IN THE CASE OF: BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20160003834 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: 19 May 2016 DOCKET NUMBER: AR20160003834 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: 19 May 2016 DOCKET NUMBER: AR20160003834 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. The removal of two officer evaluation reports (OER) (hereinafter referred to as the contested OERs) from his official military personnel file (OMPF). * first contested OER is for rating period 1 June 1997 through 31 May 1998 * second contested OER is for rating period 1 June 1998 through 1 October 1998 b. Once the OERs are removed, to be considered for promotion to lieutenant colonel (LTC) by a special selection board (SSB). 2. The applicant states, in effect: * he received the two contested OERs while serving as a member of the Massachusetts Army National Guard (MAARNG); at the time he had not attended an Officer Basic Course (OBC) * the governing regulation for officer evaluations that was in effect at the time, Army Regulation 623-105 (Personnel Evaluation, Officer Evaluation Reporting System), stated officers would not receive a rating when they had not yet attended an OBC; he did not attend OBC until 2001 (well after the closing date of the second contested OER) * both OERs were initially located in the restricted folder of his OMPF, but they were later moved to his performance folder; unfortunately, they were then viewed by the LTC selection board; he was in the primary zone but was not selected * Army Directive 2015-11 (Unmasking of Army Officer Evaluation Reports) directed all OERs be unmasked and considered by selection boards convening after July 2015; his selection board convened in August 2015 * he confirmed with an official from the U.S. Army Human Resources Command (HRC) that the selection board had seen both of the contested OERs * the language in the contested OERS arguably should have caused them to be referred, but they were not * had they been referred, he would likely have found out that, by regulation, the reports should never have been written; they reflect the performance of an officer who had not received the training necessary to be successful * he asserts the presence of the two contested OERs are arguably the underlying cause of his non-selection to LTC; their continued presence in his OMPF is unjust 3. The applicant provides: * DA Form 67-8 (U.S. Army Officer Evaluation Report), first contested OER for the rating period of 1 June 1997 through 31 May 1998 * DA Form 67-9 (Officer Evaluation Report), second contested OER for the rating period 1 June 1998 through 1 October 1998 * extract from Army Regulation 623-105, dated 1 April 1998 * two emails, one dated January 2016, with an attachment, and the other dated February 2016 * Army Directive 2015-11 * DA Form 1059 (Service School Academic Evaluation Report) for the rating period ending 26 June 2001 * self-authored, expanded explanations for items 5 (I Request the Following Error or Injustice in the Record to be Corrected as Follows); 6 (I Believe the Record to be in Error or Unjust for the Following Reasons); and 8b (If more than 3 years since the Alleged Error or Injustice was Discovered, State Why the Board should find it in the Interest of Justice to Consider the Application) CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. After enlisting as a cadet in the U.S. Army Reserve (USAR), Reserve Officers' Training Corps (ROTC), the applicant was appointed as a second lieutenant (2LT) in the USAR and executed his oath of office on 24 May 1997. 3. Orders Number 140-10, dated 20 May 1997, issued by Headquarters, U.S. Army Second Region, U.S. Army Cadet Command, released him from ROTC pending transfer to the MAARNG. He was assigned to the USAR Control Group (Annual Training) effective 24 May 1997. He was further advised he would be delayed from entering active duty for a period of not more than 36 months to complete requirements for a baccalaureate degree; the afore-mentioned active service was required to fulfill his ROTC service obligation. 4. He was appointed as a 2LT in the MAARNG and executed his oath of office on 1 June 1997. He received Federal recognition on 30 December 1997. 5. On or about 31 May 1998, while assigned to an Engineer Company in the MAARNG, he received the first disputed OER for the rated period of 1 June 1997 through 31 May 1998. The reason for the report was "Closeout." His rater was Captain (CPT) RMB (Commander of the Engineer Company). His senior rater was Colonel (COL) WJR (Commander of a Troop Command within the MAARNG). His duty position was a platoon leader. a. Part IV (Performance Evaluation - Professionalism) shows the rater indicated a "1" in all blocks, except for a "2" in the block for military bearing and appearance. The comments reflected a high score on his Army Physical Fitness Test and that he needed to focus his platoon on survivability and Soldier tasks. b. Part V (Performance and Potential Evaluation), subitem b (Performance during this Rating Period) showed the block for "Usually Exceeded Requirements" was checked by the rater. The associated comments appear positive. Subitem d (This Officer's Potential for Promotion to the Next Higher Grade is) has "Promote Ahead of Contemporaries." c. Part VII (Senior Rater), subitem a (Potential Evaluation) shows the second from the top block has been checked. Subitem b (Comments) notes the applicant was a capable officer who demonstrated he could assume more difficult assignments. He failed, however, to complete an OER Support Form. 6. On or about 1 October 1998, while still assigned to the MAARNG Engineer Company, he received the second disputed OER covering the rated period 1 June 1998 through 1 October 1998. The reason for the report was "Change of Rater." His rater was CPT RMB (Commander of the Engineer Company and same rater as the first contested report). His senior rater was COL GCJ (Commander of a Troop Command within the MAARNG). His duty position was a platoon leader. a. Part IV (Performance Evaluation - Professionalism), subitem a (Army Values) shows the rater marked all "Yes" blocks. Subitem b (Leader Attributes/Skills/Actions) indicates the rater checked "Yes" in all blocks except "Learning," where the "No" block was marked. b. Part V (Performance and Potential Evaluation). * subitem a (Evaluate the Rated Officer's Performance during the Rating Period and His/Her Potential for Promotion) shows the rater checked the "Satisfactory Performance, Promote" block * the associated comments in subitem b (Comments on Specific Aspects of Performance and Potential for Promotion) are generally favorable, however the rater stated the applicant needed to set an example for others to follow, and went on to note he should put forth a better effort in the submission of reports * in subitem c (Identify any Unique Professional Skills or Areas of Expertise of Value to the Army that this Officer Possesses), the rater indicated the applicant was a capable Soldier able to handle all assigned tasks, but that he needed to develop better communication skills with his noncommissioned officers c. Part VII (Senior Rater). * subitem a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) has the block for "Best Qualified" marked, and "Center of Mass" indicated * subitem c (Comment on Performance/Potential) essentially stated the applicant was competent and capable; he focused on Soldier readiness and took the welfare of his Soldiers seriously 7. Orders A-12-300268, dated 15 December 2000, issued by the U.S. Army Reserve Personnel Command (USARPC), ordered him to temporary duty to attend the Chemical Officer Basic Course, reporting no later than 11 February 2001. 8. Orders A-12-300269, dated 15 December 2000, issued by USARPC, ordered him to active duty for a period of 4 years to complete his obligated service. His reporting date was 12 July 2001. 9. On 4 January 2001, he was honorably discharged from the MAARNG by reason of resignation. 10. A DA Form 1059, covering the period 12 February 2001 through 26 June 2001, indicates he successfully graduated from the Chemical OBC. 11. A DA Form 1059, covering the period 28 October 2007 through 6 February 2008, reflects he successfully graduated from the Judge Advocate (JAG) OBC. 12. The applicant is currently serving on active duty as a JAG officer, and holds the rank/grade of major/O-4. REFERENCES: 1. Army Regulation 623-105, in effect at the time, prescribes policies and procedures for officer evaluations. a. Paragraph 3-2 (Evaluation Principles), subparagraph d states, unless a report is required by another paragraph, newly commissioned officers who are programmed to attend their officer basic course will not be rated prior to attending the basic course. b. Chapter 5 (ARNG Evaluations) details procedures and policies for ARNG officer evaluations. Paragraph 5-20 (Preparation of Reports), subparagraph d states the provisions of paragraph 3-2d do not apply to ARNG officers being evaluated in accordance with this chapter. 2. Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides for SSBs. SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. c. Department of the Army Selection Board members are not allowed to divulge information related to the selection or non-selection of members considered by the board. DISCUSSION: 1. The applicant requests removal of two contested OERs on the basis the regulation in effect at the time stipulated officers would not be rated until they had completed OBC. Should the Board remove the OERs, he further requests reconsideration for promotion to LTC by an SSB. 2. While the regulation does restrict the rating of officers before completion of OBC, it also includes the caveat that this rule only applies if a rating is not elsewhere required. When he received the contested OERs, the applicant was a member of the ARNG. Army Regulation 623-105 contained a separate chapter which addressed ratings for ARNG officers. The specific paragraph cited by the applicant was noted in paragraph 5-20d of the regulation as not applying to officers in the ARNG. 3. Based upon the foregoing, there does not appear to be sufficient basis to grant the applicant's request to remove the two contested OERs. Given the lack of evidence to support the removal of the OERs, the concurrent request for an SSB would additionally not appear to be appropriate. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003834 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003834 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2