IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150006173 BOARD VOTE: ____X_____ ___X____ ____X____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150006173 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) on his Officer Evaluation Report for the period from 18 December 2003 - 4 June 2004 to show the senior rater checked the "Best Qualified" block. _____________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: 23 June 2016 DOCKET NUMBER: AR20150006173 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 Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) on his Officer Evaluation Report (OER) for the period from 18 December 2003 - 4 June 2004 (hereafter referred to as the contested OER) be changed to show the senior rater checked the "Best Qualified" block. 2. The applicant states in 2004 he was a member of the California Army National Guard. The unit had a very high operational tempo and was getting ready to deploy in support of Operation Iraqi Freedom. In the contested report he received a "Fully Qualified" rating in Part VIIa. He believes this rating should be changed to "Best Qualified." 3. During a recent records review this error was brought to his attention and he realized the contested OER failed to capture some significant contributions that he made to the unit. In a memorandum from the Department of the Army, dated 27 January 2015, a directive stated the U.S. Army Human Resources Command would no longer be masking OERs. This prompted him to do a detailed review of his file, where he discovered that the contested OER could potentially have a serious negative impact on his career. 4. The applicant provides: * the contested OER * a memorandum, dated 22 March 2015, from Lieutenant Colonel (LTC) N____ CONSIDERATION OF EVIDENCE: 1. The applicant is a captain serving in the Regular Army. He previously served 9 years, 11 months, and 5 days in the Army National Guard in the States of New Mexico, California, and New York. 2. The contested OER covered the period from 18 December 2003 - 4 June 2004, during which the applicant was a first lieutenant. This was not a referred report. The senior rater signed the contested OER on 15 December 2006 and the applicant signed it on 22 December 2006. The following information is provided on the contested OER. a. The applicant was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 184th Infantry (Air Assault (AASLT)), Modesto, CA, as the Headquarters Company Executive Officer (XO). b. The applicant's senior rater was Major (MAJ) N___, whose position is shown as the XO. In Part VIIa the senior rater placed an "X" in the "Fully Qualified" block referencing the applicant's promotion potential. In Part VIIc (Comment on Performance/Potential) the senior rater stated: [The applicant] has impressed me with his level of dedication to the company and battalion readiness. He has made an excellent headquarters executive officer and continues to demonstrate his abilities as a junior company level officer. His leadership ability and physical fitness level sets the standards for other officers and Soldiers to follow. He is one of the most professional officers I have worked with during my career. [The applicant] has tremendous overall potential and should be monitored for future staff assignments and company command. He should attend his Captain's Career Course as soon as possible. 3. The applicant provided a memorandum, dated 22 March 2015, from LTC N____ (then a MAJ), the senior rater for the contested OER. LTC N____ stated: a. The purpose of the memorandum was to change his evaluation in Part VIIa of the contested OER to show the applicant was "Best Qualified" for promotion, in light of the newly discovered information regarding the applicant's performance. b. During the period of the contested OER, he was the Battalion XO. He observed the applicant as the XO of HHC, 1st Battalion, 184th Infantry (AASLT) where he closely monitored the applicant's performance as his senior rater. c. It has been brought to his attention that during the period of the contested OER the applicant, in addition to his duties as HHC XO, assumed a number of other roles that significantly contributed to the battalion's preparation for its mobilization to Iraq later that year. (1) The applicant traveled to Fort Leavenworth, KS where he served as the Battalion S4 for a one week Warfighter Exercise. During the exercise the battalion excelled in its sustainment capabilities due to the efforts of the applicant. (2) He served as the HHC Commander, during the commander's absence, during the battalion's final field training exercise leading up to the mobilization. (3) He volunteered to mobilize in May of 2004 to run all of the mobilization efforts and ensured the battalion was logistically and administratively prepared to execute its mission. d. The applicant was an outstanding officer and one of the best that he had worked with in over 28 years of military service. The applicant's contested OER should reflect "Best Qualified" for promotion in light of this new information. REFERENCES: Army Regulation 623-105 (Officer Evaluation Reporting System), then in effect, prescribed the officer evaluation function of the military personnel system. a. Paragraph 3-58 stated if rating officials become aware of information that would have resulted in a higher evaluation of the rated officer, they will take action to alter or remove the report in accordance with the appeal procedures stated in chapter 6. Rating officials should precisely specify the new information, how it was obtained, whether it was factually confirmed, or how it would change the evaluation had it been considered in writing the original report. Addenda will not be used to report this type of information. The rated officer may be provided with a statement by the rating official who discovered the new favorable information. The statement could be used in the rated officer's appeal. b. Paragraph 6-10a stated the burden of proof rests with the appellant. Accordingly, 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. * Action is warranted to correct a material error, inaccuracy, or injustice. c. Paragraph 6-10d stated that for a claim of inaccuracy or injustice of a substantive type, evidence must 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 affording them 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 should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a commander's inquiry may provide support for an appeal request. DISCUSSION: 1. The applicant provided a memorandum from the senior rater on the contested OER that clearly and convincingly justifies an amendment to correct an inaccuracy. 2. AR 623-105 states if rating officials become aware of new information that would have resulted in a higher evaluation of the rated officer, they will take action to alter or remove the report in accordance with appeal procedures. Rating officials should precisely specify the new information and how it would change the evaluation had it been considered in writing during the original report. 3. The applicant's senior rater for the contested OER specified what new information came to his attention that would have changed his evaluation of the applicant's promotion potential to "Best Qualified." //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150006173 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150006173 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2