ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 June 2019 DOCKET NUMBER: AR20170012549 APPLICANT REQUESTS: removal of DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report) from his records for the period covering 27 June 2013 to 26 June 2014. He also requests a personal appearance before the board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 67-10-2 * Assumption of Command Memorandum dated 31 January 2014 * Unit Manning Report 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 he is requesting removal of the Officer Evaluation Report (OER) from his Official Military Personnel File (OMPF) for the period covering 27 June 2013 to 26 June 2014. He indicated the report is invalid or unjust for the following reasons: a. During the rating period covered by the OER, he did not receive a DA Form 67-10-1A (Officer Evaluation Report Support Form) from his senior rater at the beginning nor at the end of the rating period. He noted the guidance provided in Army Regulation (AR) 623-3 (Evaluation Reporting System) to receive, review, initial, and date the completed support form at the beginning of the rating period. b. He assumed command of the 1179th Transportation Brigade from January 2014 through 30 April 2014 due to turmoil with the brigade commander position when the serving brigade commander (his rater) was relieved of command. He indicated that special rules apply, per AR 623-3, when a rating official is officially relieved, specifically restrictions will apply to reports with “THRU” dates prior to the relief of the rating official. c. He should have received a “Change of Rater” evaluation from Brigadier General (BG) MAM covering the period of 26 June 2013 to 30 January 2014 which would have covered his performance as the Deputy Commander of the brigade. d. He believed he was entitled to an evaluation for assuming the Brigade Commander position for the period covering 31 January 2014 to 30 April 2014. He again cites the regulation requirements when the rater is eliminated. e. The rater, Colonel (COL) XX, was assigned to the 1179th Transportation Brigade on 16 April 2014 and assumed command of the brigade in late April 2014. He did not meet the minimum time requirement of 90 days to serve as his rater since his annual evaluation was due 26 June 2014. 3. The applicant provides: a. DA Form 67-10-2, an annual OER for the period covering 27 June 2013 through 26 June 2014 * The rater, COL XX, signed and dated on 30 June 2014 * The senior rater, BG XXX, signed and dated on 29 December 2014 * It was not a referred report * He was rated among the top 5% of officers assigned and a symbol of excellence in every measurable performance area by the rater * He was rated as an officer who has the potential to successfully assume greater responsibility by the senior rater * The comments also capture the rated Soldier refused to sign * He was identified as “Highly Qualified” b. An Assumption of Command Memorandum dated 31 January 2014 shows the applicant assumed command of the 1179th Transportation Brigade effective 31 January 2014. c. A Unit Manning Report with a prepared date of 29 January 2015 identified assignment dates of the applicant and the rater. The applicant was assigned to the unit on 5 November 2012. The rater, COL XX, was assigned to the unit on 16 April 2014. 4. A review of the applicant’s service record shows: a. He executed his oath of office (DA Form 71) on the 12 May 1990 and was appointed as a Reserve commissioned officer of the Army. He entered active duty on 27 November 1994. b. He served in Kuwait from 16 March 2007 to 15 May 2008. c. He received an Annual OER covering the rating period 27 June 2013 through 26 June 2014 for his duties as Deputy Commanding Officer while assigned to the 1179th Transportation Brigade at Fort Hamilton, NY. His rater was COL XX, brigade commander, and his senior rater was BG XXX, commanding general. d. The OER indicated a completed DA Form 67-10-1A was not received with this report or considered in the evaluation and review; there are no comments explaining the absence of the support form. Nevertheless, the rater rated him as "Excels" in comparison to 7 Army officers he rated in the applicant's grade, and the senior rater rated him as "Highly Qualified" e. The applicant retired on 31 May 2018. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 23 years, 6 months, and 4 days of active service. f. He appealed his OER through U.S. Army Human Resources Command to the Officer Special Review Board (OSRB). He claimed the basis of the appeal is substantive inaccuracy and contended that: * the senior rater did not review the completed DA Form 67-10-1 A (Officer Evaluation Support Form). * the senior rater assigned him a "Highly Qualified" rating which accurately justify or acknowledge his accomplishment for the rating period * the comments were poorly written and did not accurately record his potential or the manner in which he performed his duties * the contested OER is substantively inaccurate, biased and unjust because he was unfairly evaluated and misjudged during the rating period g. After a thorough review, on 11 January 2016, the OSRB determined that based on the available evidence, he did not provide clear and convincing evidence which shows that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Additionally, there was no evidence in the available records and he did not provide evidence showing that the contested report was inaccurate, unjust, or otherwise flawed. 5. By regulation, 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. 6. By regulation, a. 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. b. 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. c. The rater will be the supervisor of the rated officer for a minimum period of 90 calendar days. d. When a rating official is relieved of his or her position or duties for cause, he or she is unable to render an objective or accurate evaluation and will not be permitted to evaluate his or her subordinates. e. 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 consititue the sole grounds for appeal of an evaluation report. f. The burden of proof is "clear and convincing evidence." In this case, the OER is not a referred report; the senior rater's narrative comments support the "Highly Qualified" rating; the senior rater's comments are all positive, to include comments such as "potential to successfully assume greater responsibility," "continue to groom," and assign him to positions at senior Army headquarter"; and the senior rater's comments are consistent with the rater's narrative comments BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that the relief was not warranted. Based upon a lack of corroborating evidence either submitted by the applicant or found within the service record to show that the applicant’s rater was relieved during the rated period, the Board concluded there was insufficient evidence to show an error or injustice which would warrant the removal of the OER from his 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 (AR) 623-3 (Evaluation Reporting System) states: a. 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, and as explained in DA Pamphlet 623-3 (Evaluation Reporting System). b. 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. c. The rater will be the supervisor of the rated officer for a minimum period of 90 calendar days. d. When a rating official is relieved of his or her position or duties for cause, he or she is unable to render an objective or accurate evaluation and will not be permitted to evaluate his or her subordinates. e. 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 consititue the sole grounds for appeal of an evaluation report f. The senior rater will assess the rated officer's potential compared to all officers of the same rank. This assessment should be based on officers the senior rater has previously senior rated and those in their current senior rater population. If the potential assessment is consistent with the majority of officers in that grade the senior rater will place an "X" in the "HIGHLY QUALIFIED" box. If the rated officer's potential exceeds that of the majority of officers in the SR's population, the senior rater will place an "X" in the "MOST QUALIFIED" box. The intent is for the senior rater to use this box to identify the upper-third of officers for each rank. In order to maintain a credible profile, the senior rater must have less than 50 percent of the ratings of a rank in the "MOST QUALIFIED" top box. Fifty percent or more in the top box will result in a "HIGHLY QUALIFIED" label. If the rated officer's potential is adequate, but beneath the majority of officers in the senor rater's population for that grade and the senior rater believes the rated officer should be retained for further development, the senior rater will place an "X" in the "QUALIFIED" box. If the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater does not believe the rated officer should be retained on active duty, the senor rater will place an "X" in the "UNQUALIFIED" box. g. The narrative for Part 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 senior rater. h. 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. i. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources (see DA Pam 623-3). Third parties 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. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The Commander's Inquiry may provide support for an appeal request. 3. AR 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. 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. ABCMR Record of Proceedings (cont) AR20170012549 5 1