OER Appeal

OER Appeal

December 14, 2020

An OER with negative comments, "no" block checks, or negative ratings (referred OER), is career threatening for the Officer who receives it.  In addition to limiting promotion potential, a negative OER can trigger the Army Officer Elimination process.  If an Officer just received a negative OER, it is advisable to retain a military lawyer to assist with an appeal.

An OER Appeal in the Army is governed by AR 623-3, chapter 4, available at this link.

The first way for an Officer to appeal an OER is through something called a Commander's or Commandant's Inquiry. Essentially, if any alleged error, injustice, or inaccuracy is brought to a Commander or Commandant, he/she can conduct an inquiry to determine if relief is warranted.  The Commander/Commandant in question must be above the designated rating official involved in the alleged error, injustice or inaccuracy.  Any request for an inquiry must be made no later than 60 days after the signature date of the rated Soldier.  The results of the inquiry will be forwarded to HQDA no later than 120 days after the signature date of the senior rater.

Commander's/Commandant's inquiries are not meant to correct differences in opinion among members of the rating chain about a rated Soldier's performance and potential.  Here are some examples of errors/injustices that an inquiry is meant to address:

  1. Improperly designated, unqualified, or disqualified rating officials
  2. Inaccurate or untrue statements
  3. Lack of objectivity or fairness by rating official

The Commander/Commandant conducting the inquiry cannot force or pressure the rating officials to change their evaluations.  That being said, if a rating official's Commander/Commandant conducts and inquiry and determines there are errors, documented efforts must be taken to allow the rating officials the chance to make the recommended edits.  Most rating officials would change their ratings to appease his/her Commander and to not appear non-compliant to HRC.

A Commander/Commandant can uncover information that would have resulted in a lower evaluation; however, the evaluation itself cannot be edited using this information.  In this case, the Commander/Commandant will write a memorandum stating their findings.

If the Commander/Commandant finds errors or injustices, the results of the inquiry will be included as an enclosure to the OER in question.  The results will be only one page, but can include all supporting documents (i.e. investigations, reports, statements).  If the Commander/Commandant does not find any fault with the evaluation, there is no requirement to include the results in the Officer's OMPF.

Commander's/Commandant's inquiries are not a required step to otherwise appeal an OER.  They should be requested in very specific situations and Officers should be careful not to make a request that is only going to shed negative light on him/her.

If an Officer receives a "referred OER," or "relief for cause OER,"  AR 623-3, paragraph 3-27,  requires that he/she be allowed to submit a "comment" to the OER that becomes an enclosure to it.  "Referred" is defined as follows:

  1. A "Fail" for the APFT or a "No" entry for the height and weight
  2. A rater performance evaluation of "Unsatisfactory" in part IV
  3. A rater performance evaluation of "Capable" in part IV where the required explanation has derogatory information
  4. A rater potential evaluation in part IV where the required explanation has derogatory information
  5. A senior rater potential evaluation of "Not Qualified" or "Unsatisfactory" in part VI, block a.
  6. A senior rater potential evaluation of "Qualified" or "Retain as Colonel" in part VI, block a, where the required explanation has derogatory information
  7. Any negative or derogatory comments contained in parts IV, V, or VI, of the OER

The "comment" that is allowed to be submitted must be factual, concise, and limited to matters directly related to the evaluation on the OER.  Furthermore, there can be no attachments/enclosures to the "comment."  If an Officer attempts to submit an attachment or enclosure, the S1 will not upload it with the "comment" itself.  Essentially, the comment is the opportunity for the Officer in question to explain his/her side of whatever happened and to list additional accomplishments during the rated period that were not mentioned.  Any Officer that has been notified that he/she has the opportunity to submit a comment to an OER should consult with a military lawyer.

Regardless of whether a Commander's/Commandant's inquiry was conducted, and regardless of any OER Comment, an Officer can appeal any evaluation received.  If an OER appeal is based only on an administrative error, it should be sent to HRC, Evaluations Appeals Branch (AHRC-PDV-EA).  Administrative errors include, but are not limited to, deviation from established rating chain, insufficient period of observation by the rating officials, signature errors in the evaluation report period, and errors in the APFT and/or height/weight entries.   Administrative errors that were known, or should have been known, by the rated Officer and/or rating officials at the time that the evaluation report was signed, will not be corrected.

Appeals based on bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error, should be sent to the Army Special Review Board.  Appeals of this nature need to be submitted within 3 years of the "Thru" date on the OER.  If the 3 years have passed, then an OER appeal can still be submitted to the Army Board of Corrections for Military Records using DD Form 149.

An OER appeal, if successful, can result in complete removal of the OER in question or only the deletion of certain comments.  Furthermore, if the appeal is successful, the board will determine if the OER was seen by any previous promotion boards and if reconsideration of said promotion is warranted.  If the OER appeal is not successful, a copy of the board's decision memorandum will be filed in the Officer's OMPF.   While it is unlikely, it is possible for the Board to deny the appeal and make the OER in question worse.

The Army Special Review Board will give priority to OER appeals in the following order:

  1. Officers twice non-selected for promotion with a discharge date; Officers selected for release within 6 months by an HQDA/AGR elimination board; Officers recommended for elimination within 6 months; and, Officers notified of eligibility of an HQDA selection command board within 6 months
  2. Officers not selected for promotion at least once, but who do not have a mandatory release date within 6 months as a result; and, Officers on a pending promotion list removal
  3. All other Officers

All OERs are presumed to be correct, accurate, and just. The Officer submitting the appeal has to prove, by clear and convincing evidence, that a correction or deletion is warranted.

If the Army Special Review Board denies an OER appeal, the Officer in question can submit a subsequent appeal to the Army Board of Corrections for Military Records, using DD Form 149.

As expressed in AR 623-3, an OER appeal needs to be well-written and supported by evidence.  The assistance of a military lawyer is advisable.

This article was written by Attorney Matthew Barry.

Contact Attorney Barry today for a free consultation.