ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 19 March 2020 DOCKET NUMBER: AR20180007510 APPLICANT REQUESTS: * correction of Part VIIc (Comment on Performance/Potential) of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 2 February 2013 through 17 November 2013 to read "He is ready for promotion" * if his OER is corrected, the opportunity to sign the evaluation APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Memorandum, Applicant, dated 16 May 2018, subject: Correction of Military Record/Substantive Appeal to Evaluation Report for (Applicant), 20130202 Thru 20131117 * Enclosure 1 – OER, dated 2 February 2013 through 17 November 2013 * Enclosure 2 – DA Forms 67-9 covering the periods 28 August 2007 through 15 March 2008 * Enclosure 3 – OERs, dated 16 March 2008 through 1 January 2009 * Enclosure 4 – DA Form 1059 (Service School Academic Evaluation Report (AER)), dated 28 June 2013 * Enclosures 5a, 5b, and 5c – email, dated 7 January through 11 February 2014 * Enclosure 6 – Memorandum, U.S. Army Human Resources Command (HRC), dated 7 May 2018, subject: Evaluation Report Appeal (20130202-20131117) REFERENCES: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policies for completing evaluation reports that support the Army's Evaluation Reporting System, including the DA Form 67-9. a. Paragraph 2-15c (Officer Evaluation Reports) stated senior raters will, in addition to evaluating rated officers, normally perform the final review of the OER before it is provided to the rated officer for signature. Following his or her signature of the completed DA Form 67-9, and signature by the rated officer, he or she will ensure the final report is submitted to Headquarters, Department of the Army (HQDA), in a timely manner and a copy is provided to the rated officer (in accordance with this regulation and Department of the Army Pamphlet 623-3 (Evaluation Reporting System). b. Paragraph 2-17 (Review of Officer and AERs) provided for the review of OERs and states that in most instances, the senior rater for OERs will perform the final rating chain review ensuring that: (1) evaluation rating chains are correct; (2) evaluations rendered by rating officials are examined and discrepancies are clarified or resolved; (3) all members of the rating chain have complied with this regulation and procedures prescribed in Department of the Army Pamphlet 623-3; (4) the communication process between the rater and rated officer has taken place, is documented properly described in paragraph 3-4 and/or in accordance with academic counseling standards established by the military or civilian institution; (5) all comments are consistent with the counseling, support forms (or equivalent), or other communications between rating officials and the rated soldier during the rating period; (6) a copy of the completed evaluation is returned to the rated officer at the conclusion of the final review; and (7) all evaluation reports are submitted to HQDA, along with any comments provided by the rated Soldier. c. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) addressed requests for modifications to both completed evaluation reports that are filed in a Soldier's Official Military Personnel File (OMPF) and reports that are being processed at HQDA prior to completion. (1) An evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to: * be administratively correct * have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications * represent the considered opinions and objective judgment of the rating officials at the time of preparation (2) Requests for modifications to evaluation reports already posted to a Soldier's OMPF require use of the Evaluation Report Redress Program (chapter 4 and Department of the Army Pamphlet 623-3). (3) Requests that a completed evaluation report filed in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored if the request is based on the following: * statements from rating officials that they underestimated the rated Soldier * statements from rating officials that they did not intend to assess the rated Soldier as they did * requests that ratings be revised * statements from rating officials claiming administrative oversight or typographical error in checking blocks on forms for professional competence, performance, or potential * statements from rating officials claiming OERs were improperly sequenced to HQDA by the unit or organization * a subsequent statement from a rating official that he or she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) (4) For reports that have been completed and filed in a Soldier's OMPF, substantive appeals will be submitted within 3 years of an OER, Noncommissioned Officer Evaluation Report, or AER "THRU" date. Administrative appeals will be considered regardless of the period of the report; decisions will be made based on the regulation in effect at the time reports were rendered (paragraph 4-8). d. Chapter 4 (Evaluation Report Redress Program), section I (Managing the Redress Program), stated the program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. (1) Paragraph 4-8a (Timeliness) stated because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. (2) Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of an evaluation report, the applicant will produce evidence that establishes clearly and convincingly that: * the presumption of regularity referred to in paragraphs 3-36a and 4-7a will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice (3) Paragraph 4-11d stated 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. Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant'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 applicant'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. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the 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 he submitted an OER appeal to the HRC Evaluation Appeals Section and was rejected (see enclosure 6). Having exhausted all administrative remedies, he is therefore petitioning the ABCMR to correct his OER covering the period 2 February 2013 through 17 November 2013. a. The basis of his appeal is substantive inaccuracy. His senior rater's comments in Part VIIc (Comment on Performance/Potential) are factually incorrect. His senior rater stated: "He is ready for promotion upon full completion of the captain's career course (CCC) and a successful company command." This statement implies that he did not complete the CCC or command a company. Both are requirements for promotion to the rank of major. b. He completed the CCC in June 2013 during the rating period (see enclosure 4). He also completed his company command in a 15-month period from 2007 to 2008 in the rank/grade of first lieutenant (1LT)/O-2 and captain (CPT)/O-3 (see enclosures 2 and 3). These facts were made known to his rater, senior rater, and unit S-1 during a discussion of his evaluation in January and February 2014 (see enclosures 5a, 5b, and 5c). He refused to sign his OER until the corrections were made. Despite agreement by his senior rater to change his comments (see enclosure 5a), the OER was forwarded to HRC without the applicant's signature or corrections to the senior rater comments. c. He is currently serving as a U.S. Army Reserve officer who is applying for the Call to Active Duty Fiscal Year 2018 Program. This mistake is still relatively fresh and the issue is clear and not susceptible to the risks associated with aged appeals referenced in Army Regulation 623-3, paragraph 4-8a. 3. His OER covering the period 28 August 2007 through 15 March 2008 (enclosure 2) shows in: * Part IIIa (Principal Duty Title) – Commander * Part IIIc (Significant Duties and Responsibilities) – in part, "Serves as a Rear Detachment Commander for the 515th Transportation Company and the 720th Ordnance Company (EOD [Explosive Ordnance Disposal])" * Part Vb (Comments on Specific Aspects of the Performance) – in part, "[Applicant] is an outstanding officer and rear detachment commander." 4. His OER covering the period 16 March 2008 through 1 January 2009 (enclosure 3) shows in: * Part IIIa (Principal Duty Title) – Rear Detachment Company Commander * Part IIIc (Significant Duties and Responsibilities) – in part, "Serves as the rear detachment commander for a medium truck POL [Petroleum, Oil, and Lubricants] company and an Ordnance EOD company" * Part Vb (Comments on Specific Aspects of the Performance) – in part, "[Applicant] did an outstanding job commanding the rear detachments of two companies deployed on 15 month combat tours." 5. His AER covering the period 17 June 2013 through 28 June 2013 (enclosure 4) shows he achieved course standards in the Transportation CCC, phases 1 through 3. 6. His OER covering the period 2 February 2013 through 17 November 2013 (enclosure 1) shows in Part VIIIc (Comment on Performance/Potential), in part, "[Applicant] is among the top 35% of officers I senior rate. He remains a viable team player and mission focused during his Captain's Career Course education requirements. He is ready for promotion upon full completion of the CCC and a successful company command. Soldier is unavailable to sign." 7. The applicant provided email correspondence regarding the OER under review showing: a. On 7 January 2014, Sergeant First Class (SFC) H____, Brigade S-1 Section, requested that the applicant sign and return his OER (enclosure 5a). (1) On 8 February 2014, he requested correction of the senior rater comments by Lieutenant Colonel (LTC) U____ and suggested the following revisions: * "He remain[ed] a viable..." * "eduction requirments" both misspelled * Delete extra period in ".." after "requirments" * facts: I have completed CCC and I have had a successful company command already" (2) On 8 February 2014, LTC U____ suggested SFC H____ make the following changes to the senior rater comments: "[Applicant] is among the top 35% of officers I senior rate. He remained a viable team player and mission focused during his Captain's Career Course education requirements. He is ready for promotion." (3) On 10 February 2014, SFC H____ stated the corrections would need to be vetted through Colonel (COL) H____. (4) On 10 February 2014, LTC U____ sent the suggested senior rater comments to Mr. L____. (5) On 11 February 2014, COL H____ apologized to the applicant for the errors and stated he would have the corrected comments out that night. b. On 12 January 2014, the applicant informed SFC H____ that he could not sign the OER due to administrative errors and asked SFC H____ to make the corrections; he provided a courtesy copy to LTC U____ (enclosure 5b). (1) On 13 January 2014, SFC H____ informed the applicant the corrections were between him and his rater. (2) On 25 January 2014, LTC U____ asked the applicant to forward him the email from SFC H____ on 7 January 2014 containing COL H____'s comments. c. On 26 January 2014, the applicant informed LTC U____ that he was unable to access his enterprise webmail and suggested LTC U____ obtain his OER from SFC H____ (enclosure 5c). (1) On 26 January 2014, LTC U____ advised the applicant that he was still working on the issue. Unfortunately, COL H____ had SFC H____ submit the OER to HRC, stating the applicant was not available for signature. LTC U____ stated they could continue to work on getting the applicant's OER corrected and requested that the applicant inform him if the OER posted to his records. (2) On 27 January 2014, the applicant thanked LTC U____ and informed him that he would be considered by a promotion board soon and would like to have the OER resolved. (3) On 27 January 2014, LTC U____ informed the applicant that he was disappointed the OER wasn't corrected and was simply forwarded without the applicant's signature. He stated he would continue to press for correction. 8. The HRC Evaluation Appeals and Corrections Section memorandum (enclosure 6), dated 7 May 2018, subject: Evaluation Report Appeal (20130202-20131117), states the applicant's correspondence and all originally submitted documents were returned without action because his request was well beyond the 3-year time limit. 9. The applicant is currently deployed in support of Operation Enduring Freedom until June 2020. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board found that the preponderance of the evidence in the record indicates that an injustice had occurred and the OER contains errors that should be corrected. The Board found that the applicant communicated the errors to the rating chain previous to signing the OER and the OER was submitted anyway. The Board discussed that Rear Detachment commanders have UCMJ authority over the Soldiers in their command. The Board further discussed that there is sufficient evidence that the applicant completed the CCC. The Board considers these facts to indicate that the applicant fully met the command and education requirements for promotion to the rank of MAJ/O-4 and his OER should be corrected to reflect that. The Board also found that once the corrections are made, the applicant should be allowed to sign the OER. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :XX :XX :XX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by 1. amending Part VIIc (Comment on Performance/Potential) of his DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 2 February 2013 through 17 November 2013 to read "He is ready for promotion." vice “He is ready for promotion upon full completion of the CCC and a successful company command. Soldier is unavailable to sign.”, and 2. sending the corrected OER to the applicant and securing his signature before filing the signed OER in his AMHRR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007510 8 1