IN THE CASE OF: BOARD DATE: 15 May 2021 DOCKET NUMBER: AR20210006676 APPLICANT REQUESTS: through counsel: * review and correction of his DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3- CW5) Officer Evaluation Report (OER)) covering the period 31 May 2015 through 6 March 2017 to remove any derogatory comments involving his medical status and upgrade his performance rating of "Capable" to appropriately reflect his performance * alternatively, removal of the DA Form 67-10-2 from his Army Military Human Resource Record (AMHRR) * reevaluation of his promotion decision pursuant to the foregoing correction * forward to the appropriate authority for decision regarding the rendering of associated back pay or other compensation to which he is or may be otherwise entitled * a personal appearance hearing before the Board 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 1522) * Counsel's Brief in Support of Application, 31 January 2021 * five DA Forms 67-10-2 covering the periods 31 May 2015 through 7 June 2020 * Army Regulation 623-3 (Evaluation Reporting System) Extract * Department of the Army Pamphlet 623-3 (Evaluation Reporting System) Extract * Medical Evaluation Board (MEB) Memorandum (Impartial Medical Review for (Applicant)), 8 June 2017 * U.S. Army Medical Department Activity Memorandum (Response to Your Appeal to MEB Findings dated 13 June 2017), 21 June 2017 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 the interest of justice to excuse the applicant's failure to timely file. 2. The applicant defers to counsel. 3. Counsel states: a. The applicant contends his performance rating, OER status, and associated rater comments constitute a material error which prejudiced his ability to compete for promotion in 2020. b. On 17 August 2016, he was hospitalized and enrolled in a mental health treatment and recovery program resulting from his prior diagnosis of sleep apnea and major depressive disorder. He completed the treatment and returned to full duty status on 13 June 2017. c. The applicant's overall performance rating of "Capable" and comment that his medical condition "consumed a substantial portion of the rating period" warrant a referred OER pursuant to Army Regulation 623-3. The presence of negative or derogatory information warranted a referred OER. The applicant was not properly given notice and was thus prevented from submitting comments in response. d. In December 2020, the applicant was not selected for promotion to lieutenant colonel (LTC)/O-5. The negative and material impact on the applicant's 2020 promotion board resulting from his contested OER discrepancies and his inability to provide comments in response warrant correction of his record and reconsideration of his promotion decision after appropriate corrective administrative action is taken regarding his contested OER. e. On 8 January 2021, the applicant applied to the Army Special Selection Board for promotion reconsideration and he is awaiting a decision as of the date of this application. 3. The applicant was serving in the Regular Army in the rank/grade of major (MAJ)/O-4 when he received his DA Form 67-10-2 covering the period 6 June 2014 through 30 May 2015. In Part VI (Senior Rater), his senior rater rated his potential compared with officers senior rated in same grade as "Most Qualified" and commented: "[Applicant] demonstrated unlimited potential for promotion and positions of ever increasing responsibility. Assign to demanding assignments that require an officer with integrity, initiative and the highest level of professional standard. A future battalion commander and select to attend senior service college." 5. The applicant's contested OER covering the period 31 May 2015 through 6 March 2017 (1 year, 9 months, and 7 days) shows in: a. Part Ik (Rated Months), 9; b. Part Ii (Nonrated Codes): * I – In transit between duty stations, including leave, permissive temporary duty, and temporary duty * P – Patient (under doctor's care and unable to perform assigned duties; includes convalescent leave) c. Part II (Authentication), no indication the OER is a referred report; d. Part IVe (This Officer's Overall Performance is Rated as), his rater marked "Capable" and commented, in part: "[Applicant] performed well as the Operations and Plans Officer despite dealing with significant medical challenges that consumed a substantial portion of the rating period"; e. Part VI (Senior Rater), his senior rater rated his potential compared with officers senior rated in same grade as "Qualified" and commented: "[Applicant] is a quality officer. His performance was severely limited by medical challenges throughout this rating period, but with recovery, he has the potential to be a capable MSC [Medical Service Corps] Officer. Allow this officer time for a controlled re-integration into a full workload and operations tempo. Develop for promotion to LTC." 6. The MEB physician's memorandum (Impartial Medical Review for (Applicant)), 8 June 2017, states the applicant was initially diagnosed with depression in 2007, but he did not begin any treatment until 2010. In August 2016, he presented to Behavioral Health seeking help because he was having suicidal ideation and not being able to sleep. He was admitted on 17 August 2016 and discharged on 18 August 2016. Since then, his sleep has improved once they started treating the sleep apnea. His depression has greatly improved, per psychiatric and psychotherapy notes dated 23 March 2017 and 10 March 2017. His depression meets retention standards and he should be returned to full duty with no restrictions. 7. The U.S. Medical Department Activity memorandum (Response to your Appeal of MEB Findings dated 13 June 2017), 21 June 2017, states the Impartial Medical Review, the applicant's chain of command, and his treating providers support the applicant's contention that his behavioral health condition meets retention standards. The MEB proceedings will be modified to reflect his condition meets retention standards and recommend his return to duty. 8. The applicant's subsequent OERs covering the periods 7 March 2017 through 6 June 2020 show his raters consistently rated his overall performance as "Proficient" and his senior raters consistently rated his potential as "Highly Qualified." 9. The applicant was awarded the Meritorious Service Medal on 30 June 2020 for exceptionally meritorious service while serving as Deputy Division Surgeon for the period 22 December 2017 to 30 June 2020. 10. The applicant's 8 January 2021 request for consideration by a special selection board is not in evidence for review. 11. The applicant's OER covering the period 8 June 2020 through 29 March 2021 shows: a. His rater rated his overall performance as "Excels" and commented, in part: "[Applicant] is one of the top field grade officers in the MED [Medical] CDID [Capability Development Integration Directorate] and is in the top 10% of Majors I have worked with." b. His senior rater rated his potential as "Most Qualified" and commented: "[Applicant] ranks #1 of the 5 Majors that I currently senior rate, and in the top 10% of the Majors that I have worked with in 29 years of Army service. His mature leadership, analytical thinking and sound judgment distinguish him from his peers. Promote [Applicant] to Lieutenant Colonel now. Select him for LTC CSL [Centralized Selection List] Command] and for resident attendance at Senior Service College." BOARD DISCUSSION: 1. The Board carefully considered the applicant's request, supporting documents, and evidence in the records. After reviewing the application and all supporting documents: a. A majority of the Board found sufficient evidence to support partial relief in the form of removal a portion of the rater's comments, specifically, "despite dealing with significant medical challenges that consumed a substantial portion of the rating period" and a portion of the senior rater's comments, specifically, "His performance was severely limited by medical challenges throughout this rating period, but with recovery." Other than those remarks, a majority of the Board found no reason to substitute their own rating to those of the rater and senior rater, and voted to not upgrade the rating or send his records before a special selection board. b. The member in the minority voted to grant full relief. The member agreed that the comments involving his medical status by both the rater and senior rater should be removed, but also found sufficient evidence in the form of an otherwise excellent performance throughout, that supports upgrading the rater's rating from "Capable" to the next higher rating, and presenting his records before a special selection board for promotion consideration to the next higher grade, if he is otherwise qualified. The member in the minority understands the rater/senior rater profile; however, the member in the minority believed the applicant should not be penalized for his medical condition. 2. 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. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : X: : GRANT FULL RELIEF X: : X: GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Removing from the contested OER covering the period 31 May 2015 through 6 March 2017, Part IVe (This Officer's Overall Performance is Rated as), the comments "despite dealing with significant medical challenges that consumed a substantial portion of the rating period." * Removing from the contested OER covering the period 31 May 2015 through 6 March 2017, Part VI (Senior Rater), the comments "His performance was severely limited by medical challenges throughout this rating period, but with recovery" 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to: * removal of the DA Form 67-10-2 from his Army Military Human Resource Record * reevaluation of his promotion decision pursuant to the foregoing correction * forward to the appropriate authority for decision regarding the rendering of associated back pay or other compensation to which he is or may be otherwise entitled 2. 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. 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 of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. 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. 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 3-25 (Participation in the Army Substance Abuse Program or a Mental Health Program) states a Soldier who voluntarily seeks mental health counseling or is entered into a mental health care program for behavioral health issues that have not been detected by the chain of command will not have such participation in a behavioral health treatment program mentioned in an evaluation report. Once a Soldier has been identified in an evaluation report as having mental health issues based on information obtained independently of any information from health care personnel: (1) Voluntary entry into mental health counseling or a mental health care program, or evidence of successful treatment to remedy the original behavioral health issue will be mentioned as a factor to the rated Soldier's credit. (2) The rating chain should note the status of a rated Soldier's behavioral health improvement and/or maintenance of an improved status in the evaluation report covering the period during which the Soldier's status improved. b. Paragraph 3-27 (Referred DA Form 67-10 Series) states OERs with the following entries, to include the rater's performance evaluation of "Capable" where the required explanation has derogatory information or the senior rater potential evaluation of "Qualified" where the required explanation has derogatory information, is a referred or adverse report. Such OERs will be referred to the rated officer by the senior rater for acknowledgement and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA). f. Paragraph 3-37 (Modifications to Previously Submitted Evaluations Reports) states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. For evaluation reports that have been completed and filed in a Soldier's AMHRR, administrative and substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. g. Paragraph 4-1 (Overview) states the Evaluation Report Redress Program consists of several elements at various levels of command. 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 correct them once they have occurred. h. Paragraph 4-4 (Purpose) states alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a Commander's or Commandant's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. i. Paragraph 4-7 (Policies) states an evaluation report submitted and accepted for inclusion in the rated Soldier's AMHRR 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. j. Paragraph 4-8 (Timeliness) states a request for administrative appeal or correction, by either the rated Soldier or the rating chain, will submitted and received not later than 3 years after an evaluation report "THRU" date for an administrative error so significant as to affect not only personnel management decisions, but selection board proceedings and career decisions. Substantive appeals will be submitted and received no later than 3 years after an evaluation report "THRU" date. k. Paragraph 4-11 (Burden of Proof and Type of Evidence) states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting to HQDA evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. Table 2-8 (Authentication for the DA Form 67-10-2) states action is required if referral of the DA Form 67-10-2 is required, the senior rater will place "X" in the appropriate box in Part II, block d, of the DA Form 67-10-2 before he or she has signed and dated the DA Form 67-10-2. The DA Form 67-10-2 will then be provided to the rated officer for placement of an "X" in the appropriate box in Part II, block d, signature and validation of administrative data ("Yes" if the rated officer will provide comments as an enclosure to the DA Form 67-10-2 or "No" if the rated officer will not provide comments). 5. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of military human resources support operations. It provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting officers who are not eligible or become disqualified, thus providing an equitable system for all officers. Chapter 6 (Special Selection Boards) states a special selection board may be convened to consider or reconsider commissioned officers for promotion when HQDA determines that one or more of the following circumstances exists: (1) Administrative error – an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error; or (2) Material unfairness – the action of the promotion board that considered the officer from in or above the promotion zone was contrary to law in a material to the division of the board or involved material error or fact or material administrative error; or the board that considered the officer from in or above the promotion zone did not have before it for its consideration material information. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210006676 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1