IN THE CASE OF:	  

		BOARD DATE:	  30 July 2015

		DOCKET NUMBER:  AR20150005532 


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 reconsideration of his previous request to remove from his official military personnel file (OMPF) Officer Evaluation Reports (OERs) (hereafter referred to as the contested OER 1, 2, 3, and 4) for the periods listed below.  Additionally, he requests a personal appearance.

* OER 1, 25 November 1999 through 24 November 2000
* OER 2, 25 November 2000 through 24 November 2001
* OER 3, 25 November 2001 through 24 November 2002
* OER 4, 25 November 2002 through 24 November 2003

2.  He states his rater and senior rater failed to properly rate him while he served in dual supervised positions in the G-4 and G-3/5/7 from 25 November 2000 to 24 November 2003 in accordance with Army Regulation 623-105 (Officer Evaluation Reporting System).  Additionally, his significant duties and responsibilities are incorrect.  

   a.  In reference to his dual supervision, he maintains that the regulation requires a special evaluation with special rules.  However, none of the critical steps as required by the regulation were completed in his contested OERs thus constituting a material error.  His contested OERs were not correct at the time he was being considered by the board(s) that failed to recommend him for promotion.  As a result, he was never afforded a reasonable chance to be selected for promotion to colonel (COL), Senior Service College, career enhancing assignments, and/or battalion command.  
   
   b.  In reference to inaccurate duty description, he states he was executing Army policy when he was given the responsibility to recapitalize the Army Reserve aging fleet of M915 Trucks into M915A4 Glider configuration.  To accomplish the recapitalization policy objectives, he had to serve in dual supervised positions in G-4 and G-3/5/7.  Descriptions must be clear and concise and must emphasize specific functions required of the rated officer.  The rater should also note conditions peculiar to the assignment.

3.  He provides:

* Self-authored statement
* An article from the U.S. Army Human Resources Command (HRC) website
* Two supporting statements
* Acceptance letter, dated 18 May 1995
* Memorandum, subject:  Exception to Policy for Deferral of Mandatory Removal Date (MRD) for Officers Considered by the Fiscal Year 2015 (FY15) COL, . . .  Promotion Selection Board, dated 8 May 2015

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 AR20140021603 on 
3 February 2015.

2.  The applicant provides new arguments and documents pertaining to his case that require consideration by the Board.  

3.  After having prior enlisted service in the U.S. Marine Corps, the applicant was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 25 June 1987.  He entered active duty in the Active Guard Reserve (AGR) Program in 2006.  

4.  Contested OER 1, 25 November 1999 through 24 November 2000.

   a.  This is an annual 12-month OER while he served in the rank of captain (CPT), Logistics Staff Officer, Headquarters, U.S. Army Reserve Command (USARC), Fort McPherson, GA.  His date of rank was listed as 23 June 1994.  He was rated by the Chief, Maintenance Division, a GS-13, and senior rated by the Deputy Chief of Staff Logistics (DCSLOG), a COL.  The rater's signature is dated 20 December 2000 and senior rater's and applicant's signatures are dated 3 January 2001. 
   b.  Significant Duties and Responsibilities are listed as "Provides staff planning, direction and coordination of all matters pertaining to maintenance management of USAR materiel.  Responsible for developing maintenance management policies, plans, programs, procedures, and methods for the USAR Command.  Provides continuity of USAR logistics support through direct coordination with subordinate units, contractors, USARC DCSOPS [Deputy Chief of Staff for Operations], OCAR [Office of the Chief, Army Reserve], NGB [National Guard Bureau], FORSCOM [U.S. Army Forces Command], and Department of the Army Staffs.  Manages the Army Award for Maintenance Excellence and Phoenix Award Programs.  Manages the support and training plans for exercises involving MTOE [modified table of organization and equipment] maintenance units (AT [annual training]/ODT [overseas deployment training]/NTC [National Training Center]/JRTC [Joint Readiness Training Center]) and designated special projects.  As MTOE Branch Chief, manages all assigned personnel and USAR MTOE maintenance units (SRC [standard requirements code] 43)."
   
   c.  The applicant was rated as "Outstanding Performance Must Promote" by his rater and "Best Qualified" by his senior rater.  A review of Part VII (Senior Rater) is marked "Yes" which indicates a completed DA Form 67-9-1 (OER Support Form) was received with the report and considered in the evaluation and review.  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) his senior rater accessed him as "Above Center Mass."    

5.  Contested OER 2, 25 November 2000 through 24 November 2001.

   a.  This is an annual 12-month OER while he served in the rank of major (MAJ), Logistics Staff Officer, Headquarters, USARC, Fort McPherson, GA.  His date of rank was listed as 27 June 2001.  He was rated by the Chief, Maintenance Division, a GS-13, and senior rated by the DCSLOG, a COL.  The rater's signature is dated 24 January 2002 and senior rater's and applicant's signatures are dated 28 January 2002. 

   b.  Significant Duties and Responsibilities are listed as "Officer serving under dual supervision.  Provides staff planning, direction and coordination of all matters pertaining to maintenance management of USAR materiel.  Responsible for developing maintenance management policies, plans, programs, procedures, and methods for the USAR Command.  Provides continuity of USAR logistics support through direct coordination with subordinate units, contractors, USARC DCSOPS, OCAR, NGB, FORSCOM, and the Department of the Army Staffs.  Manages the Army Award for Maintenance Excellence and Phoenix Award Programs.  Manages the support and training plans for exercises involving MTOE maintenance units (AT/ODT/NTC/JRTC) and designated special projects. As MTOE Branch Chief, manages all assigned personnel and USAR MTOE maintenance units (SRC 43)."
   
   c.  The applicant was rated as "Outstanding Performance Must Promote" by his rater and "Best Qualified" by his senior rater.  A review of Part VII is marked "Yes" which indicates a completed DA Form 67-9-1 was received with the report and considered in the evaluation and review.  In Part VIIb his senior rater accessed him as "Center of Mass."    

6.  Contested OER 3, 25 November 2001 through 24 November 2002.

   a.  This is an annual 12-month OER while he served in the rank of MAJ, Logistics Staff Officer, Headquarters, USARC, Fort McPherson, GA.  His date of rank was listed as 27 June 2001.  He was rated by the Chief, Maintenance Division, a GS-13, and senior rated by the DCS, G-4, a COL.  The rater's, senior rater's, and applicant's signatures are dated 24 January 2003. 

   b.  Significant Duties and Responsibilities are listed as "Officer serving under dual supervision.  Provides staff planning, direction and coordination of all matters pertaining to maintenance management of USAR materiel.  Responsible for developing maintenance management policies, plans, programs, procedures, and methods for the USAR Command.  Provides continuity of USAR logistics support through direct coordination with subordinate units, contractors, USARC DCSOPS, OCAR, NGB, FORSCOM, and the Department of the Army Staffs. Manages the Army Award for Maintenance Excellence and Phoenix Award Programs.  Manages the support and training plans for exercises involving MTOE maintenance units (AT/ODT/NTC/JRTC) and designated special projects. As MTOE Branch Chief, manages all assigned personnel and USAR MTOE maintenance units (SRC 43)."
   
   c.  The applicant was rated as "Outstanding Performance Must Promote" by his rater and "Best Qualified" by his senior rater.  A review of Part VII is marked "Yes" which indicates a completed DA Form 67-9-1 was received with the report and considered in the evaluation and review.  In Part VIIb his senior rater accessed him as "Center of Mass." 

7.  Contested OER 4, 25 November 2002 through 24 November 2003.

   a.  This is an annual 12-month OER while he served in the rank of MAJ, Logistics Staff Officer, Headquarters, USARC, Fort McPherson, GA.  His date of rank was listed as 27 June 2001.  He was rated by the Chief, Maintenance Division, a GS-13, and senior rated by the DCS, G-4, a COL.  The rater's, senior rater's, and applicant's signatures are dated 1 December 2003. 
   b.  Significant Duties and Responsibilities are listed as "Officer serving under dual supervision.  Provides staff planning, direction and coordination of all matters pertaining to maintenance management of USAR materiel.  Responsible for developing maintenance management policies, plans, programs, procedures, and methods for the USARC.  Provides continuity in Army Reserve logistics support through direct coordination with Department of the Army, OCAR, NGB, FORSCOM, USARC DCS G3 and G7, contractors and subordinates Army Reserve units.  Manages the Army Award for Maintenance Excellence and Phoenix Award Programs.  and Department of the Army Staffs. Manages the Army Award for Maintenance Excellence and Phoenix Award Programs.  Manages the support and training plans for exercises involving MTOE maintenance units (AT/ODT/NTC/JRTC) and designated special projects.  As MTOE Branch Chief, manages all assigned personnel and USAR MTOE maintenance units (SRC 43)."
   
   c.  The applicant was rated as "Outstanding Performance Must Promote" by his rater and "Best Qualified" by his senior rater.  A review of Part VII is marked "Yes" which indicates a completed DA Form 67-9-1 was received with the report and considered in the evaluation and review.  In Part VIIb his senior rater accessed him as "Center of Mass." 

8.  The applicant was promoted to lieutenant colonel (LTC) on 21 December 2007.

9.  On, 24 December 2014, he appealed to the ABCMR for reconsideration of his prior request for promotion to the rank of COL effective 21 December 2012 with pay and allowances or reconsideration of his case by an SSB and correction of the last three of the four contested OER's (OERs 2, 3, and 4) to reflect he served under dual supervision and/or removal of those OERs.  On 3 February 2015, the board recommended correction of the contested OERs 2, 3, and 4 by adding the statement "Officer serving under dual supervision" in the first line of the duty description.  However the Board denied his request for amendment of the duty description, promotion to COL and/or SSB, and removal of the contested OERs.

10.  The applicant provides:

   a.  An acceptance letter, dated 18 May 1995, that shows he was accepted into the Army Acquisition Workforce as a USAR officer.

   b.  A supporting statement from his previous rater on all four of the contested OERs.  The former rater stated that due to the Operation Platinum Wrench (OPW) uniqueness, the applicant's duty description should have been reflected as an acquisition officer and product manager.  The fact that this is not reflected in his OERs is in error.  He adds the OPW was the only program available to the Army Reserve (AR) that allowed recapitalization of AR equipment using AR personnel, equipment and facilities.  He continues by expounding on the applicant's contributions as the OPW Product Manager.  He concludes by stating he fully recommends the applicant's file be corrected and he be afforded retroactive correction to his records as an acquisition officer and product manager.
   
   c.  A supporting statement from a co-worker, a retired chief warrant officer five, who states that he observed the applicant from 25 December 1999 through 
24 November 2003 as he assumed command and control as a logistics officer and product manager for the USARCs Recapitalization Program known as OPW.  He maintains he and the applicant personally planned and implemented training at each OPW annual training site.  They also visited each site during peak work periods to ensure production goals and objectives were met.  He offers that the applicant utilized the Unit Training System database to optimize the scheduling of Mission Essential Task Lists which provided training opportunities for USAR units.
   
   d.  A memorandum from the Assistant Secretary of the Army (Manpower and Reserve Affairs), dated 8 May 2015.  She determined that because of new enhanced board screening procedures and the subsequent delay in processing boards' reports, it was in the best interest of the Army to defer the MRD of officers considered by, in pertinent part, the Fiscal Year 2015 COL AGR PSB.  Therefore, the applicant was retained beyond his MRD until the day of the month in which the board results were released or 1 December 2015, whichever was later.
   
   e.  An article from the HRC Website titled "Army Officer Special Selection Boards (SSBs) for Promotion Reconsideration."  This article states, in pertinent part, that promotion reconsideration is approved for nonselected officers whose records contained a material error when they were considered by the promotion board.  

11.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Army's Evaluation Reporting System.  Change 1, effective 1 June 1998, implemented the use of the DA Form 67-9-1 for USAR officers on 1 October 1997.
   
   a.  Part III provides for the duty description of the rated officer.  It is the responsibility of the rating officials to ensure duty description information is factually correct.  It is entered in Part III by the rater and is based on the rated officer's entries on DA Form 67-9-1.  The principal duty title and area of concentration to identify the rated officer's position will be entered in Parts IIIa and b.  This information will directly reflect the duty title found on the DA Form 4037 (Officer Record Brief).

	b.  In Part IIIc, the significant duties and responsibilities will be a succinct narrative, written in prose format.  The rater will describe in detail the rated officer's duties and responsibilities.  The narrative should be reflective of the duty description on the officer's OER support form.

   c.  Paragraph 2-8 and 2-9 state that the rated individual has considerable responsibility in the evaluation process and will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments and a final evaluation and should discuss the duty description and performance objectives with the rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  It notes that rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

	d.  Paragraph 2-22 states an officer is considered to be serving under dual supervision when he or she is supervised by and assigned different duties by two separate chains of command or supervision throughout the entire rating period.  

        (1)  Both supervising chains of command can be accomplished by dividing the rating chain positions between the two supervisory chains of command.  

	     (2)  The preferred method is to divide the rating chain positions between the two supervisory chains of command.  For example, the rater might be selected from the nonparent unit and the senior rater from the parent unit.  As another alternative, the rater and the senior rater might be selected from the parent unit and the intermediate rater selected from the nonparent unit.

		(3)  When an officer is serving under dual supervision, the statement "Officer serving under dual supervision" will be entered as the first line of the duty description.

	e.  Paragraph 3-17 states the rated officer's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the Army Physical Fitness Test and height and weight data in Part IVc, and that the rated officer has seen the completed OER, Parts I - VII.  This action increases administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data which by the exercise of due diligence by the rated officer would have been corrected.

   f.  Paragraph 6-6 states that evaluation reports accepted for inclusion in the official record of an officer 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.  
   
   g.  Paragraph 6-10 states 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 applicant.

   h.  Appendix F-2 states that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an applicant's nonselection or other unfavorable personnel action claimed to be the sole result of the contested report.  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.  
   
   i.  Appendix F-2 also states that third party statements should be from persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period, who refute faulting remarks on the evaluation report and who served in positions from which they could observe the appellant's performance and their interactions with rating officials are both useful and supportive.  These statements should be specific and not deal in general discussions of the appellant.  

12.  Army Regulation 600-8-29 (Officer Promotions) provides the Army's policies and procedures on officer promotions.  Chapter 7 provides guidance on SSBs.  It states SSBs may be convened (discretionary) to consider or reconsider commissioned officers for promotion when Department of the Army discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information.  Reconsideration will normally not be granted when an administrative error was immaterial (minor) or when the officer, by exercising reasonable care, could have detected and corrected the error.

13.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes the policies and procedures for the promotion of Reserve officers.  

   a.  Paragraph 3-21a states that officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration.  
   
   b.  Paragraph 3-21c states reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.
   
   c.  A material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's non-selection by a promotion selection 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.

14.  Army Regulation 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 will decide cases on the evidence of record.  It is not an investigative body.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.  Additionally, applicants may be represented by counsel at their own expense. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains that his rater and senior raters failed to show he served in dual supervised positions and the four contested OERs reflect an inaccurate duty description.  He requests the contested reports be removed and he, in effect, be entitled to an SSB for promotion to COL due to material error. 

2.  In accordance with Army Regulation 623-105, an officer is considered to be serving under dual supervision when he or she is supervised by and assigned different duties by two separate chains of command or supervision throughout the entire rating period.  When an officer is serving under dual supervision, the statement "Officer serving under dual supervision" will be entered as the first line of the duty description.  It also states that the preferred method to capture the dual supervision is to divide the rating chain positions between the two supervisory chains of command.  

3.  He provided a statement from his former rater who maintains that based on the uniqueness of OPW, the applicant's duty description should have been reflected as an acquisition officer and product manager.  However, the rater provides no information concerning the absence of this information or whether or not this information was provided and/or discussed prior to the issuance of contested OER 1 and subsequent to the issuance of contested OERs 2, 3, and 4. One cannot argue 11 years later that one was not "properly" evaluated when he took no active role in ensuring that his OERs were accurate.  As such, this statement and the statement provided by a co-worker do not substantiate any evidence sufficiently compelling to overcome the presumption of regularity.

4.  The evidence of record shows the applicant had received four OERs in four years in the same unit, with the same rater, the same principal duty title, and basically the same significant duties and responsibilities.  The only difference in the contested OERs is he was rated first as a CPT and later as a MAJ.  There is no evidence and he did not provide any to show that he disagreed with the administrative data on the contested OERs.  In fact, his signature indicates that all administrative information was correct.  Further, the fact that Part VII of the OERs show a completed DA Form 67-9-1 was received with the report and considered in the evaluation and review is an indication that he had input in the evaluation and agreed with the assignment and duty description as written.  

5.  Although the applicant maintains he was not selected for promotion to COL due to the missing information concerning his dual supervision and an inaccurate duty description, the evidence of record shows otherwise.  The evidence shows he was promoted from CPT through LTC with the same contested OERs in his OMPF.  Therefore, it appears his claim that the omission of this information prejudiced his opportunity for promotion is not supported by the available evidence.

6.  Reconsideration by an SSB is not authorized when an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in a timely manner.  

7.  There is no evidence available and the applicant has not provided sufficient evidence to show the ratings and comments listed on the contested reports are inaccurate, unjust, and/or are not consistent with his demonstrated performance of duty during the rating period.  Therefore, in the absence of more compelling evidence, there is no basis for removing the contested reports and/or referral to an SSB.

8.  Additionally, his request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.  

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 AR20140021603, dated 3 February 2015.



      _______ _   _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)                                         AR20150005532





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ABCMR Record of Proceedings (cont)                                         AR20150005532



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