REBUTTALS TO NEGATIVE EVALUATIONS
No matter which branch of service a member serves in, there is specific regulatory guidance about giving negative evaluations (e.g. EPR, OPR, NCOER, OER, FITREP, EER). Depending on the branch, there are different rules about whether or not pending investigations can be included in the evaluation.
A negative performance evaluation can have a serious and long-lasting adverse impact on your military career. Getting an unexpected negative performance review can be shocking, confusing and deeply frustrating. The good news is that you do have options available to challenge the veracity of the adverse information included within the evaluation. All branches of the service allow members to rebut, in writing, all or part of a negative performance evaluation. That being said, rebutting a negative performance appraisal is a highly complex process. Those seeking to challenge an adverse evaluation should speak to a qualified UCMJ specialist immediately.
Adverse Personnel Actions Can Damage Your Career
For military members, adverse personnel actions can come in many different forms. A few common examples include letters of counseling, letters of reprimand and negative officer or enlisted evaluation reports. The basis for these adverse personnel actions could be anything from command-directed investigation to the results of a some type of non-judicial punishment. Regardless of why the negative evaluation occurred, it might potentially start a chain of events that could spell the premature end of your military career. To prevent this, you need to take immediate action to protect your rights.
The Consequences of a Negative Evaluation
Each branch of the service has its own performance evaluation system. Some examples include the Army’s Evaluation Reporting System, the Navy’s Performance Evaluations Branch and the Air Force’s Officer and Enlisted Evaluation Systems. The primary purpose of each of these evaluation systems is relatively straightforward: Evaluation systems seek to provide an accurate assessment of duty performance so that only the best and most qualified individuals are able to advance into higher positions of trust and importance. As the United States military relies so heavily on internal evaluations, the implications for individual service members are clear: A negative performance evaluation can have a tremendous adverse impact on one’s ability to advance.
Still, it should be noted that a negative evaluation does not give a commanding officer a direct way to deny an individual service member either 1) rank or 2) money. That being said, negative evaluations are an important indicator. Indeed, a negative evaluation may be the first step in a process that the military takes to separate with an individual service member. If you have received a negative evaluation, your career and your retirement benefits could be at risk. Remember, negative evaluations can result in a wide array of different consequences depending on your individual circumstances. Fortunately, when you receive one, you are still early on in the process. As such, there is still time to rectify the issue.
Written Rebuttals and Negative Performance Evaluations
- Know Your Rights
When it comes to performance evaluations, all military service members have critically important process rights. This means that you have the right to rebut and appeal any information contained in an evaluation report that you believe is:
- Substantially misleading; or
- Unjustly included.
More specifically, if you believe that your performance evaluation should be changed, you need to respond in the form of a written rebuttal. This is a time-sensitive issue. If you do not take action to supply your rebuttal quickly, you will soon lose out on your opportunity to respond at all.
- Know the Standard the Proof
When you seek to report a negative performance evaluation, the burden of proof will be entirely on you. To be clear: this is not a small esoteric or technical issue. The burden of proof matters to your case. The military does not have to prove that your evaluation was correct beyond a reasonable doubt. Instead, you will need to prove with “clear and convincing evidence” that your evaluation was inaccurate or unjust. To put it another way, your performance evaluation is presumed to be fair and correct. The only way you can get it changed is to prove otherwise. Due to the fact that the standard of proof is so high, it is especially important that you get an experienced professional by your side early on in the process. Your negative military evaluations attorney will be able to help you obtain the evidence necessary to effectively make your case.
- Know What You Need to Succeed
An effective negative evaluation rebuttal must be a well-constructed written document. Additionally, your rebuttal should address the fundamental reason(s) why your performance evaluation is either inaccurate, unjust or both. Without compelling evidence and a persuasive argument, your rebuttal is unlikely to succeed. While service members have the right to prepare a rebuttal on their own, it is not in their best interest to do so. Effectively rebutting a negative evaluation is a highly complex task that requires assistance from an experienced professional.
Your Case is Unique, It Deserve Personalized Attention
Ultimately, all personnel action cases have their own unique set of facts. If you are seeking to challenge a negative evaluation, you need to work with an attorney fully understands the military’s administrative justice process and who will be able to give your claim the personalized attention that it rightfully deserves. Further, you should work with a UCMJ attorney who has the experience necessary to handle your specific case. Our firm focuses exclusively on military cases and we have handled many adverse performance evaluation claims. We can help you if your case involves:
- Air Force: Officer Performance Reports (OPR) and Enlisted Performance Reports (EPR)
- Army: Officer Evaluation Reports (OER) and Non-commissioned Officer Evaluation Reports (NCOER)
- Navy: Enlisted Evaluations and Fitness Reports (FITREP)
- United States Marines: Performance Evaluation and Fitness Reports
- U.S. Coast Guard: Performance Reviews
Contact Our Office Today
At the Law Office of Jocelyn C. Stewart, our UCMJ specialists have extensive experience handling military administrative matters, including rebuttals of negative evaluations. Let us use our skills and experience to help protect your professional interests. For a review of your case, please call our team today at 253-212-9582. We have offices in Anchorage, AK and Tacoma, WA, and, including in Germany, South Korea and Japan.