IN THE CASE OF: BOARD DATE: 6 July 2021 DOCKET NUMBER: AR20210005501 


APPLICANT REQUESTS: removal of the DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) covering the period 10 June 2014 through 27 July 2015 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR). 

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

.DD Form 149 (Application for Correction of Military Record under the Provisionsof Title 10, U.S. Code, Section 1552)

.DA Form 1059 (Service School Academic Evaluation Report), 28 March 2014

.DA Form 67-10-2 covering the period 10 May 2016 through 31 March 2017

.DA Form 67-10-2 covering the period 1 April 2017 through 31 March 2018

.Officer Special Review Board (OSRB) Record of Proceedings Docket NumberAR20150016956, 13 June 2017 with supporting auxiliary evidence (53 pages)



FACTS: 

1.The applicant did not file within the 3-year time frame provided in Title 10,U.S. Code, 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 theinterest of justice to excuse the applicant's failure to timely file.

2.The applicant requests reconsideration of the OSRB's decision in DocketNumber AR20150016956, 13 June 2017, regarding the board's denial of removal of thecontested OER. He states:

a.He was granted a compassionate reassignment by the U.S. Army HumanResources Command (HRC) after his wife and his father passed away in order to have support from his mother and family living in Las Vegas, NV.  His daughter was 4 years old and was having a difficult time with the loss of her mother, as he was for the loss of his wife and father. 

b.HRC granted him a compassionate reassignment to the 6th Medical RecruitingBattalion in Las Vegas, where he was assigned as the Battalion S-3 Operations Officer. 
He had addressed HRC about his concerns for this position as a compassionate reassignment and was assured he would have the support and receive the help he and his daughter needed. 

c.He believes he should have been granted reasonable consideration for hishardship, not an unjust derogatory evaluation. His appeal packet shows the injustices from his toxic command; however, the OSRB was unaware this assignment was a compassionate reassignment. 









3.Having prior enlisted service in the U.S. Army Reserve (USAR), he was appointed as a Reserve commissioned officer of the Army in the Medical Service Corps in area of concentration (AOC) 70B (Health Services Administration) effective 15 June 2001. He was promoted to the rank/grade of major (MAJ)/O-4 effective 1 October 2012.4.He was serving on active duty in a USAR Active Guard Reserve (AGR) status when he was reassigned to the 6th Medical Recruiting Battalion, Las Vegas, NV, effective10 June 2013 to serve as the operations officer in HRC Orders R-04-382447, 1 April 2013.5.He provided his DA Form 1059, 28 March 2014, showing he achieved course standards for the Health Services Plans, Operations, Intelligence, Security, and Training Course during the period 9 March 2014 through 28 March 2014.6.He provided and his records contain his DA Form 67-10-2 covering the period17 May 2013 through 9 June 2014, a 12-month period, which addressed his duty performance as the battalion operations officer for the 6th Medical Recruiting Battalion, Las Vegas, NV. The reason for submission is shown as "Extended Annual."a.His rater is shown as Lieutenant Colonel (LTC) C___, Battalion 

Commander, and his senior rater is shown as Colonel (COL) F____, Brigade Commander. b. The rater evaluated his performance as "Proficient" and commented that he implemented successful recruiting operations and was a strong and solid performer as the S-3. His senior rater evaluated his performance as "Highly Qualified" with the potential to excel in any environment. 



7.He provided two DA Forms 4856 (Development Counseling Form) showing the Battalion Commander (LTC N____) counseled him regarding his performance.a.On 30 June 2015, he was given performance-oriented counseling regarding leave expectations, ensuring coverage of the S-3 section, being accountable and taking 
charge of the section, and providing assistance to the S-4 section in transition. He and his rater signed the form on 1 July 2015. 

b.On 27 July 2015, he was given relief-for-cause counseling. Based on herobservations and previous counseling sessions with him, his duty performance as the battalion S-3 was not acceptable. She noted she was very lenient in allowing him ample time (over a year) to learn his job, to take charge of his noncommissioned officers (NCOs), and to manage an effective operations section. She stated she was relieving him from his position as the battalion S-3 effective that day. (Note: the applicant provides only page 1 of 2 pages and does not contain his agreement/disagreement with remarks or the signatures of the rater or himself (page 2). 



8.He received the OER covering the period 10 June 2014 through 27 July 2015, a"12-month period, on 21 September 2015, which addressed his duty performance as the battalion operations officer for the 6th Medical Recruiting Battalion, Las Vegas, NV. The reason for submission is shown as "Relief for Cause." His rater is shown asLTC N____, Battalion Commander, and his senior rater is shown asCOL H____, Brigade Commander. The rater, senior rater, and applicant all digitally signed the OER on 21 September 2015. The OER shows in:a.In Part IId (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. 

b.In Part IVd(2) (Provide Narrative Comments which Demonstrate PerformanceRegarding Field Grade Competencies and Attributes in the Rated Officer's Current Duty Position), his rater commented: 

[Applicant] was unable to effectively lead the battalion Operations Section, did not accomplish his primary performance objective and solely relied on his subordinates to conduct all operations tasks. As a Supply Officer, [Applicant] did take the initiative to provide assistance in the battalion Supply Section to correct deficiencies and cover a vacancy. 

c.In Part IVe (This Officer's Overall Performance is Rated as), his rater marked"Unsatisfactory" and entered the following comments: 

I relieved [Applicant] as the battalion S3 due to his poor performance and inability to lead his section. He failed to plan, coordinate, prioritize and synchronize battalion operations. [Applicant] failed to mentor and counsel his NCOs and Civilian personnel and relied solely upon them for accurate and timely completion of all operations tasks. 
d.In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), hissenior rater marked "Not Qualified" and entered the following comments: 

[Applicant] does not demonstrate the potential to excel in a recruiting operations leadership position. Do not promote at this time. Retain and assign in a logistics role. 

9.The applicant acknowledged receipt of the OER and submitted a memorandum forrecord (Officer Evaluation Report Referral Comments 10 June 2014 through 27 July2015, (Applicant)), 25 August 2015, in rebuttal to the contested OER's contents whereinhe addressed each negative comment.

a.He was able to effectively lead his battalion operations section to assist therecruiters in the field resulting in over an 81-percent AOC closure through positive leadership, guidance to his section, and timely communication to the field. His primary performance objective was to ensure his operations section assisted the company commanders and recruiters on the ground to provide strong guidance to help the battalion achieve 100-percent AOC closure. His section consisted of seven experienced individuals, each with specific tasks and specific duties. 

b.The unsatisfactory rating is not a fair or an accurate representation of his militaryperformance as a field-grade officer. He is and always has been a committed, strong, disciplined officer, striving to achieve the mission given to him and has accepted additional responsibilities. 

c.His performance leading his section was above standard and was very effective.The battalion achieved over 81-percent AOC closure and was accomplished with very limited, almost nonexistent, face-to-face guidance from the battalion commander. All leaders have different leadership styles. He has documented on-time counseling of section members and would mentor his section frequently. 

d.The "Not Qualified" rating is an inaccurate representation of his militaryperformance compared with officers in the same grade. He has assumed command numerous times for the battalion, volunteered to assume the S-4 position for the interim until a new civilian was hired, and managed the battalion serious incidents reports along with many other assigned tasks while he was the S-3. 

e.The senior rater comment is an inaccurate representation of his potential as anoperations officer by his many accomplishments within the battalion. He has demonstrated the potential to excel. 

10.A review of his AMHRR shows the contested OER is filed in the performancefolder.
11.His record is void of documentation and he did not provide any evidence showing aCommander's Inquiry (CI) was requested or conducted.

12.His DA Form 67-10-2 covering the period 28 July 2015 through 9 May 2016, a10-month period, from the same rating officials addressed his duty performance as theprinciple staff logistics officer for the 6th Medical Recruiting Battalion. The reason forsubmission is shown as "Change of Rater." His rater evaluated his performance as"Capable" and commented that his background in logistics was helpful in improving thebattalion's supply section, he was loyal team player, and he took on additional taskingsto assist the battalion and performed well. His senior rater evaluated his performance as"Qualified," noting he demonstrated potential to perform well in an Army logisticsassignment, and consideration for promotion after required schooling and an additionalassignment demonstrates stronger potential.

13.The applicant provided the OSRB Record of Proceedings in Docket NumberAR20150016956 with his supporting evidence, appealing the contested OER to theOSRB on or about 20 October 2015 based on substantive error and inaccuracies (seestatement).

a.Along with his appeal statement, he provided numerous third-party letters ofsupport speaking highly of his work ethic and leadership abilities and recommending removal of the contested OER from his AMHRR. 

b.He provided numerous successful OERs from previous rating periods. Hesubmitted counseling statements showing he counseled the civilians and NCOs in his section, thereby showing he took responsibility for the operations section. 

c.He submitted assumption of command orders, 20 November 2015, showing heassumed command of the battalion from 21 through 29 November 2015. (Note: this period is outside of the contested rating period.) 

14.He provided his DA Form 67-10-2 covering the period 10 May 2016 through31 March 2017 showing he was rated as a "Proficient" and "Highly Qualified" officer andshowing his growth as a logistics officer.

15.On 13 June 2017 in Docket Number AR20150017816, the OSRB, by unanimousvote, determined the overall merits of the evidence presented did not warrant removal ofthe contested OER from his AMHRR.

16.He provided his DA Form 67-10-2 covering the period 1 April 2017 through31 March 2018 showing he was rated as a "Proficient" and "Highly Qualified" officer andshowing his growth as a logistics officer.

17.He is currently serving in an AGR status assigned to the 396th Combat SupportHospital, Vancouver, WA.

18.HRC Orders R-11-005872, 23 November 2020, released him from assignment tothe 396th Combat Support Hospital and reassigned him to the 7243rd U.S. ArmyMedical Support Unit, Las Vegas, NV, with a reporting date of 9 August 2021.

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted.  The applicant’s contentions, the military record, and regulatory guidance were carefully considered.  The also Board considered the applicant’s reasoning behind the absence of mentioning a hardship during his previous request for relief.  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.  Based upon a preponderance of the evidence, the Board determined there does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF.. 

BOARD VOTE: 

Mbr 1 Mbr 2 Mbr 3 

: : : GRANT FULL RELIEF 

: : : GRANT PARTIAL RELIEF 

: : : GRANT FORMAL HEARING 

:XX :XX :XX 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, U.S. Code, section 1552(b), provides that applications for correction ofmilitary records must be filed within 3 years after discovery of the alleged error orinjustice. This provision of law also allows the ABCMR to excuse an applicant's failure totimely file within the 3-year statute of limitations if the ABCMR determines it would be inthe interest of justice to do so.

2.Army Regulation 15-185 (Army Board for Correction of Military Records) prescribesthe policies and procedures for correction of military records by the Secretary of theArmy acting through the ABCMR. The Board considers individual applications that areproperly brought before it. The ABCMR will decide cases on the evidence of record; it isnot an investigative body. The Board begins consideration of each case with thepresumption of administrative regularity. The applicant has the burden of proving anerror or injustice by a preponderance of the evidence.

3.Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy forcompleting evaluation reports and associated support forms that are the basis for theArmy's Evaluation Reporting System.

a.Paragraph 1-11 provides that when it is brought to the attention of a commanderthat 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 Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. 
 
 b.  Paragraph 3-26 (Referred Evaluation Reports) provides 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. 
 
  (1)  The senior rater will refer a copy of the completed OER (an OER that has been signed and dated by the rating officials) to the rated Soldier for acknowledgment and comment. 
 
  (2)  Upon receipt of the rated officer's acknowledgment (for example, receipt of a signed OER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER for forwarding to the reviewer (if applicable). 
 
  (3)  If the senior rater decides the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater will not pressure or influence another rating official. Any rating official who elects to raise his or her evaluation as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the OER is changed but still requires referral, the OER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment ("YES" or "NO" on OER signed by the rated Soldier) and the rated Soldier's comments, if submitted, will be forwarded to HQDA. 
 
 d.  Paragraph 4-7 provides that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not 
merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. 
 
 e.  Paragraphs 4-11a and 4-11b state 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 Department of the Army Pamphlet 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. 
 
 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 HQDA. 
 
 a.  Paragraph 2-28 provides that: 
 
  (1)  If a referred OER is required, the senior rater will place an "X" in the appropriate box in Part II, block d, of 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. 
 
  (2)  The rated officer may comment if he or she believes 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. 
 
  (3)  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. 
 
 b.  Paragraph 2-30 provides that a mandatory review of relief-for-cause OERs is required following referral to the rated officer. 
 
  (1)  When an officer (commissioned or warrant) is officially relieved of duties and a relief-for-cause OER is subsequently prepared, the OER will be referred to the rated officer or warrant officer as described in the referral process in Army Regulation 623-3. Note: this referral must be completed before taking any of the actions in the following subparagraphs. 
 
  (2)  If the rater or intermediate rater directed the relief, the senior rater will perform the review, provided he or she is an Army officer or DA civilian when other rating officials are uniformed Army rating officials. Otherwise, the first U.S. Army officer, designated as the Uniformed Army Advisor in the organization or chain of supervision above the individual directing the relief will perform a supplementary review of the OER. 
 
  (3)  Changed relief-for-cause OERs will be referred, again, by the senior rater (or other reviewer), in accordance with the referral process in Army Regulation 623-3, to the rated officer so that the corrected OER may be acknowledged and comments can be provided, if desired. Only the final referral and acknowledgment are forwarded with the report to HQDA. 
 
5.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. 
 
 a.  Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 
 
 b.  Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by Department of the Army and required for filing in 
the AMHRR and/or interactive Personnel Electronic Records Management System. The DA Form 67-9 and DA Form 67-10-2 are filed in the performance folder of the Soldier's OMPF. 
 
//NOTHING FOLLOWS//