IN THE CASE OF:	  

		BOARD DATE:	  27 October 2015

		DOCKET NUMBER:  AR20150015518 


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).


CONSIDERATION OF ADDITIONAL EVIDENCE:

53.  On 28 September 2015, new information was received from the Army Litigation Division regarding the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20150003910, dated 2 July 2015.

54.  This case previously came before the ABCMR on a remand from the United States Court for the District of Columbia.  The Court directed the ABCMR to reconsider the issue of removing the DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 1 December 2003 through 22 June 2004 (herein referred to as the contested OER) from his official military personnel record.  The Court also directed the ABCMR to address his arguments concerning the subsequent OER that have not been thoroughly addressed.  

55.  By email, an official at the Army Litigation Division - Military Personnel Law stated: 

	a.  The applicant has been appealing his contested OER from December 2003 through June 2004 that he received while deployed.  In the process, the Officer Special Review Board (OSRB) modified his subsequent OER that was from June 2004 through June 2005 by changing it from a 12-month rating period to a 7-month rating period because he redeployed and changed units in November 2004.  The OSRB acknowledged an error in the rating periods due to his deployment and then redeployment and release from active duty to his USAR unit.  Thus the "corrected" OER rating period is now from December 2004 through June 2005.  The Army did not add a statement to his official military personnel file (OMPF) about the unrated time from June 2004 through November 2004.

	b.  The applicant requested removal of his contested OER.   The Court remanded it in January 2015 to the ABCMR.   On page 34-36, the Court ordered what should be considered during the remand.   On page 35, para 4 the Court directs "Additionally, the ABCMR must address Plaintiff's arguments concerning the subsequent OER that have never been thoroughly addressed."  

	c.  In the ABCMR Record of Proceedings, the Board discusses the subsequent OER that was modified by the OSRB on pages 11-12.   It states that the applicant claims the change was made to place him in a worse position.  However, during its discussion, the Board never fully addresses this issue.  The main issue was the removal of the contested OER and the discussion is entirely on that OER.  The Board recommended full relief, in that the December 2003-June 2004 OER should be removed, and that a statement would be added to his OMPF covering this unrated time from December 2003-June 2004.

	d.  It is unclear if the ABCMR consciously did not extend that unrated time statement through the rest of the unrated period (created by the OSRB) to have the statement cover December 2003-November 2004 (i.e., the deployment).  What is now needed is for the Board to state whether they did this on purpose or if it was an oversight.  The applicant is asking for the statement of unrated time to cover the period from December 2003 through November 2004. 

56.  The applicant entered active duty as a member of the 415th Civil Affairs (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.  

57.  During November 2004, he received the contested OER, a change of rater OER that covered the rating period 1 December 2003 through 22 June 2004 for his duties as International Law Officer, 415th CA Battalion.  This contested OER was removed from his records per ABCMR Docket Number AR20150003910, on 2 July 2015.  

58.  During June 2005, he received the subsequent OER – an annual OER which covered 12 months of rated time from 23 June 2004 through 22 June 2005 for his duties as International Law Officer, 432nd CA Battalion, Green Bay, WI.  The OER reflected that his rater was Captain (CPT) TJL, his Company Commander, and his senior rater was Lieutenant Colonel (LTC) MEN, the Battalion Commander.  The OER shows in:

	a.  Part II(a) (Principal Duty Title) shows his assignment as International Law Officer and Public Administration Team Chief in a civil affairs battalion; he is the principal legal advisor to the commander. 
	
b.  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.

	c.  Part IV(c) (Army Physical Fitness Test (APFT)), the entry “Pass, April 2005 and Height: 69, Weight: 224, and the entry "Yes" (indicating he met the height and weight standards of Army Regulation (AR) 600-9 (Army Weight Control System). 

	d.  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 "Outstanding Performance-Must Promote" block and entered the following comments in Part V(b):

Soldier has performed duties in an exemplary manner.  Maintaining and increasing technical proficiency in Judge Advocate General (JAG) skills as well as developing Civil Affairs specific leadership has made him a valuable part of this company.  His attendance at JAG Continuing Education Seminar, United Nations Peacekeeping Operations Symposium and JAG School Operational Law Course has displayed his preparedness for future operations.  He served as a Civil Affairs Team Chief for the UE/UV Exercise in Grafenwoehr, Germany.  [The applicant] used this training opportunity to distribute CD (computer disk) copies of Iraqi interim law and provide legal advice with regards to Iraq for the entire 3rd Corps Support Command (COSCOM) staff.  Soldier has assisted Commander with legal advice and documents IOT (in order to) facilitate personnel actions within the company.  He has continued to broaden his knowledge by completing an American Foreign Policy Course and Middle East in World Affairs Course.  Maintaining his fitness and weapon proficiency has made this Soldier a valuable part of our team.  Soldier has continued to volunteer to attend relevant training activities that will pay dividends for us may we once again be called down range.

	g.  Part V(c) (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses), the rater entered "[The applicant] is a lawyer whose skills can be utilized at any level of Civil Affairs/Civil Military Operations; he would best continue to serve the Army in CMFP (career management professional field) 27 (JAG Lawyer).” 
	
	h.  Part VIIa (Senior Rater - Evaluate the rated officer's promotion potential to the next higher grade), the senior rater placed an "X" in the "Fully Qualified" 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.  

	i.  Part VIIb (Potential compared with officers senior rated in the same grade), the senior rater listed "None."  He listed three future assignments for which the applicant was best suited as International Law Officer, Brigade SJA, and Civil Affairs Team Chief.  He entered the following comments in Part VIIc (Comment on Performance/Potential):

[The applicant] has performed very well as the battalion’s Internal Law Officer.  During his annual training he participated in a V Corps UE/UV exercise and in the course of that deployment provided significant legal advice to the 3rd COSCOM while that unit was preparing to deploy to Operation Iraqi Freedom.  [The applicant] has developed his knowledge of international affairs by attending several associated classes that will have a direct benefit to the unit.  [The applicant] should be considered for attendance at the resident Intermediate Level Education (ILE) course. 

59.  The subsequent OER was signed by the applicant's rating officials on 1 and 15 September 2005 and by the applicant on 18 September 2005.  It was processed to his records on 3 October 2005.  

60.  In November 2006 (AR20080006054), the applicant appealed the contested OER (20041201-20040622).  The (OSRB) addressed the contested OER and in January 2008, in addition to its findings regarding the contested OER, the OSRB:

	a.  Found evidence that the subsequent OER (20040623-20050622) improperly covered both the end of the deployment period (June to November 2004) and the applicant’s next assignment in reserve status (not on active duty) from December 2004 to June 2005 and determined that the governing regulation required the period for deployment to be covered by a separate rating from the reserve duty rating.  

	b.  The OSRB opined that because of the significant time lapse since the additional deployed period, the preparation of a valid report for the period June 2004 through November 2004 was 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.

61.  The OSRB directed the U.S. Army Human Resources Command (HRC) to make the following administrative corrections to the applicant’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"

62.  On 25 June 2009 (AR20080016454), the ABCMR denied his request for 

* removal of the contested OER for the rating period 20031201-20040622 
* removal of non-referral documents for the 2005 and 2006 unit vacancy boards
* removal of non-selection documentation for the 2007 and 2008 Department of the Army Mandatory Promotion Board for Major
* promotion consideration with a date of rank as if promoted by the September 2005 USAR Unit Vacancy Board
* a letter of nonrated time for the period 20031201-20041127

63.  In August 2010 (AR20100018533), the ABCMR considered his request for reconsideration of his previous request (AR20080016454).  This request was a court-remand from the United States Court of Federal Claims.  The Court remanded the case to the ABCMR for a period not to exceed six months, during which time the ABCMR should consider the applicant’s new evidence in connection with his application for relief and issue a new decision.  The Board considered his case and denied it. 

64.  In March 2011 (AR20110001987), the ABCMR considered his subsequent request, through a court remand from the U.S. Court of Federal Claims, reconsideration of an earlier request for correction of the applicant’s military records to remove the contested OER (20031201-20040622), removal of non-referral documents pertaining to the 2005 and 2006 unit vacancy promotion boards, removal of non-selection documentation for the 2007 and 2008, promotion consideration with a date of rank as if promoted by the 27 September 2005 under the USAR Unit Vacancy Board, and a letter of nonrated time for the period covered by the OER listed above.  The Board granted partial relief for an amendment of the ABCMR’s decision in Docket Number AR20080016454, dated 25 June 2009, by deleting the “NO” entry in Part IVc of the OER ending 22 June 2004 and replacing it with entry “YES” and deleting the last sentence in Part Vb, "Soldier was unable to take the APFT during this period due to deployment for combat operations/contingency operations.”  

65.  In May 2011 (AR20110004092), the Board denied his request to file the 28 January 2007 commander’s inquiry (CI) that pertained to the contested OER in his official records.

66.  In July 2015 (AR20150003910), his case came before the Board on a remand from the United States District Court for the District of Columbia.  The Court directed the ABCMR to reconsider the issue of removing the contested OER (20031201-20040622) from his OMPF.  The Board granted relief and recommended:

* removing the contested OER for the rating period 1 December 2003 through 22 June 2004 from his OMPF
* 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;
* promotion consideration to MAJ by a special selection board based on the appropriate criteria

ADDITIONAL DISCUSSION AND CONCLUSIONS:

14.  At the time of the decision of the ABCMR in Docket Number AR20150003910, dated 2 July 2015, it was the intent of the ABCMR to make the applicant’s record as administratively correct as it should properly have been at the time.

15.  The ABCMR's decision in Docket Number AR20150003910 inadvertently omitted any discussion related to the subsequent OER covering the rating period from 23 June 2004 through 22 June 2005.  

16.  The regulation (Army Regulation 624-3 (Evaluation Reporting System)) in effect at the time states:

	a.  Each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.  

	b.  An OER Change-of-Duty report is mandatory when the rated officer has a change of principal duty, even though the rater remains the same.  A report is also mandatory when the rated officer is separated from active duty.  For USAR officers entering on duty with the Active Army, the through date will be the day before the effective date of active duty.  Officers on temporary tour of active duty of 12 or more consecutive calendar days require a report whether duty is with the Active Army, while attached to the Active Army, or for duty with an Army National Guard or USAR unit.  

17.  The applicant entered active duty on 1 December 2003 and he was honorably released from active duty on 26 November 2004.  He was deployed from 2 February 2004 to 16 October 2004.  He received:

* a change of rater OER from 20031201-20040622 (Contested OER)
* an annual OER from 20040623 through 20050622 (Subsequent OER)

18.  In the contested OER case, the Board did not find errors in the rating rendered by the rater and senior rater.  However, the Court specifically required the ABCMR to determine if the 90-day minimum rating 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 directed that the OER in question be removed from the record and a statement of non-rated time be placed in his record from 1 December 2003 to 22 June 2004. 

19.  In the subsequent OER, the applicant was rated by a different rater and senior rater from his USAR unit from 23 June 2004 to 22 June 2005.  

	a.  The period from 23 June 2004 (the day after his last OER ended) to 26 November 2004 (the date he demobilized) should not have been included in the subsequent OER because he was still deployed.  

	b.  The OSRB correctly determined that because of the significant time lapse since the additional deployed period, the preparation of a valid report for the period June 2004 through November 2004 was 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.

	c.  A change to the subsequent OER to read a different beginning date (27 November 2004) means any reference to his deployment or service in Iraq mentioned on this OER must also be amended/deleted.  This action may disadvantage the applicant.  It is not the Board’s practice to change a record when the end result will cause an applicant to be worse off than when they began the appeals process.  

	d.  However, because the applicant specifically requests the portion of his deployment included on the subsequent OER be non-rated, as a matter of equity, his record should be corrected as recommended below. 

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 amendment of the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20150003910, dated 2 July 2015, to show an additional recommendation to:

* insert into the applicant's records a memorandum of non-rated time covering the period 20040623 to 20041126
* amend Part I(i) (Administrative Data-Period Covered) of the Officer Evaluation Report, covering the rating period 20040623-20050622 to show the beginning period as 20041127
* amend Part I(k) (Nonrated Codes) by deleting Code Q



      _______ _   _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)                                         AR20150015518



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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ABCMR Supplemental Record of Proceedings (cont)                 AR20150015518



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

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