IN THE CASE OF:	  

		BOARD DATE:	  7 April 2015

		DOCKET NUMBER:  AR20150004043 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 1 May 2011 through 27 December 2011 be removed from his official military personnel file (OMPF).

2.  The applicant states:

* the contested OER was not written in accordance with the prescribed rating scheme
* the rating scheme stated that he, a company commander, would be rated by the battalion commander and senior rated by the Division Deputy Commanding General (Maneuver)
* the OER was written after he was severely wounded and medically evacuated from theater 
* in the contested OER, he was rated by the battalion executive officer and senior rated by the battalion commander
* the battalion commander had an immature senior rater profile and he (the applicant) was the first captain (CPT) rated by the battalion commander
* because of the severity of his wounds, he was not able to review or sign the OER; his primary focus in the past few years had been on his recovery

3.  The applicant provides the contested OER and an officer record brief (ORB).




CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 25 February 2004.  He completed the Signal Officer Basic Course. 

2.  He entered active duty on 2 October 2005 and subsequently served in Iraq from 28 November 2005 to 12 August 2007.  He was honorably released from active duty on 14 September 2007.  

3.  On 31 October 2007, he executed an oath of office as a Regular Army Military Police (MP) commissioned officer.  His grade was determined to be a first lieutenant with a date of rank as 30 December 2005.

4.  He was advanced to CPT on 29 January 2009.  He also completed the MP Captains Career Course from 4 January 2009 to 3 June 2009.  He served in Iraq from on or about 17 August 2009 to 5 May 2010.  Following his return, he was assigned to Headquarters and Headquarters Detachment (HHD), 720th MP Battalion, Fort Hood, TX.   

5.  During April 2011, he received an annual OER which covered 12 months of rated time from 1 May 2010 through 30 April 2011 for his duties as Assistant Battalion S3.  His rater was (then) Major (MAJ) MSA, the Battalion Executive Officer; and his senior rater was Lieutenant Colonel (LTC) EDB, the Battalion Commander. 

6.  He deployed with his battalion, the 720th MP Battalion, to Afghanistan on or about 7 December 2011.  The 720th MP Battalion was assigned or attached to the Combined Joint Task Force One (CJTF-1), with Brigadier General (BG) JWC as the Deputy Commanding General-Afghan National Security Forces (DCG-ANSF), and Major General (MG) WCM, as the Commanding General, CJTF-1, Regional Command (RC)-East.  

7.  On 27 December 2011, the applicant was wounded in action and he was later awarded the Purple Heart.   He was medically evacuated from theater to Fort Sam Houston, TX, on or about 11 January 2012 and later to the Warrior Transition Battalion, Bethesda, MD, on or about 12 February 2012. 

8.  His rating officials rendered a change of rater OER, the contested OER, which covered 8 months of rated time from 1 May 2011 through 27 December 2011 for his duties as Company Commander, HHD, 720th MP Battalion, deployed in support of Operation Enduring Freedom, Afghanistan, and comprised of 71 U.S. Soldiers and 76 Afghan Uniformed Police.  His rater was MAJ MSA, the Battalion Executive Officer; and his senior rater was LTC EDB, the Battalion Commander.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in all the "Yes" block for all 7 values.

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for the appropriate attributes, skills, and actions. 

	c.  In Part IVc (Army Physical Fitness Test, Date, Height, and Weight), the rater left these entries blank. 

	d.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Outstanding Performance-Must Promote" block and entered appropriate comments in Part Vb, as follows:

[Applicant] put forth a stellar effort as the 720th Military Police Battalion Headquarters and Headquarters Detachment Commander.  [Applicant] is in the top 25% of all company commanders I have served with in 15 years in the Army.  [Applicant] expertly executed an aggressive Family Readiness Group program that was second to none and led to increased family participation at unit events.  [Applicant] developed, coordinated, and executed a solid road to war plan that included a week long CTE and Convoy Live Fire Exercise.  [Applicant] continued his strong performance once deployed, mentoring the Afghanistan Uniform Police 505th Zone Headquarters Security Company Commander.  [Applicant]'s efforts directly resulted in an increased force protection posture and improved coordination between U.S. and Afghanistan forces.  Finally, [Applicant] coordinated and received thousands of dollars worth of Morale, Welfare, and Recreation (MWR) equipment for use on COP Justice which increased morale throughout the unit.  The rated officer has initiated an Army Multi-Source assessment and Feedback/360 as required by Army Regulation 350-1 (Army Training and Leader Development). 

	e.  In Part Vc (Comments on Potential for Promotion) the rater stated "promote at first opportunity and send to Intermediate Level Education (ILE); following successful completion of ILE, place as a brigade staff officer in order to groom him for future assignments.  

	f.  In Part VII (Senior Rater), the Senior Rater placed an "X" in the "Best Qualified," rated his potential compared with officers senior rated in same grade as "Center of Mass" and indicated he senior rated 7 officers in that grade at the time.  He then entered the following comments: 

Very good job by a hard working and dedicated commander.  [Applicant] is clearly in top 25% of our Army and he did very well in this assignment.  Unfortunately, [Applicant] was injured by an improvised explosive device (IED) strike while serving in Afghanistan and was unable to complete his command tour.  Due to his injuries, [Applicant] is unavailable for signature.  Upon recovery, [Applicant] should be promoted with peers and slated for ILE.  Continue to develop professionally, and when ready, assign to a Criminal Investigation Division Battalion S-3 position. 

9.  The contested OER was signed by his rater on 15 February 2012 and by the senior rater on 16 December 2012.  His signature block is blank.  

10.  The case analyst of record attempted to obtain the unit rating scheme during the period in question; however, it could not be found.  Additionally, according to Army personnel records, during the period in question, the applicant's rating officials were rated as follows: 

* MAJ MSA, 201105 through 201205; rater: LTC EDB, Battalion Commander; and senior rater: BG JWC, DCG-ANSF
* LTC EDB, 201111 through 201211; rater BG JWC, DCG-ANSF; and senior rater CG, CJTF-1, RC-East  

11.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) 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, 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 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.

12.  Paragraph 1-4 states OERs are prepared by the rating officials designated in the published rating scheme.  Rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner.  Pooling, or elevating the rating chain beyond the senior rater’s ability to have adequate knowledge of each Soldier’s performance and potential, in order to provide an elevated assessment protection for a specific group, runs counter to the intent of the ERS.  Rating schemes based on pooling erode Soldiers’ confidence in the fairness and equity of the ERS and in their leaders.  Senior raters must evaluate and identify their best Soldiers based on performance and potential, regardless of the particular position they occupy.  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.

13.  Army Regulation 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.  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.  Appendix B states the DA Form 67-9 is filed in the performance section of the OMPF.

14.  Military Personnel (MILPER) Messages (numbered below) announced the zone of consideration date of rank (DOR) (Above the Zone (AZ), Promotion Zone (PZ) and Below the Zone (BZ)) for Fiscal Year (FY) (corresponding year) Army Maneuver, Fires & Effects (MFE), Operations Support (OS) and Force Sustainment (FS) Zones of Consideration: 

	a.  MILPER Message 12-217, dated 13 June 2012, FY13 selection board, convened on or about 15 October 2012.  MFE/OS/FS zones of consideration are: AZ DOR 18 January 2007 and earlier; PZ DOR 19 January 2007 through 30 January 2008; and BZ DOR 31 January 2008 through 29 January 2009. 

	b.  MILPER Message 13-166, dated 10 July 2013, FY14 selection board, convened on or about 21 October 2013.  MFE/OS/FS zones of consideration are: AZ DOR 30 January 2008 and earlier; PZ DOR 31 January 2008 through 29 January 2009; and BZ DOR 30 January 2009 through 31 January 2010

	c.  MILPER Message 14-352, dated 10 December 2014, FY15 selection board, will convene on or about 30 March 2015.  MFE/OS/FS zones of consideration are: AZ DOR 29 January 2009 and earlier; PZ DOR 30 January 2009 through 31 January 2010; and BZ DOR 1 February 2010 through 8 March 2011. 

15.  Army Regulation 600-8-29 (Officer Promotions) provides for the promotion of commissioned officers.  It states a special selection board (SSB) may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:

	a.  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error (SSB required); 

	b.  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or

	c.  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a change of rater OER that covered 8 months of rated time from 1 May 2011 to 27 December 2011 for his duties as HHD Company Commander.  Part of this rating period fell during the unit's deployment to Afghanistan on 7 December 2011.  Unfortunately, the applicant was wounded on 27 December 2011 and was evacuated to continental United States. 

2.  The contested OER is a positive OER with laudatory comments.  There is nothing negative in this OER and as such, appealing it is a moot point.  However, the applicant claims the wrong rating officials rated him.  Unfortunately, he does not provide the appropriate rating scheme to support his contention.  While in most cases commanders rate commanders, for example a battalion commander rates a company commander and a brigade commander rates a battalion commander, a rating scheme for the applicant is not available to confirm this. 

3.  The applicant's battalion deployed to Afghanistan on 7 December 2011 and was attached or assigned to the CJTF-RC-E.  In other words, if the applicant's contention regarding the rating scheme was true, his rater would have been LTC EDB, the battalion commander, and his senior rater would have been BG JWC, DCG-ANSF; not the Division Deputy Commanding General (Maneuver) as he contends.  

4.  Additionally, even if BG JWC, DCG-ANSF was in fact the senior rater, this would have been effective 7 December 2011, the date the battalion deployed.  Because the applicant was wounded on 11 December 2011 and his OER through date was 27 December 2011, his senior rater would not have met the minimum qualifications to senior rater him.  In other words, the applicant would not have received a senior rater block. 

5.  Given the fact that this was a combat command OER, the potential lack of a senior rater qualification (and thus profile) and the applicant's injuries, it appears his chain of command did not want to penalize him by rendering an OER that did not contain a senior rater block.  This may explain the change in the rating officials.  While the chain of command's intent is clearly sincere, the applicant does not agree with this intent and he requests the contested OER be removed from his records. 

6.  Although this would deprive him from the only "command" OER in his records and although granting him relief by removing the contested OER would require a statement of non-rating for the contested period, the Board is compelled to accept the applicant's contention and remove the contested OER from his records. 

7.  Furthermore, the removal of the contested OER is considered a material error.  As such, this would entitle the applicant to an SSB for the FY14 and the FY15 promotion boards. 

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 May 2011 through 27 December 2011 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 May 2011 through 27 December 2011; 

	c.  after the removal and insertion, submitting his record to a duly-constituted SSB for promotion reconsideration to MAJ based on the FY14 and FY15 year criteria - 

		(1)  if he is selected for promotion, correcting his records to show he met all the 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 and 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.



ABCMR Record of Proceedings (cont)                                         AR20150004043





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ABCMR Record of Proceedings (cont)                                         AR20150004043



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