Navigating the complexities of an Officer Evaluation Report (OER) under Army Regulation 623-3 can feel overwhelming, especially when the report removes you from a trusted position or even relieves you of command.
Here, we explore how officers can effectively rebut a challenging evaluation, drawing on specific subparagraphs of AR 600-20, AR 623-3, and AR 15-6.
1. Understand the Basis of Your Evaluation
The first step in rebutting an OER is understanding why it was classified as “Relief for Cause” or contained derogatory information. The initial scrutiny should focus on whether the report complies with AR 623-3, para. 3-41a, which requires that any derogatory findings be substantiated and processed to completion before being included in an evaluation.
2. Check for Procedural Compliance
Verify that the evaluation process adhered to procedural requirements. According to AR 15-6, para. 2-8c and AR 600-20, para. 2-18a, you should have been notified of any adverse findings and given a chance to respond before any derogatory action was taken. The failure to do so can be a strong point in your rebuttal. Not all legal offices are up to speed that all officers are entitled to these notice and comment procedures, not just field grade officers. If you never had the chance to respond to the underlying investigation findings, your rebuttal comments in the OER must draw attention to this serious deficiency.
3. Assess Due Process Adherence
A crucial aspect of your rebuttal should focus on the due process guaranteed under the applicable Army regulations. As outlined in Army Directive 2023-03 and 10 USC Section 615(a)(3), as amended, officers have the right to receive and respond to derogatory findings. Highlight any discrepancies where due process was not observed, reflecting on the command’s reflection on your responses prior to finalizing the OER. Their knee jerk reactions to relieve you before you could respond to the investigation is worth noting for all reviewing authorities. At best, it can convince your command to give you the due process to which you are entitled. At worst, it is an important factor for all reviewing authorities.
4. Contest the Content of the OER
Dispute any unsubstantiated or incomplete derogatory information contained in your OER. According to AR 623-3, para. 3-20, remarks in an OER must not refer to any unproven derogatory information or incomplete investigations. Any mention that contradicts this regulation is appealable. This can be particularly noteworthy if this action is taking place after a subsequent Board of Inquiry unsubstantiated the same alleged underlying misconduct.
5. Invoke Regulatory Safeguards
Utilize the safeguards provided by military regulations that protect officers from inaccurate evaluations. Refer to AR 623-3, para. 1-8c(1)(a), which demands that evaluations be fair and based on personally observed performance. Challenge any content that does not meet these standards. Personal observations mean that the rater or senior rater observed the behaviors, not that they are relying on what an investigating officer concluded, without your feedback or participation.
6. Request Amendment or Removal of Derogatory Information
If the evaluation contains procedural or factual errors, formally request that derogatory information be removed, or the OER be changed to a “Change of Rater” report. AR 623-3, para. 3-41a supports this change if the original OER was improperly processed. Be specific when asking the rater and senior rater what words need to be removed or amended to remove the improper comments. Consider adding an appendix that shows what remarks and comments should remain and which should be omitted.
7. Reiterate the Importance of Fair Treatment
Emphasize the need for fair treatment throughout your rebuttal. Military careers hinge significantly on OERs, and the process must uphold the highest standards of fairness and accuracy as mandated by Army regulations. The fair treatment that you are due is outlined in at least three different regulations, and at least one of those regulations was amended by the National Defense Authorization Act of 2020 and even by at least one DoD directive. Many legal advisors do not stay abreast of these substantial changes; do not be afraid to mention the specific regulatory changes to ensure that your evaluation is a fair appraisal of your performance and potential.
8. Seek Legal Counsel
The complexity of military law and the nuanced application of these regulations mean it is often prudent to engage with experienced legal counsel. They can offer a comprehensive review of your case, ensure that all procedural and substantive rights are preserved, and assist in drafting a persuasive rebuttal. Our process is to solicit feedback about what are any potential errors with the THRU date and what comments the client feels are unsupported by actual and actionable feedback. We separately generate what we feel is the most persuasive comments to the evaluation. There is a fine line between pointing out the errors in a way that will preserve the issue if later there is a need to appeal and one that may work to persuade the Rater and Senior Rater to make different comments. You need to be firm in your tone, but you do not want to alienate your audience.
Conclusion
Rebutting an unfavorable Officer Evaluation Report under Army Regulation 623-3 requires a meticulous approach that combines a deep understanding of the relevant regulations with a strategic examination of the procedures and content of the negative evaluation. Officers facing such challenges must proactively defend their performance and career, ensuring every step from notification to final evaluation adheres strictly to the prescribed military standards.
Help is Available
If you are dealing with an unfavorable OER, consider contacting an experienced attorney who specializes in military law. Ensuring your rights are protected and that the evaluation process is fair and just can make a significant difference in the outcome. Don’t navigate this complex situation alone; professional guidance is crucial. Private, Independent Civilian Help is just a few clicks or a call away.
