that the applicant was relieved from enough duties to support a RFC OER.  

10.  AR 623-105 does not prohibit communications between the Senior Rater and Rater regarding a rated officer.  COL K and LTC GPF most likely discussed the applicant’s performance on his assigned missions.  The applicant’s missions were apparently of high interest and visibility, and thus so was his failure.  Army regulations do not prohibit senior officers from discussing missions and the performance of subordinate officers. 

11.  The OSRB indicated that the applicant’s actions created a conflict of interest. The evidence suggests that the applicant was assisting a Soldier in his efforts to leave Iraq and gain release from active duty.   The OER indicates that he was outside his assigned duties by providing assistance to Soldiers.  The principal duties on the OER do not list legal assistance; therefore it appears that he should not have been performing legal assistance.  The Army Rules of Professional Conduct for Lawyers states that a lawyer shall not represent a client if the representation of that client will be directly adverse to another client.  Also, a lawyer shall not represent a client if the representation of that client will be materially limited by the lawyer’s responsibilities to another client.  AR 27-3 (The Army Legal Assistance Program) allows non Trial Defense Attorneys to represent Soldiers in hardship discharge actions.1  However even if providing legal assistance was authorized, given the nature of applicant’s assigned duties, his ability to assist Soldiers may have been limited by his duties to the Army.  He had responsibilities to the command that required frequent travel in a war zone and he may not have been able to assist the Soldier as required.  

12.  After a comprehensive review of the applicant's records and the evidence he provides, the contested OER represented the considered opinion and objective judgment of his rating officials at the time the contested OER was prepared.  The Board's previous decisions to deny him relief (in terms of removing the contested OER) were neither capricious nor arbitrary as he believes.  

13.  However, the Court specifically required the ABCMR determine if the 90 day minimum time period was met.  As the Court pointed out, there is no evidence in the record to determine the specific date that MAJ D became the applicant’s rater.  Thus, the Board directs that the OER in question be removed from the record and applicant be provided appropriate relief.  
BOARD VOTE:

____x___  ____x___  ___x____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the contested OER for the rating period 1 December 2003 through 22 June 2004 from his OMPF; 

	b.  adding to his OMPF a statement of non-rated time or a statement explaining the gap in his officer evaluation reports for the period 1 December 2003 through 22 June 2004; 
	c.  after the removal and insertion, submitting his record to a duly-constituted SSB for promotion reconsideration to MAJ based on the appropriate criteria - 

		(1)  if he is selected for promotion, correcting his records to show he met all eligibility criteria for promotion effective the date of release of the applicable promotion selection board, promoting him to MAJ with the appropriate date of rank, and paying him any associated back pay and allowances as a result of the corrections; and

		(2)  If he is not selected by the duly-constituted SSB(s) he should be so notified.

	d.  If before the SSB process is completed he is removed from the ADL - 

		(1)  Correct his records by continuing the SSB process;

		(2)  If selected for promotion by the SSB, further correct his records by voiding his removal from the ADL showing he met all the eligibility criteria for promotion selection effective the approved date of promotion selection board, promoting him in due course in accordance with Army Regulation 600-8-29 to MAJ with the appropriate date of rank, and paying to him any associated back pay and allowances.



      __________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.

1 The regulation indicates that attorneys are authorized to provide legal assistance “unless inconsistent with superior orders or other duties or responsibilities.”  It is not clear that applicant was even authorized to provide legal assistance. 
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