IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160008062 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160008062 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis to amend the decision of the Army Board for Correction of Military Records as set forth in Docket Number AR20150018166 on 28 January 2016. __________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. IN THE CASE OF: BOARD DATE: 7 June 2016 DOCKET NUMBER: AR20160008062 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 request that a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 13 October 2009 through 28 February 2010 (hereinafter referred to as contested OER-1) be removed from his official military personnel file (OMPF) and that a DA Form 67-9 covering the period 10 March 2010 through 4 November 2010 (hereinafter referred to as contested OER-2) be adjusted to cover the period 23 November 2009 through 4 November 2010. 2. The applicant acknowledges his military career path can be difficult to follow based on his reserve and active component periods of service. He states that he reentered active duty in the rank of major (MAJ)/pay grade O-4 on 29 October 2008 and the U.S. Army Human Resources Command (HRC) established his active duty list (ADL), date of rank (DOR) (ADOR) as 29 November 2005. a. He states that contested OER-1 was rendered in anticipation of his primary zone (PZ) consideration by the Fiscal Year 2010 (FY10) Lieutenant Colonel (LTC), Judge Advocate General Corps (JAGC), Promotion Selection Board (PSB). b. HRC did not issue orders to correct his ADOR (to 6 May 2006) until October of 2013. Thus, he should not have been considered in the PZ by the FY10 LTC JAGC PSB. c. In its original consideration of his application, the Army Board for Correction of Military Records (ABCMR) erred in applying the guidance for the FY10 LTC Army Reserve Active Guard Reserve (AR AGR) and Army Reserve Non-Active Guard Reserve (AR NON-AGR), JAGC, Competitive Categories PSBs to his case and assumed he had not been considered in the PZ, but instead concluded, "he was in the below the zone [BZ] category for consideration." As a result, the Board inappropriately assumed that contested OER-1 was not generated in anticipation of a promotion board because it was not a complete the record evaluation. Consequently, the Board's application of the incorrect PSB message (and promotion zone) negated the very reason for his original petition (i.e., that contested OER-1 was generated in anticipation of his consideration for promotion in the PZ). He also states, "it was not just a 'belief' by my rating chain that I was PZ in FY10; it was simply a fact that I was PZ that year [applicant's emphasis]." He adds that the Board's conclusion ["Further, based on the electronic signatures of the applicant and his rating officials, the report [contested OER-1] would not have been seen by the promotion board"] is factually inaccurate and overly presumptuous based on the previously submitted evidence. Specifically, a complete the record OER is not the only type of OER that may be used in anticipation of a promotion board. d. He states that in his situation a complete the record report was not an option because deployment rating chain constraints resulted in a 12 October 2009 "Thru" date for the OER that was completed just prior to the contested OER-1. Thus, the complete the record "Thru" date (established in the PSB message as 2 January 2010) made it impossible to render a 90-day complete the record OER. (1) He states that his chain of supervision/command (after lengthy discussions with him) determined that a change of rater OER was more feasible to establish a "snapshot" assessment of his performance during the deployment he was then serving. (2) He adds the letters of support previously provided and the letter he provides in his request for reconsideration confirm that contested OER-1 was generated in anticipation of his PZ consideration by the PSB. In addition, the rater for contested OER-2, intermediate rater for contested OER-1, and senior rater for both contested OERs all support the removal of contested OER-1 and adjustment of the "From" date (i.e., to 23 November 2009) for contested OER-2. e. The Judge Advocate General's (TJAG) Policy Memorandum 8-01, dated 17 April 2008, granted Modular Force Brigade Combat Team's (BCTs) rating scheme flexibility for judge advocates assigned to these units, especially in a deployed environment. He acknowledges that the rating scheme for contested OER-1 was a permissible variation per TJAG policy; however, the rating scheme for contested OER-2 actually aligned with TJAG policy. He adds the rating chain (rater and senior rater) for contested OER-2 were also an eligible rating chain for the requested adjusted rating period for contested OER-2. f. He concludes that contested OER-1 was superfluous because his ADOR was incorrect at the time of the FY10 LTC JAGC PSB and would not have been rendered if he was not being considered for promotion in the PZ. 3. The applicant provides a self-authored statement (summarized above) and copies of: * ABCMR Record of Proceedings, Docket Number AR20150018166 * three OERs, including contested OER-1 and contested OER-2 * active duty orders * MILPER Message Number 10-033, Subject: FY10 LTC JAGC PSB * HRC computation of ADOR * letter of support * TJAG Policy Memorandum 08-1 * orders amending ADOR 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 ABCMR in Docket Number AR20150018166 on 28 January 2016. 2. HRC, St. Louis, MO, Orders A-10-821442, dated 24 October 2008, ordered the applicant to active duty as a Regular Army commissioned officer in the rank of MAJ, JAGC, on 30 November 2008. (He was authorized to report early and he entered active duty on 29 October 2008.) The orders show his Reserve DOR was 17 July 2003. a. HRC, Fort Knox, KY, Order 064-002, dated 5 March 2009, established the applicant's ADOR as 29 November 2005. b. HRC, Fort Knox, KY, Order 280-001, dated 7 October 2013, amended his ADOR to 6 May 2006. c. The applicant is currently serving on active duty in the rank of MAJ (O-4) on a 3-year selective continuation tour based on his non-selection for promotion to LTC. 3. It is acknowledged that in its original consideration of the applicant's case the Board incorrectly relied upon the FY10 LTC AR AGR and AR NON-AGR, JAGC, Competitive Categories PSBs for determining the applicant's promotion zone (i.e., BZ) and the guidance and dates for submission of OERs. Accordingly, this Board acknowledges that MILPER Message 10-033, issued on 25 January 2010, that announced the FY10 LTC JAGC PSB is the correct promotion board guidance and criteria that should be applied in considering his application. a. As such, based on the applicant's (then incorrect) ADOR of 29 November 2005, he was eligible for consideration in the PZ. In addition, the "Thru" date for a complete the record OER was 2 January 2010 and all mandatory or optional OERS had to be received at HRC by close of business on 2 April 2010. b. Thus, this Board treats the following portions of the ABCMR Record of Proceedings in the applicant's case as not applicable and invalid: * Consideration of Evidence, paragraph 10 (MILPER Message 10-053) * Discussion and Conclusions – * paragraphs 3 (pertaining to the BZ promotion zone determination) * paragraph 4 (pertaining to a complete the record OER and dates) 4. A review of the two contested OERs shows, in pertinent part, the following: a. contested OER-1: change of rater report (code "03") for the period 13 October 2009 through 28 February 2010 (5 rated months and no nonrated codes) for duties performed as Brigade Judge Advocate, HHC, 1st Heavy BCT (HBCT), 1st Armored Division (1AD), Forward Operating Base Warrior, Iraq: * Part II (Authentication), all electronically signed on 8 March 2010 by – * block a (Rater): LTC Charles J. S___, Executive Officer * block b (Intermediate Rater): COL Jonathan C. G___, Staff Judge Advocate (SJA) * block c (Senior Rater): COL Larry S__, Brigade Commander * block e (Signature of Rated Officer): the applicant * Part V (Performance and Potential Evaluation – Rater), block a (Evaluate the rated officer's performance during the rating period and his/her potential for promotion), an "X" indicating "Outstanding Performance, Must Promote" * Part VII (Senior Rater), block a (Evaluate the rated officer's promotion potential to the next higher grade), an "X" indicating "Best Qualified" b. contested OER-2: change of rater report (code "03") for the period 10 March 2010 through 4 November 2010 (8 rated months and no nonrated codes) for duties performed as Brigade Judge Advocate, HHC, 1st HBCT, 1AD, Contingency Operating Station Warrior, Iraq: * Part II – * block a: COL Jonathan C. G___, SJA * block c: COL Larry S__, Brigade Commander * block e: the applicant's signature * Part V, block a, an "X" indicating "Outstanding Performance, Must Promote" * Part VII, block a, an "X" indicating "Best Qualified" 5. In support of his request for reconsideration the applicant provides the following documents not previously considered. a. DA Form 67-9: change of rater report (code "03") for the period 16 June 2009 through 12 October 2009 (3 rated months and no nonrated codes) for duties performed as Brigade Judge Advocate, HHC, 1st HBCT, 1AD, Fort Bliss, TX: * Part II – * block a: COL Michael J. B___, SJA * block c: COL Larry S__, Brigade Commander * block e: the applicant's electronic signature b. AHRC-PDV-PAO Form 100 (Computation of DOR), dated 26 September 2013, and TAPC-MS Form 75 (Promotion Consideration), dated 26 September 2013, that show the applicant's ADOR was originally (incorrectly) calculated as 29 November 2005; he was erroneously considered (PZ) by the FY10 LTC JAGC PSB; his correct ADOR is 6 May 2006; and he should have been considered (PZ) by the FY11 LTC JAGC PSB. It also shows his correct ADOR warranted consideration by a Special Selection Board (SSB) for the FY11 LTC JAGC PSB. c. A letter of support from COL Larry S___, dated 11 April 2016 (senior rater for the two contested OERs). He provides a summary of the applicant's explanation to him of the ABCMR's denial of his application. He states, the ABCMR's application of the incorrect MILPER message "was a game changing critical error because it places [the applicant] outside of the PZ." He also states that as a deployed BCT senior rater of a dedicated judge advocate, he was afforded rating scheme flexibility by TJAG policy. His ?team discussed using a complete the record OER to document [the applicant's] deployed experience in front of what was, at the time, his PZ board. However, we elected not to use one because (1) the correct MILPER [message] dictated a complete the record OER through date of 2 January 2010, which would not have allowed the requisite 90 days required of his rater, and (2) that same restrictive thru date would have reflected less than 30 days of his deployed service in front of the board." d. TJAG Policy memorandum, dated 17 April 2008, subject: Location, Supervision, Evaluation, and Assignment of Judge Advocates in Modular Force BCTs – Policy Memorandum 08-1, addresses policy pertaining to Judge Advocates assigned to modular force BCTs and sustainment brigades. The paragraph pertaining to rating schemes shows the rating scheme for the Brigade Judge Advocate will be in accordance with Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-3. It also shows the following sentences were highlighted in yellow: * "Accordingly, the Brigade JA [Judge Advocate] will be rated by the SJA and senior rated by the BCT commander." * "I understand that variations may be necessary, especially in a deployed environment." REFERENCES: 1. Army Regulation 623-3, in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks. a. Chapter 3 (Army Evaluation Principles), paragraph 3-2 (Evaluation requirements), shows that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, an evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army selection boards and career managers can make intelligent decisions. Paragraph 3-40, in pertinent part, shows that a change of rater report is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and minimum rater qualifications have been met. b. Chapter 6 (Evaluation Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report "THRU" date. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that (1) the presumption of regularity should not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the ABCMR. 2. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management) provides policies, operating tasks, and steps governing the OMPF. a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file. b. The authorized documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-9 will be filed in the performance folder of the OMPF. 3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. DISCUSSION: 1. The applicant's request for reconsideration was carefully considered based on his contentions that contested OER-1 should be removed from his OMPF and that contested OER-2 should be corrected to cover the period 23 November 2009 through 4 November 2010 because: * the ABCMR erred in its original consideration of his application by applying the incorrect PSB criteria and guidance * the Board inappropriately assumed that contested OER-1 was not generated in anticipation of a PZ PSB * contested OER-1 was rendered by his rating chain because they believed he was being considered for promotion in the PZ * contested OER-2 aligns with TJAG policy, which allows for adjustment of the period covered (upon removal of contested OER-1) 2. Records show the applicant was ordered to active duty as a Regular Army commissioned officer in the rank of MAJ, JAGC, and he entered active duty on 29 October 2008. His ADOR was initially established as 29 November 2005. Based on the foregoing, he was eligible for and considered PZ by the FY10 LTC JAGC PSB. (He would have been considered BZ had his ADOR been correct.) 3. The evidence of record shows his ADOR was corrected in October of 2013 and he was considered PZ by an SSB under the FY11 LTC JAGC PSB criteria. He was non-select for promotion. 4. In its original consideration of the applicant's case the Board incorrectly relied upon the FY10 LTC AR AGR and AR NON-AGR, JAGC, Competitive Categories PSBs for determining the applicant's promotion zone (i.e., BZ) and the guidance and dates for submission of OERs. However, that error is not a critical issue in determining whether the Board should grant the requested relief. 5. The Board does not doubt that the applicant and officers who were in his rating chain at the time believed that he was being considered for promotion to LTC in the PZ. The Board also accepts their testimony that contested OER-1 was generated in anticipation of his consideration in the PZ by a PSB. a. The evidence of record shows contested OER-1 was a mandatory (change of rater) report. (In this regard, it is noted that contested OER-2 shows a different rater then contested OER-1.) b. The personnel management action(s) taken/that occurred and resulted in the requirement for a change of rater OER (contested OER-1) cannot be determined by the Board. The Board presumes the chain of supervision/ command acted properly and that the (mandatory) change of rater OER was rendered in accordance with Army regulatory guidance. c. The evidence of record shows the applicant and his rating chain officials discussed the preparation of an OER to document the period of service under review. As such, it is reasonable to conclude that the ratings rendered on the contested OER-1 were reviewed and found to be both proper and an objective assessment of the applicant's performance prior to submission of the OER to HRC for review by the PSB, regardless of the zone of consideration. 6. An evaluation report accepted for inclusion in the official file of a rated officer's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. There is insufficient evidence to refute the presumption of administrative regularity with respect to contested OER-1 and/or contested OER-2. 7. By regulation, in order to remove a document from the OMPF, there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that contested OER-1 that is filed in the performance folder of his OMPF is untrue, in error, or unjust. As such, there is no basis to correct contested OER-2. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160008062 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160008062 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2