IN THE CASE OF: BOARD DATE: 1 November 2016 DOCKET NUMBER: AR20150012194 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: DOCKET NUMBER: AR20150012194 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 removing his DA Form 67-9 for the period 7 January 2009 through 18 August 2009 from his Official Military Personnel File. _____________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: DOCKET NUMBER: AR20150012194 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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 7 January 2009 through 18 August 2009 (hereafter referred to as the contested OER) from his Official Military Personnel File (OMPF) or correction of the errors noted. 2. The applicant states: a.  The contested OER contains substantive errors and derogatory information, it omitted a step in the evaluation process, and the wrong statutory time was used to designate the senior rater. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) states the statutory time to be a senior rater is 60 days or more. The substantive errors are in Part IV (Performance Evaluation – Professionalism), block d (Officer Development) and Part VII (Senior Rater), block a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade). b.  The senior rater for the contested OER was only in command 40 days before the through date and this was not permissible for a U.S. Army Reserve (USAR) officer evaluation. She did not know him and she was the senior rater only during the period 9 July 2009 to 18 August 2009. c.  The senior rater's narrative comments in Part VII, block a, made it look like he made everything up. His civilian employer, Johnson & Johnson, is very supportive of the Army. He kept the executive officer abreast of his medical conditions and he was penalized. d.  The contested OER was not completed until December 2011 after leadership from the 210th Regional Support Group got involved, even though the through date was 18 August 2009. e.  He had been promoted to captain and he was going to be reassigned to the group S-6 major's position when he was informed by Lieutenant Colonel H____ M____ that he was going to be reassigned to the 166th Regional Support Group for mobilization. f.  He has tried to request a Commander's Inquiry several times and he has not received any support from his unit. He was unable to start the process, even before and after the contested OER was filed in his records in 2012. He submitted communications to the different group commanders for leadership involvement in an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation or a Commander's Inquiry. g.  Most of the rater and senior rater allegations were based on false information and had a medically untrue foundation. He was medically disqualified before he went to the unit and he had dental braces 6 months prior to his assignment to the unit. h.  In July 2009, he was issued three Functional Capacity Certificate Forms 507 (Standard Form 507 (Medical Record) overprints) created by a Department of Veterans Affairs (VA) neurologist and a family doctor, none of which his rater or senior rater deemed valid. However, the forms were validated by the Fort Buchannan Troop Medical Clinic in July 2009. i.  He was diagnosed with sleep apnea by the VA on a later examination which makes statements in the contested OER untrue. j.  The rater placed his integrity into question by asking him to lie about his medical situation so he could be mobilized with the unit. This was common practice at the unit. Furthermore, after his rater saw the three Standard  Forms 507, he gave him an unlawful order not to go to the troop medical clinic to validate them. He was only able to validate the forms because he went to sick call because he was running a high fever. k.  On 12 February 2008, he had left knee surgery and even though the surgery went well, he was not supposed to do any strenuous impact workout per doctor's orders. This makes statements from the rater and senior rater untrue. l.  After joining the 166th Regional Support Group and disregarding doctor's orders and trying to deploy with his unit, he performed physical training with the unit and passed his Army Physical Fitness Test (APFT) in March 2009. As a consequence of running and some other Army exercises, his left knee gave out once again and the pain returned. He saw his doctor on 26 June 2009 and he was assigned a physical profile rating. Moreover, he was issued a Functional Capacity Certificate due to the physical profile rating and during a scheduled visit with his VA doctor who noted his magnetic resonance imaging and x-rays. m.  The senior rater was supposed to refer a copy of the completed OER to the rated Soldier for acknowledgement and comment. The senior rater did not attach a memorandum to the contested OER and the referral process was not properly followed. n.  A DA Form 67-9-1 (OER Support Form) was never completed in accordance with the regulation and one was completed on 7 June 2010 and used to evaluate him in the contested OER. This makes Part IV, block d (Officer Development) and Part VII invalid. As a newly promoted captain in a major's position, this would have been the most important conversation between him and his rater. o.  He was never given positive or negative counseling by either the rater or senior rater. The contested OER was rendered 22 months after the evaluation period and written impartially and with malice to affect his military career. The contested OER was used to punish him for a medical condition that deprived him of deploying with his unit. p.  He requested not filing the contested OER once it was evident it was not properly done and he was going to request a Commander's Inquiry, but the 166th Regional Support Group S-1 had it filed anyway, which made the appeal process harder. He was forced to sign the contested OER or have it filed without his signature. q.  The contested OER has deprived him of getting promoted and now he is being involuntarily separated. He was told not to worry about the contested OER because it was his first evaluation as a captain and only the last three OERs would be looked at for the major promotion board. He has received "top block" OERs since the contested OER and even immediately after the contested OER. r.  In April 2009, his mother's spinal cord collapsed causing her paralysis from the waist down. He was the only local help she had in his hometown other than his father who could not handle the load. His mother died 5 years later. Between his family situation, civilian job, and Army responsibility, he was bound to slip somehow. He received help from a chaplain. s.  On 19 November 2012, he had back surgery which was mandated by the VA and, as a consequence of his line-of-duty investigation, the 166th Regional Support Group Commander at the time said he did not have anything. 3. The applicant provides a sequence of events listing 26 numbered documents; however, documents numbered 3, 17, and 18 were not attached to his application. CONSIDERATION OF EVIDENCE: 1. Having prior honorable enlisted service in the Regular Army, Army National Guard, and USAR, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 3 September 2002. 2. On 24 August 2003, he was ordered to active duty for training. 3. On 16 January 2004, he was honorably released from active duty. 4. On 2 September 2004, he was promoted to first lieutenant. 5. He provided medical documentation in Spanish and untranslated, dated 12 February 2008, from the De Diego Ambulatory Clinic, Corporation, DBA, San Juan Medical Plaza, San Juan, PR, showing he underwent surgery, presumably on his left knee and as indicated in his sequence of events. 6. On 9 July 2009, he was reassigned within the 1st Mission Support Command to the 166th Regional Support Group for the convenience of the government. 7. He provided three Standard Forms 507 signed by three different medical personnel as follows: a.  A Functional Capacity Certificate, dated 1 July 2009, shows he was diagnosed with left knee external meniscus degeneration/degeneration of the hyaline cartilage to the medial femur and tibia/lumbar disc disease; his lower back and left knee prevented him from deploying; he could perform an alternative aerobic physical fitness test by bicycling or swimming; he held a permanent physical profile rating, and his limitations were permanent. b.  A Functional Capacity Certificate, dated 10 July 2009, shows he was diagnosed with lower back pain, cervical lumbosacral lordosis (inward curve) and muscle spasms, lumbosacral lordosis spine with degenerative change, left knee pain with meniscal tear; his lower back and left knee prevented him from deploying; he could perform an alternative aerobic physical fitness test by swimming; he had a permanent physical profile rating, and his limitations were permanent. c.  A Functional Capacity Certificate, dated 13 July 2009, shows he was diagnosed with lumbar radiculopathy secondary history of disc disease, L4-L5 and L5-S levels, bilateral carpal tunnel syndrome; his lower back and left knee prevented him from deploying; he could perform an alternative aerobic physical fitness test by walking and swimming; he held a permanent physical profile rating, and his limitations were permanent. 8. Headquarters, 1st Mission Support Command, Orders 09-196-00002, dated 15 July 2009, ordered him to active duty as a member of his Reserve Component unit effective 14 September 2009 for a period of 400 days for mobilization for Operation Iraqi Freedom. 9. A DA Form 3349 (Physical Profile), dated 22 July 2009, shows he had a permanent physical profile rating of 3 under the lower extremities factor for low back pain secondary to discogenic disease (gradual deterioration of the discs in the spine due to the natural aging process), bilateral knee pain (left knee meniscal degeneration). He needed a medical evaluation board (MEB)/physical evaluation board (PEB) and he was unable to complete his APFT. The form was not signed by his unit commander. 10. On 6 August 2009, Headquarters, 1st Mission Support Command Orders 09-196-00002, dated 15 July 2009, were revoked. 11. His contested OER for the period 7 January 2009 through 18 August 2009 shows in: a.  Part I (Administrative Data), block h (Reason for Submission), Change of Duty; b.  Part II (Authentication), block a (Name of Rater), the Group Executive Officer signed the OER on 15 May 2011; c.  Part II, block c (Name of Senor Rater), the Group Commander signed the OER on 15 May 2011; d.  Part II, block d (This is a referred report, do you wish to make comments?), is marked "Yes," indicating the rated officer's comments were attached; d.  Part II, block e (Signature of Rated Officer) and (Date), the applicant's electronic signature, dated 5 December 2011; e.  Part IV, block 4 (Loyalty), is marked "NO"; f.  Part IV, block 6 (Selfless-Service), is marked "NO"; g.  Part IV, block c: * APFT – PASS * DATE – 20090419 (19 APRIL 2009) * HEIGHT – 68 * WEIGHT – 165 YES h.  Part IV, block d (Officer Development), is marked "YES," indicating developmental tasks were recorded on a DA Form 67-9-1a (Officer Evaluation Report Support Form) and follow-up counselings were conducted; i.  Part V (Performance and Potential Evaluation), block a (Evaluate the Rated Officer's Performance during the Rating Period and His/Her Potential for Promotion), is marked "Unsatisfactory Performance, Do Not Promote"; j.  Part V, block b (Comments on Specific Aspects of the Performance), states: …[Applicant] refused itself [sic] to deploy with the unit to Iraq and informed his chain of command of his desire to resign his Army commission and to be completely separeted [sic] from the Army. [Applicant] frequent unwillingness to cooperate in working toward a successful preparation and deployment of the unit to theater affected readiness and unit's goals. He demonstrated a serious lack of integrity and poor judgment without consideration of results and mission accomplishment. k.  Part V, block c (Comment on Potential for Promotion), "[Applicant] needs to be well developed on [sic] current rank." l.  Part VII, block a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), is marked "Other"; m.  Part VII, block b (Potential Compared with Officers Senior Rated in Same Grade), is marked "No Box Check"; n.  Part VII, block c (Comment on Performance/Potential), states: [Applicant] has potential; however, lacks duty and selfless service. Due to his remiss [sic] to meet the standards of two of the seven Army Values, [Applicant] should not be retained in the US Army. [Applicant] developed several reasons for his inability to deploy with the unit due to his civilian job. When provided assistance from ESGR [Employer Support of the Guard and Reserve], [Applicant] stated that he wore dental braces and therefore he is undeployable. When he was informed that you [sic] can wear dental braces and deploy, he informed the executive officer that he would resign his commission. Finally, [Applicant] stated that he had difficulty sleeping and had other medical issues. The SRPs [Soldier Readiness Processing examinations, evaluations, and interviews] deemed him deployable and he took an APFT on 4/19/2009 and passed. [Applicant] is an officer that [sic] lacks integrity and should not be promoted or retained in the US Army. 12. He provided email, dated June 2010 through October 2011, in which he attempted to obtain an OER for the period 7 January 2009 through 18 August 2009. He also provided an email, dated 27 October 2011, which indicates an OER with completed rater comments was sent to the rater, and the rater was offended and disrespected by the proposed rater comments. 13. His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 16 July 2010, that shows he injured his back on 14 July 2010 while serving on active duty for training. 14. On 12 October 2011, the Chief, Casualty Operations Branch, Headquarters, 81st Regional Support Command, approved his DA Form 2173, dated 16 July 2016. 15. On 5 December 2011, he submitted a self-authored memorandum for record indicating he did not concur with the contested OER. He stated: a.  He chose his course of action with regard to resigning his commission because his rater disregarded his permanent physical profile rating of 3 from the Fort Benning Troop Medical Clinic and several Standard Forms 507. b.  When he was assigned to the 166th Regional Support Group, he was called at the time he exited and was going to a brigade-level unit. His willingness to work toward a successful preparation (for deployment) surpassed the fact that he was the only S-6 staff member and he was doing everything within his power to comply with different requirements, even while he was still working with his civilian employer. Although he was not a full-time staff member like the others, he was doing and passing all the prerequisites in preparation of the upcoming deployment. c.  He kept his superior informed of his medical condition at all times and he believed he did everything that was asked in preparation of the unit's and his section's deployment. He presented the deployment to a class of warrant officers at Fort Gordon who were graduating just in time for the unit deployment because his unit was short of a signal warrant officer. He believed his execution and the things he did to get the unit/S-6 section ready spoke for themselves and contradicted the rater's comment. d.  He was working without an OER support form and the one used for the contested OER was completed on 7 June 2010. e.  He did not believe a month in the USAR was enough time to get to know a Soldier and make the contested comments. He was forthcoming with his unit about wearing dental braces and he told his unit he would remove the dental braces if the Army would reimburse him for removal and replacement of a 6-month treatment. He was never told he could wear the dental braces in theater, but if the forward operating base was able to give him orthodontic treatment, he was able to deploy with the unit. He was advised there were no such facilities at the forward operating base. Further, his DA Form 3349 and Standard Forms 507 specifically stated he was non-deployable, but his senior rater deemed the information was not valid. 16. His OMPF in the interactive Personnel Electronic Records Management System shows the contested OER was submitted to the U.S. Army Human Resources Command on 6 December 2011; however, it was rejected due to a lack of supporting documentation. On 8 December 2011, the contested OER was accepted for filing in his OMPF. 17. On 26 April 2012, he was advised that his only means for correcting errors in the contested OER were to submit an appeal. 18. Email provided by the applicant shows he attempted to gather information about requesting a Commander's Inquiry on 14 July 2012. 19. He provided medical extracts showing he had back surgery on 19 November 2012. He also provided email showing he underwent an MEB around May 2013 and his case was referred to a PEB. His records are void of and he failed to provide any evidence of a PEB determination. 20. On 30 June 2014, he submitted a request to the Commander, 210th Regional Support Group, for a Commander's Inquiry into the contested OER. 21. He provided an email, dated 30 July 2014, that shows the senior rater for the contested OER was assigned to the unit on 7 July 2009. He did not provide a copy of the senior rater's assumption of command orders. 22. He provided email for the period 5 December 2011 through 29 August 2014 which show: a.  He sought OER appeal assistance from his current and previous command and the U.S. Army Reserve Command G-1 Personnel Actions Branch. b.  His legal office advised him that he needed to request a Commander's Inquiry prior to appealing the contested OER. c.  His commander told him to first apply to the ABCMR prior to conducting a Commander's Inquiry and he would initiate the Commander's Inquiry if the Board denied his request. 23. He provided OERs for the period 19 August 2009 through 1 December 2013 that show he received "Outstanding Performance, Must Promote" and "Best Qualified" ratings from his rater and senior rater, respectively. 24. He also provided 11 letters of recommendation and two OER Support Forms for the period 2 February 2013 through 22 April 2014 and 23 April 2014 through 23 November 2014 that show he received "Excels" rater's profile ratings. 25. He was promoted to major effective 25 September 2015. 26. His available records are void of any evidence indicating a Commander's Inquiry was conducted into the contested OER. 27. His DA Form 5016 (Chronological Statement of Retirement Points), dated 26 October 2016, shows he has 19 years and 16 days of qualifying service for retirement. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. a.  Paragraph 2-7 provided the rules for designating the senior rater and stated to render a written OER, the senior rater must have been designated as the rated officer's senior rater for a minimum period of 60 calendar days. The senior rater must have served in that capacity for a minimum of 90 calendar days for USAR troop program unit, drilling individual mobilization augmentee, and drilling Individual Ready Reserve Soldiers and Army National Guard Soldiers. b.  Paragraph 3-36 stated the referral process ensured the rated Soldier knew his or her OER contained negative or derogatory information and afforded him or her the opportunity to sign the OER and submit comments. (1)  The senior rater would refer the OER, even if the rated Soldier was geographically separated from the senior rater or had departed the unit, organization, school, or course due to permanent change of station, retirement, or release from active duty. (2)  If referral was required, the senior rater would ensure an "X" was placed in the appropriate box in the completed OER in Part II, block d. (3)  The senior rater would refer a copy of the completed OER (an OER that has been signed and dated by the rating officials) to the rated officer for acknowledgement and comment. (4)  Confirmed acknowledgment of the OER referral was required. (5)  Acceptable methods for referring an OER to a rated Soldier after his or her departure included routing the referred OER to him or her using the Evaluation Entry System, emailing it as an attachment to an email address (preferably using a "read receipt" option), or mailing it by certified mail to a Soldier's last disclosed mailing address. (6)  Documentation of the rated Soldier's receipt or acknowledgement and/or annotation of actions taken to obtain acknowledgment were critical. (7)  The rated Soldier had the opportunity to sign the OER and would decide whether he or she would submit comments, placing an "X" in "YES" or "NO" in Part II, block d. (8)  If the rated Soldier refused to sign the OER, the senior rater must enter the appropriate statement in the OER prior to submission without a signature to Headquarters, Department of the Army (HQDA). (9)  If the rated Soldier failed to respond within the given suspense period, or if certified mail sent to an officer's last known forwarding address was returned indicating the Soldier could not be reached at that address, the senior rater would annotate the following statement on the referred OER: "Rated officer was not available to sign." When no signature appeared on a referred OER, the senior rater would prepare a memorandum as an enclosure to the OER to document referral actions taken and whether there was acknowledgment by the rated officer (a copy of the returned certified mail document and/or email referral/"read receipt" may be included, if used, as enclosures to this memorandum) for forwarding to the designated individual who will perform the supplementary review, if applicable (the battalion or brigade S-1, administrative office, or HQDA, as appropriate). c.  Paragraph 4-7 stated evaluation reports accepted for inclusion in the official record of a Soldier were 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. d.  Paragraph 4-8 stated substantive appeals would be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the USAR or Army National Guard. e.  To justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 rested with the applicant. f.  Chapter 6 prescribed the policies and procedures pertaining to managing the OER redress program. Paragraph 6-11a stated the burden of proof rests with the applicant to justify deletion or amendment of a report. The applicant would produce evidence that established clearly and convincingly that: (1) the presumption of regularity would not be applied to the report under consideration and (2) action was warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence would be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 2. Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. 3. Army Regulation 350-1 (Army Training and Leader Development) prescribes policies, procedures, and responsibilities for developing, managing, and conducting Army training and leader development. Soldiers are required meet the physical fitness standards set forth in this regulation and Training Circular  3-22.20 (Army Physical Readiness Training), in effect at the time, as measured during the APFT. DISCUSSION: 1. The evidence of record shows the applicant underwent left knee surgery in February 2008. 2. Although the assumption of command orders for the designated senior rater for the OER covering the period 7 January 2009 to 18 August 2009 are not available, the applicant provided an email showing she was assigned to the unit on 7 July 2009. She did not meet the criteria as his senior rater since she had not been assigned to the unit for a minimum of 90 days prior to the through date of the OER in accordance with Army Regulation 623-3. 3. He was assigned to the 166th Regional Support Group on 9 July 2009. On 15 July 2009, he received orders to active duty as a member of his Reserve Component unit effective 14 September 2009 for a period of 400 days for mobilization for Operation Iraqi Freedom. 3. On 22 July 2009, he was assigned a permanent physical profile rating of 3 under the lower extremities factor for low back pain secondary to discogenic disease and bilateral knee pain. Further, his permanent physical profile rating showed he required an MEB or PEB. 4. On 6 August 2009, his orders to active duty were revoked. 5. Although the contested OER indicated he refused to deploy, informed his chain of command of his desire to resign his Army commission, and developed several reasons for his inability to deploy, he presented his command with valid medical evidence showing his medical conditions rose to a level requiring an MEB or PEB. Although the timing of his permanent physical profile rating is questionable, his medical conditions rendered him unqualified for deployment. 6. The through date of the contested OER was 18 August 2009 and it was not signed by the rater, senior rater, and applicant until 2011. He submitted written matters regarding the OER prior to its filing and he requested a Commander's Inquiry within the 3-year appeal process; however, his request for a Commander's Inquiry was not acted upon. He was denied appeal due process on the OER. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150012194 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150012194 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2