IN THE CASE OF: BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160018462 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: 26 October 2017 DOCKET NUMBER: AR20160018462 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 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. IN THE CASE OF: BOARD DATE: 26 October 2017 DOCKET NUMBER: AR20160018462 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 a DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 5 May 2002 through 4 May 2003 (hereinafter referred to as the contested OER) from his Official Military Personnel File (OMPF) or, in the alternative, redaction of a specific comment and a change to the performance and potential evaluation from "Satisfactory Performance, Promote" to "Outstanding Performance, Must Promote." 2. The applicant states the basis of his appeal is substantive inaccuracy. The rater (Major (MAJ) Wayne G. C____, Jr.) allowed his racial bias against Latinos to influence his evaluation of the applicant's performance as Assistant S3, 1st Battalion (BN), 37th Armor (AR), 1st Brigade (BDE), 1st Armor Division (AD). a. He states that he was born in Puerto Rico, English is his second language, and the rater's bias is exhibited by derogatory comments about his mastery of the English language. He acknowledges that he did not file an Equal Opportunity complaint, make a response to the referred OER, request a Commander's Inquiry, or appeal the OER in a timely manner. He states that he was a young first lieutenant (1LT) and afraid of further racial discrimination and being labeled as a whining Military Intelligence (MI) officer detailed to an armor unit. b. He states that prior to the contested OER, he received an OER for duties as Tank Platoon Leader, Company C, 1st BN, 1st AR. The rater (Captain (CPT) Shelby L. B___) evaluated his performance and potential as "Outstanding Performance, Must Promote." The senior rater (SR), Lieutenant Colonel (LTC) Thomas S. J___, Jr., evaluated the applicant's promotion potential as "Best Qualified." c. He states the SR ratings he received on the two OERs from LTC Thomas S. J___, Jr., who is now a major general (MG), encouraged him to pursue an appeal. He adds that MG J____ provided him a letter of support and the prior OER also offers credible evidence that the rating he received from the rater for the contested OER was lower because of racial bias. 3. The applicant provides copies of his: * OER appeal, letter of support, and a memorandum for record (MFR) * the two above referenced DA Forms 67-9 * a memorandum that referred the contested OER * his Officer Record Brief (ORB) COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: The applicant lists the name, address, and telephone number of his counsel on the application. However, counsel offers no additional comments, information, or documentary evidence in support of the application. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (MI Branch), on 28 June 2000. a. He was ordered to active duty on 19 July 2000 for a period of 3 years. b. He was promoted to 1LT on 19 January 2002. 2. A review of the applicant's OMPF in the integrated Personnel Electronic Records Management System (iPERMS), in pertinent part, revealed the following three DA Forms 67-9: a. An Annual OER (12 rated months), covering the period 5 May 2001 through 4 May 2002, that shows he was serving in the rank of 1LT in the principal duty of Tank Platoon Leader, Company C, 1st BN, 37th AR, 1st BDE, 1st AD; U.S. Army Europe (USAREUR). It also shows, in pertinent part, in – * Part II (Authentication) – * Rater: CPT Shelby L. B___, Company Commander * SR: LTC Thomas S. J___, Jr., Battalion Commander * 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" in the box indicating "Outstanding Performance, Must Promote" * Part VII (SR) – * block a (Evaluate the rated officer's promotion potential to the next higher grade), an "X" in the box indicating "Best Qualified" * block b (Potential compared with officers senior rated in same grade (overprinted by Headquarters, Department of the Army – Comparison of the SR's profile and box check at time this report processed), the entry, "Center of Mass" b. The contested OER: An Annual OER (12 rated months), covering the period 5 May 2002 through 4 May 2003, that shows he was serving in the rank of 1LT in the principal duty of Assistant S3, Headquarters and Headquarters Company (HHC), 1st BN, 37th AR, 1st BDE, 1st AD (USAREUR). It also shows, in pertinent part, in – * Part II – * Rater: MAJ Wayne G. J___, Jr., Battalion S3 * SR: LTC Thomas S. J___, Jr., Battalion Commander * Part V – * block a, an "X" in the box indicating "Satisfactory Performance, Promote" * block b (Comment on specific aspects of the performance and potential for promotion), in pertinent part, shows, "1LT [Applicant] has a great desire to do well and accomplish all assigned tasks, but due to his limited English skills and initiative, he requires a moderate degree of supervision. 1LT [Applicant] identified these weaknesses and sought self-improvement by enrolling in an English improvement course. 1LT [Applicant] needs more experience and professional development before assuming positions of higher responsibility. 1LT [Applicant] is detailed from the MI branch and will transition in the summer of 2004 where his skill set will better serve the Army. 1LT [Applicant] has a complete mastery of the Spanish language (3 listening, 3 reading)." * Part VII – * block a, an "X" in the box indicating "Fully Qualified" * block b: "Center of Mass" c. U.S. Army Human Resources Command (HRC), Alexandria, VA, memorandum, dated 15 October 2003, subject: Referred Evaluation Report, that provided the applicant a copy of the contested OER (report period 5 May 2002 – 4 May 2003). He was notified that he could submit a fact-based statement pertaining to the matter under review that would be filed in his OMPF with the OER. An MFR at the bottom of the memorandum shows the applicant failed to respond within the required suspense date of 28 November 2003. d. The contested OER and referral memorandum are filed in the performance (evaluation) folder of his OMPF. e. A Change of Rater OER (9 rated months), covering the period 5 May 2003 through 23 February 2004, that shows he was serving in the rank of CPT in the principal duty of Technical Intelligence Officer, HHC, 1st BN, 37th AR, 1st BDE, 1st AD (USAREUR). It also shows, in pertinent part, in – * Part II – * Rater: CPT David C. H___, Battalion S2 * Intermediate Rater: MAJ Mark V. G___, Battalion Executive Officer * SR: LTC Garry P. B___, Battalion Commander * Part V – * block a, an "X" in the box indicating "Satisfactory Performance, Promote" * block b, in pertinent part, shows, "CPT [Applicant] has also achieved many remarkable feats during his off-duty time. He has worked hard to improve his mastery of the English language, and has kept himself in remarkable physical shape as evidenced by a 299 APFT [Army Physical Fitness Test]. The most significant trait of CPT [Applicant] is his desire to learn. In all he does, he is a total professional and attempts to learn and grow." * Part VI (Intermediate Rater), in pertinent part, the comment, "He has sought to improve his intelligence knowledge as well as improve his proficiency in both oral and written English language communications." * Part VII – * block a, an "X" in the box indicating "Best Qualified" * block b: "Center of Mass" 3. A review of the applicant's OMPF failed to reveal any evidence that he submitted an appeal for transfer, removal, or correction of the contested OER from his OMPF to the Army Special Review Board through the U.S. Army HRC within 3 years of the evaluation report "THRU" date. It is noted that this review also failed to reveal any evidence that he submitted an appeal pertaining to his Change of Rater OER (report period 5 May 2003 – 23 February 2004). 4. The applicant is currently serving on active duty in the rank of MAJ with a date of rank of 1 January 2010. 5. In support of his application the applicant provides copies of the following additional documents. a. Headquarters and Headquarters Battalion, U.S. Army North (Fifth Army), Fort Sam Houston, TX, memorandum, dated 9 August 2016, subject: OER Appeal (5 May 2002 – 4 May 2003). The applicant stated that he was passed over for promotion to LTC and his second look will be in January 2017. He presented the same substantive appeal as he now presents to this Board. b. Headquarters, 7th Infantry Division, Joint Base Lewis-McChord, WA, memorandum, dated 18 August 2016, subject: Supporting Statement for Evaluation Report Appeal. MG Thomas S. J___, Jr., stated that during the period 5 May 2002 through 4 May 2003, he served as the battalion commander for the 1st BN, 37th AR, 1st BDE, 1st AD. In that position he observed the applicant and rated him as his SR. It shows, "I request the OER Appeals Board redact MAJ C___'s [the rater's] comments related to English proficiency and take any further appropriate corrective actions." c. Headquarters and Headquarters Battalion, U.S. Army North (Fifth Army), Fort Sam Houston, TX, MFR, dated 15 September 2016, subject: Special Review Board (SRB) Response. A review of the document indicates the applicant copied the response he received from the Evaluations and Appeals Branch onto the MFR. It shows the OER he is appealing is over three (3) years old and the SRB will not accept substantive evaluation appeals for reports over three years old. d. His ORB, dated 25 July 2016, that shows, in pertinent part, in Section IX (Assignment Information [Format: Effective Date, Duty Title, Organization]): * 5 May 2001, Platoon Leader, 1st BN, 37th AR * 20 April 2003, Assistant Battalion S2 (Forward Iraq), 1st BN, 37th AR * 16 July 2004, Assistant Battalion S2, 1st BN, 37th AR 6. A search of the U.S. Army HRC website, in pertinent part, revealed the following information pertaining to the Fiscal Year (FY) 2016 and FY 2017 LTC Operations, Operations Support, and Force Sustainment, Promotion Selection Boards (PSB): * MILPER Message Number 15-247, issued 11 August 2015, as amended by MILPER Message Number 15-268, issued on 3 September 2015, announced a selection board would convene on 2 November 2015 to consider eligible MAJs on the Active Duty List (ADL). The zones of consideration were: * Above the Zone: 31 August 2009 and Earlier * Promotion Zone: 1 September 2009 through 31 May 2010 * Below the Zone: 1 June 2010 through 31 May 2011 * MILPER Message Number 16-275, issued 23 September 2016, announced a selection board would convene on 10 January 2017 to consider eligible MAJs on the ADL. The zones of consideration were: * Above the Zone: 31 May 2010 and Earlier * Promotion Zone: 1 June 2010 through 31 May 2011 * Below the Zone: 1 June 2011 through 30 June 2012 * The FY 2016 and FY 2017 LTC PSB promotion selection results failed to reveal the applicant's name REFERENCES: Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribes the policy for completing evaluation reports that are the basis for the Army's OER System. 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. a. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army SRB. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. b. 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 Army Board for Correction of Military Records. DISCUSSION: 1. The applicant contends that the contested OER (and allied document) should be removed from his OMPF or, in the alternative, specific comments should be redacted and the performance and potential evaluation changed to "Outstanding Performance, Must Promote" because his rater was biased against Latinos. He offers the comments and the performance and potential evaluation that the rater rendered on the contested OER as evidence of the rater's bias. 2. The contested OER, along with the referred evaluation report memorandum, is filed in the performance folder of the applicant's OMPF. a. The contested OER shows the rater (a MAJ) evaluated the applicant's performance in a duty position (Assistant S3) that was not associated with his branch (MI). The rater commented on the applicant's English language skills and his initiative (i.e., due to his limited English skills and initiative, he requires a moderate degree of supervision). The rater also commented on the applicant's efforts at self-improvement and his "complete mastery of the Spanish language." He rated the applicant's overall performance and potential as "Satisfactory Performance, Promote." The rater's comments appear to be fact-based and balanced. b. The SR rater (then, LTC T___) rated the applicant's promotion potential as "Fully Qualified." The SR's assessment appears to be consistent with the rater's performance and potential evaluation of the applicant. c. The OER was referred to the applicant to afford him the opportunity to submit fact-based comments in explanation/rebuttal. The evidence of record shows he elected not to submit any comments. d. In a letter of support issued more than 13 years after the completion of the contested OER, the SR (now a MG) stated, "I request the OER Appeals Board redact MAJ C___'s comments related to English proficiency and take any further appropriate corrective actions." e. It is noted that the SR did not directly address redacting or changing the rating he provided at the time pertaining to the applicant's promotion potential (i.e., "Fully Qualified"). 3. A Change of Rater OER rendered for the period immediately following the contested OER shows a different rater (a CPT) evaluated the applicant's performance in a different duty position (Technical Intelligence Officer, S2). a. The OER shows the rater also commented on the applicant's English language skills (i.e., he has worked hard to improve his mastery of the English language) and his efforts at self-improvement. He rated the applicant's overall performance and potential as "Satisfactory Performance, Promote." The rater's comments appear to be fact-based and balanced. b. It is noted that the intermediate rater commented on the applicant's English language skills (i.e., he has worked hard to improve his mastery of the English language). He also commented on the applicant's self-improvement (i.e., he has sought to improve his intelligence knowledge as well as improve his proficiency in both oral and written English language communications). c. There is no evidence of record that shows the applicant appealed this OER to the HRC Evaluation and Appeals Branch or the Army SRB. 4. The evidence of record shows the applicant failed to file a timely appeal of the contested OER within the 3-year time restriction for the submission of substantive appeals. 5. Removal or amendment of an OER requires clear and convincing evidence of a strong and compelling nature that the OER does not represent the considered opinion and objective judgment of the rating officials at the time or that it is factually inaccurate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160018462 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160018462 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2