IN THE CASE OF: 
 
  BOARD DATE: 5 September 2023 
 
  DOCKET NUMBER: AR20230000439 
 
 
APPLICANT REQUESTS: the removal of his referred DA Form 67-10-1, Company Grade Plate (O1-O3; WO1 -CW2) Officer Evaluation Report (OER), covering the period 1 July 2017 through 30 June 2018, (herein after referred to as the contested OER) from his Army Military Human Resource Record (AMHRR).  
 
APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: 
 
• DD Form 149, Application for Correction of Military Record 

• Excerpt from Return Memorandum 

• Contested OER with applicant’s response 


 
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 states, in effect, the contested OER, contains a critical error and is an injustice, which should have been caught by the rater, intermediate rater, senior rater or the reviewer. The contested OER should not have been placed in his record without being corrected and it was a contributing factor in his non-selection for promotion to the rank of major (MAJ/O-4). He further states: 
 
 a.  As a chaplain, he was not very familiar with administrative processes, and he was not aware that the contested OER contained an error until after he had received a subsequent evaluation for the period 2018-2019. This OER was “RETURNED TO THE FIELD” and contains the same error found on the contested OER.  
 
 b.  His OER for the period 2018-2019, was “RETURENED TO THE FIELD” because “Part IV, Block a: Rater will comment on a NO entry for HT/WT. The progress or lack of progress in the Weight Control Program (currently known as the Army Body Composition Program (ABCP)) will be indicated.” 
 c.  He contends that the contested OER contains the same error, and this administrative error ended his career. He further contends that the contested OER should not have been referred, as he was not put in any “Weight Control Program” during the rating period. The contested OER should be removed from his AMHRR because this error was unfairly prejudicial against him during the Fiscal Year 2022 Chaplain Major Promotion Board and throughout his career.  
 
3.  Having prior service in the U.S. Air Force Reserve, the applicant took his oath of office in the California Army National Guard (CAARNG) and was extended temporary Federal recognition on 21 January 2010. At the time he held the rank and pay grade of captain (CPT/O-3).  
 
4.  His record contains a DA Form 705, Army Physical Fitness Test (APFT) Scorecard, which shows the applicant failed a record APFT on 19 March 2018. He failed to the meet the body composition standard for heigh/weight with a body fat measurement of 32-percent. 
 
5.  On 19 May 2018, he successfully passed his APFT; however, he failed to the meet the body composition standard for heigh/weight with a body fat measurement of 29-percent. 
 
6.  The applicant received the contested OER, for the period from 1 July 2017 through 30 June 2018, while assigned to the 40th Infantry Division, CA, as the Battalion Chaplain. This evaluation shows in: 
 
 a.  Part II, d (Authentication-This is a referred report, do you wish to make comments?), the “Referred” and “Yes, comments are attached” boxes were checked indicating that the applicant had seen the OER and provided comments.  
 
 b.  Part II, f1 (Supplementary Reviewer Required?), the “No” box was checked indicating that there was no need for a supplementary review. 
 
 c.  Part IV, (Performance Evaluation-Professionalism, Competencies, and Attributes)(Rater)- contains the entry, “[the applicant] passed the APFT on 19 May 2018; however, he was 3-percent over the allowable body fat.” There are no comments related to the applicant’s progress, or lack of progress in the ABCP. 
 
7.  The rater and senior rater digitally signed the OER on 28 April 2019 and 30 April 2019, respectively.  
 
8.  The applicant digitally signed the contested OER on 5 May 2019, and on the same day he submitted a Memorandum for Record in response to the referred OER. He 
stated “During this rating period, I was MND [medically non-deployable] due to injuries. I have come off MND and I’m making progress toward reaching my Ht-Wt.” 
 
9.  A review of his AMHRR shows the contested OER is filed in the performance folder. The applicant’s AMHRR is void of an OER for the period 2018-2019, and the applicant did not provide a copy of this OER. 
 
10.  On 8 September 2019, the applicant completed a record APFT. The DA Form 705 shows the applicant failed to the meet the body composition standard for heigh/weight with a body fat measurement of 29-percent. 
 
11.  The evidence of record does not show whether the applicant was enrolled in the ABCP, and his record is void of a temporary or permanent profile. 
 
12.  The applicant was discharged from the ARNG of the United States on 1 December 2022 under the provisions of National Guard Regulation 635-100, Termination of Appointment and Withdrawal of Federal Recognition, paragraph 5a, termination of appointment. 
 
13.  His records are void of documentation and he did not provide any evidence showing a Commander's Inquiry (CI) was requested or conducted. Further there is no evidence indicating he appealed the contested OER to the U.S. Army Human Resources Command and the Officer Special Review Board.  
 
14.  The applicant provided a document which he contends is an excerpt of a notification regarding an error with his 2018-2019 OER. The origin of this information is unclear; however, however, this document indicates that when an evaluation is found to contain errors it may be designated as “Returned to the Field and Maintain Profile count.” The applicant provided the following excerpt which pertain to his 2018-2019 OER but also apply to the contested OER: 
 
“REFERRED - part II block d The block check for submission of comments from the rated officer is missing. If the officer does not wish to make comments, then the no box should be checked. If the rated officer does wish to make comments, then mark the yes box and resubmit the report with the rated officers comments attached. (AR 623- 3, paragraph 3-29)///////////// 
 
Part IV, block a: Rater will comment on a NO entry for HT/WT. The progress or lack of progress in the Weight Control Program will be indicated. Signatures must be removed in the following order (Reviewer (if one is listed), Rated Soldier, Senior Rater and last Rater). Once signature are removed, corrections can be applied. 
 
NOTE: If the signatures are removed prior to the rated soldier removing their signature, the rated soldier can remove their signature by clicking the *Signature Removal* button on the EES homepage under the TOOLS column. After correction are made, return with all signatures in 
proper sequence).” 
 
14.  Regulatory guidance provides: 
 
 a.  The rater will comment on a “NO” entry, indicating noncompliance with the standards of AR 600–9, in Part IV, Block a. These comments should indicate the reason for noncompliance. Medical conditions may be cited for noncompliance; however, the “NO” entry is still required because medical waivers to weight control standards are not permitted for DA Form 67-10-1 purposes. The progress or lack of progress in a weight control program will be indicated.  
 
 b.  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. 
 
 c.  Removal of an evaluation report for administrative reasons will be allowed only when circumstances preclude the correction of errors, and then only when retention of the evaluation report would clearly result in an injustice to the Soldier. 
 
 d.  Correcting minor administrative errors or deleting one official’s rating does not invalidate the evaluation report. 
 
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 applicant received a referred OER that contained reference to not meeting weight control standards. He signed the contested OER and submitted a response to the referred OER, acknowledging exceeding weight control standards. The Board reviewed the circumstances of his case but found insufficient evidence to support a conclusion that the contested report contains administrative or substantive errors or that it was not 
prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the contested NCOER was prepared or that they exercised faulty judgment in evaluating him as they did. 
 
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. 
 
  9/5/2023

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 Army Board for Correction of Military Records (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 (AR) 623-3, Personnel Evaluation-Evaluation Reporting System, prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. 
 
 a.  Paragraph 1-11 provides that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The Commander's Inquiry 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. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. 
 
 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 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. 
 
 d.  Correcting minor administrative errors or deleting one official’s rating does not invalidate the evaluation report. 
 
3.  DA Pamphlet 623-3, Evaluation Reporting System, prescribes the policy and tasks for the Army’s Evaluation Reporting System, focused on the assessment of performance and potential. It also provides guidance on the preparation of evaluation forms. It states: 
 
 a.  OERs with administrative errors will be placed in an “ON HOLD – Returned to Field” or “PENDING” status, awaiting corrected OERs from the rating officials, Battalion and/or Brigade S1, or administrative office. Examples, but not inclusive of administrative errors include inaccurate or overlapping “FROM” and “THRU” dates, incorrect reason for submission, missing Army Physical Fitness Test status or date, and mission or incorrect heigh and weight data.  
 
 b.  DA Form 67–10–1, Part II: Blocks d—Referred Report. Action required: If referral of an DA Form 67-10-1 is required, the senior rater will place an “X” in the appropriate box in Part II, Block d of the DA Form 67-10-1 (before he or she has signed and dated the DA Form 67-10-1). The DA Form 67-10-1 will then be provided to the rated officer for placement of an “X” in the appropriate box in Part II, Block d and signature or validation of administrative data. (“YES” if the rated officer will provide comments as an enclosure to the DA Form 67-10-1 or “NO” if the rated officer will not provide comments).  
 
 c.  DA Form 67–10–1, Part II: Blocks e (1 and 2)—Rated Officer’s Signature and Date. Action required: The rated officer will sign and date the DA Form 67-10-1 after it has been completed and signed by all rating officials in the rating chain. The rated officer’s signature acknowledges that the rated officer has seen the DA Form 67-10-1, parts I through VI, and verifies the accuracy of the administrative data in part I, the rating officials in part II, and the Army Physical Fitness Test (APFT) and height and weight data in part IV, block a. This action increases administrative accuracy of the DA Form 67-10-1 since the rated officer is most familiar with and interested in this information. Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data. Any administrative errors noted by the rated officer will be brought to the attention of the rating officials and corrected prior to their signature. 
 
 d.  DA Form 67–10–1, Part IV: Block a (continued)—Height and Weight Action required: In the spaces after “HEIGHT and WEIGHT,” the rater will enter the rated officer’s height and weight, respectively, as of the unit’s last record weigh-in. If there is no unit weigh-in during the period covered by the DA Form 67-10-1, the rater will enter the officer’s height and weight as of the “THRU” date of the DA Form 67-10-1. An entry of “YES” or “NO” will also be placed in the space next to the weight to indicate compliance or noncompliance with AR 600–9. Sample entries are “HEIGHT: 72, WEIGHT: 180 YES”; “HEIGHT: 71, WEIGHT: 225, NO”; or “HEIGHT: 73, WEIGHT: 215 YES.” 
 e.  The rater will comment on a “NO” entry, indicating noncompliance with the standards of AR 600–9, in Part IV, Block a. These comments should indicate the reason for noncompliance. Medical conditions may be cited for noncompliance; however, the “NO” entry is still required because medical waivers to weight control standards are not permitted for DA Form 67-10-1 purposes. The progress or lack of progress in a weight control program will be indicated. 
 
 f.  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 Commander's Inquiry. Such a request must be submitted separately. 
 
4.  AR 600-9, Personnel-General-The Army Body Composition Program (ABCP), governs physical fitness and weight/body fat standards. It states: 
 
 a.  Soldiers found to exceed the allowable body fat standard will have a DA Form 268 initiated and be enrolled in the ABCP. 
 
 b.  Soldiers found to have a temporary medical condition that directly causes weight gain or prevents weight or body fat loss will have up to 6 months from the initial medical evaluation date to undergo treatment to resolve the medical condition. The medical specialty physician may extend the time period up to 12 months if it is determined more time is needed to resolve the medical condition. During this time, the Soldier will participate in the ABCP, to include initiation of a DA Form 268, nutrition counseling, and monthly body fat assessment, but will not be penalized for failing to show progress. However, if the Soldier meets the body fat standard during this timeframe, he or she will be removed from the ABCP. 
 
 c.  The provisions of this paragraph are not applicable to medical conditions or injuries based solely on a prescribed reduction in physical activity. The inability to exercise does not directly cause weight gain. Health care personnel will advise Soldiers 
to modify caloric intake when reduced physical activity is necessary as part of a treatment plan. 
 
 d.  Once the medical condition is resolved, or 6 months (not to exceed 12 months), whichever occurs first, from the date of the medical evaluation, and if the Soldier still exceeds the body fat standard, he or she will continue participating in the ABCP but will be required to show satisfactory progress. Health care providers will forward to the Soldier’s commander an updated memorandum stating the effective date that the Soldier’s temporary medical condition is resolved. 
 
 e.  If the Soldier is unable to show satisfactory progress, the Soldier will be 
subject to separation. 
 
 f.  Defines the ABCP failure as 3 nonconsecutive months of less than satisfactory progress. Progress includes one percent body fat loss per month. 
 
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 AMHRR 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 67-10-1 is filed in the performance folder of the Soldier's OMPF. 
 
6.  AR 15-185, ABCMR, prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 
 
//NOTHING FOLLOWS//