IN THE CASE OF: 
BOARD DATE: 9 January 2023 
DOCKET NUMBER: AR20220003553 


APPLICANT REQUESTS: the Board either: 

•Remove the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2)Officer Evaluation Report (OER), for the rating period 20180101 through20180831, and replace that period with non-rated time; or

•Delete the derogatory information from the aforementioned OER; no longer showthe report as referred; and change the ratings to reflect "Proficient" and "HighlyQualified"



APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 











•Online DD Form 149 (Application for Correction of Military Record)•DA Form 67-10-1•Three  Army National Guard (ARNG) Orders•Eleven emails•Applicant's memorandum to U.S. Army Human Resources Command (HRC).•HRC memorandum




FACTS: 



1.The applicant states, in effect, while he was a member of the ARNG, his rating chain issued him a referred OER for the rated period 20180101 through 20180831; he subsequently filed an appeal with HRC, but, on 27 January 2022, HRC returned his request without action and referred him to the Army Board for Correction of Military Records (ABCMR).a.The applicant states, in January 2018, he started an M-Day position (i.e., drilledon weekends) as trial counsel for an engineer brigade. 

(1)The applicant encountered continuous scheduling conflicts between hisprivate practice as an attorney and the unit's training schedule; this was because of his unit's frequent, short-notice changes. In each instance, he ensured his rater knew of the conflicts, and, in turn, his rater requested and obtained the applicant's approved 





absence from annual trainings (AT). Additionally, his rater offered to help the applicant explore a transfer to a different unit where training schedule changes would not occur as often. Effective 1 September 2018, the applicant transferred to the ARNG Joint Force Headquarters (JFHQ), after which, on 10 February 2019, he separated from the OHARNG and entered the U.S. Army Reserve (USAR).  (2) The applicant's rater subsequently added the erroneous derogatory comments to the applicant's OER, describing the applicant as deficient and claiming the applicant had not completed either unit ATs or his trial counsel assignment. The applicant points out that it was his rater who advocated the applicant's excused absences from AT, and it was his rater who suggested the applicant's transfer. Further, the referral of this OER was unjustified, in that the rater's comments are erroneous, unverified, and unsupported by any misconduct; the applicant maintains that, if the derogatory comments are removed, the Board should find that a higher rating is warranted. b. In his online application and his self-authored memorandum, the applicant makes the following assertions:  (1) Contrary to Army Regulation (AR) 623-3 (Evaluation Reporting System), the applicant's rating chain failed to provide him proper notice of the referred OER, and, as a result, he was precluded from submitting a rebuttal.  





(a) On 2 April 2020, the senior rater signed a memorandum for record (MFR) that stated, in February 2020, the unit had mailed the applicant a copy of the Letter of Referral and sent a copy by email. The applicant notes, however, that during this period, he had no access to his military email account because of his transfer to the USAR; that inability to access email extended through April 2020. Given the lack of email access, the applicant asserts the unit's claim of having emailed him is provably false. The applicant further notes his rater had previously corresponded with him using the applicant's civilian email address, and he had called the applicant on the applicant's civilian telephone; despite having this information, neither the rater nor the senior rater ever reached out to him via civilian email and telephone. (b) As to the unit's claim that it mailed the applicant the Letter of Referral, the applicant affirms that, after he left the ARNG, he changed his home of record to a new address; he declares he surely would have responded to the referral letter had he actually received it.  (c) The applicant contends his actions requesting HRC to declare the rating period 20180101 through 20180831 as non-rated time constitutes further proof he did not neglect anything pertaining to the subject OER; he took this action because, in effect, he had not yet received an OER for this period, and, as a result, he believed the period should be listed as non-rated. 

(2)The applicant contends that allowing an OER to remain in his file after theunit submitted it more than two years after the "THRU" date is unjust and contrary to regulation. 

(a)Paragraph 3-33l (Preparation and Submission Requirements) specificallystates, "Evaluation reports will be forwarded error-free to reach HQDA no later than 90 days after the “THRU” date of the evaluation report. The senior rater is responsible for ensuring the timely submission of OERs and NCOERs to HQDA."  

(b)The applicant's senior rater did not even sign the OER until 24 November2020, more than 2 years after the report's "THRU" date, and well past the regulatory 
90-day deadline for forwarding an error-free report to HRC; based on regulatoryguidance, his senior rater should have had the OER sent by 30 November 2018.The applicant adds, by the time his former leadership forwarded the OER, theapplicant had already obtained the aforementioned approval from HRC to reflect thereport's period as non-rated. (The applicant includes a copy of his memorandum toHRC, as well as a copy of HRC's email response showing his request wasapproved).

(3)The applicant maintains the rater's derogatory comments are "provably falseand erroneous." 

(a)Part IV (Performance Evaluation – Professionalism, Competencies, andAttributes), block b (The Officer's Overall Performance is Rated as) shows "Capable," and the rater's comments state, "[Applicant] is a capable judge advocate (JA)...However, he had trouble balancing the demands of his private employment with his National Guard training obligations, and this had a significant adverse effect on his ability to contribute to the mission of the brigade."  

(b)The rater comments notwithstanding, the applicant contends his raterexcused the applicant's absence from AT; in April 2018, the applicant emailed his rater to request the precise days of AT from which he wished to be excused, and he "offered suggestions to avoid the unit's AT schedule for dates that would be more certain – such as attending a military school." The applicant's rater told the applicant he would help the applicant "explore a transfer to a different unit, specifically to JFHQ."  

(c)On 9 April 2018, the rater emailed the company commander requestingthe applicant's excused absence from AT, on 22 June 2018, and the commander granted that request. However, in June 2018, the unit added more last-minute 







changes to the training schedule, creating more scheduling conflicts for the applicant; the dates changed from 9-10 June to 20-25 June 2018, and the starting date for August AT moved from 3 August to 30 July 2018.  (d) On 5 June 2018, the applicant notified his rater of the revised schedule and told his rater the revisions were incompatible with his private legal practice/scheduled court dockets. On 6 June 2018, the rater emailed Sergeant First Class (SFC) , explaining that the applicant's prior excused absence had been approved and directing SFC  to authorize the applicant's absence from June AT; the rater then confirmed the applicant's excused absence from June AT, as well as verifying the dates for the August AT.  (e) The rater further noted the possibility of the applicant being excused from the August AT contingent on applicant securing acceptance for training at a military school. Based upon his rater's recommendations, the applicant explored whether he could attend an Intelligence Law course, but he was not accepted; he also checked into transferring to JFHQ, and JFHQ approved his reassignment, effective 1 September 2018.  (f) "Finally, I requested excusal from August 2018 AT due to the constant scheduling conflicts, addition of a mandatory JA Legal Workshop, and my forthcoming transfer to JFHQ. This request was granted." The emails submitted by the applicant offer clear and convincing proof that the rater's comments are erroneous. The applicant did not have a problem balancing the demands of private employment with ARNG training obligations; rather, in every instance, he received authorized absences from AT. It was the unit's last-minute changes that caused his scheduling conflicts, not the applicant's legal obligations to his clients and the civilian courts.  (g) With regard to the rater's comment that the applicant "did not complete his Trial Counsel assignment," the applicant states the rater himself proposed the applicant transfer to a different unit, and the JFHQ issued the applicant's reassignment orders.  

(4)The applicant contends the referred report was unjust.

(a)The applicant argues AR 623-3, paragraph 3-19 (Unproven DerogatoryInformation) explicitly precludes raters and senior raters from mentioning unverified and unproven derogatory information. As already stated, the rater had no proof to support his claim that the applicant had "trouble balancing the demands of his private employment with his National Guard training obligations," and he had no basis for asserting the applicant's excused absences from AT "had a significant adverse effect on his (the applicant's) ability to contribute to the mission of the brigade."  

(b)Further, the applicant committed no misconduct. The applicant states,"The referred designation should be used in the context of wrongdoing, such as where a GOMOR has been issued to the rated Soldier, where substantiated Article (sic) 15-6 investigation has been completed, where a Soldier has been non-selected or some other unfavorable personnel action has occurred, or otherwise where verified derogatory information supports the evaluation report (see DA PAM (Department of the Army Pamphlet) 623-3 (Evaluation Reporting System)). None of those scenarios are true here." "Instead, when taking into account the entire evaluation report minus the comments that I have requested be removed, it is clear that I was a Proficient and Highly Qualified Soldier." 



2.The applicant provides the OER at issue; ARNG orders; and HRC's letter, directing him to apply to the ABCMR. He additionally submits a copy of his request to HRC for non-rated time and eleven emails.a.Eight of the eleven emails pertain to the applicant's scheduling conflicts betweenhis private law practice and the unit's training schedule: 













•8 April 2018 – Applicant's rater asking the applicant to email him the precise AT dates for which the applicant would like to be excused and the particular reason for the absence; the rater mentions the possibility of the applicant attending school in lieu of AT•9 April 2018 – Applicant responds, noting part of AT has been rescheduled to20-24 June 2018, and he has three court hearings on 22 June 2018; he requests an authorized absence for 22 June 2018•9 April 2018 – Applicant's rater emails the applicant's company commander requesting the applicant's excused absence from AT, on 22 June 2018•5 June 2018 – Applicant emails rater: newsletter still shows him attending AT, 20 -25 June, vs. 9-10 June 2018; due to 22 June hearings, he cannot travel back and forth in time; newsletter also states those not attending in June must report on 30 July 2018; the applicant has a court hearing, on 31 July 2018•6 June 2018 – Rater emails SFC  confirming their phone call; Applicant will not attend 20-25 June 2018 AT, Applicant will participate in AT, from 2 to 17 August 2018, unless the unit changes the timeframe to2-14 August 2018•6 June 2018 – Rater emails applicant at applicant's civilian email address; states "This is now smoothed out. You will not be performing the 20-25 June drill. Your AT remains 2-17 August 2018. This may work out to your advantage if you're accepted into that school."•11 July 2018 – Email from The Judge Advocate General's (JAG's) LegalCenter and School to a civilian government employee (not the applicant)advising the employee, due to the overwhelming number of applicant's, theschool is unable to offer the employee a seat in the Intelligence Law Course

•25 July 2018 – Applicant to rater: requests absence from 3 to 13 August AT,due to nature of his law practice and attendance at a mandatory workshopfollowing AT; when combined with AT, workshop means more Guardobligations and time away from his practice; applicant notes transfer to JFHQ

•21 October 2018 – Rater to applicant: unit needs to complete OER forapplicant, but they are unable to find his completed OER Support Form; asksthe applicant to open a new one in the Evaluation Entry System (EES); on2 November 2018, rater resends email to applicant's civilian email address








b. On 24 April 2020, the applicant submitted a memorandum to HRC requesting a minor correction.  (1) The applicant stated he served in an engineer brigade within the ARNG, from 1 January to 30 August 2018; during the rated period, he started the long process of transferring from the ARNG to the USAR. Although his rating chain completed an OER, the report was returned for correction and, despite multiple attempts, his OER remained in a returned status without any further action on the part of his rating chain. (2) Following the date his OER was returned, the applicant transferred from the OHARNG to the USAR, several key personnel were reassigned in or out of the engineer brigade, and the engineer brigade had undergone an increased operational tempo due to a forthcoming deployment to Kuwait.  (3) On 1 September 2018, the applicant transferred from the engineer brigade to the ARNG's JFHQ, where he served until his transfer to the USAR; he received an OER for this period of service, and it was for this OER that he requested the administrative correction. Specifically, he asked HRC to add the period 1 January to 30 August 2018 as non-rated time so as to ensure all rated periods were accounted for; in addition, the applicant contended, this correction would facilitate his promotion potential. 

c.The applicant provides additional emails, which show the following:

•24 April 2020 – Using his private business email address, the applicantemailed Office of The Judge Advocate General (OTJAG) stating, due toCOVID-19, he did not have access to military email

•24 April 2020 – Using his private business email address, the applicantemailed HRC requesting a correction to his OER for the rating period20180901 through 20190210 (the OER immediately following the OER atissue); he attached the above-mentioned 24 April 2020 memorandum


•27 April 2020 – The Chief, Evaluations Branch (Appeals), HRC responded,stating, "I have made the adjustment to the evaluation and deleted the oldversion from your record."


d.DA Form 67-10-1-R, for rating period 20180101 through 20180831, referredchange of rater OER. 

(1)Part II (Authentication). The report shows the rater signed, on 6 June 2019,and the senior rater signed the report, on 24 November 2020; the block for the applicant's signature is blank. Item d (This is a referred report, do you wish to make comments?) indicates the report is referred, but "No" for comments being attached. 

(2)Part III (Duty Description). The applicant's principal duty is listed as "TrialCounsel." 

(3)Part IV. The report shows the applicant passed his Army Physical FitnessTest (APFT) and achieved a score of "286"; in addition, he met height/weight standards. 

(a)Under item b (This Officer's Overall Performance is rated), the formreflects, "CAPABLE," and the rater adds comments stating the applicant is capable and maintains a high level of fitness but had trouble balancing the demands of his private employment with his ARNG training obligations; this difficulty in balancing obligations had a significantly adverse effect on the applicant's ability to contribute to brigade's mission.  

(b)Six areas were evaluated in item c:

•Character – The applicant was open and candid; he supported SHARP(Sexual Harassment/Abuse Response and Prevention) and EO (EqualOpportunity)

•Presence – Applicant scored "286" on APFT and achieved "Marksman" on hisM16A4 rifle

•Intellect – Applicant attended JAG Legal Workshop and presented a 1-hourcontinuing legal education class on the intersection of Veterans and disabilitylaw

•Leads – Applicant adhered to SHARP program

•Develops – Applicant provided legal assistance to multiple Soldiers

•Achieves – Applicant did not complete his trial counsel assignment and didnot participate in AT because of conflicts with his private employment



(4)Part VI (Senior Rater). The senior rater rated the applicant as "Qualified,"and noted the applicant was unavailable to sign the OER; he indicated the applicant was a qualified officer with potential for continued service in the JAG Corps. The senior rater recommended the applicant's assignment as a trial counsel at brigade level, and that the applicant should be further developed prior to moving him into positions of advanced responsibility. 

(5)With the OER is a Letter of Referral, dated 6 February 2020 and signed bythe brigade adjutant. The letter advises the applicant that the OER was referred because the rater showed the applicant as "Capable," and included derogatory comments; the applicant had until 6 March 2020 to submit a response. 

(6)On 2 April 2020, the senior rater (now promoted to colonel and the brigadecommander) signed an MFR, in which he affirmed the brigade adjutant had created a "Letter of Referral," using EES; in addition, the adjutant mailed a physical copy of the letter to the applicant's last known address and emailed a digital copy. The applicant's suspense to acknowledge receipt was 6 March 2020, and, as of 2 April 2020, he had not responded.  

3.A review of the applicant's service records show:

a.On 4 November 2014, after completing enlisted service in the U.S. Navy and the





U.S. Navy Reserve, the applicant executed his oath of office as a commissioned officer in the ARNG and Reserve of the Army.  b. On 11 January 2015, he entered active duty to complete the Judge Advocate Officer Basic Course; on 6 May 2015, the applicant executed his Counsel's Oath, and on 7 May 2015, OTJAG certified the applicant as competent to perform duty as trial and defense counsel, per Article 27(b) (2) (Detail of Trial Counsel and Defense Counsel), Uniform Code of Military Justice (UCMJ). On 7 May 2015, following the award of area of concentration 27A (Judge Advocate General), orders honorably released the applicant from active duty and returned him to the ARNG.  c. On 1 June 2015, NGB issued orders Federally-recognizing the applicant, effective 4 November 2014. On 1 October 2015, orders assigned the applicant to an ARNG JAG detachment. On 27 September 2016, the OHARNG promoted the applicant to captain (CPT)/O-3; NGB Federally-recognized the promotion, effective 15 June 2017. On 1 January 2018, ARNG orders transferred the applicant from the JAG detachment to the engineer brigade. d. ARNG Orders Number 128-413, dated 8 May 2018, directed the applicant to perform annual training, from 22 until 25 June 2018; on 6 June 2018, ARNG Orders Number 157-214 revoked Orders Number 128-413. 







e. ARNG Orders Number 129-263, dated 9 May 2018, ordered the applicant toactive duty for annual training, during the period 3 to 13 August 2018; ARNG Orders Number 157-215, dated 6 June 2018, revoked that order. f. ARNG Orders Number 201-066, dated 20 July 2018, directed the applicant to participate in annual training between 3 and 17 August 2018. On 20 October 2018, ARNG issued orders reassigning the applicant from the engineer brigade to ARNG JFHQ, effective 1 September 2018.  g. On 10 February 2019, the ARNG honorably discharged the applicant and transferred him to the USAR Control Group (Reinforcement); the applicant's NGB Form 22 (National Guard Report of Separation and Record of Service) shows he completed 4 years, 3 months, and 7 days of OHARNG service. HRC Orders subsequently transferred the applicant from the USAR Control Group (Reinforcement) to a USAR Troop Program Unit (TPU), effective 11 February 2019.  h. On 8 November 2019, the applicant signed his DA Form 67-10-1 for the rating period 20180901 through 20190210; iPERMS (Integrated Personnel Electronic Records Management System) indicates that, on 13 November 2020, HRC accepted the final version of that report. On 24 November 2020, the applicant's senior rater from the engineer brigade signed the applicant's OER for the rated period 20180101 through 20180831; iPERMS shows HRC accepted the finalized report, on 25 November 2020.  

4.AR 623-3, in effect at the time, prescribed policies and procedures for OERs.

a.The Evaluation Reporting System (ERS) encompassed the means and methodsfor developing people and leaders and involved the execution of leadership, the establishment of a rating relationship with personal interaction, the conduct of developmental counseling and reviews, and the determination of critical assessments. Its intent was to identify Soldiers who are best qualified for promotion and assignment to positions of greater responsibility and combined major elements of counseling, assessment, documentation, and integration with other personnel functions to meet the needs of the Army, rating officials, and rated Soldiers in their current environments. 

b.Rating officials were expected to prepare evaluation reports that were forthright,accurate, and as complete as possible, giving due regard to the rated Soldier's rank/grade, experience, and military schooling, and highlighting accomplishments as well as failures. 

c.Concerning ratings for Part IVb, the regulation instructed raters to place an "X" inthe appropriate block based on the following criteria; when the rated officer's level of performance: 

•Exceeded the majority of officers in the same grade, choose "EXCELS"

•Was consistent with the majority of officers in the same grade, select"PROFICIENT"

•Was below the majority of officers in the same grade check "CAPABLE"



d.With regard to the senior rater's evaluation of the rated Soldier's potential, theregulation gave the following guidance; senior raters were compare the rated officer's potential to other officers of the same grade within the senior rater's rating population, and mark one of the following: 

•"MOST QUALIFIED" – Exceeded the majority of officers

•"HIGHLY QUALIFIED" – Was consistent with the majority of officers

•"QUALIFIED" – Was below the majority of officers



e.Paragraph 3-19 (Unproven Derogatory Information) stated any mention by arating official of unproven derogatory information could become an appealable matter, if subsequently determined to be unfounded. Raters and senior raters were precluded from referencing incomplete investigations and could only address completed, adjudicated, and/or finalized actions.  

f.Paragraph 3-28 (Referral Process for DA Form 67-10 series (OER)). The seniorrater was to refer an OER to the rated Soldier when the report included negative or derogatory information.  

(1)The referral memorandum accompanying the OER was intended to obtainthe officer's acknowledgement and to advise the officer that his/her comments did not constitute an appeal. Acceptable methods of transmitting an OER after an officer's departure was to use the EES, emailing the referral memorandum as an attachment to an email, or sending the documents via certified mail to the officer's last disclosed mailing address.  

(2)If the senior rater decided the rated officer's comments offered significantnew facts about the officer's performance, the senior rater could provide the comments to the other rating official(s) for possible reconsideration. Any rating official who elected to raise his/her evaluation of the officer could do so, but evaluations could not be lowered; the regulation specifically instructed senior raters not to pressure or try to influence other rating officials.  

(3)In cases where the rated officer failed to respond within the given suspenseperiod, the senior rater was to add the following comment to the report, "Rated officer was not available to sign"; when no signature appeared on the referred OER, the senior rater had to prepare a memorandum as an enclosure documenting the referral actions taken and whether or not the rated officer had acknowledged the report.  

g.Paragraph 3-33l (Preparation and Submission Requirements – Timeliness ofSubmission). The regulation made senior raters responsible for forwarding error-free evaluation reports to Headquarters, Department of the Army (i.e., HRC) no later than 90 days after the report's "THRU" date.  

h.Chapter 4 (Evaluation Report Redress Program) outlined the policies andprocedures for filing an evaluation report appeal. 

(1)Paragraph 4-7 (Policies) stated, when HRC accepted an evaluation report, itwas presumed to be administratively correct; to have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgments of the rating officials at the time of preparation.  

(2)Paragraph 4-8 (Timeliness) stated, while administrative appeals could beconsidered at any time, substantive appeals had to be filed within 3 years of the "THRU" date. Appeals sent after the 3-year timeframe had to be forwarded to the ABCMR for resolution. 

(3)Paragraph 4-11 (Burden of Proof and Type of Evidence). Soldiers filing OERappeals had the burden of proving, through clear and convincing evidence, that the presumptions outlined in paragraph 4-7 did not apply, and action was warranted to correct a material error, inaccuracy, or injustice. For claims based on substantive inaccuracy or injustice, the regulation referred the appellant Soldier filing to  
DA PAM 623-3 for additional guidance, and stated evidence would include statements from third parties, rating officials, and/or other officially-sourced documents; to be acceptable, the evidence had to be material and relevant to the Soldier's claim.  

BOARD DISCUSSION: 

After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was warranted. The Board carefully considered the applicant’s contentions, the military record, and regulatory guidance.   The Board determined a preponderance of evidence supported a finding that, contrary to regulation, the applicant’s evaluation report was inexplicably delayed for two years then filed in the applicant’s AMHRR as a “referred” evaluation without providing him notice and the opportunity to submit comments. The Board further determined that the negative comments in the evaluation were not adequately supported.  The Board finds that these actions constitute an error or injustice that warrant a recommendation for relief.  




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 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 

•Deleting the DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2)Officer Evaluation Report (OER), for the rating period 20180101 through20180831

•Replacing the deleted DA Form 67-10-1 with a memorandum of nonrated time.




Microsoft Office Signature Line...
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: 

AR 623-3, in effect at the time, prescribed policies and procedures for OERs. 

a.The Evaluation Reporting System (ERS) encompassed the means and methodsfor developing people and leaders and involved the execution of leadership, the establishment of a rating relationship with personal interaction, the conduct of developmental counseling and reviews, and the determination of critical assessments. Its intent was to identify Soldiers who are best qualified for promotion and assignment to positions of greater responsibility and combined major elements of counseling, assessment, documentation, and integration with other personnel functions to meet the needs of the Army, rating officials, and rated Soldiers in their current environments. 

b.Rating officials were expected to prepare evaluation reports that were forthright,accurate, and as complete as possible, giving due regard to the rated Soldier's rank/grade, experience, and military schooling, and highlighting accomplishments as well as failures. 

c.Concerning ratings for Part IVb, the regulation instructed raters to place an "X" inthe appropriate block based on the following criteria; when the rated officer's level of performance: 

•Exceeded the majority of officers in the same grade, choose "EXCELS"

•Was consistent with the majority of officers in the same grade, select"PROFICIENT"

•Was below the majority of officers in the same grade check "CAPABLE"



d.With regard to the senior rater's evaluation of the rated Soldier's potential, theregulation gave the following guidance; senior raters were compare the rated officer's potential to other officers of the same grade within the senior rater's rating population, and mark one of the following: 

•"MOST QUALIFIED" – Exceeded the majority of officers

•"HIGHLY QUALIFIED" – Was consistent with the majority of officers

•"QUALIFIED" – Was below the majority of officers



e.Paragraph 3-19 (Unproven Derogatory Information) stated any mention by arating official of unproven derogatory information could become an appealable matter, if subsequently determined to be unfounded. Raters and senior raters were precluded from referencing incomplete investigations and could only address completed, adjudicated, and/or finalized actions.  

f.Paragraph 3-28 (Referral Process for DA Form 67-10 series (OER)). The seniorrater was to refer an OER to the rated Soldier when the report included negative or derogatory information.  

(1)The referral memorandum accompanying the OER was intended to obtainthe officer's acknowledgement and to advise the officer that his/her comments did not constitute an appeal. Acceptable methods of transmitting an OER after an officer's departure was to use the EES, emailing the referral memorandum as an attachment to an email, or sending the documents via certified mail to the officer's last disclosed mailing address.  
 
  (2)  If the senior rater decided the rated officer's comments offered significant new facts about the officer's performance, the senior rater could provide the comments to the other rating official(s) for possible reconsideration. Any rating official who elected to raise his/her evaluation of the officer could do so, but evaluations could not be lowered; the regulation specifically instructed senior raters not to pressure or try to influence other rating officials.  
 
  (3)  In cases where the rated officer failed to respond within the given suspense period, the senior rater was to add the following comment to the report, "Rated officer was not available to sign"; when no signature appeared on the referred OER, the senior rater had to prepare a memorandum as an enclosure documenting the referral actions taken and whether or not the rated officer had acknowledged the report.  
 
 g. Paragraph 3-33l (Preparation and Submission Requirements – Timeliness of Submission). The regulation made senior raters responsible for forwarding error-free evaluation reports to Headquarters, Department of the Army (i.e., HRC) no later than 90 days after the report's "THRU" date.  
 
 h. Chapter 4 (Evaluation Report Redress Program) outlined the policies and procedures for filing an evaluation report appeal. 
 
  (1)  Paragraph 4-7 (Policies) stated, when HRC accepted an evaluation report, it was presumed to be administratively correct; to have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgments of the rating officials at the time of preparation.  
 
  (2)  Paragraph 4-8 (Timeliness) stated, while administrative appeals could be considered at any time, substantive appeals had to be filed within 3 years of the "THRU" date. Appeals sent after the 3-year timeframe had to be forwarded to the ABCMR for resolution. 
 
  (3)  Paragraph 4-11 (Burden of Proof and Type of Evidence). Soldiers filing OER appeals had the burden of proving, through clear and convincing evidence, that the presumptions outlined in paragraph 4-7 did not apply, and action was warranted to correct a material error, inaccuracy, or injustice. For claims based on substantive inaccuracy or injustice, the regulation referred the appellant Soldier filing to  
DA PAM 623-3 for additional guidance, and stated evidence would include statements from third parties, rating officials, and/or other officially-sourced documents; to be acceptable, the evidence had to be material and relevant to the Soldier's claim.  
 
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