AR20160006767

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006767

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x_____ __x______ __x___ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006767

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.

___________x______________
CHAIRPERSON

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.

BOARD DATE: 10 May 2016

DOCKET NUMBER: AR20160006767

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests removal from his Official Military Personnel File (OMPF) of three DA Forms 67-9 (Officer Evaluation Reports (OERs)), hereinafter referred to as:

* contested OER-1 (7 September 2007 through 16 February 2008)
* contested OER-2 (17 February 2008 through 24 May 2008)
* contested OER-3 (25 May 2008 through 24 May 2009)

2. The applicant states that the OERs are unjust because he had a documented medical condition that was clearly and directly referred to in the three OERs.

a. He states the OERs are discriminatory in nature and show the lack of leadership provided him when his performance was limited due to his medical condition, not as the result of substandard or bad performance.

b. He also states that the OERs will be available for consideration when he is considered for promotion to the next higher grade. He asserts, in effect, the three evaluations will carry a heavy weight and the board may not take into consideration the exceptional performance evaluations he has received since he left the unit.

3. The applicant provides copies of 11 OERs, including the three contested OERs.

CONSIDERATION OF EVIDENCE:

1. The applicant had prior honorable enlisted service in the Army National Guard (ARNG) of the United States and Puerto Rico ARNG from 3 June 2003 through 19 January 2007.

2. The applicant was appointed as a Reserve commissioned officer of the Army, in the rank of second lieutenant (Corps of Engineers), on 20 January 2007. He is currently serving on active duty as a Regular Army commissioned officer in the rank of captain (CPT)/pay grade O-3E. He was promoted to CPT on 1 May 2010.

3. A review of the performance folder of the applicant’s OMPF revealed the contested OERs (i.e., three DA Forms 67-9) that show, in pertinent part:

* contested OER-1: change of rater report for the period 7 September 2007 through 16 February 2008 for duties performed as Platoon Leader,
55th Engineer Company, 5th Engineer Battalion, Fort Leonard Wood, MO

* Part II (Authentication)

* block a (Rater): CPT Brandon D. B___, Company Commander
* block c (Senior Rater): Lieutenant Colonel (LTC) Joel R. C__, Battalion Commander
* block d (This is a referred report, do you wish to make comments,) an “X” (indicating it is a referred report) and an “X” in the “No” box (indicating comments are not attached)
* block e (Signature of Rated Officer), the applicant’s electronic signature, dated 24 April 2008

* Part IV (Performance Evaluation Professionalism (Rater))

* block b (Leader Attributes/Skills/Actions), line b1 (Attributes)

* item 1 (Mental), an “X” in the “No” box
* item 3 (Emotional), an “X” in the “No” box

* Part V (Performance and Potential Evaluation (Rater))

* block a (Evaluate the rated officer’s performance during the rating period and his/her potential for promotion), an “X” in the box for “Unsatisfactory Performance, Do Not Promote”
* block b (Comment on specific aspects of the performance): “[Applicant] has not met the Army standard for a platoon leader ready to deploy. [Applicant] has been late several times to work. On one occasion, he failed to show up to work all day until he was finally contacted after numerous attempts by the 1SG [first sergeant] at 1630 [hours]. As the RSO [range safety officer] during the Battalion M2 Range at Fort Carson, [applicant] erupted angrily when asked to perform an RSO task by the OIC [officer in charge] of the range. His misconduct was unbecoming of an officer and potentially put himself and others in danger on the range. He was counseled several times on his misconduct and failed to improve. [Applicant] did seek professional psychiatric assistance from the Army. He was evaluated and determined to be suffering from a depressive disorder and considered incapable of performing the duties required of a leader in a combat unit.”
* block c (Comment on potential for promotion): “[Applicant] does not have the confidence, mental capacity or emotional stamina to lead Soldiers at this time. He does have potential, but needs to first recover from his medical condition.”

* Part VII (Senior Rater)

* block a (Evaluate the rated officer’s promotion potential to the next higher grade), an “X” in the box for “Do Not Promote”
* block c (Comment on performance/potential): “[Applicant] has the potential to be an exceptional officer. During this rating period his successful performance as a platoon evaluator during external evaluations significantly aided the Battalion. Unfortunately, [applicant] suffers from a medical condition that renders him incapable of leading a combat engineer platoon at this time. With successful treatment, I believe this Soldier can recover and become an asset to the Army.”

* contested OER-2: change of rater report for the period 17 February 2008 through 24 May 2008 for duties performed as Assistant Operations Officer, 5th Engineer Battalion (Rear) (Provisional), Fort Leonard Wood, MO

* Part II

* block a: CPT Anna L. C___, Company Commander
* block c: LTC Joel R. C__, Battalion Commander
* block d, is blank (i.e., no entries indicating it is a referred report)
* block e, the applicant’s electronic signature, dated 15 August 2008

* Part IV, no medical or negative comments, or adverse entries
* Part V

* block a, an “X” in the box for “Satisfactory Performance, Promote”
* block b, no medical or negative comments, or adverse entries
* block c, no medical or negative comments, or adverse entries

* Part VII

* block a, an “X” in the box for “Fully Qualified”
* block c, no medical or negative comments, or adverse entries

* contested OER-3: annual report for the period 25 May 2008 through
24 May 2009 for duties performed as Executive Officer, Engineer Canine Company, 5th Engineer Battalion, Fort Leonard Wood, MO

* Part II

* block a: CPT Mario A. O___, Company Commander
* block c: LTC Joel R. C__, Battalion Commander
* block d, is blank (i.e., no entries indicating it is a referred report)
* block e, the applicant’s electronic signature, dated 1 June 2009

* Part IV, no medical or negative comments, or adverse entries
* Part V

* block a, an “X” in the box for “Satisfactory Performance, Promote”
* block b, no medical or negative comments, or adverse entries
* block c, no medical or negative comments, or adverse entries
* Part VII

* block a, an “X” in the box for “Fully Qualified”
* block c, no medical or negative comments, or adverse entries

4. A review of the applicant’s OMPF/AMHRR failed to reveal any evidence that he submitted an appeal for correction, transfer, or removal of the contested OERs from his OMPF to the U.S. Army Human Resources Command (HRC).
5. A further review of the applicant’s OMPF/AMHRR shows that he has received eight OERs (six DA Forms 67-9 and two DA Forms 67-10-1) covering the period 25 May 2009 through 31 January 2016.

a. The six DA Forms 67-9 show the applicant’s raters consistently indicated that he possessed the Army Values and Leader Attributes/Skills/Actions. They also assessed his performance and potential for promotion as “Outstanding Performance, Must Promote.” The two DA Forms 67-10-1 show a comparison of each rater’s profile and box check at the time rated his performance as “Excels.”

b. The six DA Forms 67-9 show the senior raters assessed his overall performance as “Best Qualified.” The two DA Forms 67-10-1 show the senior raters rated his potential compared with officers senior rated in the same grade as “Most Qualified” and “Highly Qualified.”

REFERENCES:

1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers. It includes policy statements, operating tasks, and rules in support of operating tasks.

a. Chapter 3 (Army Evaluation Principles), paragraph 3-2 (Evaluation requirements), shows that rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, and Headquarters, Department of the Army selection boards and career managers can make intelligent decisions.

b. Chapter 3, Section VI (Restrictions), precludes unproven derogatory information from being entered on the OER. It does not preclude verified information obtained independently from being entered on the OER.

c. Chapter 6 (Evaluation Redress Program) emphasizes the fact that an erroneous evaluation report should be corrected as soon as possible. Substantive appeals must be submitted within 3 years of the evaluation report “THRU” date. Appeals must be processed through the HRC, Evaluations and Appeals Branch, prior to submission to the Army Special Review Board. The burden of proof rests with the appellant to produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) 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. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. Failure to submit an appeal within this time frame will require the appellant to submit their appeal to the Army Board for Correction of Military Records (ABCMR).

2. Army Regulation 600-8-104 (AHMRR Management) provides policies, operating tasks, and steps governing the OMPF.

a. Depending on the purpose, documents will be filed in the OMPF in one of three folders: performance, service, or restricted. Once placed in the OMPF, the document becomes a permanent part of that file.

b. The Authorized Documents list provides guidance for filing documents in the OMPF. It shows the DA Form 67-9 will be filed in the performance folder of the OMPF.

3. Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter7 (Appeals and Petitions) provides the policies and procedures for appeals and petitions for removal of unfavorable information from the OMPF. Paragraph 7-2 (Appeals for removal of OMPF entries) shows that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.

DISCUSSION:

1. The applicant’s contends that the contested OERs should be removed from his OMPF because he had a documented medical condition that was directly referred to in the three contested OERs, they are discriminatory in nature, and they show the lack of rater/senior rater leadership when his performance was limited due to his medical condition.

2. Contested OER-1 shows the applicant received an unfavorable rating with respect to Leader Attributes/Skills/Actions (Mental and Emotional) and both the rater and senior rater provided comments pertaining to his medical treatment/ condition. The rater and senior rater also provided detailed comments and unfavorable ratings on his overall performance and potential for promotion.

a. There is no evidence of record that shows the governing Army regulation that was in effect at the time precluded the rater/senior rater from commenting on the applicant’s verified medical condition/treatment.

b. The evidence of record shows contested OER-1 was referred to the applicant on 24 April 2008 and that he was afforded the opportunity to provide comments in response to the referred report. There is no evidence of record that the applicant provided comments in response or rebuttal to the rater’s/senior rater’s assessments and/or comments. Moreover, there is no evidence of record that shows he appealed the referred report within the 3-year time restriction for the submission of substantive appeals.

c. The applicant has failed to submit clear and convincing evidence of a strong and compelling nature that contested OER-1 is in error.

3. The evidence of record fails to show that the raters or the senior raters for contested OER-2 and/or contested OER-3 entered any information that directly or indirectly indicated the applicant had a documented medical condition. The evidence of record shows there were no negative/adverse entries or comments on contested OER-2 or contested OER-3. There is no evidence of record that shows the applicant filed an appeal within the 3-year time restriction for the submission of substantive appeals.

4. The applicant has failed to submit clear and convincing evidence of a strong and compelling nature that contested OER-1, contested OER-2, or contested OER-3 does not represent the considered opinion and objective judgment of the rating officials at the time or that any of the contested OERs are factually inaccurate.
a. The evidence of record shows the applicant verified that he had seen the three completed contested OERs and he acknowledged this with his signature. It also shows he elected not to submit comments in response to the referred report (i.e., contested OER-1).

b. The contested OERs are properly filed in the performance folder of the applicant’s OMPF.

5. An evaluation report accepted for inclusion in the official file of a rated officer’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. There is insufficient evidence to refute the presumption of administrative regularity with respect to contested OER-1, contested OER-2, and/or contested OER-3.

6. By regulation in order to remove a document from the OMPF there must be compelling evidence to support its removal. The applicant failed to submit evidence of a compelling nature to show that contested OER-1, contested
OER-2, and/or contested OER-3 that is/are filed in the performance folder of his OMPF is/are untrue, in error, or unjust.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160006767

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160006767

8

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2