IN THE CASE OF:	

		BOARD DATE:	 15 October 2015 

		DOCKET NUMBER:  AR20150005832 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of an officer evaluation report (OER) covering the period 14 January 2011 through 13 January 2012 from his official military personnel file (OMPF). 

2.  The applicant states the basis for his appeal is substantive inaccuracy as he disagrees with the ratings in Parts IVb. 1-3 Emotional, b.2-2 Interpersonal, 
b 3-2 Decision Making, and b. 3-c APFT.  He further states that there is no documentation or individual counseling documented to substantiate negative remarks for this time period.  No APFT was taken or given during the rating period or date annotated on the OER.  He goes on to state that he disagrees with Part II-d, Part V, and Part VII.  He also states the entire OER was changed after resubmitting it to his rating chain for corrections.

3.  The applicant provides a list of supporting documents submitted with his application on page 5 of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was commissioned as a finance corps second lieutenant in the Texas Army National Guard (TXARNG) on 29 August 2009.  He completed the Basic Officer Leader Course and was assigned to a financial management company. 

3.  The applicant was promoted to the rank of first lieutenant (1LT) on 1 March 2011.

4.  The contested OER ending on 13 January 2012 was signed by his rating officials on 11 February 2011.  It was originally emailed to the applicant with instructions on 11 February 2011 by his rater/company commander and the applicant responded with an email explaining that the OER was on the wrong form, that there were no supporting comments to support the “NO” ratings, that his OER stated that he was committed to physical fitness highlighted by his ability to pass and coach others which contradict each other.  Part IV is marked N/A but its mandatory for 1LT’s and the OER was required to be referred to him by certified mail.  He also stated that he desired to meet with his rater.  

5.  The OER ending on 13 January 2012 shows he failed the Army Physical Fitness Test (APFT) on 19 November 2011.

6.  A second report was prepared and signed by his rating officials on 21 March 2012 which indicated in Part IId that it was a referred report.

7.  In Part IVb, under Leader Attributes/Skills/Actions, the applicant received “NO” ratings under “Mental, Physical, and Emotional.”

8.  In Part IVc, under APFT the report also indicates he failed the test on 19 November 2011.

9.  In Part Va, under Performance and Potential Evaluation, his rater gave him an “Unsatisfactory Performance - Do Not Promote” rating.  His rater addressed the ratings given in part IVb and stated that she was concerned with the applicant’s display of overall lack of desire to attend drill, inability to perform basic officer tasks, report properly, show respect to his leadership, and maintain his bearing around Soldiers would detrimentally affect unit morale.  She also stated that he needed to show significant improvement in his leadership attributes and physical fitness.
10.  In Part VII, his senior rater/battalion commander gave him a “Do Not Promote” rating under potential, placed him below center of mass on his senior rater (SR) profile and stated that the applicant’s performance was marginal at best and that his behavior was disruptive and very erratic.

11.  The applicant’s rater emailed the applicant advising him that it was a referred report and advised him of the procedures to submit comments.

12.  On 28 September 2014, the applicant was honorably discharged from the TXARNG due to resignation and was transferred to the U.S. Army Reserve (USAR) Control Group (Individual Ready Reserve).  Orders were published by the U.S. Army Human Resource Command (HRC) promoting the applicant to the rank of captain on 29 May 2015.

13.  The applicant submitted an appeal of the contested OER to the HRC dated
4 January 2015 and his appeal was returned without action because it was not received within 3 years of the ending date of the report.  He was advised to apply to this Board.

14.  The applicant provides a copy of his DA Form 705 (APFT Scorecard) showing that he took a diagnostic APFT on 21 January 2012 and failed and he took a Record APFT on 19 August 2012, which he passed. 

15.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, 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.  Each report must stand alone.  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.

16.  Army Regulation 623-3 also provides that 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 material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

17.  Army Regulation 623-3 further provides that if referral of a report is required, the senior rater will provide the report to the rated individual for comments.  The rated Soldier may comment if he or she believes the ratings or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the contested report.  The rated Soldier's comments do not constitute an appeal or a request for a commander's inquiry.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested report should be removed from his OMPF has been noted and appears to lack merit.

2.  While the applicant may not agree with the ratings he received, the applicant has provided insufficient evidence to show the contested OER does not properly reflect his performance and potential or that it was not prepared by the properly-designated rating officials for the period in question.

3.  The applicant provided a copy of his APFT scorecard showing that he took two APFTs subsequent to the rating period; however, he has not provided evidence to show that he took and passed an APFT during the rated period.  Additionally, the evidence of record shows he was due an APFT during the rated period.

4.  The contested report was referred to the applicant by his rater/commander through email instead of Certified Mail; however, it is apparent that he received it because he provided email associated with the referral.  Accordingly, the applicant was not denied his due process rights as the referral by email did not serve to disadvantage him and certainly is not a basis to remove an otherwise valid report from his records.

5.  Therefore, inasmuch as he has failed to show sufficient evidence of any error or injustice associated with the contested OER, there appears to be no basis for granting his request.

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 for correction of the records of the individual concerned.



      _______ _   __X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20150005832



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ABCMR Record of Proceedings (cont)                                         AR20150005832



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