IN THE CASE OF: BOARD DATE: 13 October 2011 DOCKET NUMBER: AR20110014350 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: a. transfer of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 8 July 2008 through 6 February 2009 (hereafter referred to as the contested OER) from the performance section to the restricted section of his official military personnel file (OMPF); b. the senior rater comments be changed from "do not promote" to "promote with peers and send to ILE (Intermediate Level Education)"; and c. consideration by an appropriate a special selection board (SSB) for promotion to major (MAJ). 2. The applicant states according to the Inspector General (IG), the contested OER is negative due to reprisal, except for the fact that there were other unfortunate incidents during his command. He believes the wording to be overly negative and harsh compared to the incidents in question. He also states that the wording on the Army Achievement Medal (AAM) contradicts the comments on the OER. 3. The applicant provides the contested OER, denial letter from the Officer Special Review Board (OSRB), an IG letter, a self-authored timeline of events, and a certificate awarding him the AAM. CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service, the applicant was appointed as an Air Defense Artillery (ADA) second lieutenant in the U.S. Army Reserve with concurrent call to active duty and executed an oath of office on 21 February 2002. 2. He completed several military training courses, served in staff or leadership positions, and was promoted to captain on 1 June 2005. He was assigned to Headquarters and Headquarters Battery (HHB), 31st ADA Brigade, Fort Sill, OK. 3. On 29 December 2008, he was awarded an AAM for meritorious service from 28 November 2007 to 6 February 2009. 4. During the month of February 2009, the applicant received the contested OER, a change of duty OER which covered 7 months of rated time from 8 July 2009 through 6 February 2009, for the period the applicant performed as the Battery Commander, HHB, 31st ADA Brigade. His rater was a major (the brigade deputy commander) and his senior rater was a colonel (the brigade commander). The OER shows the following entries: a. In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the "Conceptual" skills and the "Decision-Making" and "Planning" actions. b. In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered the following comments in Part Vb: [Applicant's] performance as battery commander during this rating period has been unsatisfactory. Over the past seven months, [Applicant] failed repeatedly to achieve the simplest of tasks and never displayed any potential for improved performance. Tasked with moving his unit from Fort Bliss, TX, to Fort Sill, OK, as part of the Department of the Army Base Realignment and Closure [Applicant] showed a lack of command supply discipline when he failed to clear his Installation Property hand-receipts. He then demonstrated poor judgment when he failed to report this matter to his higher command until confronted with this issue. Upon arrival at Fort Sill, [Applicant's] substandard performance continued. His carefree attitude and laissez-faire leadership style routinely resulted in numerous training events that were poorly planned and under resourced. [Applicant] struggles to maintain the minimum requirements of his battery and routinely fell below the training standard in weapon qualification, combat lifesaver, and combative training. c. In Part VIIa (Senior Rater) an "X" is placed in the "Do Not Promote" block. and entered the following comments: Unsatisfactory performance by the lowest-performing battery commander in the brigade. [Applicant] has not demonstrated a mastery of command. At best [Applicant's] performance has been mediocre. There has been multiple times where his lack of attention to detail and poor leadership skills resulted in significant problems within the battery. In one example, he failed to properly account for an M-16 that was in his arms room for 6 months. Readiness indicators such as training and school statistics never improved in the past 7 months. Even after numerous mentoring and counseling sessions, [Applicant] continually failed to show improvement in his day to day performance, which negatively impacted the readiness of the battery. Do not send to ILE. Do not promote. 5. On 2 February 2009, after the contested OER had been referred to the applicant for acknowledgement and comments, the applicant highlighted some of the battery's achievements and questioned the comments provided by his rater and senior rater. He acknowledged some shortcomings and blamed some of these on the lack of counseling and not firing his unit first sergeant, but believed his rating was negative. 6. He and his rating officials signed the contested OER on 12 February 2009. The contested OER is filed in the performance section of his OMPF. 7. On 17 March 2011, the OSRB denied his appeal. 8. On 1 June 2011, a Fort Sill, OK, IG official notified him that his office conducted a thorough inquiry into his complaint and determined that it did not meet the criteria for a reprisal as outlined in Title 10, U.S. Code, section 1034. The unfavorable personnel action is in direct response to his duty performance actions or inactions and did not appear to be in response to any protected communication. 9. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System: a. Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives. Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. b. Paragraph 3-36 states when an OER is referred to a Soldier, the rated Soldier may comment if they believe that the rating or remarks are incorrect. The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier’s referral comments. c. Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are 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. d. Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report. The appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration, and 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 or 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. 10. Army Regulation 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files. The regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions. Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur. Paragraph 3-2 states except as indicated in paragraph 3–3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement. This statement may include evidence that rebuts, explains, or mitigates the unfavorable information. The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files. 11. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. It states an SSB may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the active duty list (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 12. Army Regulation 600-20 (Army Command Policy) prescribes the policy and responsibility of command. The regulation emphasizes that command of an Army organization is a privilege. The regulation provides a listing of command responsibilities. DISCUSSION AND CONCLUSIONS: 1. The applicant contends the contested OER should be transferred to the restricted section of his OMPF, the rating by his senior rater should be changed, and he should be considered for promotion by an SSB. 2. Contrary to the applicant's belief, after conducting a thorough inquiry into the applicant's complaint, an IG official determined that it did not meet the criteria for a reprisal as outlined in Title 10, U.S. Code, section 1034. The unfavorable personnel action is in direct response to the applicant's duty performance actions or inactions and did not appear to be in response to any protected communication. 3. The contested OER appears to be correct. There is no evidence, and the applicant has provided none, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. 4. The applicant’s arguments provided in this case address his dissatisfaction with his rating and the impact the contested report may have had on his potential promotion to major; but he failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered. Furthermore, he is not entitled to an SSB because he does not meet the criteria for an SSB. 5. In view of the foregoing evidence, he is not entitled to the requested relief. 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) AR20110014350 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110014350 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1