Checklist for Rebutting a Relief for Cause Army Officer Evaluation Report

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When faced with a “Relief for Cause” Officer Evaluation Report (OER), officers have specific procedural rights under Army Regulations (AR).

This blog post outlines a checklist to ensure these rights are upheld, referencing AR 600-20, AR 623-3, and AR 15-6. This guide will help officers prepare an effective rebuttal with a mild skepticism of the fairness of the process, yet in a professional tone.

1. Were Required Processed Followed Before the OER?
Annotate whether the processes were followed before you received this derogatory evaluation. Highlight the deficiencies to reframe the issue for the Rater and Senior Rater. For example, identify that the derogatory findings that contributed to the Relief for Cause OER were never referred to the officer in question, as mandated by Army Directive 2023-03 (Army Adverse Information Program) which amends AR 15-6 paragraphs 2-8c and 5-4. Ensure that the Rater and Senior Rater are aware that these amendments extend the procedural protections to all officers, not just Field Grade Officers, and are designed to ensure that those potentially subject to adverse actions are afforded a fair opportunity to respond to derogatory findings. This procedural safeguard is reinforced by 10 USC Section 615(a)(3), as amended by Section 502 of the FY 2020 NDAA, which underscores the right of officers to receive and address derogatory findings before any adverse decisions are made. Try to persuade the Rater and Senior Rater that failure to allow you as the rated officer to respond to the findings before finalizing the OER indicates a significant oversight, undermining the due process intended by military regulations and potentially affecting the officer’s career progression unjustly. Verify that all procedural requirements were met, particularly those involving your notification and right to respond to derogatory findings, as mandated by Army Directive 2023-03 amending AR 15-6, paras. 2-8c and 5-4. This ensures you were given the opportunity to defend against findings before they were finalized in the OER.

2. If a Relief of Command, Were the Required Processes Followed Before the OER?
Realize that a referred evaluation or even being relieved from a position other than one from command has separate and distinct differences between the process when a commander is relieved from command. Too often the precursor steps are not followed. If this applies to you because your evaluation is intended to formalize your relief of command, make sure you also address whether the higher command followed those additional steps of redress and comment. Specifically, AR 623-3 stipulates that a commander must receive a formal notice of intent to relieve, which details the reasons behind the potential relief and the evidence supporting these claims. This notice serves as a preliminary step before any final action is taken to actually relieve the person of command, granting the commander an opportunity to respond to the allegations. It is noteworthy that even the regulation provides for a stopgap when the proper relief steps were not taken. Specifically, it means that the intended relief serves only as a temporary suspension by operation of law. Make sure you point this out to the Rater and Senior Rater.

3. Did the Proper Authority Undertake the Relief?
AR 600-20, para. 2-18a requires that “final action to relieve an officer from any command position will not be taken until after written approval is obtained from the first GO (to include one frocked to the grade of BG) in the chain of command of the officer being relieved.” Make sure that as you are reviewing who took the action to relieve you that it was a person with proper authority.

4. Initial Request
After you highlight any deficiencies in process before the evaluation and even in who took the action to relieve you, formally request that the Rater and Senior Rater rem ove of all derogatory information from your OER. Cite AR 623-3, para. 3-41a, which allows for the reclassification of the OER to a “Change of Rater” rather than “Relief for Cause” under certain circumstances. If the Rater and Senior Rater do not feel inclined for reclassification or removal of derogatory information, request that the evaluation be held in abeyance until all due processes as per AR 600-20 and AR 15-6 are properly followed.

5. Evaluation Content Review
Scrutinize the content of the OER for any unsubstantiated or uncompleted derogatory information. According to AR 623-3, para. 3-20, remarks in an OER must exclude unproven derogatory information or findings from incomplete investigations. This can be particularly persuasive if a subsequent board of inquiry determined that the misconduct was not supported by the greater weight of evidence.

6. Substantive Rights Violations
Identify and contest any substantive violations within the OER content. This includes unallowed remarks or those not based on observed performance as per AR 623-3, para. 1-8c(1)(a). Statements that do not directly relate to your performance or potential must be challenged.

7. Review of Board of Inquiry Findings
If a Board of Inquiry (BOI) exonerated you from misconduct, this should be reflected in your OER. Any findings to the contrary should be contested, referencing the procedural safeguards in AR 15-6, which require completion of the investigative process before such findings can be included in an evaluation.

8. Amendments Request
Request specific amendments to the OER, ensuring they align with the factual and procedural correctness as outlined in AR 623-3. Emphasize the need for the OER to reflect only substantiated and completed reviews of conduct or performance. This includes a requirement that the rating be based off personal observations of the Rater and Senior Rater. Challenge any inappropriate comments from the Senior Rater, especially those not reflective of your actual performance or potential as described in AR 623-3, paras. 3-18b and 3-9a(2). Ensure that these comments are factual, substantiated, and within the bounds of observed behavior.

9. Legal and Regulatory References
Throughout your rebuttal, extensively cite the relevant paragraphs from AR 600-20, AR 623-3, and AR 15-6. This not only strengthens your position legally but also ensures that the evaluators are reminded of the regulatory framework governing the OER process. It is far easier to turn away from requests for redress when they do not cite to the specific authority for your position. This should make the Rater and Senior Rater take note, and hopefully they will take appropriate corrective action. Remember that it cannot hurt to ask for alternative evaluation. The regulation mandates that they cannot make the rating worse merely because you are requesting redress. In AR 623-3, the protection against making an evaluation report more negative after the rated officer has submitted comments is specifically detailed in subparagraph 3-36. According to paragraph 3-36 of AR 623-3, once a rated officer has submitted comments on a referred OER, neither the rater nor the senior rater can amend the evaluation to make it more negative based on the content of those comments. The intent is to ensure that officers feel free to openly dispute or rebut aspects of their evaluations without fear of reprisal or worsening their reports due to their responses.

10. Reevaluation and Final Submission
Lastly, if your comments result in changes made to your OER following your rebuttal, you have an additional right to respond and provide comments to the most recent version of your evaluation. You will need to comb through the changes and the applicable regulations for compliance with AR 623-3. Your final submission should request acknowledgment of this reevaluation and an opportunity for you to provide any new comments, as per AR 623-3, para. 3-29c(4).

Conclusion
Navigating the rebuttal of a “Relief for Cause” OER is a process that requires a thorough understanding of military regulations and a strategic approach to contesting findings. By following this checklist, officers have a good starting point to ensure that they are adequately prepared to defend their performance and rights effectively.

Officers should approach this process with a balanced view: while skeptical of the fairness, they should also remain professional and informed, ensuring all arguments are grounded in regulation and fact.

Our firm has attorneys who are well versed in the ins and outs of Referred Officer Evaluation Reports. We are standing by to assist. A relief for cause OER does not have to signal the end of your career. There is plenty more fight to be had. Civilian counsel with a proven record of service, independence, and competency can be a game changer.

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