IN THE CASE OF: BOARD DATE: 29 September 2016 DOCKET NUMBER: AR20160013143 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: 29 September 2016 DOCKET NUMBER: AR20160013143 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: 29 September 2016 DOCKET NUMBER: AR20160013143 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 a referred officer evaluation report (OER) from his official military personnel file (OMPF). Hereafter, the OER in question, covering the rating period 1 October 2011 through 30 September 2012, will be referred to as the "contested OER." 2. The applicant states during the timeframe of October 2012, his commander filed a referred OER based on allegations that led to Flying Evaluation Board (FEB) proceedings. The contested OER was completed prior to the FEB findings, which were unfounded, and he was cleared of all the allegations. He would like the contested OER to be stricken from his service record. 3. The applicant provides no additional evidence in support of his request. 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. The applicant is currently serving in the Regular Army in the rank/grade of Chief Warrant Officer Four (CW4)/W-4. 3. The applicant had prior enlisted service in the U.S. Navy and commissioned service in the Army National Guard and Air National Guard. He was appointed as a Reserve warrant officer of the Army on 2 January 2002, in the rank/grade of warrant officer one/W-1. He was promoted to the rank/grade of CW4/W-4 on 1 February 2012. 4. The applicant received the contested OER on 31 January 2013. The report is a referred "Annual" OER covering the period 1 October 2011 through 30 September 2012. It addressed his duty performance as a Battalion Tactical Operations (TACOPS) Officer. His rater was Lieutenant Colonel (LTC) CMB and his senior rater was Colonel (COL) LGH. The contested OER shows in: a. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, signifying to the applicant that he was receiving a referred report. In that same block, a checkmark was placed in the "No" block, indicating the applicant did not wish to make any comments. b. Part IV (Performance Evaluation - Professionalism), sub-section b.3.2 (Influencing - Decision-Making), a checkmark was placed in the "NO" block, indicating that in the rater's judgement, the applicant was deficient in this rated area. c. Part V (Performance and Potential Evaluation (Rater)), sub-section a. (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the "Satisfactory Performance, Promote" block. d. Part V, sub-section b. (Comment on Specific Aspects of the Performance…), the rater included the following narrative: [Applicant] built the Battalion's TACOPS program from scratch after the unit's BRAC move from Fort Hood to Fort Bliss. [Applicant] was the first TACOPS Officer in the Brigade to establish a standard AMPS load for the Battalion and Companies, enabling us to rapidly execute Local Area Orientations (LAO), MTFs and RL progressions. [Applicant] skills as a TACOPS Officer were instrumental in the planning and execution of several major exercises including the first Attack Helicopter Aerial Gunnery on Fort Bliss, Division's Iron Focus exercise, Operation Raider Strike, Havelina Thunder, and Operation Neptune, the Battalion's overwater training rotation. [Applicant] also coordinated for the DOD Center for Countermeasures team from White Sands NM to participate in our overwater training, which enabled the Battalion to develop and test engagement TTPs against threat ADA systems we will likely encounter on our deployment. However, during this rating period [Applicant] committed several errors in judgment both as a PIC and IP as well as acts of indiscipline as a Senior Aviator. The rated officer has completed or initiated MSAF/360 as required by AR 350-1. e. Part V, sub-section c. (Comment on Potential for Promotion), the rater included the following comment: [Applicant] is a technical expert and has the potential for future service at current grade f. The senior rater in Part VIIa of the OER evaluated the applicant's promotion potential to the next higher grade and gave him a rating of "fully qualified." The senior rater indicated at the time, he served as senior rater to 24 officers in the applicant's grade. g. The senior rater entered the following comments in Part VIIc (Comment on Performance/Potential): [Applicant] is one of the finest TACOPS Officers I have served with in over 23 years of Service. [Applicant] re-built 4th Battalion's TACOPS program from scratch after redeployment from Afghanistan and a BRAC move from Fort Hood to Fort Bliss. [Applicant] is extremely proactive and exemplifies the team player attributes expected of an Army Officer. [Applicant] miss-stepped with a few decisions and actions but recovered gracefully. [Applicant] has the potential for future service and needs to ensure he adheres to established standards in the cockpit. h. The contested OER was signed by the rater on 25 January 2013 and the senior rater on 29 January 2013. The OER was filed in the performance folder of the applicant's OMPF on 21 February 2013. 5. There is no documentation in the available records, nor did he provide any documentation that indicates he appeared before an FEB. 6. There is no evidence that shows he submitted an appeal to U.S. Army Human Resources Command within 3 years of the through date of the contested OER. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-2 defines the role of the rating officials. Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest, fair evaluations of the Soldiers under their supervision. On one hand, they must give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. b. Paragraph 3-19 stipulates, in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA). Any verified derogatory information may be entered on an evaluation. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information. c. Paragraph 3-26 (Referred evaluation reports) provides, in pertinent part, that any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to HQDA. d. Paragraph 3-28 provides that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. e. Paragraph 4-7 provides that evaluation reports accepted for inclusion in the official record of an officer 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. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF. The regulation provides that the performance section 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. Appendix B states that the OER is filed in the performance section of the OMPF. DISCUSSION: 1. The applicant requests removal of a referred OER from his OMPF. 2. He contends the contested OER should be removed from his OMPF because an FEB convened and determined the allegations against him were unfounded; thus, he was cleared of all allegations. However, aside from his assertions, he has failed to provide evidence to support these contentions. 3. There is no evidence in his record or provided by him that shows his rater and/or senior rater did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner. Neither the rater's comments nor the senior rater's comments in the contested OER appear to attribute any diminished or negative performance on the applicant's part to any actions that may have been considered by an FEB. 4. In addition, the applicant has not shown the rating officials' evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested OER or that they exercised faulty judgment in evaluating him as they did. 5. An OER that has been included in the official record of an officer is presumed to be administratively correct, contain no material errors or inaccuracies, and is based upon observations, records, and verified reports. To justify deletion of an OER, the applicant must produce clear and convincing evidence which overcomes the aforementioned assumptions and provides a strong and compelling basis for removing the report. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013143 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013143 6 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2