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NEWS | Nov. 14, 2018

Steps to consider before appealing an Army evaluation report

By Capt. Orlando Aquino-Segarra Office of Staff Judge Advocate, Vicenza

Every Soldier has heard the impact a negative evaluation report can have on a military career. A negative Noncommissioned Office Evaluation Report or Officer Evaluation Report could be an impediment for promotion and jobs with higher responsibilities. This article outlines factors to consider when deciding whether or not to appeal an adverse evaluation report.

A decision to appeal an evaluation should not be made lightly. Before deciding to appeal an evaluation report, you must first determine whether or not your evaluation is illegal, unjust, or otherwise rendered in violation of applicable regulation (Army Regulation 623-3). Violations include reprisal, bias, prejudice, or inaccurate statements.

There is a presumption of regularity by the rater and senior rater. It is your responsibility to overcome the presumption. A supervisor's failure to counsel or differences of opinions among members of the rating chain about your performance or potential is not a reason to request an appeal. In other words, be your own worst critic.

If you are simply dissatisfied with receiving a good to marginal report (e.g., with nothing but favorable comments) because you believe it should be better, you should be aware that it is difficult to successfully challenge the judgment of your rating officials.

Next, you should focus on gathering evidence to support your appeal. The Soldier has the burden of proof and must provide clear and convincing evidence that (1) the presumption of regularity should not be applied to the subject evaluation report, and (2) action is warranted to correct a material error, inaccuracy, or injustice. Here is where it gets technical.

Clear and convincing evidence is not merely proof of the possibility of administrative error or factual inaccuracy, clear and convincing evidence is strong and compelling evidence--evidence that there is a high probability that a particular fact is true.

The best evidence is obtained from third parties who were in a position to observe your performance from the same perspective as your rating officials. Often, the first step to appeal an evaluation is a Commander's Inquiry. A Commander's Inquiry may provide evidence in support of a potential appeal; however, its primary purpose is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and to correct errors before they become a matter of permanent record.

You have to request a commander's inquiry no later than 60 days after you sign your evaluation or, if you refused to sign, 60 days after the senior rater signs the evaluation. The Commander's Inquiry will be submitted to the Commander in the rating chain one level above the rating officials for the subject evaluation. This Commander will not pressure or force rating officials to change their evaluations and may not evaluate the rated individual. A Commander's Inquiry is not a prerequisite to an evaluation appeal, but may be used in support of an appeal.

The last step is submission of an evaluation report appeal. You should begin preparation of an appeal as soon as possible after receiving an evaluation report with which you have good reason to strongly disagree. Waiting too long may make it difficult to gather supporting documents or other records that might serve as evidence.

Appeals are sent directly to the agency that decides the appeal. All regular Army appeals are sent to: U.S. Army Human Resources Command (AHRC-PDV-EA), Evaluation Appeals, 1600 Spearhead Division Avenue, Department 470, Fort Knox, KY 40122-5407. The rated Soldier must send the original appeal and supporting documentation, along with one duplicate copy of the appeal and supporting documentation.

AR 623-3 provides sample appeal formats and lists the appropriate agency addresses for submitting the appeal. If you feel your evaluation was done in violation of the regulation, or if you just have questions, feel free to contact a Legal Assistance Attorney for further assistance. This article explains only general terms and does not substitute counseling by an attorney.