ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 9 September 2022 DOCKET NUMBER: AR20210017586 APPLICANT REQUESTS: through counsel, removal of the DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) covering the period 18 January through 1 July 2017 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 Provisions of Title 10, U.S. Code, Section 1552) * Counsel's Memorandum (Appeal to Army Board for Correction of Military Records (ABCMR) for Removal of Referred OER, (Applicant)), 29 October 2021, with enclosures – * Enclosure 1 – Officer Special Review Board (OSRB) Docket Number AR20200005001, 28 May 2020, with allied documents * Enclosure 2 – Department of Defense (DOD) Inspector General (IG) Report, pages 24 and 25 of 551, undated * Enclosure 3 – Headquarters, III Corps and Fort Hood, Orders HO-033-0002, 2 February 2017 * Enclosure 4 – Resolute Support Headquarters Personnel – Transfer of Post, 22 June 2017 FACTS: 1. The applicant defers to counsel. 2. Counsel states the applicant's OER covering the period 18 January through 1 July 2017 was issued in error. The applicant was serving on temporary change of station (TCS) orders with only 55 days of supervision by the rater/senior rater, which is an improper amount of rated time for an evaluation when the Soldier is serving on TCS orders. a. The applicant appealed the OER to the OSRB in Docket Number AR20200005001, but the appeal was denied. During the appeal process period, the applicant has also been awaiting the results of a pending DODIG investigation. He has exhausted all other administrative remedies. b. On 3 January 2017, the applicant deployed to Afghanistan with the 38th Infantry Division, Indiana Army National Guard. On 7 May 2017, he requested an Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation due to concerns of command authority, improper use of government assets, hostile work environment, and Soldier safety. On 8 July 2017, he was informed that his rater would be removed from the rating chain and that Colonel would exercise the rater/senior rater option. The applicant advised that this was improper because Colonel did not supervise him during the rated period. Regardless, Colonel completed a 60-day option OER, serving as both the rater and senior rater, although the applicant had not been in the unit and under the supervision of Colonel Sfor 60 days. c. The DOD Whistleblower Reprisal Report of Investigation found that the OER did not meet the standard of Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-20. Colonel serving as both the rater and senior rater was improper because the rater was wrongfully removed. Further, the report stated the period should have been nonrated time. d. The OER was issued in error due to the applicant being on TCS orders with only 55 days, not 60 days, of supervision by Colonel . Regulatory guidance states supervisors of the TCS unit are not authorized to render any type of report for fewer than 90 calendar days unless authorized as an exception to policy. There was no applicable exception to authorize the OER. e. The memorandum from Colonel 1 September 2017, stated the rated time for the applicant began on 29 April 2017. However, the Transfer of Post record shows the applicant transferred out of the position that was under the supervision of Colonel on 22 June 2017. This period is only 55 days and an improper amount of time. As a result, the OER should be removed from the applicant's AMHRR. 3. On 17 January 2017, the applicant was serving on active duty in the rank/grade of major/O-4 in an Army National Guard operational support duty status under Title 10, U.S. Code. 4. On 18 January 2017, the applicant was mobilized as a member of the Indiana Army National Guard. 5. Headquarters, III Corps and Fort Hood, Orders HO-033-0002, 2 February 2017, deployed the applicant in a TCS status as shown: * Assigned to – Headquarters and Headquarters Company, 38th Infantry Division * Purpose – in support of Operation Freedom's Sentinel, Afghanistan * Number of Days – not to exceed 377 * Will Proceed on or about – 10 February 2017 * Additional Instructions – * item a – Soldiers will be attached to TCS duty stations * item k – gaining/deployed unit commander has responsibility for personnel service support 6. On 22 June 2017, the applicant was transferred to new duty position. The Resolute Support Headquarters Personnel – Transfer of Post checklist, undated, shows: * Section 1 (Personal Information) – Applicant * Section 2 (Duty Information) – * Date of Transfer – 22 June 2017 * New Division – Deputy Chief of Staff, Communications * New Branch – CJ39 (Combined Joint, Strategic Target and Information Operations) * End of Tour Date – 14 October 2017 * Current Division and Branch – Forward Support Base, Billeting 7. His records contain his OER covering the period 18 January through 1 July 2017. a. Part Ii (Reason for Submission) shows the reason as "07/60-Day Option." b. Part Ik (Rated Months) shows "2." c. Part IIa (Rater's Rank, Name, and Position) shows Colonel Forward Support Base Commander. d. Part IIc (Senior Rater's Rank, Name, and Position) shows Colonel Forward Support Base Commander. e. Part IVd2 (Comments on Performance) shows his rater entered the comments: "Serving as rater and senior rater in accordance with [Army Regulation] 623-3, para[graph] 2-19." f. Part IVe (This Officer's Overall Performance is Rated as) shows his rater marked "Proficient" and entered the comment: "Serving as rater and senior rater in accordance with [Army Regulation] 623-3, para[graph] 2-19." g. Part VIa (Potential Compared with Officers Senior Rated in Same Grade) shows his senior rater marked "Qualified." h. Part VIb (I Currently Senior Rate __ Army Officers in This Grade) shows his senior rater entered "9." i. Part VIc (Comments on Potential) shows his senior rater entered the comments: "[Applicant] is among the top 51 [percent] of the majors I senior rate. Send to appropriate level of professional military education when available." 8. The Headquarters, Forward Support Base, memorandum (Nonrated Time for Applicant), 1 September 2017, states, in part: a. Colonel rated and senior rated the applicant in the OER covering the period 29 April through 1 July 2017 because the applicant's previous rater was removed from the rating chain pursuant to an Army Regulation 15-6 investigation. Three months of nonrated time was included from 17 January through 28 April 2017. b. Since no other person was in a suitable position to rate the applicant, Colonel elected to both rate and senior rater for the time the applicant was under his command. The election of a 60-day option was executed in accordance with regulatory guidance and coordinated with the U.S. Forces – Afghanistan personnel officer. 9. On 1 November 2017, his military membership status was changed to show he was serving in the Active Guard Reserve Program under Title 10, U.S. Code, controlled by the National Guard Bureau. 10. Indiana Army National Guard Order 0000183256.00, 3 February 2020, promoted the applicant to the rank/grade of lieutenant colonel/O-5 effective 18 November 2019. 11. On 28 May 2020 in Docket Number AR20200005001, the OSRB determined the evidence presented did not establish 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. Therefore, by a unanimous vote, the OSRB determined the overall merits of the applicant's case did not warrant the requested relief. 12. The redacted DODIG report, pages 24 and 25 of 551, undated, states, in part: * the Indiana National Guard IG determined the 60-day option OER was not completed in accordance with regulatory guidance * the applicant's former rater was not relieved for cause or incapacitated to such an extent that he could not render the evaluation * the individual listed as both the rater and senior rater in the OER does not meet the regulatory standards for serving in both roles * the U.S. Forces – Afghanistan personnel office misinterpreted the regulation and provided incorrect guidance regarding the OER * because the minimum rating period of 90 or more calendar days was not met, the rating period should have been nonrated time BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The applicant's contentions, his military records, and regulatory guidance were carefully considered. Based upon a preponderance of the evidence, the Board determined there is sufficient evidence that shows the contested OER was not followed under regulatory guidance and should be removed from his OMPF. 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 the contested OER covering the period 18 January through 1 July 2017and associated documents from his OMPF and replacing it with a statement for 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. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-9 stated Army evaluations are independent assessments of how well a rated Soldier met duty requirements and adhered to the professional standards of the Army within the period covered by the report. b. Paragraph 2-19 stated special rules apply when a rating official is eliminated from the rating chain or is unable to render an evaluation of the rated Soldier. These situations occur when a rating official dies, is declared, is relieved of their position or duties for cause, or becomes mentally or physically incapacitated to such an extent that they are unable to render an objective or accurate evaluation. When a rating official is officially relieved or determined to be incapacitated, they will not be permitted to evaluate their subordinates. When the rater is eliminated for any of the reasons cited, a determination will be made whether or not the minimum rating period (90 or more calendar days) for an OER has been met. If the minimum rating period has not been met, the period is nonrated and a new rater will be designated. The senior rater will perform the rater's function, but only if they feel qualified to rate and have served in the rating chain for 60 or more calendar days. c. Paragraph 2-20 stated a supervisor may serve as both rater and senior rater under circumstances other than due to the loss of a rating official. For OERs in the following situations, a supervisor who would normally act only as a rater on an OER may also act as a senior rater, providing they meet the minimum senior rater requirements. These may include a general officer for their aide-de-camp, a commander for their inspector general, a major general or higher, a brigadier general who is a commander or school commandant, a rater who, under the normal rating chain rules, would cause the senior rating to be performed by one of the following senior officials provided the senior official does not desire to serve as senior rater: * the Secretary, Deputy Secretary, or Under Secretaries of Defense * Assistant Secretaries of Defense * the Secretary or Under Secretary of the Army * Assistant Secretaries of the Army * the Chief of Staff, Army * the Vice Chief of Staff, Army * Chairman, Joint Chiefs of Staff * Vice Chairman, Joint Chiefs of Staff * the Supreme Allied Commander, Europe * Commanders of Specified or Unified Commands d. Paragraph 3-9 stated senior raters will ensure timely submission to Headquarters, Department of the Army, to arrive no later than 90 days after the "THRU" date of the OER for processing and filing in the rated officer's AMHRR. The senior rater maintains responsibility for the OER until it is filed in the AMHRR. OERs are processed and profiled daily as OERs are received, regardless of the "THRU" date of the OER and the senior rater's signature date. An OER failing to process in the sequence desired by the senior rater is not a basis for appealing the OER. e. Paragraph 3-19 stated any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. No reference will be made to an incomplete investigation (formal or informal) concerning an individual. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report. Any verified derogatory information may be entered on an evaluation report. f. Paragraph 3-26 stated any comment so derogatory that the evaluation may have an adverse impact on the Soldier's career is a referred or adverse report. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides detailed instructions for handling referred OERs to ensure rated Soldiers know their evaluations contain negative or derogatory information and affords them an opportunity to submit comments, if desired. g. Paragraph 3-36 stated an evaluation report accepted by Headquarters, Department of the Army, 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. h. Table 3-1 stated a letter of input is prepared by the temporary duty, special duty, and temporary change of station supervisor and sent to the rated Soldiers normal rater when the period of duty is between 0 to 89 days. i. Paragraph 3-58 stated a code 07 (60-Day Option) OER may be render when the rater has served in their capacity fewer than day days, but more than 59 days (excluding nonrated periods). This report may be initiated at the option of the rater when the following conditions have been met: * the rated Soldier will be serving in an overseas designated short tour for a period of 14 months or less * the senior rater meets the minimum time-in-position requirements to evaluate (60 days) and will approve submission of the 60-day option report j. Paragraph 4-1 stated 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. k. Paragraph 4-4 stated 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 Headquarters, Department of the Army. 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. l. Paragraph 4-7 again stated 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. m. Paragraph 4-8 stated requests 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. n. Paragraph 4-11 stated 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. 2. 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 Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. 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 Army Board for Correction of Military Records or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210017586 1 1