IN THE CASE OF:  	  

		BOARD DATE:  20 October 2015	  

		DOCKET NUMBER:  AR20150012833 


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 correction of Part VIIa (Senior Rater (SR) Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) of his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 November 2011 through 7 February 2012 (henceforth referred to as the subject OER) to show the SR marked the "Best Qualified" box rather than the "Fully Qualified" box.

2.  The applicant states that due to distance and complacency, he received an erroneously composed left-unjustified OER.  He signed the subject OER while on temporary duty (TDY) at Fort Leonard Wood, MO; meanwhile his rater and SR were at home station in Fort Carson, CO.  The subject OER was rushed to meet deadlines established by the Fiscal Year 2012 (FY12) competitive captain's promotion board.  Had proper administrative and counseling procedures been followed this error would not happened.  During the rated period of 1 November 2011 through 7 February 2012, he was also on holiday block leave from 14 December 2011 to 2 January 2012 and TDY to Fort Leonard Wood on 18 January 2012.  Within the 6 weeks he reported to duty, he received no negative written or verbal counseling and did not do anything to warrant receiving such a rating.

3.  He further states that the subject OER was sent to his civilian email account by the unit personnel officer (S1), First Lieutenant (1LT) D.  The applicant signed the subject OER on 20 March 2012 and returned it for processing.  Upon discovering the error in 2014, he was able to ascertain from his SR, Lieutenant Colonel (LTC) L, the left unjustified subject OER was the result of an administrative error.  LTC L contacted U.S. Army Human Resources Command (HRC) Evaluations Systems Branch (ESB) to correct the issue however, a commander's inquiry could not be conducted because all key personnel had been reassigned from the unit.  Currently, the applicant has copies of the correspondence with HRC proving an attempt was made to rectify the situation.  He also has memorandums for record from the company executive officer through the brigade commander verifying the rating was erroneous.

4.  The applicant opines that the Board should find it in the interest of justice to consider this application because there is prudent evidence refuting the erroneous administrative evaluation.  The SR himself, LTC L, has identified this as a clerical error, his evaluation of the applicant's future potential was not fully qualified, but best qualified.  In the next OER he received, LTC L checked the appropriate block in Part VIIa.  Furthermore the subject OER is the only evaluation the applicant has received that was labeled with "Fully Qualified" vice "Best Qualified."  He has memoranda for record indicating his potential in the Army is outstanding.  The applicant feels it would be a great injustice to the Army if he was viewed in a negative light due to a clerical error, the effects could be damning to his military career.

5.  The applicant provides:

* DA Form 67-9
* Email correspondence
* 4 memoranda

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.  Following a period of enlisted service in the Regular Army (RA) the applicant enlisted in the U.S. Army Reserve as a cadet while enrolled in the Reserve Officers' Training Corps (ROTC) while attending college.  He was appointed as a Reserve Commissioned Officer of the United States in the rank/pay grade of second lieutenant on 7 May 2009.  He was subsequently promoted to 1LT on 6 January 2011 and to captain (CPT) on 1 February 2013.  The applicant is serving on active duty in the Regular Army in the rank of CPT.

3.  His OERs for the periods ending 9 December 2010 and 31 October 2011 show two different SRs evaluated as promotion potential to the next higher grade as "Best Qualified."

4.  The applicant provides email correspondence exchanged between his SR, Rater, S1, and himself from 5 to 16 March 2012.  These emails show the addressees discussed the progress of the completion and submission of the subject OER.  The only issue raised about the draft copy of the OER was the applicant's concern that his duty description should also mention the fact that he was serving as a platoon leader 

5.  The subject OER is an HRC Directed OER which indicates the applicant was rated as a Chemical Reconnaissance Platoon Leader in Headquarters and Headquarters Company, 1st Stryker Battalion, 1st Brigade Combat Team, 4th Infantry Division, located at Fort Carson, CO.  This OER shows:

	a.  his rater was CPT P, Company Commander, who digitally signed the OER on 12 March 2012;

	b.  his SR is listed as LTC L, Battalion Commander, who digitally signed the OER on 12 March 2012;
   
	c.  the applicant digitally signed the OER on 18 March 2012;

	d.  the rater placed an "X" in all the "Yes" boxes in Part IV (Performance Evaluation - Professionalism (Rater));

	e.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Outstanding Performance, Must Promote" box; 

	f.  in Part Vb (Performance Narrative), the rater entered positive comments;

	g.  in Part Vc (Potential for Promotion Narrative), the rater stated, "Promote [the applicant] immediately, send to the Captain's Career Course and assign to a Company Command upon graduation.  He will serve well in duty positions at a higher rank and has the capacity to take on jobs of higher responsibility.";

	h.  in Part VIIa, the SR rated the applicant's promotion potential to the next higher grade as "Fully Qualified";

	i.  in Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the SR rated the applicant as "Center of Mass" of the 27 officers in the same grade for whom he served as the SR; 

	j.  in Part VIIc (Comment on Performance/Potential), the SR stated, "[The applicant] is an outstanding officer and has excelled as the Chemical Reconnaissance Platoon Leader in one of the most demanded platoons in the Brigade.  His ability to handle multiple projects and solve complex problems, while providing sound advice to the battalion and brigade, sets him apart from his peers.  Kyle clearly has the potential to operate at the next higher grade in the most challenging positions; he will excel as a Company Commander.  Promote [the applicant] to Captain and send to the Captain's Career Course at first available course date."

	k.  in Part VIId, the SR indicated the three future assignments for which the applicant was best suited as:  Company Executive Officer, Assistant Operations Officer, and Brigade Chemical Officer.

6.  The applicant had the same rater and SR for his next OER and the SR, LTC L, evaluated his potential for promotion as "Best Qualified."  Additionally, his next three OERs each show he was evaluated as "Best Qualified" by a different SR.  

7.  The applicant provides:

	a.  email correspondence exchanged between LTC L and a representative of the HRC ESB from 25 February and 27 March 2014, wherein LTC L informed the ESB representative that he was the applicant's SR for the subject OER and requested to have his erroneous block check in Part VIIa corrected to show his potential for promotion to the next higher grade as "Best Qualified."  The ESB representative informed LTC L that this was not possible under the provisions of Army Regulation 623-3 (Personnel Evaluation - Evaluating Reporting System), paragraphs 3-36 and 3-37, unless the upgrade was based upon newly discovered information about the rated officer.  LTC L passed this information on to the applicant on 31 March 2014.

	b.  	four memoranda rendered by his rater on the subject OER, his former company executive office, former company commander and former BCT commander between 24 June and 7 October 2014.  Each of these officers attested to the applicant's high level of performance and potential and recommended that the subject OER be amended to show his potential for promotion to the next higher grade as "Best Qualified" based upon their personal observations.

8.  A review of the applicant's Army Military Human Resource Record (AMHRR) on the interactive Personnel Management System (iPERMS) revealed the subject OER is filed in the performance folder of his AMHRR. 

9.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 67-9.  The regulation states in:

	a.  paragraph 3-36a, that evaluation reports accepted for inclusion in the official record of a Soldier were 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 Soldier 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.

	b.  paragraph 3-36b that requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF:

		(1)  Statements from rating officials that they underestimated the rated Soldier.

		(2)  Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did.

		(3)  Requests that ratings be revised.

		(4)  Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.

	c.  paragraph 3-37 provides that rating officials who become aware of information that would have resulted in a higher evaluation of a rated Soldier will take action to alter or remove the evaluation report in accordance with the appeal policy stated in chapter 4 and procedures in Department of the Army Pamphlet 623-3  (Evaluation Reporting System). 

		(1)  Rating officials will specify the new information precisely, how it was obtained, whether it was factually confirmed, or how it would change the evaluation had it been considered in writing the original evaluation report.

		(2)  Addenda will not be used to report this type of information. 

		(3)  The rated Soldier may be provided with a statement by the rating official who discovered the new favorable information, and that statement could be used in the rated Soldier' appeal. 

10.  DA Pamphlet 623-3, paragraph 6-2b(3) states that statements from rating officials often reflect retrospective thinking, or second thoughts.  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.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

11.  Army Regulation 600-8-104 (AMHHR Management) prescribes the policies governing the AMHRR, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by certain agencies, including the ABCMR; Department of the Army Suitability Evaluation Board; Army appeal boards; Chief, Appeals and Corrections Branch, HRC; AMHRR custodian (when documents have been improperly filed); Commander, HRC, (as an approved policy change to this regulation); and Chief, Appeals Branch, National Guard Personnel Center. 

12.  Army Regulation 600-8-104, table B-1 (Composition of the AMHRR), states an OER will be filed in the performance section of the AMHRR.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the subject OER should be corrected because his SR intended to place an "X" in the "Best Qualified" box rather than the "Fully Qualified" box.

2.  The rater, SR, and the applicant each signed the subject OER verifying the accuracy of the data contained in the OER.

3.  The governing regulation states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection or other perceived unfavorable personnel actions.  As a result, claims by rating officials they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report

4.  The SR provided a memorandum, dated 2 years after the subject OER was authenticated, indicating he did not intend to rate the applicant the way he did.  Given the available evidence, the SR's recommendations are considered retrospective thinking which does not invalidate the ratings on the OER.

5.  The applicant has not provided sufficient evidence to show that the OER was not processed in accordance with applicable laws and regulations or that the report was inaccurate, unjust, or otherwise flawed.  He also has not provided evidence showing the rating officials lacked objectivity or fairness.  As a result, it appears that there is no basis for granting the relief requested.  

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)                                         AR20150012833





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ABCMR Record of Proceedings (cont)                                         AR20150012833



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