IN THE CASE OF: BOARD DATE: 4 February 2016 DOCKET NUMBER: AR20150004997 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 earlier request to correct his official military personnel file (OMPF) by removing his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 October 2009 to 31January 2010 (subject OER) based on administrative and substantive errors. 2. The applicant states: a. he was denied due process because his senior rater failed to set forth his rights in a written referral as indicated on the face of the subject OER; b. the dates of the subject OER are incorrect because he was released from the unit on 29 January 2010; and c. the subject OER, which was given to him on 4 May 2010, is not substantiated by credible facts because there was no Army Regulation (AR) 15-6 Investigation and no criminal investigative report from the Criminal Investigative Division (CID) Command. 3. These are the administrative errors: a. No rating chain was ever published. No initial or quarterly counseling was ever performed. No developmental tasks were recorded on the subject OER. He argues that Army Regulation 623-3 (Evaluation Reporting System) requires the rater to discuss the scope of the rated Soldier’s duty description with the rated Soldier within 30 days after the beginning of the rating period. At a minimum, he should have been counseled about his duty description and performance objectives. This error appears on the face of the subject OER. b. The subject OER did not follow the mandatory procedures in that it was not completed until 4 months after he had left the unit and did not include the required referral letter. He argues that Department of the Army Pamphlet (DA Pam) 623-3 (Evaluation Reporting System) requires the senior rater to refer, in writing, a copy of the completed subject OER to him for acknowledgment and comment. This requirement is required even if the officer departed the unit due to permanent change of station, retirement, or release from active duty. A reasonable suspense date should have been established to complete this action. The purpose of the referral letter was to advise him that his comment(s) would not constitute an appeal or a request for a commander’s inquiry. The senior rater’s failure to set forth his rights in a written referral letter constitutes a denial of his due process. This error appears on the face of the subject OER. c. The dates of the rated period on the subject OER are incorrect because he departed the unit on 29 January 2010. 4. These are the substantive errors: a. The basis for the subject OER was a single factual allegation that he did not deploy with his unit because of his back condition. He was released from active duty (REFRAD) within the first 25 days of his mobilization due to his medical condition. This is where the facts end and the speculation begins. Both the rater and senior rater speculated that he made up his back condition to avoid deployment. The rater stated "most disturbing is the circumstance…[of] chronic back pain [at] the mobilization station." The true facts are he had back pain. The back injury occurred in the line of duty when he fell out of the back of a light medium tactical vehicle during a training exercise. He received a permanent physical profile for his back condition. Based upon his physical profile and documented physical condition, he was not permitted to deploy with his unit. b. He argues that using the subject OER and its recommendation to separate him from the Army was improper. Using the rater and senior rater’s logic, one could eliminate the whole Army medical evaluation system. Instead of referring a Soldier to a medical evaluation board, the rater and senior rater took it upon themselves to make an evaluation of his true physical condition and determine if he was medically eligible for continued military service. This is inconsistent with AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation) thus he was denied due process. c. He contends that he never made any public statements to avoid deployment. This is pure conjecture on the part of the rater and senior rater. They pointed to no specific instance where he had made such a statement. If the allegations were true, any responsible commander would have appointed an investigating officer (IO), initiated a commander’s inquiry, and/or an AR 15-6 investigation, obtained witness statements and documented the findings in the subject OER. Additionally, such allegations, if proven, would have likely resulted in a general officer memorandum of reprimand (GOMOR) or Uniform Code of Military Justice (UCMJ) action. d. There is no evidence that he slept at training events or failed to qualify with his weapon. Again, the rater and senior rater failed to cite any specific incident. In fact, the undisputed evidence is quite the opposite. He qualified with his weapon and did not sleep at training events. e. The rater’s statement that he was disloyal is contrary to Part IV (Performance Evaluation – Professionalism) of the subject OER which states he displayed honor, courage and loyalty. f. There are well documented incidents of racial discrimination in the unit. Moreover, he was the only black commissioned officer in the Forward Support Company (FSC), 367th Engineer Battalion. 5. The applicant provides: * DA Form 31 (Request for Leave), dated 1 August 2008 * DA Form 3349 (Physical Profile) dated 18 August 2008 * DA Form 2173 (Statement of Medical Examination and Duty Status), dated 26 August 2008 * DA Form 67-9, for the rated period ending 19 October 2008 * email from the 84th Training Command to a sergeant first class (SFC), dated 20 October 2008 * letter from the Office of the Inspector General, 416th Theater Engineer Command, dated 22 October 2008 * statement from an SFC, reference: Hostile Working Environment, dated 21 November 2008 * memorandum for record (MOR), subject: Work Environment, Battalion Supply Sergeant, 367th Engineer Battalion, dated 28 January 2009 * email between two persons, neither of whom are the applicant, subject: Work Environment, dated 28 January and 5 March 2009 (an attachment was indicated but not included) * email between two persons, neither of whom are the applicant, subject: Racial Joke and Request for Sensitivity Class, dated 28 January * DA Form 4187 (Personnel Action), request for reassignment based on unit racism from a person who is not the applicant, dated 16 July 2009 * DA Form 4187 (Personnel Action), request for realignment of REFRAD from a person who is not the applicant, dated 16 July 2009 * DA Form 1059 (Service School Academic Evaluation Report), Basic Officer Leadership Course (BOLC), dated 5 August 2009 * Diploma, Ordnance Center and Schools, Completion of BOLC on 5 August 2009 * DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending on 5 August 2009 * statement from a SFC, who is not the applicant, concerning reprisal by the chain of command, dated 30 September 2009 * Orders 09-296-00025, 416th Theater Engineer Command, dated 23 October 2009 * MOR, combat lifesaver certification for four individuals, dated 4 December 2009 * MORs, subject: Training Validation, dated 7 December 2009 (55 pages for FSC, 367th Engineer Battalion) * Order 014596, 88th Regional Support Command, dated 11 December 2009 * MOR, subject: Training Validation, dated 13 December 2009 (1 page, which does not identify who received training) * MOR, subject: Training Validation, dated 17 December 2009 (1 page, which does not identify who received training) * MOR, subject: Certification of Pre-Mobilization Training, dated 18 December 2009 (4 pages, which do not identify who received training) * memorandum for 367th Engineer Battalion, subject: Company Property Book Split for Forward and Rear Detachment, dated 21 December 2009 * applicant’s DA Form 87 (Certificate of Training) for completion of the Company Intelligence Support Team Course, for 4-8 January 2010 * MOR, subject: [the applicant’s] Release Letter, dated 20 January 2010 * memorandum for the S-1 (Personnel Officer), subject: REFRAD, dated 21 January 2010 for the applicant * letter from a Member of Congress to the applicant, dated 27 January 2010 * DD Form 220 (Active Duty Report) dated 29 January 2010 * DA Form 67-9, subject OER) * Carlson Wagonlit Travel Itinerary, printed 29 January 2010 for travel on 2 February 2010 * DA Form 67-9 for the applicant’s rated period 1 February 2010 to 29 June 2010 * letter from a Member of Congress to the applicant, dated 17 May 2010 * letter from Director, U.S. Army Reserve (USAR) Equal Opportunity (EO), to a Member of Congress, dated 12 July 2010 * letter from a Member of Congress to the applicant, dated 20 July 2010 * email between an aviation maintenance warrant officer and the G-4 (Maintenance Officer), dated 2 August 2010 * DA Form 1559 (Inspector General Action Request), dated 4 October 2010 * letter from the Department of the Army, Office of the Inspector General, to a Member of Congress, dated 24 January 2011 * letter from a Member of Congress to the applicant, dated 25 February 2011 * letter from the Army Review Boards Agency, dated 8 April 2011 * DA Form 67-9 for the applicant’s rated period 29 June 2010 to 28 June 2011 * DA Form 3349 (Physical Profile), dated 19 August 2011 * email, subject: Promotion Education Status, dated 9 September 2011 * memorandum for the commander concerning the applicant and another commissioned officer, dated 14 May 2012 * memorandum for a field grade officer concerning the applicant, dated 21 May 2012 * email, dated 18 June 2012, from a trial counsel to the rater and senior rated of the subject OER (2 pages) * request for assistance from the applicant to his Congressman, dated 25 June 2012 * email between a warrant officer and SFC, with applicant listed as informed, dated 27 June 2012 * letter from the applicant to HRC concerning a statement from another individual (not included), dated 3 June 2013 * letter from a battalion supply sergeant with the addressee blank and undated * distribution page of a memorandum, subject: Policy on Equal Employment Opportunity, undated * photocopy of an undated and unsigned handwritten statement 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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130013641, on 26 March 2014. 2. The original record of proceedings (ROP) shows the applicant had requested removal of the subject OER from his OMPF, reinstatement in the USAR, and promotion to captain, pay grade O-3. With respect to the subject OER, the Board made the following determination: a. The evidence of record did not support his request to expunge the subject OER from his records. He did not produce evidence that clearly and convincingly overcame the presumption of administrative regularity. Thus he did not meet his burden of proof. b. The applicant’s contention that he never received face-to-face counseling or the rater and senior rater's OER support forms was not supported by any tangible evidence. However, in accordance with Army regulations, failure to comply with any or all support or counseling form requirements does not constitute the sole grounds for appealing an evaluation report. c. The applicant’s signature on the subject OER is evidence that he had verified the accuracy of the administrative data in Part I, to include the period covered by the report and the rating officials in Part II, of the contested OER. This action is intended to increase administrative accuracy of the report because the rated individual has the most familiarity with and interest in the accuracy of this information. The applicant's contentions concerning his rating scheme failed to overcome the presumption of regularity which was strengthened by the applicant's signature. d. The applicant acknowledged receipt of the referred report and submitted a rebuttal letter to both the rater and senior rater. Accordingly, there was sufficient evidence to show the senior rater referred the OER to the applicant even though the referral memorandum from the senior rater was not available for review. e. The applicant did not provide any clear and compelling evidence showing that the ratings on the contested report were in error or that the comments in the report were anything other than the considered opinions and objective judgments of his rating officials. f. The applicant's contention that the rater and senior rater used the contested OER to circumvent the Army medical evaluation system was without merit. The available evidence shows the applicant received a permanent "P2" profile on 22 August 2011. The applicant provided no evidence showing he received a "P3" in his physical profile rating. As such, there was no regulatory requirement to refer him to a medical evaluation board. g. The applicant did not provide sufficient documentary evidence to support his allegation that the contested OER was given in retaliation for filing an equal opportunity complaint of racial discrimination. He did not provide sufficient documentary evidence showing a connection between his evaluation and the reports by other Soldiers attesting to having been subjected to an unhealthy and hostile work environment based on racism. h. The applicant did not provide sufficient evidence showing the subject OER was improperly processed. The evidence did not show the OER contained material errors, was inaccurate, or unjust. 3. The original ROP lists thirteen different documents as evidence in support of his application. He now provides approximately 51 documents to support his request for reconsideration. The additional documents are new evidence requiring consideration by the Board. 4. A review of the subject OER shows: a. that it was an evaluation based on a change of rater for the period 1 October 2009 through 31 January 2010 (a period of 4 rated months); b. that it was a referred report to which he signed his name and indicated he would submit comments; c. that the rater gave "No" responses for: * Part IVa (Army Values): item 2 (Integrity), item 5 (Respect), item 6 (Selfless-Service), and item 7 (Duty) * Part IVb1 (Attributes): item b1 (Mental); b2 (Skills) item 2 (Interpersonal) and item b4 (Tactical) * Part IVb3 (Influencing): item 3 (Motivating), item 7 (Developing), and item 8 (Building) d. that the rater placed an "X" in Part V (Performance and Potential), in the block indicating "Unsatisfactory Performance - Do Not Promote"; e. that the rater stated in Part Vb (Comment on Specific Aspects of the Performance), in pertinent part, the applicant demonstrated a clear desire to avoid mobilization with the 367th Engineer Battalion. His service was unmotivating and he lacked commitment to his duty as the FSC Maintenance Control Officer. He had publically expressed his desire to avoid deployment. He demonstrated no loyalty to his unit and no desire to meld his subordinates into a cohesive team. He slept during training events, and after failing to qualify with his weapon, made no attempt to improve. No Army Physical Fitness Test was performed during the rating period. A rigorous physical training regimen in December became chronic back pain at the mobilization station in January. It would appear the applicant was manipulating the system to avoid mobilization; and called into question his integrity. In view of this performance, he was recommended for separation from the Army. f. that the rater stated in Part Vc (Comment on Potential and Promotion) do not promote g. that the senior rater evaluated his promotion potential in Part VIIa as “Other”; h. that the senior rater explained in Part VIIb the applicant was a disappointment as a commissioned officer. He demonstrated some proficiency in individual Soldier tasks, however, he publicly displayed a poor attitude by stating his desire to avoid deployment. This revealed his grave misunderstanding of his duty as an officer, and demonstrated his inability to apply the leadership qualities required of an officer. His attitude was disruptive to the good order and discipline of his company. He did not think the applicant would improve his attitude and saw no capacity in which the applicant should remain in the Army as a commissioned officer; and i. that the senior rater did not list any future assignments for the applicant in Part VIId. 5. There is no indication the applicant requested a Commander's Inquiry (CI). 6. The subject OER was subsequently processed by the U.S. Army Human Resources Command (HRC), Alexandria, VA. 7. There is no evidence in the record showing the applicant appealed the contested OER to the Army Special Review Board. 8. A DD Form 220, dated 29 January 2010, as provided by the applicant, indicating he departed his active duty station on 4 February 2010 commencing his travel to home. 9. On 1 September 2012, the applicant was honorably discharged from the USAR. The separation orders additional instructions stated the applicant was twice non-selected for promotion to captain (CPT). 10. The applicant provides an email from C__D__, Evaluations Systems Branch, HRC, dated 7 June 2013, which informed him that given the date of the contested OER, he would have to make an application to the Army Board for Correction of Military Records. 11. The applicant provides: a. DA Form 3349, dated 18 August 2008, showing he received a temporary profile for low back pain. b. DA Form 2173, dated 3 September 2008, showing he sustained a back injury due to falling off the back of a military vehicle during training in June 2008. c. DA Form 3349, dated 22 August 2011, showing he received a permanent (P2) profile for his lower body due to back and ankle injuries. The profile shows the applicant was able to perform all functional activities that every Soldier regardless of military occupational specialty must be able to perform. If the Soldier could not perform any one of the ten tasks, then the Soldier's Military Physical Profile Series System (PULHES) must contain at least one "3" and the Soldier must be referred to a medical evaluation board (MEB). d. Several documents pertaining to what appears to be a congressional inquiry pursued by at least one Soldier relating to accusations of racial discrimination and an unhealthy or hostile work environment in the applicant's unit. e. A statement from a property book officer from the 648th Regional Support Group, dated 21 May 2012, attesting to discrimination and inappropriate behavior toward black officers and noncommissioned officers (NCOs) in the 367th Engineer Battalion including the battalion commander who a personally attacked the applicant. He further stated he witnessed the applicant receive a "GO" in all training events at the Regional Training Center in November 2009, and that he never witnessed the applicant sleeping during training or making public statements that he desired to avoid deployment. f. An email dated 18 June 2012 from the trial counsel assigned to review the administrative separation of the applicant who stated that before the USAR Command Office of the Staff Judge Advocate (OSJA) could go forward with separating the applicant, they needed evidence to support the applicant's referred OER and a statement and/or investigation that showed the allegations of EO violations within the command had been properly investigated, which would prove the applicant's referred OER was not given in retaliation for submitting an EO claim. g. An evaluation prior to the subject OER and two evaluations following the subject OER. All three reports rate his performance as satisfactory and his senior raters evaluated his promotion potential as fully qualified. 12. The applicant provides the following argument in support of his request to the Board: a. No rating chain was ever published. No initial or quarterly counseling was performed. No developmental tasks were recorded on a DA Form 67-9-1a (Developmental Support Form). b. The referred report did not follow the mandatory procedures for a written referral. He was released from the unit on 20 January 2010, but the referred OER was not completed until 4 months after he left the unit. c. The dates of the report are incorrect. Based on his orders, he was released from the unit on 20 January 2010. d. The basis for the contested OER refers to a single allegation that he did not deploy with his unit based on his back condition. He was released from active duty within the first 25 days of mobilization due to his medical condition. The rater and senior rater speculate that he made up the back condition to avoid deployment. The facts were he injured his back during a previous military training exercise and received a permanent profile in August 2008. Based upon his profile and documented physical condition, he was not medically permitted to deploy with his unit. e. The rater and senior rater used the subject OER to circumvent the Army medical evaluation system. Instead of a command referral to an MEB, the rater and senior rater used the subject OER to evaluate his medical condition as a basis for denying him continued service which is a violation of Army regulations and a denial of his due process rights. f. He never made any public statements that he desired to avoid deployment. If the allegation was true, any responsible command would appoint an investigating officer, initiate a commander's inquiry, and obtain witness statements to document the findings in the OER. Additionally, if proven, the officer would likely receive a GOMOR or punishment under the UCMJ. g. There is no evidence he ever slept at training events or failed to qualify with his weapon. Additionally, the rater's statement that he was disloyal is contrary to Part IV of the evaluation which states he displayed honor, courage and loyalty. h. There are well-documented incidents of racial discrimination in the unit and he provides statements from Soldiers in the unit who attest to discrimination and an unhealthy work environment. Moreover, he was the only black commissioned officer in the unit. 13. Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant 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. 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 Corps. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, and counseling forms. 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 2 governs the purpose and development of rating chain qualifications and special evaluation requirements. It states the senior rater will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period. This counseling will include, as a minimum, the rated Soldier's duty description and the performance objectives to attain. (1) The rated Soldier will participate in counseling, assessments and a final evaluation. Assessment will be conducted with the rating chain throughout and at the end of the rating period. Rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate. (2) The rater will verify the initial face-to-face counseling by initialing on the working copy of the DA Form 67-9-1 and will forward a copy to the senior rater for approval and validation for officers. Rated officers in the rank of CPT, lieutenant, chief warrant officer two or warrant officer one will use both a DA Form 67-9-1a and DA Form 67-9-1 in preparing support-form objectives with the rater. c. Paragraph 3-4 describes the support form communication process. Paragraph 3-4f states, in relevant part, the DA Form 67-9-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate. The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain. The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer, if applicable and then back to the rated individual. Paragraph 3-4g stipulates that although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers. Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report. d. Paragraphs 3-20a and b state 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. e. Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, Department of the Army (HQDA). f. Paragraph 3-36a states the senior rater will place an “X” in the appropriate box in Part IId of the completed report. The report will then be given to the rated Soldier for signature and placement of an “X” in the appropriate box in Part IId. g. Paragraph 3-39 states 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. To justify deletion or amendment of a report, the appellant 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. h. Paragraphs 6-3 and 6-4 state that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. The provisions of AR 15-6 do not normally apply to inquiries of this type; but in specific instances, the commander may determine otherwise. In these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. i. Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. As a rule, the likelihood of successfully appealing a report diminishes with the passage of time. j. 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: (1) the presumption of regularity will 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. k. Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustices at the time the report was rendered. l. Paragraph 6-13 prescribes policies for appeals based on substantive inaccuracy. Paragraph 6-13b(2) stipulates, in pertinent part, a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. m. Paragraph 6-13c(2) states that correcting minor administrative errors or deleting one official's rating does not invalidate the report. 14. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the official military personnel file (OMPF) and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Table 2-1 states the DA Form 67-9 is filed in the performance folder of the OMPF. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his OMPF should be corrected by removing the subject OER based on administrative and substantive errors which were extensively considered and explained to him in the original ROP. He now argues: a that he was denied due process because his senior rater failed to set forth his rights in a written referral as indicated on the face of the subject OER; b. that the dates of the subject OER are incorrect because he was released from the unit on 29 January 2010; and c. that the subject OER, which was given to him on 4 May 2010, is not substantiated by creditable facts because there was no AR 15-6 investigation and no criminal investigative report. 2. The applicant's contention that he did not receive due process based on no written referral being provided to him has been carefully considered. It is acknowledged that there is no available memorandum from the senior rater referring the subject OER to him. However, the evidence does show that the applicant acknowledged receipt of the referred report and submitted a rebuttal statement to both the rater and senior rater. While specific procedures may or may not have been followed, it is clear that the applicant was given due notice and responded to the referred report. There is no clear evidence showing that the applicant was not given due process or that he was harmed in any way by any possible procedural error. 3. The applicant contends that the dates of his evaluation on the subject OER are incorrect because he was released from the unit on 29 January 2010. However, the DD Form 220 that he provides shows that he signed the form on 29 January 2010, indicating his departure was to be on 4 February 2010. No other documents are available showing the exact date and time that he signed out of the unit. Regardless, he was responsible for checking this information on the subject OER at the time he reviewed and signed it. The conflicting documents and passage of time make it impossible to know for certain what ending date should have been entered on the subject report. In any case, whether that date is 29 January, 31 January, or even 4 February, it does not change the content of the evaluation and does not invalidate the report. Accordingly, there is no substantiated basis for changing the disputed date or voiding the entire report. 4. The applicant’s contention that the subject OER is not substantiated by credible facts because there was no AR 15-6 investigation and no criminal investigative report has been carefully considered. The governing regulation clearly states that the provisions of AR 15-6 do not normally apply to a CI; but the commander has the option to apply it in specific instances if he deems it appropriate and/or necessary. The mere absence of such an investigation does not automatically mean that the contents of the subject OER lack credibility. The applicant had the option to request a CI and did not do so. 5. As noted above in the governing regulation, 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 applicant. The applicant has not provided clear and compelling evidence which shows that the ratings on the contested report were in error or that the comments in the report were anything other than the considered opinions and objective judgments of the rating officials at the time the report was rendered. 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 to amend the decision of the ABCMR set forth in Docket Number AR20130013641, dated 26 March 2014. _______ _ _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) AR20120008647 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150004997 16 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1