Navigating the process to challenge a Referred Officer Evaluation Report (OER) is a complex task that requires a clear understanding of the Army regulations and a methodical approach.
Based on the guidelines set forth in Army Regulation 623-3 and Army Regulation 600-20, here are ten steps service members can take to contest a referred OER and to write effective rebuttals to negative evaluations. Our aim is ensuring your rights are protected throughout the process.
1. Initiate a Formal Request
Start by formally requesting the removal of any derogatory information from your OER or its amendment to a Change of Rater evaluation. This request can be made due to the procedural oversights and failure to adhere to the due process as mandated by the applicable Army Regulations.
2. Highlight Procedural Violations
Point out any procedural violations that occurred during your evaluation process. For example, if the person who directed that you be relieved did not have the required approval from the first general officer in your chain of command, as per AR 600-20, this could be a valid ground for contesting the OER.
3. Emphasize the Lack of Counseling
If you were not counseled before being relieved, as is customary, though not expressly required, highlight this oversight. Counseling often precedes such actions unless deemed inappropriate, as stated in AR 600-20.
4. Question the Basis of Relief
Challenge the relief’s basis, especially if it stemmed from a report or observations not directly related to your performance. The evaluation must be based on the personal opinions of the rater and senior rater, and while they can rely on reports from others, the evaluation still must represent their own individual beliefs. If the underlying investigation under AR 15-6 was deficient, you’ll need to also consider addressing the steps that were overlooked.
5. Address Ongoing Processes
Highlight any AR 15-6 investigation procedures, including referral and comment, that were not completed before your relief. This is probably the most significant issue that undermines any relief. When an Officer is in command and their higher echelon contemplates relieving that commander, procedural and substantive due process requires that the commander receive a formal notice of intent to relieve and the opportunity to respond in writing BEFORE any relief can be accomplished. This is the most common deficiency that we see in relief for cause OERs for prior commanders. It is also your best argument for overturning the relief. There is a nuanced way to argue this and preserve the issue without necessarily causing the higher command to fix the problem and undermine your arguments.
6. Request OER Amendments
Be specific. Outline the precise proposed modifications to your OER in line with regulatory mandates. Advocate for removal of derogatory information. Specify which sections in the OER contain language that is not permitted by regulation and what language needs to be deleted. Argue for excluding any findings from investigations that should not be deemed final if you were not given the separate referral and comment procedures for the underlying alleged findings. Nothing should result in an adverse action until those procedures are followed. Request that the OER be amended from a relief for cause to a change of rater if appropriate, or other customary, non-referral evaluation.
7. Insist on Due Process
Argue that the actions taken against you should be considered a temporary suspension because the full referral and comment procedures were not followed. The regulation actually outlines that when those procedures are not followed, any intended or desired relief is to be considered a temporary suspension. Point this out and then insist that the command follow the required procedures. Demand adherence to procedural requirements, all of which impact the nature of your OER.
8. Advocate for a Change of Rater OER
If you have already PCS’d, request that your OER be changed to a Change of Rater OER when all of the other errors compile into reasons to vitiate the evaluation.
9. Propose Holding the OER in Abeyance
If the command is not inclined to amend the OER, ask that in the alternative that they hold it or any versions of it in abeyance until the processes outlined in AR 600-20 and AR 15-6 are fully followed, ensuring all administrative due process steps are met. This makes you appear more reasonable and will also be seen favorably by higher levels of review, that you have tried to exhaust all possible remedies. Every step counts because chances are the referred evaluation is probably a steppingstone to a show cause board. All steps count in case you also need to apply for a correction of military records.
10. Engage with Rating Officials for Reconsideration
As part of your challenge to the evaluation and if the command is unwilling to outright change the evaluation and to grant the requested amendments, ask for your comments to be referred to the rater by the senior rater, as per AR 623-3. This allows for the possibility of your evaluation being reconsidered in light of new facts that could impact your performance assessment.
Conclusion and Call to Action
Challenging a Referred OER under Army Regulation 623-3 and Army Regulation 600-20 requires diligent attention to procedural details and a thorough understanding of your rights and the regulations. Every time we work on one, we go through the entire evaluation with both regulations as a checklist for all possible errors. Taking these steps to contest an OER ensures that you are advocating for a fair and just evaluation for this time during your service.
The complexity of navigating military regulations and ensuring all of your possible avenues for redress and eventual appeals are heard can be daunting. Our firm specializes in military law and has extensive experience in assisting service members through the OER comment and appeal processes. Protecting your rights and career is our top priority. If you’re facing challenges with a Referred OER, schedule a consultation with us to ensure you have the professional guidance and support needed to navigate this process effectively.
