Can I Appeal A Negative Officer Evaluation Report?

The presumption of regularity

Challenging an OER without experienced legal help can be tricky. That’s largely due to a principle that civilian courts and the military justice system follow, called the “presumption of regularity.” In this case, it means that those doing evaluations are presumed to be consistently and lawfully executing their duties. You must overcome that assumption.

You have the burden of proof during an appeal

Being upset that a marginal or satisfactory report isn’t “good enough” is not usually a valid reason to challenge an OER, especially if it contains positive comments. Likewise, it’s unlikely that an appeal would be granted if you claim a supervisor failed to counsel you or if different opinions exist about your performance between multiple members of your rating chain. An experienced lawyer can help you focus on gathering the evidence you need to support an appeal. The proof must be clear and convincing, demonstrating that:

1. The presumption of regularity should not apply in your case
2. Further action is needed to correct inaccuracies, injustice or material errors

The evidence must not just show that there is a “possibility” of an error or violation. Rather, it must be “strong and compelling,” leading to a high probability that mistakes or injustice occurred.

Gathering evidence for an appeal

A knowledgeable civilian military lawyer can help by gathering testimony from third parties who observed your performance during the same timeframe as rating officials. The first step to an appeal can be requesting a commander’s inquiry. But the primary purpose here is correcting obvious errors and injustices before they go on your military record.

You must request a commander’s inquiry at least 60 days after the evaluation is signed by you or the senior rater if you refuse to sign. The commander will not likely force raters to change their review, and they do not reevaluate you. A commander’s inquiry is not required before filing an appeal, but it may be used to support your challenge. Your lawyer will offer guidance on how to proceed.