ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 23 July 2019 DOCKET NUMBER: AR20160019574 APPLICANT REQUESTS: transfer of his DA Forms 67-9 (Officer Evaluation Report (OER)) covering the periods 28 March 2001 through 30 November 2001, 1 December 2001 through 30 November 2002, 1 December 2002 through 16 May 2003, and 17 May 2003 through 15 April 2004 from the performance folder to the restricted folder of his Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code Section 1552) * Self-authored Memorandum, dated 17 September 2016, subject: Application for Relief, DD Form 149, (Applicant) * Tab A – Memorandum, U.S. Army Human Resources Command, dated 29 May 1998, subject: Promotion as a Reserve Commissioned Officer of the Army (Army Regulation 135-155 (Army National Guard and Army Reserve – Promotion of Commissioned Officers and Warrant Officers Other Than General Officers)) * Tab B – Memorandum, U.S. Army Human Resources Command, dated 19 April 2012, subject: Army Board for Correction of Military Records (ABCMR), for (Applicant) * Tab C – Army Regulation 623-3 (Evaluation Reporting System) extract * Tab D – Army Regulation 600-8-104 (Military Personnel Information Management/Records) extract * Tab E – DA Form 67-9 covering the period 28 March 2001 through 30 November 2001 * Tab F – DA Form 67-9 covering the period 1 December 2001 through 30 November 2002 * Tab G – DA Form 67-9 covering the period 1 December 2002 through 16 May 2003 * Tab H – DA Form 67-9 covering the period 17 May 2003 through 15 April 2004 * Tab I – Letter, Officer of the Chief of Legislation Liaison, dated 30 March 2016 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. He has been directed by Under Secretary of the Army P____ M____ and the Office of the U.S. Senator, the Honorable C____ B____, to submit this application. b. He requests transfer of four chief warrant officer two (CW2) evaluations from the performance folder of his AMHRR to the restricted folder. The four CW2 evaluations were placed in his AMHRR after his date of rank as a lieutenant colonel, which was effective 29 May 1998. c. Army Regulation 623-3, appendices B-1 and B-2, state there is a difference between the evaluations of a warrant officer and a commissioned officer. The placement of the four CW2 evaluations in his AMHRR performance folder after his established date of rank as a lieutenant colonel (LTC) constitutes a material error. d. Army Regulation 600-8-104, paragraph 2-3c(1), states the restricted folder is used for historical data that may normally be improper for viewing by a selection board. The restricted folder maintains an unbroken, historical record of a Soldier's performance and evaluations periods. 3. He was voluntarily reassigned to the U.S. Army Reserve Control Group (Reinforcement) in the rank of major (MAJ) effective 1 June 1999. 4. On 14 October 1999, he was issued his Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). His rank is shown as MAJ. 5. He was reappointed as a warrant officer in the Army National Guard in the rank of CW2 effective 28 March 2001. 6. A review of his interactive Personnel Electronic Records Management System records shows the OERs covering the periods 28 March 2001 through 30 November 2001, 1 December 2001 through 30 November 2002, 1 December 2002 through 16 May 2003, and 17 May 2003 through 15 April 2004 are filed in the performance folder of his AMHRR. 7. On 4 December 2004, he was separated from the Army National Guard and transferred to the U.S. Army Reserve Control Group (Reinforcement) in the rank of CW2. 8. He was reappointed as a Reserve commissioned officer in the rank of MAJ effective 9 June 1990. 9. In 2003, he was considered for promotion to LTC by a special selection board under the 1997 LTC Army Promotion List criteria and selected for promotion. He was promoted to the rank of LTC with an effective date of 21 May 1999. 10. He was voluntarily reassigned to a U.S. Army Reserve troop program unit in the rank of LTC effective 18 February 2005. 11. On 1 April 2009, he was voluntarily reassigned to the U.S. Army Reserve Control Group (Retired Reserve) in the rank of LTC. 12. He was placed on the Retired List in the rank/grade of LTC effective 20 August 2012. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board found that the preponderance of the evidence in the record indicated that an injustice had occurred and the applicant’s OERs from his service as a warrant officer should be placed in his restricted OMPF. Because the duty and professional development requirements are different for warrant officers than for commissioned officers, the Board determined that it was an injustice to leave the applicant’s warrant officer OERs in his permanent OMPF because doing so would unfairly impact the applicant’s promotion potential. Therefore, the Board granted relief. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 transferring the following OERs from his performance folder to the restricted folder of the applicant’s AMHRR: * 28 March 2001 through 30 November 2001, * 1 December 2001 through 30 November 2002, * 1 December 2002 through 16 May 2003, and * 17 May 2003 through 15 April 2004 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. ADMINISTRATIVE NOTE(S): not applicable. REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 623-3 prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 4-7 states an evaluation report accepted for inclusion in the official record of a rated Soldier's Army Military Human Resource Record (AMHRR) is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. b. Paragraph 4-11 states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. c. Appendix B-1 (Overview) states warrant officers are self-aware and adaptive technical experts, combat leaders, trainers, and advisors. Through progressive levels of expertise in assignments, training, and education, the warrant officer administers, manages, maintains, operates, and integrates Army systems and equipment across the full range of Army operations. Warrant officers are innovative integrators of emerging technologies, dynamic teachers, confident Warfighters, and developers of specialized teams of Soldiers. They support a wide range of Army missions throughout their careers. When assessing performance and potential, the rating chain will recognize the basic differences between warrant officers and commissioned officers. This appendix describes the differences, policies, and instructions to consider when evaluating warrant officers. d. Appendix B-2 (Warrant Officer Evaluation Considerations) states warrant officers are comparable to commissioned officers in that both will be technically and tactically competent and are authorized to perform similar functions (such as, commanding a station, unit, or detachment; certifying vouchers; administering oaths; disbursing funds; and imposing discipline). Despite these similarities, the professional development, use, and evaluation of warrant officers are different from those of commissioned officers. The following differences will be considered when evaluating warrant officers: (1) Warrant officers are appointed to serve in technical military occupational specialties (MOSs). Thus, their professional development is aimed at increasing competence in their specialties. (2) Warrant officers will not be evaluated on their potential to fill positions of responsibility outside their specialties or MOS-immaterial positions within the Army where duties require broad-spectrum knowledge of the organization and the functions of the Warrant Officer Corps, but are not directly associated with any specific branch or MOS. 3. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the AMHRR. a. Paragraph 3-10 addresses document masking. Document masking is the act of moving specifically identified documentation from the performance folder to the restricted folder within the AMHRR. Masking of documentation will occur in the following manner: (1) OERs for second lieutenant, first lieutenant, or warrant officer one will be moved to the restricted folder upon promotion to captain and chief warrant officer three. Note: First lieutenant promotable OERs are not authorized for masking. (2) For Soldiers transitioning from officer to enlisted or enlisted to officer military personnel classification, all Article 15 documents and letters of reprimand related to the previous military personnel classification will be moved to the restricted folder. All performance documents, which do not cross over from enlisted to officer or vice-versa, will be masked, with the exception of awards authorized for permanent wear. If the document can be earned by both officer and enlisted ranks then the document will not be masked. (3) There was no provision for masking OERs for warrant officers upon appointment to commissioned officers. b. Appendix B (Documents Authorized for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) states OERs will be filed in the performance folder of the AMHRR. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160019574 2 1