In this era of military downsizing, an adverse evaluation for an officer or senior enlisted service member can be a career killer. For officers, a reprimand in any branch can lead to promotion problems and grade review boards at retirement. For an enlisted member, an adverse evaluation can create promotion and retention issues.
Evaluation Report Appeal Regulations
Each of the branches has very different evaluation report appeals procedures. Those are discussed in more detail below. It's important to work with an attorney with knowledge of the process. The statute of limitations, however, for appeals is three years. That three year requirement is found in 10 U.S.C. § 1552. The statute of limitations to sue in federal court can be different. You will want to consult with a lawyer to determine whether there are statute of limitations.
-Army Regulation 623-3 (Chapter 4 - Evaluation Report Redress System) (Sample 3rd Party Support Letter) (Sample Letter Requesting 3rd Party Support)
-Air Force Instruction 36-2406 (Chapter 10 - Air Force Eval Appeals) AF IMT 948
-Marine Corps Order 1610.7A (Chapter 10 - Substantive FITREP Corrections)
-Navy Performance Evaluation System BUPERSINST 1610.10D (Chapter 17 - Eval Appeals)
-Coast Guard COMDINST M1000.3A - Officer Evals (Chapter 5 for Officers) (Chapter 5 for Enlisted) (Correction of Records Instruction)
-10 U.S.C. § 1552
-5 U.S.C. § 706
Understanding the Potential Audiences for an Evaluation Report Appeal
Often the audience for an evaluation report appeal can be broad. Your intended audience could conceivably include:
-The Board for Correction of Military Records
-Human Resources, Personnel Command, Performance Evaluation Review Board, Air Force Evaluation Reports Appeal Board, etc.
-A potential Board of Inquiry or Administrative Separation Board
Sometimes, the appeal itself can be a valuable way to communicate information to a potential Board of Inquiry or separation board. If you know that a separation action is likely to occur, the evaluation report appeal is important.
How Federal Courts Analyze Evaluation Report Appeals
Link to a Successful Evaluation Report Federal Lawsuit our Firm Handled
Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989)
Bond v. US, 47 Fed. Cl. 641, 648 (2000)
10 U.S.C. § 1552 - Correction of Military Records
10 U.S.C.A. § 14502 - Special Selection Boards
5 U.S.C. § 706 - Administrative Procedure Act
The Boards for Correction of Military Records know that their decisions are subject to review by the federal courts. Any evaluation report must be drafted with an understanding of how the federal courts analyze appeals. The federal courts are not likely to entertain arguments that are not raised in the initial appeals.
Decisions of the military review boards are subject to review under the Administrative Procedure Act., Frizelle v. Slater, 111 F.3d 172, 176 (D.C.Cir.1997). The APA requires a reviewing court to "hold unlawful and set aside agency action, findings, and conclusions found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. § 706(2)(A). The APA also uses a presumption of regularity. In other words, the courts presume that an administrative action is correct. The burden is on the rated service member to demonstrate error by clear and convincing evidence. Albino v. United States, 78 F. Supp. 3d 148 (DC District Court 2015).
The final decisions of military correction boards are reviewed under "an unusually deferential application of the `arbitrary and capricious' standard." Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1514 (D.C.Cir.1989); accord Cone v. Caldera, 223 F.3d 789, 793 (D.C.Cir.2000). This is because the statutory language authorizing the Secretary to correct errors accords him expansive discretion, see Kreis, 866 F.2d at 1514 (citing 10 U.S.C. § 1552(a)), and because "the courts [should] not become a forum for appeals by every [service member] dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence." Cone, 223 F.3d at 793. Even so, like all other agency decisions, those of the review boards must be explained sufficiently to allow for effective review. See Dickson v. Sec'y of Def., 68 F.3d 1396, 1404-06 (D.C.Cir.1995).
The Court's task is "to identify whether `the decision making process was deficient, not whether [the] decision was correct,'" Dickson, 68 F.3d at 1405 (quoting Kreis v. Sec'y of the Air Force, 866 F.2d 1508, 1511 (D.C.Cir.1989)), the Court cannot sustain an unexplained agency decision "on the basis of ... theories that the agency might have adopted and findings that (perhaps) it might have made." Envtl. Def. Fund, Inc. v. EPA, 898 F.2d 183, 189 (D.C.Cir.1990); see also Wisc.'s Envtl. Decade, Inc. v. SEC, 882 F.2d 523, 528 (D.C.Cir.1989) (stating that reviewing courts cannot "accept the rationalizations first advanced by counsel in ... litigation [or] entertain arguments not relied upon by the agency itself" (citing SEC v. Chenery Corp.,318 U.S. 80, 63 S. Ct. 454, 87 L. Ed. 626 (1943))).
It is also well-accepted that "government officials must follow their own regulations, even if they are not compelled to have them at all." (See Bond v. US, 47 Fed. Cl. 641, 648 (2000). The military must follow their own regulations pertaining to evaluation reports.
With so many potential audiences, using appropriate language is critical. Most importantly, our vast well of experience and knowledge can be helpful in analyzing the law and evidence to determine whether the adverse evaluation was appropriate in the first instance.
Recent Federal Cases:
Albino v. United States, 78 F.Supp.3d 148 (DC District Court, 2015)
In the context of challenges to military officer's evaluations, the unusually deferential application of the arbitrary and capricious standard of the Administrative Procedure Act (APA) is calculated to ensure that the courts do not become a forum for appeals by every soldier dissatisfied with his or her ratings, a result that would destabilize military command and take the judiciary far afield of its area of competence. 5 U.S.C.A. § 706.
This is an interesting case, because the Board applied a presumption of regularity even when the errors were clear.
Musengo v. White, 286 F.3d 53531 U.S.App.D.C. 23 (2002) - In this case, the rater made a mistake in rating the Soldier below center of mass. After the fact, the rater provided a statement attesting to the mistake. The case is unfortunate. The court's reasoning for not granting relief stated: "Were we to vacate Musengo's second-block rating because Barrow wrongly thought the second block was his center-ofmass, would we not have to do the same for the twenty other captains Barrow rated in that block, all of whom could make similar complaints?"
Cone v. Caldero, 223 F.3d 789343 U.S.App.D.C. 117 (2000) - failure to rate on a bell-shaped curve.
Common Arguments for Removal of the Evaluation Report
1. The evaluation report was factually inaccurate. See AR 623-3, 1-8 (c)(1)(a) / BUPERSINST 1610.10D, 17-10
2. The evaluation report contained unproven derogatory information. See AR 623-3, 3-23 (c) / AFI 36-2406, 22.214.171.124 / BUPERSINST 1610.10D, 13-5
3. The evaluation report did not reflect an assessment of performance of assigned duties and responsibilities against an understood set of requirements. See AR 623-3, 1-9 (c) / MCO 1610.7, chapter 1, paragraph 3 (a)
4. The report failed to evaluate the member in accordance with their missions, duties, tasks, and standards that were communicated to the member. In other words, the report was based on unreasonable and unstated expectations. See AR 623-3, 1-9 (c) / MCO 1610.7, chapter 1, paragraph 5 (c)
5. The narrative portions of the evaluation are ambiguous, rife with innuendo, use inappropriate comments, or feint praise. See AR 623-3, 3-18 / AFI 36-2406, 126.96.36.199.
6. The evaluation report was improperly being used as a disciplinary tool or contained unproven derogatory information. See AR 623-3, 3-19 / BUPERSINST 1610.10D, 13-6 / MCO 1610.7, chapter 1, paragraph 5 (b)(1)
7. The evaluation report used prohibited comments involving race, gender, marital status, events before or after the rating period, protected communications, and others. See AR 623-3, 3-20 / AFI 36-2406, 1.12.2 / BUPERSINST 1610.10D, 13-5
8. The rater did not have sufficient opportunity to rate the applicant.
9. The evaluation report failed to include positive achievements. AFI 36-2406, 1.8.9 / BUPERSINST 1610.10D, 13-2
Army Evaluation Report Appeals
Under AR 623-3, 1-8 (c) (1)(a), evaluation report must be “thoughtful and fair appraisals based on observed performance and potential. Each report must be “accurate and complete.”
According to AR 623-3, 3-23 (c), there is a prohibition on the inclusion of unproven derogatory information in an evaluation report. The intent of the regulation is to also “prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF…”
As a potential first-line of redress, the Army permits a rated Soldier to request a Commander's Inquiry into evaluation reports. Requesting a Commander's Inquiry is an important step that needs to be discussed with a lawyer. The Commander's Inquiry - if properly reasoned - could affect future appeals. It is important to note that under the regulation, a Commander's Inquiry does not constitute an appeal. It is simply used to support an appeal.
In the Army, there are basically two types of appeals:
1. Administrative Error
2. Substantive Error
Appeals based on administrative error are only reviewed by HQDA, Evaluation Appeals Branch (AHRC–PDV–EA), for Regular Army, USAR, and when necessary, for ARNG evaluation reports. Appeals based on administrative error for ARNG evaluation reports will be adjudicated by NGB (NGB–HRP–R). Most Soldiers do not need a lawyer to correct administrative errors.
Sample Request for Minor Correction
For substantive appeals, AR 623-3, paragraph 4-10 creates three priority levels.
Officer Priority Levels
(1) First in priority are appeals pertaining to officers who have been--
(a) Twice nonselected for promotion and given a directed discharge, release, or mandatory retirement date within 6 months.
(b) Selected for release within 6 months by an HQDA elimination board or an AGR continuation board.
(c) Recommended for elimination within 6 months. This also applies to officers who have applied for and have been denied voluntary indefinite category.
(d) Notified for eligibility of a HQDA selection command board within 6 months.
(2) Second in priority are appeals pertaining to officers who--
(a) Have not been selected for promotion at least once but who do not have a mandatory release date within 6 months as a result.
(b) Are on a pending promotion list removal as stated in AR 600–8–29.
Third in priority are appeals not eligible for higher priority.
NCO Priority Levels
b. For noncommissioned officers appealing DA Form 2166–9 series (NCOER) and DA Form 1059.
(1) First in priority are appeals pertaining to NCOs who have been--
(a) Twice nonselected for promotion in the primary zone of consideration and are within 6 months of discharge, release from service (expiration term of service), or mandatory retirement date.
(b) Selected for release under the HQDA Qualitative Management Program or ARNG or USAR Qualitative Retention Program.
(c) Selected for release from AGR by an AGR continuation board.
(d) Identified for referral within 6 months to an AGR continuation board.
(2) Second in priority are appeals pertaining to NCOs who have been nonselected for promotion in the primary zone of consideration at least once, but who do not have a mandatory release date within 6 months.
(3) Third in priority are appeals not eligible for higher priority.
Evidence and Burden of Proof under AR 623-3
The Army ordinarily requires statements from third parties for claims of inaccuracy or injustice. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.
Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the evaluation report was rendered. The results of a CDR’s or Commandant’s Inquiry may provide support for an appeal request.
Air Force Evaluation Report Appeals
The Air Force uses the Evaluation Reports Appeal Board (ERAB) to review performance reports.
Air Force members are permitted to request a Special Selection Board in conjunction with the appeal.
Navy Fitness Report Appeals
Chapter 17-10 of BUPERSINST 1610.10D discusses appeals. It states:
"17-10. Appeals. If members believe that a FITREP, CHIEFEVAL, or EVAL is inaccurate, unjust, or wrongly submitted, they should first discuss the matter with the reporting senior. The reporting senior may, if justified, submit an administrative change or supplementary material (see chapter 15). U.S. Navy Regulations, 1990, article 1151, also provides authority for the request mast, at which questions concerning FITREPs, CHIEFEVALs, and EVALs may be raised with the CO. If these remedies have been exhausted, and the matter cannot be explained in a statement to the record or communication to a selection board, the member may request that a report be investigated, modified, removed, or replaced through one of the following appeal procedures:
a. U.S. Navy Regulations, 1990, Article 1126 - Correction of Naval Records. Under provisions of this article, a member may petition the Board for Correction of Naval Records (BCNR) for correction of error or removal of injustice in a FITREP, CHIEFEVAL, or EVAL. Petitions must be submitted on DD 149 Application for Correction of Military Record under the Provisions of 10 U.S.C. 1552. This form is available at http://www.dtic.mil/whs/directives/forms/eforms/dd0149.pdf or from the Board for Correction of Naval Records, Washington, DC 20370-5100. Upon presentation of satisfactory evidence by the member concerned, the BCNR may recommend to the Secretary of the Navy that the record be changed. If the petition is to be considered and resolved prior to the convening of a selection board, the petition should be received by the BCNR at least 4 months before the board convenes. The BCNR normally will not act on a petition if any other type of appeal is pending or in progress.
b. U.S. Navy Regulations, 1990, Article 1150 - Redress of Wrong Committed by a Superior, and UCMJ, Article 138 - Complaints of Wrongs. Under provisions of these articles, a member may submit a complaint against a superior officer. The complaint may include a request to revise, remove, or replace a FITREP, CHIEFEVAL, or EVAL. Submit complaints in the manner prescribed by U.S. Navy Regulations, 1990, article 1150, and the Manual of the Judge Advocate General, chapter III. Complaints involving FITREPs, CHIEFEVALs, or EVALs must be submitted within 90 days from the time the member knows of the report's submission, or within 1 year after it is submitted, whichever is earlier. If relief is granted, the general courts-martial convening authority granting relief may submit supplementary material or direct the original reporting senior to do so, and may direct the removal of all or part of the original report. In this case, forward the entire decision package, including the supplementary material, via NAVPERSCOM, Office of Legal Counsel (PERS-00J), who will effect the relief per the Manual of the Judge Advocate General, paragraph 0308f."
Special Selection Boards
10 U.S.C.A. § 14502 permits special selection boards. The statute requires that an SSB consider the record of the officer as it would have appeared to the promotion board that would have considered the officer or former officer. The officer is compared against a sampling of records of officers in the same grade and competitive category who were recommended and not recommended for promotion for that fiscal year.
In cases involving material error, we are looking at whether the promotion board's decision:
-Was contrary to law; and,
-Whether the board had before it all material information.
For officers promoted by SSB, their rank is backdated.
The statute permits judicial review over the decision whether or not to convene an SSB.
The bottom line is that a consultation does not cost anything, but the consequences of an adverse evaluation report can be expensive over the long term when retirement and promotion issues are factored into the analysis. Feel free to give us a call, we are happy to discuss issues related to adverse evaluation reports and collateral consequences.
Submission Addresses and Points of Contact
Email for Policy Section: firstname.lastname@example.org
Email for Appeals Section: email@example.com
Phone for Chief Evaluations Branch: 502-613-9019
Phone for OER Policies: 502-613-9019
Phone for NCOER Policies: 502-613-9019
Mailing Address:US Army Human Resources Command
US Army Human Resources Command
1600 Spearhead Division Avenue, Dept 470
Fort Knox, KY 40122-5407
ERAB Regular Air Force Address
550 C Street West, Suite 7
Joint Base San Antonio-Randolph TX 78150-4709
Reserve National Guard Address
18420 E Silver Creek Ave, Bldg 390 MS 68 Buckley AFB CO 80011-9502
Coast Guard BCMR - (202) 447-4099; by faxing a letter to (202) 447-3111; by sending an email to firstname.lastname@example.org; or by sending a letter to the BCMR at the mailing address:
DHS Office of the General Counsel
Board for Correction of Military Records
Mailstop # 485
245 Murray Lane
Washington, DC 20528
-Marine Corps Fitness Report Appeals can be emailed to email@example.com or mailed to:
Commandant of the Marine Corps Headquarters, U.S. Marine Corps (Code: MMRP-13) 2008 Elliot Road
Quantico, VA 22134-5030E
Board for Correction of Naval Records
701 S. Courthouse Road
Building 12, Suite 1001
Arlington, VA 22204-2490
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