ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 October 2019 DOCKET NUMBER: AR20170010699 APPLICANT REQUESTS: that his DA Form 67-9 (Officer Evaluation Report (OER) for the rating period 15 September 2009 thru 14 September 2010 and 15 September 2010 thru 31 January 2011 be removed from his file. In the alternate, he requests: * removal of any adverse files from his OER from his service record * reinstatement in the Army * order Special Selection Boards (SSBs) to consider him properly for promotion to major * direct the Defense Finance and Accounting Service (DFAS) to audit his military pay account and provide all back pay and entitlements from the day after his separation of 24 May 2013 * grant other relief as justice so requires * a Board appearance APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Attorney statement (on behalf of the applicant - 13 pages) * Attorney Exhibits 1-7 (Evidence to support Case) * DA Form 67-9, period covered: 26 May 2008 thru 23 January 2009 * DA Form 1059 (Service School Evaluation Report), dated 9 July 2009 * 15-6 Investigating Officer Appointment Memorandum, dated 20 February 2010 * DA Form 67-9, period covered: 15 September 2009 thru 14 September 2010 * 15-6 Investigating Officer Appointment Memo, dated 1 October 2010 * 15-6 Investigating Officer Appointment Memo, dated 26 October 2010 * DA Form 67-9,period covered: 15 September 2010 thru 31 January 2011 * DA Form 67-9, period covered: 23 September 2010 thru 22 September 2011 * US Army Human Resources Command (AHRC) Memo, dated 4 May 2012, Subject: Initiation of Elimination * Board Summary Memorandum, dated 30 October 2012 * Orders 085-0002, dated 26 March 2013 * US Army Human Resources Command (AHRC) Memo, dated 16 April 2013 * DD Form 214 (Certificate of Release or Discharge from Active Duty), period ending 24 May 2013 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 through his attorney: a. On 23 May 2013, the applicant was involuntarily separated for substandard performance based on his OERs with substandard performance for the rating period of 15 September 2009 thru 14 September 2010, and the referred OER for the period of 15 September 2010 thru 31 January 2011. Based on evidence submitted and its legal obligation to afford a successful applicant thorough and fitting relief, the ABCMR has sufficient reason to remove the applicant’s substandard OER's from his record, order Special Selection Boards (SSBs) to consider him properly for promotion, award back pay and allowances, and grant any other relief as justice so requires. b. In the interest of justice, the applicant seeks: * consideration of his request for removal of the adverse OERs for the period of 15 September 2009 thru 14 September 2010 and 15 September 2010 thru 31 January 2011 from his Official Military Personnel File (OMPF) * reinstatement in the Army * retroactive pay and allowances from the date of separation * convening of a SSB to consider him for promotion to major c. His attorney states, it’s well settled that regulations governing the preparation of evaluation reports prescribe that [evaluations] are to be objective and prepared in a certain way. If a particular officer's [evaluation] has not been so prepared this is legal and factual error and an injustice to the officer as well. As demonstrated in this application, the OERs in question are an injustice to the applicant, and warrant consideration by the Board. The applicant requests an appearance before the Board. 3. The listing of documents provided by the applicant and his attorney are presented as Exhibits 1 – 17 and are further described within the applicant’s attorney statement: a. An attorney statement, presenting the facts and evidence related to the error(s) or injustice(s) the applicant endured. The evidence is presented within 17 exhibits as follows: * Exhibit 1, DD Form 214, period ending 24 May 2013, showing in Item 23 (Type of Separation), the applicant was discharged and Item 28 (Narrative Reason for Separation), the applicant was separated due to substandard performance * Exhibit 2, Army Commendation Medal, from 16 April 2003 to 15 April 2004, showing the applicant was awarded an Army Commendation Medal for recognition of his exemplary achievements and leadership while assigned as the Operations Officer for a forward deployed unit in South Korea * Exhibit 3, Officer Evaluation Report (OER), period covered: 22 March 2004 thru 31 December 2004, showing, in part, the applicant’s company commander at the time provided the applicant demonstrated outstanding leadership and exceptional knowledge of every facet of his duties as the Contingency Communication Package Platoon Leader; the achievements performed and the comments of his commander were stated to have led to the applicant’s promotion to first lieutenant * Exhibit 4, OER, period covered: 1 January 2005 thru 31 December 2005, showing, in part, the applicant’s performance was recognized by his superior officer; the officer stated the applicant superbly executed his duties as the Battalion signal officer (commonly called the S6) * Exhibit 5, OER, period covered: 19 November 2007 thru 25 May 2008, showing, in part, the applicant’s performance was recognized as outstanding by his superior officer at the time; the officer stated the applicant superbly executed his duties as the Provincial Coordination Center (PCC) officer in charge (OIC) while deployed to Afghanistan * Exhibit 6, Army Achievement Medal from 27 January 2007 to 24 April 2008, showing applicant was awarded an Army Achievement Medal for exceptional service while deployed to Afghanistan * Exhibit 7, Certificate awarding the North Atlantic Treaty Organization (NATO) Medal for service with NATO in relation to the International Security Assistance Force (ISAF) Operation during the period of 27 November 2006 to 19 April 2008 * Exhibit 8, OER, period covered: 26 May 2008 thru 23 January 2009, showing, in part, the applicant’s performance was recognized by his superior officer at the time; the officer stated the applicant’s exceptional performance was essential to the battalion’s success during redeployment from Operation Enduring Freedom (OEF) and reset phases of the Army Force Generation (ARFORGEN); his superior recommended the applicant be challenged with demanding assignments to groom him for company command * Exhibit 9, US Army Human Resources Command (HRC) Memo, dated 4 May 2012, Subject: Initiation of Elimination, showing the applicant was ordered to show cause for retention on active duty due to alleged substandard performance of duty * Exhibit 10, Board Summary Memorandum, showing the applicant was recommended to be discharged honorably from the Army by a board of Inquiry (BOI); the BOI was stated to have been convened based applicant’s substandard performance of duty resulting from two Officer Evaluation Reports (OERs) in the applicant’s official military personnel file OMPF where five incidents of specific substandard conduct were identified by the applicant’s rater and senior rater * Exhibit 11, OER, period covered: 15 September 2009 thru 14 September 2010, showing the applicant received excellent marks on his annual OER while assigned as the battalion S6 for a brigade combat team operating forward in support of OEF; the document shows the applicant was rated as fully qualified, but described to be in the bottom 10% of his peers rated, with limited potential, but promote at first available opportunity and groom for future positions of responsibility * Exhibit 12, Initial Counseling Memorandum, dated 10 December 2009, provided by the applicant’s rater at the time, showing, in part, there was no mention of the applicant’s performance being substandard and no mention of issues with accepting greater responsibilities or limited potential; the applicant document does not show he was counseled or informed of any deficiencies or areas of needed improvement by his superiors * Exhibit 13, 15-6 Investigating Officer Appointment Memorandum, dated 20 February 2010, showing the applicant was appointed as an investigation officer (IO) while deployed to forwarding operating base (FOB) Shank, Afghanistan; the applicant was stated to have completed the investigation in a timely manner and was cited for a job well done * Exhibit 14, 15-6 Investigating Officer Appointment Memo, dated 1 October 2010, showing the applicant was appointed as an IO while deployed to FOB Shank, Afghanistan; the applicant was stated to have completed the investigation in a timely manner and was cited for a job well done * Exhibit 15, 15-6 Investigating Officer Appointment Memo, dated 26 October 2010 * Exhibit 16, OER, period covered: 15 September 2010 thru 31 January 2011 * Exhibit 17, OER, period covered: 23 September 2011 thru 22 September 2012 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army (RA) on 8 April 2002. b. DA Form 71 (Oath of Military Service) shows that the applicant was appointed as a reserve commissioned officer on 17 October 2002. c. Orders number 082-003, dated 22 March 2004, promote the applicant to first lieutenant with a date of rank of 17 April 2004. d. Orders number 018-059, dated 18 January 2006, promote the applicant to captain with a date of rank of 2 January 2006. e. DA Form 67-9 (Officer Evaluation Report), for the period 26 May 2008 thru 23 January 2009, for his duties as battalion communication and electronics officer while assigned to the 508th Special Troop Battalion (STB) at Fort Bragg. His rater was the battalion executive officer and his senior rater was the battalion commander. Part IV (Performance Evaluation -Professionalism, Competence, and Attributes) (Rater), the applicant’s rater states in section a. (Army Values) that he meets all attributes, and in section b. (Leader Attributes/Skills/Actions) states that he meets all attributes. Part V (Performance and Potential Evaluation) the applicant’s rater states in section a (Evaluate the rated Officer His/Her Potential for Promotion) “Outstanding Performance must Promote”, section b. (Comments) the rater states that the applicant did a superb job as the battalion communications officer, was physically fit, received high marks during command inspection and was quick to provide assistance to fellow officers, section c. (Comments on Potential for Promotion), the rater states “Great potential in a very capable officer. Send to a tactical battalion for continued development and company command”. Part Vii (Senior Rater) states in section a. (Evaluate the Rated Officer’s Promotion Potential to Next Higher Grade) “Best Qualified”. f. DA Form 1059, dated 9 July 2009, shows that the applicant achieved course standards for the Signal Captains Course. g. DA Form 67-9 (Officer Evaluation Report), for the period 15 September 2009 thru 14 September 2010, for his duties as battalion S6 while assigned to the 173rd Airborne Brigade Team, STB in support of Operation Enduring Freedom. Part IV (Performance Evaluation -Professionalism, Competence, and Attributes) (Rater), the applicant’s rater states in section a. (Army Values) that he meets all attributes, and in section b. (Leader Attributes/Skills/Actions) states that he meets all attributes. Part V (Performance and Potential Evaluation) the applicant’s rater states in section a (Evaluate the rated Officer His/Her Potential for Promotion) states “Satisfactory Performance Promote”, section b. (Comments) the rater states the applicants performance was satisfactory but demonstrated limited potential for accepting greater responsibility, continue to groom for positions of increased responsibility, section c. (Comments on Potential for Promotion), the rater states he displays limited potential for increased responsibility, promote at first available opportunity. Part VII (Senior Rater) states in section a. (Evaluate the Rated Officer’s Promotion Potential to Next Higher Grade) “Fully Qualified”. h. On 20 February 2010, the applicant was appointed as investigating officer to investigate missing TACLANE KG175 (Tactical FASTLANE Encryption) E100AC. i. DA Form 67-9 (Officer Evaluation Report), for the period 15 September 2010 thru 31 January 2011, for his duties as battalion S6 while assigned to the 173rd Airborne Brigade Team, STB in support of Operation Enduring Freedom. His rater was the battalion executive officer and his senior rater was the battalion commander. Part IV (Performance Evaluation -Professionalism, Competence, and Attributes) (Rater), the applicant’s rater states in section a. (Army Values) that he meets all attributes, and in section b. (Leader Attributes/Skills/Actions) states he does not meet “Planning”, and “Execution” attributes. Part V (Performance and Potential Evaluation) the applicant’s rater states in section a (Evaluate the rated Officer His/Her Potential for Promotion) states “Satisfactory Performance Promote”, section b. (Comments) the rater states that the applicant has marginal performance as the battalion S6 while supporting combat operations during Operation Enduring Freedom, and struggles with personal time management, planning, and execution critical routine tasks in a timely manner, section c. (Comments on Potential for Promotion), the rater states his potential is limited, promote based on the needs of the Army. Part VII (Senior Rater) states in section a. (Evaluate the Rated Officer’s Promotion Potential to Next Higher Grade) “Fully Qualified”. j. Board Summary, dated 30 October 2012, states that the Board recommends the applicant be discharged from the United States Army with an Honorable discharge certificate. k. Orders 085-002, dated 26 March 2013, discharge the applicant from the U.S Army Reserve (USAR) effective 1 September 2013. Orders 115-0003, dated 25 April 2013 rescinds this order. l. ABCMR letter, dated 16 April 2013, states for applicant’s case AR20130005804 that Deputy Assistant Secretary of the Army (Review Boards) approve the board’s recommendations to involuntary eliminate the applicant from the U.S Army based on substandard performance of duty in accordance with Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges) paragraph 4-2a (Substandard Performance). m. HRC Message, dated 16 April 2013, approves the elimination of the applicant from the USAR with an honorable discharge certificate. The applicant acknowledged the receipt of the message on 24 April 2013. n. Orders 115-0004, dated 25 April 2013, discharge the applicant from the USAR effective 24 May 2013. o. He was discharged from active duty on 24 May 2013 with an honorable discharge certificate. His DD Form 214 shows that he was discharged under the provisions of AR 600-8-24 paragraph 4-2a. It also shows that he completed 10 years, 7 months, and 8 days of active duty service. 5. By regulation (AR 15-185), the ABCMR corrects Army records. A record correction may result in monetary entitlement (or debt). The ABCMR will furnish DFAS copies of decisions potentially affecting monetary entitlement or benefits. DFAS will treat such decisions as claims for payment by or on behalf of the applicant. The DFAS will settle claims on the basis of the corrected military record. The DFAS will compute the amount due, if any. The DFAS may require applicants to furnish additional information to establish their status as proper parties to the claim and to aid in deciding amounts due. 6. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR 7. AR 623-3 (Evaluation Report System) paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. c. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. d. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. 8. AR 60-8-29 (Officer Promotions) paragraph 7-2a(1)(2)(3) states that a. The SSB may be convened under US 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. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL. (2). The board that considered an officer from in or above the promotion zoned did not have before it some material information (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). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. 9. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found relief was not warranted. The contentions were carefully considered. However, based upon the documentary evidence provided by the applicant and found within the military service record, the Board agreed he received all due process rights throughout the evaluation process; especially demonstrated by his election not to provide a statement after getting a referred report. Based upon the above facts and circumstances, the Board concluded there was insufficient evidence of an error or injustice which would warrant the removal of the referred OER from the applicant’s military service record. 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 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 3. AR 623-3 (Evaluation Report System) paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. c. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. d. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. 4. AR 60-8-29 (Officer Promotions) paragraph 7-2(a)(1)(2)(3) states that a. The SSB may be convened under US 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. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL. (2). The board that considered an officer from in or above the promotion zoned did not have before it some material information (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). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. 5. AR 37-104-4 (Military Pay and Allowance Policy) paragraph 20-1 settlement actions authority, states that only the director, DFAS (Defense Finance)-IN may make settlement actions affecting the military pay accounts of Soldiers as a result of correction of records by the ABCMR per provisions of AR 15-185. ABCMR Record of Proceedings (cont) AR20170010699 4 1