ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 24 September 2019 DOCKET NUMBER: AR20170010095 APPLICANT REQUESTS: remove his officer evaluation report (OER) for the rating period 21 June 2011 through 27 March 2012 (hereafter referred to as the contested OER) from his official records. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 67-9 (OER’s) - 20 February 2010 – 19 February 2011, 20 February 2011 – 20 June 2011, 21 June 2011 – 27 March 2012 FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records 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 requested not to receive a final OER in accordance with Army Regulation (AR) 623-105 (Personnel Evaluation – Officer Evaluation Reporting System). Retiring officers can request to not receive an OER for rating periods of less than one year. The evaluation in question is for 9 months. He requested his chain of command prior to terminal leave not to receive a final OER. The reply he received back through his rater was that the senior rater stated “you will receive an evaluation.” b. A number of spelling and grammatical errors indicated a lack of care and attention to detail that may not have occurred if he was not retiring. c. Final signature date is while he was on terminal leave transitioning to and traveling with his new civilian job. At that point he did not care to make an issue of the evaluation. d. Given two previous ratings as a battalion commander (by a different rater) the evaluation at issue at least administratively indicates a downturn in performance on which he was never informed of or counseled on. e. It is his opinion that his retirement OER was used to unnecessarily “pad” the senior rater’s profile in a large and very competitive population. f. He received no formal or written counseling from rater for period covered, and no performance counseling at all from senior rater during period covered. g. Since his retirement he has been working primarily in the civilian sector (from 2012-2015) and believed that his OER would be of no consequence. He has since become Department of the Army civilian and he understands that his military record may be at issue for future duty or job opportunities and wish to have this OER removed from his record. h. It may indicate to some that there was a downturn in his performance in his final months in the military; spelling and grammatical errors does not accurately characterize his final months of service. 3. The applicant provides: a. DA Form 67-9, an annual OER for the period covering 20 February 2010 through 19 October 2010, the rater, Colonel (COL) XXX, Hospital Commander, Warrior Transition Battalion rated him “Outstanding Performance Must Promote” and wrote the comments the applicant’s performance was magnificent as he established multiple programs to instill professionalism, promote healing and maintain the Warrior Ethos in the Warrior Transition Battalion. The senior rater at U.S. Army Accessions and Fort Knox rated him “Best Qualified and Above Center Mass” and wrote the comments the applicant was one of the most effective commanders that he had served with in 36 years of service. A superb Soldier and Leader with clear potential as a General Officer. b. DA Form 67-9, a change of rater OER for the period of 20 February 2011 through 20 June 2011, the rater Commander, Army Medical Department Activity (MEDDAC) rated him “Outstanding Performance Must Promote” and wrote the comments that the applicant ranked 2 out of 18 lieutenant colonels in the command. He successfully executed all operations while undermanned. The senior rater rated him “Best Qualified and Above Center Mass” and wrote the comments that the applicant did a brilliant performance of duty while serving as the battalion commander for the Warrior Transition Battalion, Fort Knox, KY. He had huge compassion for his Soldiers and their families. He commanded one of the most complex environments undermanned with tough challenges. c. DA Form 67-9, retirement OER for the period of 21 June 2011 through 27 March 2012, the senior rater, Major General (MG) XXX, rated him “Best Qualified for promotion potential and “Center of Mass”. 4. A review of the applicant’s service records shows: a. Having had prior enlisted service in the Regular Army, Army National Guard, and the U.S. Army Reserves (USAR), he was appointed as a reserve commissioned officer and executed an oath of office on 19 December 1991. b. On 16 January 2003, he executed an oath and was promoted to major (MAJ) O-4 in the Regular Army, Armor Branch. c. the contested OER is a Retirement OER, covering the rating period 21 June 2011 through 27 March 2012, is filed in his AMHRR. * his rater COL XXX, Hospital Commander, signed and dated on 18 May 2012 * the senior rater, Major General (MG) XXX, signed and dated on 21 May 2012 and he [Applicant] signed and dated 22 May 2012 * he was rated “Outstanding Performance” by the rater * His senior rater rated him “Best Qualified and Center of Mass”; there were some errors in spelling and grammar (a total of 5) * his rater’s comments stated the applicant overcame challenges of severe combat wounds to become epitome of an Army leader; he incorporated fully 90% of eligible Soldiers into the Career and Education Readiness Program * his senior rater’s comments stated the applicant served as the finest battalion commander; * that the applicant was a role model; overcame grievous combat wounds while a Warrior In Transition then returned to duty himself and reclaimed his position as champion athlete and grew into an exceptional leader d. On 31 July 2012, he was honorably retired and on 1 August 2012, he was placed on the retired list in his retired grade of lieutenant colonel. e. There is no evidence he requested a Commander’s Inquiry or appealed this OER through the U.S. Army Human Resources Command to the Officer Special Review Board. 5. By Army Regulation (AR) 623-3 (Evaluation Reporting System), evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms. a. An evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. b. The rated Soldier has a role and responsibility in the counseling process. He/she must participate in counseling and provide and discuss with the rating chain the duty description, performance objectives. Although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. The burden of proof is "clear and convincing evidence." c. A report is mandatory when the rated officer is separated from active duty. As an exception, retirement reports of less than 1 year will be rendered at the option of the rater or senior rater or when requested by the rated officer. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. The Board found that rating officials have the option to submit a final OER on a Soldier who is retiring. All Board members agreed that the OER does in fact have some admin errors; however, the OER is a favorable OER and he had an equal responsibility to make recommendations for corrections when the applicant signed the OER. The Board concluded that the applicant is not being disadvantaged with such an OER in his record; however, the Board wanted to inform the applicant that if he can demonstrate any disadvantage from such OER in his record, he can always reapply to this Board for consideration. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 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. 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. REFERENCES: 1. Title 10, USC, 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 Army Board for Correction of Military Records (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 (AR) 623-3 (Evaluation Reporting System) states evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms: a. An evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. b. The narrative for Part V Block b and VII, Block c may be based in part on the rated officer's final support form. However, the choice of what to enter on the OER is ultimately up to the rater and senior rater. c. The rated Soldier has a role and responsibility in the counseling process. He/she must participate in counseling and provide and discuss with the rating chain the duty description, performance objectives. Although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. d. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 3. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the AMHRR (which includes the OMPF) and states 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. 4. AR 15-185 (Army Board for Correction of Military Records) (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. ABCMR Record of Proceedings (cont) AR20170010095 5 1