ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 5 September 2019 DOCKET NUMBER: AR20170012588 APPLICANT REQUESTS: reversal of the Officer Special Review Board’s (OSRB) decision not to remove his officer evaluation report (OER) for the rating period 1 March 2016 through 4 August 2016 and * removal of any documents related to his appeal * consideration for promotion by a special selection board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Officer Rating Scheme, dated 14 December 2015 * Electronic Mail (Emails), from 22 July 2016 to 20 September 2016 * DA Form 67-10-2 (Field Grade Officer Evaluation Report), for the rating period 1 March 2016 through 4 August 2016 * Officer Special Review Board Appeal Letter, dated 1 August 2017 and Record of Proceedings FACTS: 1. The applicant states: a. An OER in his personal file for the rating period 1 March 2016 through 4 August 2016, was completed in part by individuals expressly prohibited by Army Regulation 623-3 (Evaluation Reporting System) from being within his rating chain for this evaluation report. b. As a result, unauthorized personnel were permitted to provide opinions on his potential for promotion and future service in the Army to the fiscal year 2017 lieutenant colonel (LTC) selection board through the vehicle of the OER, this error constituted an injustice. c. He followed all the appropriate sequence attempt to correct this action after he became aware of the issue exhausting all other administrative remedies. He approached his unit and informed them of violations concerning the OER but the unit disregarded his concerns and encouraged him to appeal the evaluation after it was issued. d. He approached the Inspector General (IG) for the Defense Threat Reduction Agency (DTRA) and the IG informed him to appeal through the Human Resources Command. e. He appealed to the OSRB and they denied his request. He does not accept this decision as he believes it was made without consideration to the evidence he provided. The OSRB mentioned but did not consider in their opinion the email correspondence between his rater and another individual discussing who would be designated after the fact as his senior rater for an evaluation at the close of the evaluation period. f. Army Regulation (AR) 623-3 requires a senior rater to serve as such for at least 60 days before issuing a report it also states the rating chain for a rated Soldier will be established at the beginning of the rating period. Further the board dismissed the official and approved rating scheme he provided as irrelevant to his argument. As the applicant was not authorized to make decisions for Headquarters Department of the Army (HQDA). g. Any changes to a signed and approved rating scheme must be approved in writing by the HQDA before any changes are made AR 623-3 Section II 2-4(d). The OSRB appeared more concerned with the substance of the comments and with his argument that any comments there were administratively invalid. Failure to consider these points in their written decision constitutes an error, and an injustice on the part of the board. h. As remedy he requests that the OER in question be removed from his personnel file based on Administrative errors and regulatory violations in the report. He also requests that the denial decision of the OSRB be removed from his personnel file, including from the restricted section. He further requests that the Human Resources Command (HRC) be instructed to convene a Special Promotion Board to reconsider his promotion to LTC in the primary zone without the erroneous OER or any documents related to his appeal of it in his file. i. The senior rater did not meet the requirements stipulated in the regulation. The individual became designated as the applicant’s senior rater after the conclusion of the rating period. He has attached correspondence from his rater and his supervisor. This evidence was mentioned by the OSRB but not considered in its decision. The email stated that his actual senior rater would not be available to complete and sign his portion of his OER since he had left a couple of weeks before him. Furthermore, his rater askes his supervisor who the new applicant’s senior rater should become (see detailed DD Form 149 pages 4-7 in packet). 2. The applicant provides: a. An officer rating scheme from the Defense Threat Reduction Agency- Energy (DTRA-E), dated 14 December 2015 which shows his rater LTC U.S. Air Force, Operations Chief X__ and his senior rater Colonel (COL), Division Chief X__. b. Email exchanges from 22 July 2016 to 26 July 2016, from LTC X__ DTRA-E, Chief to Mr. X___, DTRA J3-7 advising him that the applicant’s senior rater COL X__ had (PCS’d) permanently changed station a few weeks back and asking for guidance on who would be the best fit and that he thought it would be Mr. X__. c. Email excerpt on 19-20 September 2016, where the applicant asked CPT X__ Chief, J1 DTRA –E to send him a copy of the approved rating scheme as of June or July 2016 or whatever was current at that time because he had one from December 2015 that was woefully inaccurate and that if he was still at DTRA he would do it himself. CPT X__ responded that the December 2015 version was the last approved rating scheme and that he had some internal products to assist but they were approved or official. d. DA Form 67-10-2 covering period of 1 March 2016 to 4 August 2016. e. The OSRB memorandum, dated 1 August 2017, response to his evaluation report appeal was denied. The evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. Therefore, the overall merits of the case did not warrant the requested relief. 3. Army Regulation (AR) 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army’s Evaluation Reporting System (ERS). It states, for evaluation reports that have been completed and filed in a Soldier’s AMHRR, substantive appeals will be submitted within 3 years of an evaluation report “THRU” date. Administrative appeals will be considered regardless of the period of the evaluation report; decisions will be made based on the regulation in effect at the time evaluation reports were rendered. Requests for the administrative correction of evaluation reports at Headquarters Department of the Army (HQDA) will be mailed to U.S. Army Human Resources Command. The Record of Proceedings will only address any substantive issues raised by the applicant, and the issue of special selection board. 4. A review of the applicant’s service record shows: a. Having had prior service in the Army National Guard of the U.S. and Army Reserve, he was appointed as a second lieutenant, reserve commissioned officer and executed an oath of office on 7 June 2001. b. He served in support of Operation Enduring Freedom/Noble Eagle. c. On 17 March 2006, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably released from active duty and served 4 months 19 days of net active service this period. His DD Form 214 also shows he completed 4 years, 5 months and 27 days of prior active service. d. On 12 March 2008, HRC published orders assigning him to active duty at 555th Engineer Brigade, Fort Lewis, WA, effective 1 April 2008 to 31 March 2011. e. DA Form 67-10-2 covering period 1 March 2016 through 4 August 2016. (1) His rater LTC X__, Chief, (CBRN) Chemical, Biological, Radiological and Nuclear Defense) Preparedness rated him “Proficient” and wrote the comments "Superior performance by a superior officer. [Applicant] is a professional, competent and intelligent officer. He was the CBRN Preparedness Support Europe Lead for the AFRICOM Epic Guardian 16 Exercise and was a vital member of the Planning staff. His knowledge and professionalism lead to his selection as Academics Instructor for US Army Africa. [Applicant] maintained an extremely high level of language proficiency by Achieving 3+/3 on the Russian Upper Range DLPT. Selected as Consequence Management instructor at the NATO School for an international audience of Emergency Management Experts. DTRA Team Lead for the Ukrainian-Language Immersion Training. (2) His senior rater, Mr. X__, (DDIR) Deputy Director J3/7 rated him “Highly Qualified” and commented "Rated Soldier refuses to sign. [Applicant] is an exceptional officer with unlimited potential and is clearly on the path to Lieutenant Colonel. His performance ranks him in the top 10% of all the Majors I have worked with in my 30 year career. He is a technically sound expert in his field, extremely competent officer, and a dedicated soldier. Challenge him with higher leadership positions/demanding assignments. (3) The rater signed this OER on 26 October 2016 and the senior rater signed it on 28 October 2016. The applicant did not sign it. It was accepted by HQDA and process on 4 November 2016. f. On 1 August 2017, the OSRB considered his appeal to remove the contested OER but voted unanimously to deny him relief. The OSRB determined: * the applicant has not provided clear and convincing evidence showing that the ratings and comments 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 * there was no evidence in the available records and the applicant did not provide evidence showing that the contested report was inaccurate, unjust, or otherwise flawed 5. By regulation (AR 623-3): 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 60 calendar days. A “Senior Rater Option report code (08) may be rendered when a change in senior rater occurs. d. 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. 6. By regulation (AR 600-8-29 (Officer Promotions)), special selection boards (SSB) may be convened to consider or reconsider commissioned officers for promotion when, in part, the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined relief was not warranted. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board insufficient evidence of an error or injustice which would warrant a correction to the applicant’s record. The Board agreed with the OSRB findings and concluded the contested OER was properly completed, processed and filed. As a result, the Board recommended denying all requested relief by the applicant. 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. Army Regulation (AR) 623-3 (Evaluation Reporting System) states: a. Paragraph 3b(1) 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, 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 60 calendar days. d. The narrative for Part VI, Block a may be based in part on the rated officer's final support form. However, the choice of what to enter on the officer evaluation report is ultimately up to the senior rater. 2. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. It states that special selection boards (SSB) may be convened to consider or reconsider commissioned officers for promotion when, in part, the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). 3. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the AMHRR (which includes the official military personnel file (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 (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. 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. ABCMR Record of Proceedings (cont) AR20170012588 7 1