BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170009784 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 BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170009784 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. BOARD DATE: 7 November 2017 DOCKET NUMBER: AR20170009784 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 correction to his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 16 March 2009 to 30 June 2009, Part Va (Performance and Potential Evaluation), to show he received a rating of "Outstanding Performance, Must Promote" vice "Satisfactory Performance, Promote." In effect, he also requests his record go before a special selection board (SSB) for promotion consideration to major (MAJ) as he was passed over in 2016. 2. The applicant states the substantive error is his rater rated him as "Satisfactory Performance, Promote" for his performance during the rating period. The rater, Captain (CPT) WSW, incorrectly assessed his performance when he selected the wrong ratings. CPT WSW submits a memorandum for the record (enclosed as evidence) supporting the applicant's request to correct Part Va (Performance and Potential Evaluation (Rater)). His senior rater Lieutenant Colonel (LTC) DAB justified the applicant's performance by indicating he was "Best Qualified" in Part VIIa (Senior Rater – Promotion Potential) and he recommended "promote immediately" in Part VIIc (Senior Rater – Comment on Performance)." MAJ DM's memorandum for record (enclosed as evidence) states the applicant's performance warranted an "Outstanding Performance, Must Promote" evaluation by the applicant’s rater because he work directly with the applicant on a daily basis during the rating period. 3. The applicant provides: * DA Form 67-9 for the period 16 March 2009 to 30 June 2009 * Memorandum to U.S. Army Human Resources Command (HRC) Evaluation Appeals, issued by Headquarters, III Corps and Fort Hood, Fort Hood, TX, subject: Evaluation Report Appeal [Applicant], dated 1 April 2017 * Memorandum for Record to HRC, Evaluation Appeals, issued by 4th Battalion, 319th Airborne Field Artillery Regiment, Headquarters and Headquarters Battery, 173rd Infantry Brigade Combat Team (Airborne), subject: Evaluation Report Appeal [Applicant], dated 8 April 2017 * Memorandum for Record to HRC, Evaluation Appeals, written by the applicant, a member of Wolf Team, Operations Group, National Training Center, Fort Irwin, CA, subject: Evaluation Report Appeal [Applicant], dated 11 April 2017 CONSIDERATION OF EVIDENCE: 1. On 10 August 2007, the applicant was appointed a commissioned officer in the Reserve of the Army. He was assigned to the Field Artillery branch of service. In conjunction with his appointment he executed an oath of office. He and a senior officer each signed DA Form 71 (Oath of Office – Military Personnel) wherein it shows he was appointed into the Regular Army as a second lieutenant (2LT) 2. Order Number 021-068, issued by U.S. Army HRC, dated 21 January 2009, shows the applicant was promoted to the rank/grade of first lieutenant (1LT) with a date of rank (DOR) and effective date of 20 February 2009. 3. The evidence of record shows a DA Form 67-9 for the period 16 March 2009 to 30 June 2009 is filed in his official military personnel record. This OER shows he was rated for 4 months and contains the following pertinent information: a. Part IIa (Authentication – Name of Rater), CPT WSW, Troop Commander. b. Part IIIa (Duty Description – Principal Duty Title), Troop Fire Support Officer. c. Part IIIc (Significant Duties and Responsibility), Troop Fire Support Officer in a forward deployed Cavalry Squadron in a Heavy Brigade Combat Team in the Republic of Korea near the demilitarized zone. He was responsible for a team of 14 personnel including a Korean augmentee. d. Part Va (Performance and Potential Evaluation), Satisfactory Performance, Promote. e. Part Vb (Comments on Performance), "The applicant is an intelligent highly capable young officer. He has demonstrated that he has the ability and desire to ensure mission success… [The applicant planned and executed Mortar training and Mortar Gunnery… [The applicant’s] knowledge and expertise were critical in the establishment of mortar and artillery fires in support… of tactical missions." f. Part Vc (Comment on Potential for Promotion), promote and send to the Field Artillery Captains Career Course. g. Part VIIa (Senior Rater – Evaluate the Rater Officer's Promotion Potential to the Next Higher Grade), "Best Qualified" and at the time the senior rater rated 22 officers in the grade of O-2/1LT. h. Part VIIc (Senior Rater – Comment on Performance/Potential), his senior rater said, "[The applicant] is a talented Troop Fire Support Officer who has performed well in this forward deployed Cavalry Squadron, ranking in the middle third of the 22 lieutenants that I senior rate." He further stated, “Promote immediately and send to the Joint Firepower Controller Course and Fires Captain’s Career Course… consider him for Battery Command." 5. Order Number 202-059, issued by U.S. Army HRC, dated 21 July 2010, shows the applicant was promoted to the rank/grade of CPT/O-3 with a DOR and effective date of 1 September 2010. 6. The applicant provides the following memorandums as evidence to support his application. a. Memorandum for HRC, Evaluation Appeals from MAJ WSW (the rater at the time of the disputed OER – 16 March 2009 to 30 June 2009), dated 1 April 2017. He states, the applicant’s promotion to MAJ was negatively impacted by the error contained in his OER, in which he was the rater from 16 March 2009 through 30 June 2009. This appeal is based on a substantive error. He incorrectly assessed the applicant's performance at the time, and intended to mark the rated box "Outstanding Performance, Must Promote" but inadvertently selected the wrong box. His comments shown in the rater section of the applicant's OER support the (higher) evaluation "Outstanding Performance, Must Promote." He requests the applicant’s OER be corrected so it does not negatively impact the officer's career. b. Memorandum for Record, dated 8 April 2017, from MAJ DM (who was the applicant’s squadron fire support officer during the rated period – 16 March 2009 to 30 June 2009). He states the applicant served as a platoon leader in the battery he commanded; he was his top platoon leader. The rater's evaluation currently reads, "Satisfactory Performance, Promote." His performance during the rated period warranted an "Outstanding Performance, Must Promote" box. His recommendation is based on the fact he worked directly with the applicant as the squadron fire support officer. Although he was not in his direct rating chain, he was the senior fire support officer in the squadron and worked directly with him on a daily basis. His performance during the rated period was exceptional; he could always count on him to complete all tasks ahead of schedule, develop innovative ways to train in a constrained environment, and ultimately meet the commander's intent. He states the applicant’s appeal of this OER has a substantive error. c. Memorandum for HRC written by the applicant and dated 11 April 2017 states he was not selected for promotion in his primary zone for MAJ in 2016, and requests that his case be expedited so the issue can be resolved prior to the 2017 O-4 above zone promotion board, which convenes in July 2017. His appeal is based on substantive error. The rater (then CPT WSW) incorrectly assessed his performance at the time by selecting the wrong box, which is supported by his memorandum for record requesting to change the rater's box for the OER for the period 16 March 2009 to 30 June 2009. The senior rater (LTC DAB) justified amending the report's "Outstanding Performance, Must Promote" box by marking his promotion potential as "Best Qualified" and recommended "promote immediately” in his comments on the applicant's potential. MAJ DM's memorandum for record states the applicant's performance warranted an "Outstanding Performance, Must Promote" box based on working with him on a daily basis during the rated period. The applicant believes the error in this report is the ultimate cause for being passed over for promotion to MAJ in 2016. Further, the substantive error in his 1LT OER should not negatively impact his promotion board that convenes in July 2017 REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), dated 10 August 2007, prescribed the policies for completing evaluation reports and associated support form that are the basis for the Army’s Evaluation Reporting System. a. Paragraph 3-9b states, Part V of the OER form will be an assessment of rater's performance and potential of the rated officer. b. Performance evaluations are assessments on how well the rated officer met duty requirements and adhered to the professional standards of the officer corps. Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards. c. Potential evaluations are performance-based assessments of the rated officer’s ability, compared with that of their contemporaries, which the senior rater rates or will rate to perform in positions of greater responsibilities in higher grades. Assessment of potential applies to all officers, regardless of their opportunity to be selected for higher positions or grades, and ignores such factors as impending release from active duty or retirement; this assessment is continually changing and is reserved for Headquarters, Department of the Army. d. Paragraph 6-7 states, an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. e. Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an OER will normally be returned without action unless accompanied by additional substantiating evidence. f. The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation. g. Paragraph 6-8 states, because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. h. Substantive appeals will be submitted within 3 years of an OER thru date. Failure to submit an appeal within this time, may be excused only if the appellant provides exceptional justification to warrant this exception. i. Paragraph 6-11 states the burden of proof rests with the applicant. To justify deletion or amendment of a report, the applicant 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. 2. Army Regulation 600-8-29 (Officer Promotions), dated 25 February 2005, provides the Army's policies and procedures on officer promotions. a. Chapter 7, paragraph 7-2a, provides guidance on the SSB. It states the SSB may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA 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. (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. Paragraph 7-3 states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error. The board did not consider correspondence to the board president that was delivered after the cutoff date for such correspondence established in the promotion board zone of consideration message. DISCUSSION: 1. The applicant contends that his OER for the period 16 March 2009 to 30 June 2009 should be corrected to show that he received the rating of "Outstanding Performance, Must Promote" vice "Satisfactory Performance, Promote" and, in effect, that his record should be reviewed by an SSB for consideration to promotion to MAJ under the 2016 criteria. 2. The applicant provides a letter from his former rater, CPT WSW, who states he incorrectly assessed the applicant’s performance at the time, and intended to mark the rated box "Outstanding Performance, Must Promote" but inadvertently selected the wrong box, and that his comments in the rater section support the rating of "Outstanding Performance, Must Promote." The applicant's evidence is provided 8 years after the OER thru date. 3. Pursuant to Army Regulation 623-3, paragraph 6-8a, substantive appeals will be submitted within 3 years of an OER date, failure to submit an appeal within this time, may be excused, only if the appellant provides exceptional justification to warrant this exception. 4. By regulation, to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. 5. After reviewing the facts and applicable regulatory guidance, the Board must determine if the applicant's arguments and those of his former rater and daily supervisor are clear and convincing evidence that support amending his OER for the period ending 30 June 2009. A recommendation to grant relief would be a basis for referring the applicant's record to an SSB for review. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170009784 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170009784 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2