ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 October 2019 DOCKET NUMBER: AR20170019538 APPLICANT REQUESTS: removal of his last DA Form 67-10-1 (Officer Evaluation Report (OER)), covering his last annual OER period from 5 June 2013 through 4 June 2014 (hereafter referred to as the contested OER) from his official military personnel file (OMPF) and 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 67-9 (Officer Evaluation Report) (4 June 2013) * DA Form 67-10-1A (Officer Evaluation Report Support Form) (Officer Evaluation Report Support Form) * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation 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 (ABCMR) 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 in effect: a. His OER is unjust for two reasons. First, he believes it gave an accurate and complete depiction of his contribution to the unit. However, earlier in the year he received an Article 15 as a Reserves Officer Training Corps instructor. He socialized with his Cadets off-duty and disobeyed a general order. b. He believes his rater and senior rater did not take into consideration his entire DA Form 67-10-1A, which could have bolstered his OER with deserving positive narration and comments. His senior rater in particular disregarded all of his many contributions to the unit, and instead, focused only on his Article 15. c. The second reason is that his OER will most likely lead to an involuntary resignation of his commission sometime in 2018. His security clearance was revoked and he did not have one from 2014 until 2017. d. He was later informed by Human Resource Command that he was passed over for promotion in the Individual Ready Reserve Army because of his OER. They also informed him selection was unlikely, and he would be placed on the Selection Continuation Board and he would be passed over on the Board and be removed from the Army completely. e. The inclusion of his referred OER makes it nearly impossible for him to serve in the Army and he entreats the Army Review Board Agency to show compassion and allow him a completely fresh start in the Army Reserves. f. In addition, he is requesting a personal appearance before the Board. 3. The applicant provides: a. DA Form 67-9 (Officer Evaluation Report) for the rating period 1 May 2012 through 4 June 2013. b. DA Form 67-10-1A (Officer Evaluation Report Support Form) (Officer Evaluation Report Support Form), which shows he was counseled on 15 April 2014. It also lists his accomplishments and his performance objectives. His rater states he contributed to the unit by serving as the MSIV instructor and taught 9 classes; planned and coordinated the first ever ride to Gettysburg National Battlefield, mentored Cadet HHC Company Commander and First Sergeant. c. DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report). The report shows he received an, “unsatisfactory” rating. His Senior Rater notes the applicant demonstrated a serious lack of judgement, which has interfered with his performance and caused the chain of command to lose faith and confidence in his leadership. He lacks potential for further service as an officer. 4. A review of the applicant’s available service record shows: a. He enlisted in the regular Army on 12 June 2005. b. His officers record brief are not available for the Board’s review. c. His DD Form 214 shows he was honorably released from active duty on 14 December 2014 and his narrative reason for separation is completion of required active service. 5. Army Regulation 600-8-29 (Officer Promotions), states Special selection boards SSB may be convened under Title 10, U.S. Code to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. 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. BOARD DISCUSSION: The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. After reviewing the application and all supporting documents, the Board found relief is not warranted. The applicant’s contentions were carefully considered. He received a referred OER. He subsequently acknowledged receipt of the contested OER. His record is void of the contested OER and information showing he appealed the contested OER. He provided the Board a copy of the contested OER. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. There does not appear to be any evidence the contested OER was placed in his OMPF. The Board agreed there is no action required at this time. 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 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. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. 2. Army Regulation 600-8-104 (Army Military Human Resource Records (AMHRR) Management governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a 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. Appendix B states the DA Form 67-9 and DA Form 67-10-2 are filed in the performance folder of the Soldier's OMPF. 3. Army Regulation 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. a. Paragraph 1-11 provides that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA and the conduct of the rated Soldier and members of the rating chain. b. Paragraph 2-2 states commanders, commandants, and organization leaders will establish rating chains and publish rating schemes within their units or organizations in accordance with locally developed procedures and Army Regulations. Rating schemes for two-star level commands (or equivalent organizations) and below will be approved by the next higher CDR, commandant, or organizational leader. Established rating chains will correspond as nearly as practicable to the chain of command or supervision within a unit or organization, regardless of component or geographical location. Rating schemes will identify the name of the rated Soldier and the effective date for each of the rating officials (date on which the rating official assumed his or her role as the rating official for the rated Soldier). Rating schemes will be published and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to a rating scheme will be published and distributed, as required. No changes may be retroactive. c. Paragraph 3-26 (Referred evaluation reports) provides, in pertinent part, that any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to HQDA. d. Paragraph 3-28 provides that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. e. Paragraph 3-40 states a change of rater OER is mandatory when the rated officer ceases to serve under the immediate supervision of the rater and the minimum rating qualifications have been met. The OER is required if the rated officer has completed at least 90 calendar days in the same position under the same rater during the same rating period. f. Paragraph 4-11a-b states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, 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 and action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-11d states 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 results of a CDR's or Commandant's Inquiry may provide support for an appeal request. h. Paragraph 4-13a(2) states limited support is provided by statements from people who observed the applicant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letter of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to Department of the Army. Paragraph 2-28 provides that: a. If a referred OER is required, the senior rater will place an "X" in the appropriate box in part II, block d on the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in part II, block d. b. The rated officer may comment if he or she believes that the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered on the OER; rating officials may not rebut rated officer's referral comments. c. The rated officer's comments do not constitute an appeal. Appeals are processed separately. Likewise, the rated officer's comments do not constitute a request for a CI. Such a request must be submitted separately. 5. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. 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. c. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019538 2 1