ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 May 2019 DOCKET NUMBER: AR20190003309 APPLICANT REQUESTS: removal of a referred DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)), covering the rating period from 21 May 2016 through 10 May 2017 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Five page self-authored statement, dated 2 January 2019 with enclosures * Officer Special Review Board (OSRB) Record of Proceedings – Board Determination and Directed Action sheet, with a board date of 17 April 2018 * Memorandum from U.S. Army Human Resources Command (AHRC), subject: Evaluation Report Appeal 20160521-20170501, dated 26 April 2018 * Enclosure 1 – Board of Inquiry Documents, dated 20 December 2018 * Enclosure 2 – Contested OER with rebuttal comments * Enclosure 3 – Rating Chain email, dated 26 June [2017] * Enclosure 4 – OER Support Form email, dated 12 June 2017 * Enclosure 5 – OER Appeal Supporting Statement, 25 August 2017 * Enclosure 6 – Commander, Joint Spectrum Center (JSC) email, dated 14 June 2017 * Enclosure 7 – Mr. C.P. Concurrence email, dated 24 August 2017 * Enclosure 8 – Metro Usage Data with affidavit, dated 25 October 2017 * Enclosure 9 – Rater Employment Verification email, dated 31 October 2017 * Enclosure 10 – Commander's Inquiry (CI) Request and Request for Update, dated 11 September 2017 * Enclosure 11 – Freedom of Information Act (FOIA) Request email, dated 7 October 2017 * Enclosure 12 – Three DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard), dated 9 February 2016, 26 September 2017, and 8 November 2018, respectively * Enclosure 13 – Rater/Senior Rater (Mr. B.H.) rejects rebuttal comments email, dated 11 September 2017 * Enclosure 14 – Letter of Support, dated 4 October 2017 * Enclosure 15 – OSRB Denial sheet * Enclosure 16 – ARHC memorandum, subject: Delay of Promotion and Referral to a Promotion Review Board (PRB), dated 4 January 2018 with auxiliary document * Enclosure 17 – Secretary of the Army memorandum, dated 1 August 2018 FACTS: 1. The applicant states (see attached): a. The immediate removal of the unsubstantiated referred OER from his OMPF based on administrative/process and substantive error. The negative comments in the evaluation and the negative ratings given in the evaluation are based on inaccurate, unverified and unsubstantiated information; he was rated by a non-qualified rater and senior rater. Additionally, the fact that the OER was found to be unsubstantiated shows a lack of objectivity and fairness in the processing of the evaluation. b. The OSRB denied his appeal to remove the referred OER on 17 April 2018. On 14 November 2018, an AHRC directed Board of Inquiry (BOI) (enclosure 1) was held and determined that the derogatory information in his referred OER was unsubstantiated. Therefore, based on the results of the BOI the contested OER should be removed from his OMPF. c. Unsubstantiated Derogatory Information. The BOI determined that the derogatory information in the contested OER was unsubstantiated. The BOI also found that the allegation of conduct unbecoming an officer was unsubstantiated. As all of the allegations in the referred OER are unsubstantiated, maintaining the referred OER in his OMPF is unjust and inconsistent with applicable regulatory guidance. (1) Unsubstantiated Alleged Security Violation. He did not release classified information to uncleared government or contractor personnel. The BOI found that this allegation was unsubstantiated. His supervisor and the program manager recommended and approved the use of a third party for additional analysis, which was known by his chain of command including Mr. B.H. (his rater and senior rater of the contested OER) during regular meetings and briefings. The Commander, JSC (CAPT S.A., U.S. Navy), the organization which was the third party that maintains the databases, noted in a 14 June 2017 email that "he [applicant] did not release classified information to uncleared government or contractor personnel." The Commander also stated that the contractor had the appropriate security clearances and had a need-to- know basis for the work at hand. (2) Unsubstantiated Alleged False Statement. All his provided answers were accurate and truthful. No one has ever shown him any alleged false statement(s) nor was he asked to clarify or explain any statement(s). He was never provided any evidence or investigation regarding any adverse finding or provided an opportunity to rebut any finding as required. Even a memorandum that Mr. B.H. provided to the MDW, OSJA, on 13 November 2018 does not include the actual alleged statement(s) or even a quotation from the statement(s). The BOI found that this allegation was unsubstantiated. (3) Unsubstantiated Alleged Misuse of Metro and Parking Benefits. During his time at the White House Military Office (WHMO), he utilized metro benefits for official use only and received no improper financial gain from doing so. Over the 12-month period he served in the WHMO, he utilized only $54.00 in metro benefits, as indicated in his metro benefits transaction history log (enclosure 8). When he was issued a parking pass in his name in January 2017, he ceased use of all metro benefits. The BOI found that this allegation was unsubstantiated. (4) Unsubstantiated Alleged Failure to Disclose Spouse Employment. Prior to beginning his service at the WHMO, he provided his wife's full employment history, as part of the full disclosure requirement. He also accurately indicated in February 2017 that his wife had no new employment. The BOI found that this allegation was unsubstantiated. (5) Unsubstantiated Alleged Failure to Submit Support Form. On 12 June 2017, Mr. D.S. instructed him not to complete a DA Form 67-10-1A [Officer Evaluation Report Support Form] because Mr. B.H. wanted the evaluation input "via email or word, NOT IN SYSTEM." He complied with the request and provided his evaluation input via e-mail on 5 July 2017. After complying with this request his evaluation report states that he did not submit an OER Support Form and neglects to state it was not requested. The BOI found that this allegation was unsubstantiated. (6) Unsubstantiated Alleged Failure to Conduct Army Physical Fitness Test. He completed the APFT at Fort Myer in July and October 2016, during weekly mass APFT testing periods. He scored a 300 on both, which is consistent with other recent APFTs he has taken. A copy of the APFT card with his July and October 2016 scores were left in a training folder with other in-processing and mandatory training certificates in his office at the WHMO. No request was made that he conduct another APFT and he was never informed that his APFT records were not properly maintained during the rating period. The BOI found that this allegation was unsubstantiated. d. Unqualified Rater and Lack of Objectivity and Fairness. His rater and senior rater, Mr. B.H., was not a qualified rater and there was a lack of objectivity and fairness in the processing of his evaluation report. (1) Mr. B.H. completed his evaluation as both his rater and senior rater, even though he was an unqualified rating official. In accordance with Army Regulation 623-3 [Evaluation Reporting System], paragraph 2-19, a rating official is eliminated from a rating chain when the rating official dies, is declared missing, is relieved from his or her position or duties for cause, or becomes mentally or physically incapacitated. Here, none of the justifications for eliminating a rating official are present. Upon arrival at the WHMO, Mrs. H.P. was assigned as his rater and Mr. D.C. as his senior rater. Mr. D.C. retired on or about January 2017 and Mrs. H.P. retired on or about March 2017. Despite his requests for an evaluation, the required change of rater report was not written at that time. When he left the WHMO, Mr. B.H. was his rater and the Director of the WHMO, Mr. D.K., was his senior rater. After the end of his rating period, in a 26 June 2017 e-mail, he was notified by Mr. D.S. that his rating chain was "adjusting to him as the rater, and B.H. the senior rater." Army Regulation 623-3, paragraph 2-19 also indicates that when the senior rater is removed a new senior rater may be appointed, who will rate the officer after serving as the senior rater for at least 90 days, or the original senior rater's rater may be appointed as the new senior rater of the rated officer. Here, neither of the options for implementing a new senior rater were utilized. (2) He provided Mr. B.H. with his rated officer comments on 5 September 2017. Just three days later, Mr. B.H. informed him that he would ignore his comments and that the OER "will stand as is." On 12 September 2017, he requested that the WHMO conduct a commander's inquiry into his evaluation report. His request was met with silence and inaction. He was also not afforded his right to respond to adverse information identified in the investigation in accordance with regulatory guidance. The only information he was ever provided was a one-page memorandum with a single enclosure. The content of the memorandum is conclusory statements, references to alleged evidence that is not provided, and material misstatements regarding the only enclosure. The memorandum claims that the enclosed form was his statement that his spouse had "no reportable sources of income," which is a material misstatement. In reality, the form is his statement that his spouse had "no new reportable assets or sources of income." The title of the form itself identifies that the purpose of the form is to indicate that there is nothing "new" to report. This type of mischaracterization was indicative of the complete disregard of process and lack of fairness displayed by Mr. B.H. throughout the processing of his OER. d. He was recommended for promotion to colonel (COL) on 18 April 2017. He was notified on 4 January 2018 of the delay of his promotion and referral to a PRB because of the referred OER. On 1 August 2018, he was removed from the promotion list by the Secretary of the Army. These unjust actions were based solely on the unsubstantiated allegations in the referred OER. 2. The applicant is presently assigned as the Deputy Director, J6, Joint Force Headquarters – National Capital Region (JFHQ-NCR), Fort McNair, DC in the rank of lieutenant colonel (LTC). He was promoted to LTC on 1 July 2013. 3. The applicant received the contested OER on or about 27 September 2017, covering the period 21 May 2016 through 10 May 2017 (11 months), which addressed his duty performance as Program Manager, Policy, Plans, and Requirements (PPR) Directorate within the WHMO. His rater and senior rater was Mr. B.H., Director, PPR. The contested OER shows in: a. Part I (Administrative), sub-section h (Reason for Submission), the entry "Relief for Cause." b. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, signifying to the applicant that he was receiving a referred report. In that same block, a checkmark was placed in the "Yes" block, indicating the applicant's comments were attached. c. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), sub-section a (APFT) shows "Height: 99," Weight: 999," "Within Standard? NO," and the comment "There is no record of the rated officer taking an APFT within the past year or completing HT/WT." d. Part IV, sub-section d1 (Character) shows the comment "His actions during the report period compromised Army values; Integrity." e. Part IV, sub-section d2 (Provide Narrative comments….) shows the following comments: [Applicant] led interagency communications planning conference that raised threat awareness and improved government contingency communication systems. He was charged with diverse and complex responsibilities within WHMO and across Federal Agencies, unfortunately he made poor decisions and judgement during the rating period. f. Part IV, sub-section e (This Officer's overall Performance is Rated as:) – A completed DA Form 67-10-1A was received with this report in my evaluation and review – showed a checkmark in the "NO" block. The following comments were shown: I am serving as both the rater and senior rater in accordance with AR 623-3, para 2-19. [Applicant] directed a WHMO contractor to provide SECRET information to a non-WHMO contractor, without a need to know; provided false official statement to inquiry officer; failed to report spouse's employment with contracting firm; violated DoDI 1000.27 by applying for, certifying eligibility for, and receiving Metro Benefits while having gov't provided parking. No DA Form 67-10-1A submitted, but accomplishments were submitted via email. g. Part VI (Senior Rater), sub-section a (Potential Compared with Officers Senior Rated in Same Grade), the entry "Not Qualified." h. Part VI, sub-section c (Comments on Potential), the following comments: Rated Soldier refuses to sign. The WH Military Office relieved [Applicant] from Presidential Support Duty for loss of trust and confidence. Based on [Applicant's] poor judgement and lack of integrity, in both mission critical leadership and ethical standards, I do not recommend [Applicant] serve at the next higher grade. 4. The applicant provides the following: a. Two word documents, dated 12 and 26 June 2017 from Mr. D.S. requesting input into the applicant's evaluation for Mr. B.H. via email or word documents, not in the system and stating the applicant's rater and senior rater was being adjusted to Mr. D.S. as the rater, Mr. B.H. as the senior rater, and a Colonel R. as the Senior Army reviewer (enclosures 3 and 4). b. An email correspondence between Commander, JSC (CAPT S.A.) and Lieutenant General (LTG) A.L., dated 14 June 2017. CAPT S.A. stated he reviewed the issues surrounding the applicant's statement from WHMO and assessed that he did not release classified information to un-cleared government or contractor personnel. CAPT S.A. provided a summary of events in the remainder of the email (enclosure 6). c. A memorandum to AHRC from Mr. B.H., Director, PPR, WHMO, dated 20 July 2017 requesting a HQDA supplementary review of the applicant's OER, because there was no U.S. Army officer above him in his organization or chain of supervision (enclosure 2). d. A memorandum from Mr. G.S., PAGCN Program Manager, dated 25 August 2017 stating he worked with the applicant from May 2014 to present. All of the work with the applicant was at a Secret or below level based on the PAGCN Security Classification Guide. The applicant appointed Mr. D as the primary contact with their office, and the applicant's office required additional radio frequency analysis to support the mission. The PAFCN PMO had no resources to support the additional RF analyst, and told the applicant that his office should either provide funds or find a third party to perform the work. This was discussed telephonically and on secure video teleconference on numerous occasions (enclosure 5). e. A memorandum to the applicant from Mr. B.H., dated 28 August 2017 informing the applicant the specific reasons for the referred report. The applicant must acknowledge receipt of the referred report and any comments submitted must be factual, concise, and limited to matters directly related to the evaluation on the referred report (enclosure 2). f. A memorandum for Mr. B.H., from the applicant, dated 5 September 2017, requesting removal of all negative comments and the reassessment of his ratings in the contested OER. It additionally addressed all the contentions as outlined in his application addressed above (enclosure 2). g. An email correspondence from Mr. B.H., dated 8 September 2017 stating he reviewed the applicant's comments and decided the OER would stand as is and to sign his OER (enclosure 13). h. A memorandum requesting a CI, dated 11 September 2017. His request was based on serious irregularities and errors to include an unqualified rating official, inaccurate and untrue statements, and a lack of objectivity and fairness by the rating official (enclosure 10). i. A supporting statement memorandum from CPT J.R., Deputy Program Manager, dated 4 October 2017 stated he observed the applicant on a daily basis and served as his deputy for all actions. The dynamics the applicant instilled within the directorate were vastly different than his predecessor. Transparency seemed to be the tone set by the applicant, who expected all personnel to execute their duties without having to be micro-managed (enclosure 14). j. In numerous email correspondence the applicant's legal counsel, CPT A.W., on 20 October 2017 stated the applicant requests an update on his 12 September 2017 CI request. CPT A.W. stated there was never an acknowledgement of receipt or indication that an investigation was initiated (enclosure 10). On 27 October 2017, CPT A.W. asserting the Freedom of Information Act (FIOA), requested all documents related to the contested report along with any investigation or other inquiry conducted prior to 11 September 2017, along with documentation stating Mr. B.H.’s civilian employment start date (enclosure 11). On 31 October 2017, a Ms. G.R., WHMO Human Resources Division, confirmed Mr. B.H.'s [the rater and senior rater] civilian employment start date was 21 February 2017 (enclosure 9). k. A Memorandum for Record (MFR) from Colonel Z, Chief of Staff, Military District of Washington (MDW), dated 30 October 2017, stated he witnessed the applicant downloading the attached images as original data from the DC Metro Smart Benefits Webpage. He additionally noted the data contained was original and has not been tampered with or modified. The applicant provided a list of DC Metro Usage and Transaction logs along with an affidavit statement which stated he swore that the information in this document was true and correct to the best of his knowledge and belief. The screens captured were documented in the seven pages are a true and accurate representation of his metro usage report (enclosure 8). l. Three DA Forms 705 showing he scored 300 of all three of his APFTs; one taken before and two taken after the period covered in the contested OER. [Note: He provides no DA Form 705 taken during the rating period.] m. A memorandum from AHRC, dated 4 January 2018 notifying him of a delay in his COL promotion and referral to a PRB due to him receiving a referred OER. Subsequently, in a memorandum dated 1 August 2018, the Secretary of the Army removed him from the Fiscal Year 2017 Colonel Promotion list. 5. The applicant appealed the contested OER to the OSRB on 17 April 2018. In Docket Number AR20170019355, the OSRB, by unanimously vote, determined the overall merits of the evidence presented did not warrant the removal of his contested OER. 6. The Commander, AHRC in a memorandum, dated 22 May 2018, directed the applicant to show cause for retention on active duty because of misconduct, moral or professional dereliction and derogatory information. On 5 October 2018, the Commander, AHRC directed that a Field BOI be conducted (attached). a. On 14 November 2018, at Fort Myer, VA, a BOI was conducted to determine whether the applicant be separated from the Army under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2b and 4-2c. b. The BOI considered the following allegations against the applicant: (1) He received a referred OER for the period 21 May 2016-10 May 2017, which was filed in his Army Military Human Resource Record (AMHRR), constituting derogatory information under AR 600-8-24, paragraph 4-2c, as listed in the notification of proposed separation, IS NOT supported by a preponderance of the evidence. (2) He directed a WHMO contractor to provide secret information to a non-WHMO contractor, without need to know, constituting misconduct, moral or professional dereliction under AR 600-8-24, paragraph 4-2b, as listed in the notification of proposed separation, IS NOT supported by a preponderance of the evidence. (3) He provided a false official statement to an inquiry officer, constituting misconduct, moral or professional dereliction under AR 600-8-24, paragraph 4-2b, as listed in the notification of proposed separation, IS NOT supported by the preponderance of the evidence. (4) He failed to report spouse's employment with a contracting firm, constituting moral or professional dereliction under AR 600-8-24, paragraph 4-2b, as listed in the notification of proposed separation, IS NOT supported by a preponderance of evidence. (5) He violated DoDI 1000.27 by applying for, certifying eligibility for, and receiving Metro Benefits while having government provided parking, constituting misconduct, moral or professional dereliction under AR 600-8-24, paragraph 4-2b, as listed in the notification of proposed separation, IS NOT supported by the preponderance of evidence. (6) The allegation of conduct unbecoming an officer, constituting misconduct, moral or professional dereliction under AR 600-8-24, paragraph 4-2b, as listed in the notification of proposed separation, IS NOT supported by the preponderance of evidence. 8 c. The BOI determined the findings did not warrant his separation and recommended that he be retained in the Army. The general court-martial convening authority approved the BOI's recommendation on 20 December 2018 and the elimination action was closed. 7. A review of the applicant's record contains and he provided documentation showing he requested that a CI to be conducted; however, there was no documentation nor did he provide any showing that one was initiated or conducted. 8. A review of the applicant's record is void of any documentation nor does he provide any in which an investigation was conducted based on the allegations against him. 9. A review of the applicant's record is void of a rating scheme nor does he provide one verifying his rater and senior rater during the period covered in the contested OER. However, the BOI packet, in his OMPF, contains a memorandum from a Ms. H.P., dated 3 November 2017 stating the applicant arrived at the WHMO in May 2016 and she was his rater until her retirement on 31 March 2017. It additionally stated she did not complete a change of rater or close-out OER upon her departure since she retired on short-notice due to medical reasons. 10. A review of the applicant's record shows the contested OER is filed in the performance section of his OMPF. 11. Army Regulation 600-8-24, currently in effect, states: a. The BOI's purpose is to give the officer a fair and impartial hearing determining if the officer will be retained in the Army. Through a formal administrative investigation conducted under Army Regulation 15-6 [Procedures for Administrative Investigations and Boards of Officers] and this regulation, the Board of Inquiry establishes and records the facts of the Respondent’s alleged misconduct, substandard performance of duty, or conduct incompatible with military service. Based upon the findings of fact established by its investigation and recorded in its report, the board then makes a recommendation for the officer’s disposition, consistent with this regulation. b. The BOI determines its findings and recommendation by secret written ballot in closed session, with a majority vote deciding any issue. The board may not recommend removal of documents such as OERs, Article 15s, and Memoranda of Reprimand from an officer’s OMPF. The board recommendations are limited to either retention (with or without reassignment) or elimination. 12. Army Regulation 623-3, currently in effect, states: a. Commanders at all levels will ensure that rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner. Rating schemes show the rated Soldier's name, indicate the effective date for each designated rating official, and are published within the unit and made accessible, either manually or electronically, to each rated Soldier and each member of the rating chain. Any changes to rating schemes will also be published and distributed. No changes may be retroactive. Note. In all cases when the term “unit” is used, it encompasses whatever type of military unit, organization, or agency the Soldier served in during the rating period. b. 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. c. 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. d. 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. 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 indicated that an injustice had occurred and the OER should be removed from the applicant’s OMPF. The Board found that the applicant provided evidence that showed that he was never given a chance to rebut the 15-6 investigation that the rater/senior rater used to prepare the OER. The Board found that the evidence provided in rebuttal to the OER was compelling and showed that the applicant had not committed a security spillage violation, had not committed fraud in that the applicant had not used his metro card after receiving parking privileges, had taken several APFTs before and after the rating period on which his score is listed as 300 and the WHMO training office was charged with maintaining the records for the rating period and not the applicant, and that the applicant indeed had reported his wife’s work history. The Board gave merit to the applicant’s claim that the rater/senior rater’s comments “lacked objectivity and fairness.” For example, the rater/senior rater included the following comment in the bottom portion of the rater comments, “No DA Form 67-10-1A submitted, but accomplishments were submitted via email”, which seemed spiteful, considering that, according to email evidence, the rater/senior rater had requested the applicant provide OER input using email and not a DA Form 67-10-1A. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X 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 removing from his record the Officer Evaluation Report for the period ending 10 May 2017and replacing it with a statement of non-rated time. 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. ADMINISTRATIVE NOTE(S): Not Applicable REFERENCES: 1. 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. 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. 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. b. 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. c. 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. d. 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. e. 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. f. 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. g. 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.