IN THE CASE OF: BOARD DATE: 17 December 2014 DOCKET NUMBER: AR20140001278 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests the removal of a Relief for Cause Officer Evaluation Report (OER), for the period 14 September 2009 through 18 February 2010, from his Official Military Personnel File (OMPF). 2. The applicant states he believes the report to be unjust, given the established irregularities in the report based on the guidelines put forth in Army Regulation 623-3 (Evaluation Reporting System) as well as the arbitrary and capricious decisions made by his senior rater. 3. The applicant provides: * Article 138 "Complaint of Wrong" * Tabs A through E as listed in the Exhibits * Chronology of Events * Appeal to his OER * Tabs 1 through 22 as listed in his Exhibits CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. On 18 December 2009, the applicant, while serving in the rank/grade of colonel (COL)/O-6 in the U.S. Army Reserve (USAR), was notified he was temporarily suspended from his duties as commander. a. At the time, he was serving as a brigade commander of a training brigade responsible for training management and observer controller/trainer support for pre-mobilization training for Civil Affairs and Psychological Operations derivative units deploying for overseas contingency operations. b. He was responsible for managing Training Readiness and Operations oversight for the Mobilization Civil Affairs Qualification Course for officers and the Mobilization Psychological Operations Course for officers and transitioning these responsibilities back to the proponent. He was also responsible for supporting the United States Army Civil Affairs and Psychological Operations Command (USACAPOC) Groups with pre-mobilization training support teams at Regional Training Centers, and support for First Army with post-mobilization support teams at Continental United States mobilizations at Fort Bragg and Fort Dix. c. He was told by his senior rater, the Commanding General (CG), that he was being considered for relief because the CG had lost all confidence in his ability to command. The CG stated that before making a final decision, he intended to conduct an informal investigation under Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) concerning his conduct as commander of the 1st Training Brigade. He was told that the investigation conclusions would be referred to him for comment. 3. On 11 January 2010, a Commander's Inquiry (CI) was conducted to obtain the facts and circumstances surrounding the allegation that he failed to comply with a directive from his higher headquarters to provide a 13-person detail to support training by the Special Warfare Center and School (SWCS). The investigating officer (IO) found that through a preponderance of the evidence the allegation was true. The IO found a command climate in which poor management of all available resources, failed personnel administrative policies and unsupportable demands for authority were used as tactics to justify the need for additional personnel or non-compliance. He stated that the command climate drove a focus upon mobilization and mobilized personnel strength issues, rather than a realistic analysis of mission requirements, personnel availability, and complying with normal administrative oversight requirements expected of a commander. He stated: a. The lack of mobilization authority under Title 10, Section 12302 and the lack of a derivative unit identification code (UIC) were used to emphasize real or perceived personnel challenges as justification to not support the SWCS mission. b. The minimal level of preparation for a command inspection and the failure in all inspected areas demonstrated a serious lack of command emphasis and regard for compliance by the 1st Training Brigade Commander. c. On multiple occasions, he was informed of the CG's intent to support the SWCS. Specifically, he was present for the Town Hall briefing on 9 November 2009, received personal guidance from the CG at the 8 December 2009 meeting, and was telephonically notified of the CG's intent on 16 December 2009. d. It was not until after the telephone conversation with the Aide-de-Camp and well beyond the suspense date of 10 December 2009 that the 1st Training Brigade generated the required list of 13 personnel to support the SWCS. The list was submitted to USACAPOC G-3 on 17 December 2009 but after he had been suspended from his command. e. He made statements to the Deputy CG (DCG), members of the USACAPOC staff, and a member of the 1st Training Brigade indicating he would not or could not support the official task to support the SWCS. f. He told another individual on 15 December 2009 that he was not providing names and he told other individuals not to coordinate or be in contact with the SWCS. g. During the 16 December 2009 USACAPOC Command and Staff meeting, he stated he would not support the task. He provided email to the CG, Chief of Staff and G-3, stating he would have to reclama the task for the 13 personnel. He stated he could do the mission, but the mission would have to be accomplished on his terms as outlined in his emails. The same information was reiterated in a memorandum for the DCG on 15 December 2009. h. By 16 December 2009, he had been given ample guidance concerning the requirement to fulfill the request for 13 personnel. The reasonable and prudent commander would have complied with the request but he continued to try and negotiate the terms of the task. i. The personnel situation for mobilized Soldiers in December was exacerbated by his failure to manage the accrued leave and to develop leave plans for his mobilized Soldiers. As a result, nearly half of his Soldiers had accrued more than 30 days leave, with all of them waiting until the end of their tour to take leave. The failure to effectively manage leave schedules created another excuse for the 1st Training Brigade to appear non-mission capable. 4. The IO found that although there was sufficient evidence to show that he failed to comply with the CG's directive, he did not believe there was malice intended which might constitute disrespect to a superior officer. The IO stated that the evidence could support a decision to consider a Relief for Cause action for ineffective leadership; however, he believed that the following course of action would achieve the same end result without destroying his career or removing an opportunity to recover from the incident: a. The applicant remain suspended and ordered onto terminal leave for the duration of his mobilization command tour, which terminated 6 February 2010. Upon demobilization, he should revert to Troop Program Unit (TPU) status. He should be given 89 days to find a new assignment within USACAPOC, but outside of the USACAPOC headquarters staff, or to retire or transfer to the Individual Ready Reserve (IRR). b. The position of Commander, 1st Brigade be coded for fill by an Active Guard Reserve (AGR) officer in the grade of O-6 and boarded. c. The Deputy Commander officially assume command of the 1st Training Brigade effective on a date to be determined, pending the approval of the findings of the investigation and remain in command until an AGR colonel is identified for the position. d. The USACAPOC establish a command policy that requires each Commander to develop and maintain leave schedules for each mobilized Soldier to ensure mission readiness and mental and physical health of the Soldier. 5. The IO concluded that approval and implementation of the recommendation of the investigation was essential to: a. Maintain good order and discipline in the 1st Training Brigade. b. Bring the 1st Training Brigade into regulatory compliance in key areas. c. Ensure that the CG's intent is met with regard to supporting the SWCS. 6. On 26 January 2010, the CI and the Command Inspection was referred to the applicant for his comments pertaining to his proposed relief. He was told by the CG that the basis for the proposed relief was his failure to comply with the tasker from headquarters to provide up to 13 instructors to support SWCS training and the results of the Command Inspection conducted in November 2009. He was told he had 10 days to respond before final action would be taken. 7. He responded to the notification of proposed relief on 5 February 2010. a. He waived his rights to defense counsel and spoke freely with the IO, presenting his position in a statement that included any and all mitigating circumstances. b. It was evident that his actions were perceived as disobedient and if his actions were the catalyst for the perception, he extended his regrets and apology. He accepts full responsibility for actions carried out under his command. c. The finding that the superior weighed the factors and accepted the risk to the mission appears to be incorrect. There did not appear to be evidence in the investigation to validate this finding. Did someone's statement say that the superior considered the information he provided on 16 December 2009 before the decision was made? In other words, prior to the 9 December 2009 issuance of the tasker, did the CG acknowledge to the staff that he was aware of his (the applicant's) concerns that the tasker was potentially infeasible and his reasoning behind it? d. If the CG was not aware until his response to the tasker on 10 December 2009, then it appears that the IO's conclusion is possibly invalid. By his request to the Aide-de-Camp on or about 15 December 2009 to print and submit his email to the CG, it would appear that he reasonably did not think the CG was aware of his concerns. In regard to directing others not to coordinate with the SWCS, they are individual subordinates of a subordinate commander. It would not have been their customary responsibility to conduct direct coordination on behalf of the brigade. Field Manual (FM) 6.0 (Mission Command), page D-15 ascribes that responsibility to unit operations officers. One individual's statement indicates that he was not directed not to cooperate with the SWCS. e. Soldier's cannot be compelled to take leave. A Soldier can be given the opportunity, but not compelled or ordered. A Soldier can also be denied leave. It is the mobilized Soldier's right to take terminal leave. He was unaware of any USACAPOC, U.S. Army Reserve Command (USARC) or Department of the Army (DA) policy that says no terminal leave is permitted. In fact, DA policy established in the Personnel Policy Guidance states that a Soldier must be out-processed in time to take his accrued leave. f. Army Regulation 1-201 (Army Inspection Policy), chapter 3, states that the Initial Command Inspection (ICI) ensures that a new commander understands the unit's strengths and weaknesses in relation to higher headquarters' goals and all established standards. The ICI will appear on the training schedule and will serve to evaluate the condition of the unit. However, the ICI will not evaluate the commander's performance since assuming command. Only the inspected commander and that commander's rater will receive the specific results of the initial inspection. These results will serve as the basis for a goal-setting session between the incoming commander and his or her rater that will establish realistic goals to improve the unit readiness. The incoming commander should receive a clear picture of the goals, standards, and priorities for the unit. These inspection results help set goals and may cause refinement in the DA Form 67-9-1 (Officer Evaluation Report Support Form). Commanders will not use the results of ICIs to compare units. g. In this case, a results comparison would show that in virtually every one of the inspected areas all brigades with USACAPOC have full-time civilians performing these functions, whereas the 1st Training Brigade does not, which would be an appropriate gap to identify in the manpower review prescribed in the brigade's activation memorandum dated 12 January 2008. h. The applicant requested the CG accept the IO's recommendation not to relieve him, but to allow him to transition to TPU status and, subsequently, to a new assignment. Upon his suspension, he was directed to report to the G-3, where he performed all tasks asked of him and he took the liberty of seeking a new assignment in one of the subordinate Civil Affairs Commands in the hopes that such a request would be received favorably. Suspension is a temporary measure and he requested the suspension be lifted. 8. On 18 February 2010, he was formally relieved of his command and his responsibilities. The CG based his actions on the misconduct set forth in the CI. He was told his misconduct and poor judgment were the causes of loss of confidence in his ability to accomplish his assigned duties and effectively execute the responsibilities of his command. He was told the poor judgment he demonstrated in failing to comply with the tasker could not be readily corrected. The CG found that formal counseling and an opportunity to correct the deficiencies were neither practical nor appropriate under the circumstances. The CG stated that he considered the applicant's response dated 5 February 2010 and he concurred with his point that he should not consider the results of the brigade's ICI. Therefore, he was not considering the ICI in making his decision. The CG stated a Relief for Cause OER was required under the provisions of Army Regulation 623-3, paragraph 3-58 and DA Pamphlet 623-3 (Evaluation Reporting System), paragraph 2-13. He was told to submit a completed OER Support Form no later than 10 days from the date of his notification. 9. The applicant received a Relief for Cause OER for the period 14 September 2009 through 18 February 2010. In Part IV – Performance Evaluation – Professionalism (Rater) the rater checked "NO" in block b.3.2 (Decision-Making). Block b (Leader Attributes/Skills/Actions) states "First, mark "Yes" or "No" for each block. Second, choose a total of six that best describe the rated officer. Select one from Attributes, two from Skills (Competence), and three from Actions (Leadership). Place an "X" in the appropriate number box with optional comments in Part Vb. Comments are mandatory in Part Vb for all "No" entries." 10. In Part V – Performance and Potential Evaluation (Rater) the rater marked the block "Unsatisfactory Performance, Do Not Promote" in block Va. In block Vb (Comment on Specific Aspects of the Performance, Refer to Part II, DA Form 67-9 and Part IVa, b, and Part Vb, DA Form 67-9-1) the rater stated the applicant "was relieved of command because the Commanding General lost confidence in his ability to command." In block Vc (Comment on Potential for Promotion) the rater entered "Recommend to not promote." 11. In Part VII – Senior Rater, his senior rater marked the "Do Not Promote" block in VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade). In block VIIb he was rated "Below Center of Mass Retain." In block VIIc, his senior rater stated "Unfortunately, Colonel G_____ lacked satisfactory mission focus. He clearly failed to follow my specific guidance regarding a particularly important mission, caused me to lose confidence in his ability to command his brigade. As such, I subsequently relieved him of his duties. Colonel G_____ is an experienced and capable officer who can still contribute to the Army; however, he should not be promoted beyond his current rank nor given command assignments." 12. On 10 August 2010, he submitted a request for redress for the relief action taken against him. He stated the finding of the CI clearly state that his actions were not a case of disobeying an order. The investigation recommended a course of action short of relief and the investigation was not supported by the evidence. A thorough legal review reveals its deficiencies and that he did not comprehend the CG's intent given his written guidance regarding pre and post mobilization training at Fort Dix. Statements reveal that he complied once the intent was known and that a Relief for Cause OER or a referred OER must have substantiated and adverse counseling established to support said action. He was never counseled either verbally or in writing regarding the issue prior to his suspension and subsequent relief. Redress could be satisfied by publishing a memorandum for record reversing his decision to relieve him and stating that an eligible rater was not available between 16 September 2010 and 6 February 2010, commensurate with his subsequent relief from active duty and separation orders. 13. On 27 August 2010, the CG responded to the applicant’s request for redress stating that it did not state the specific relief he was requesting. The applicant was told to submit clarification in writing no later than 30 September 2010 of the exact steps he was requesting to be taken. The CG told the applicant that he did in fact have a valid rater during the time period in question and that if he believed otherwise he should identify the regulatory authority that would allow him to state that an eligible rater was not available. The CG noted that it was inappropriate to make a request for redress under Article 138 of the Uniform Code of Military Justice regarding OER appeals. 14. On 28 September 2010, he submitted a clarification of his request for redress. He requested that the CG reverse his initial decision to relieve him from his command. He cited miscommunication, misperception, misinterpretation, misunderstanding, inconsistencies, and failure to be counseled as the basis for his request. He stated that the CG was assigning the rater responsibilities to Brigadier General K____ and this action was confirmed by his staff with personnel in the G-1 in late October 2009. Brigadier General K____ was serving as his rater from 6 November 2009 following her arrival until his suspension on 18 December 2009 (32 days). In his request he stated he departed on terminal leave on 7 January 2010 and was released from active duty on 6 February 2010. No rating official executed rater responsibilities from 16 September 2009 through 6 February 2010. He stated that if the CG was to serve as his rater or senior rater a published rating chain would have needed to be completed and distributed prior to 17 December 2009. No change to his rating chain can occur retroactively. He again request that the CG reverse his decision to relieve him based on the substantive factors he presented in his request. The applicant stated that this action would render rater requirements invalid. He requested that a Memorandum for Record citing the lapse of rater based upon his assignment, reassignment, and subsequent release from active duty which would allow the period between 16 September 2009 and 6 February 2010 to be reflected as unrated time in lieu of a Relief for Cause OER. 15. On 22 November 2010, the CG denied his request for redress and reversal of his decision. 16. On 30 November 2010, he submitted comments to his OER stating that nether his rater or the CG cited the results of the informal CI, which found that his actions were not a case of disobeying an order and recommended a course of action short of Relief for Cause. a. He stated that there are matters of oversight in the investigation that should convince an objective reviewer to reverse the relief action. He stated that four commissioned officers, one of whom was his rater, and a general officer indicated that he complied with the CG's guidance once he understood it was indeed the CG's guidance and not a misdirected staff issuance. b. He stated that Brigadier General K_____, as the first general officer in his chain of command, failed to approve his relief in writing as required by the Army regulation. His relief was arbitrary and not predicated on any factual or objective assessment of the situation. The investigation revealed that he responded to a staff issuance within 24 hours and that he questioned the staff directive which was inconsistent with the CG's standing written guidance. The staff issuance directed the brigade to reallocate resources mobilized in support of overseas contingency operation to missions in support of institutional training affiliated with branch growth, which was not part of overseas contingency operations. He believed this was contrary to both the CG's guidance and DA guidance. The CG deliberately did not communicate with him about the matter when he questioned this misappropriation, and the CG stated that he thought he (the applicant) would say something to get himself into trouble. The statement made in the OER that he did not conform to his (the CG's) specific guidance is inaccurate because the CG expressly declined to give him any guidance and he was not counseled. Brigadier General K____ questioned his decision making ability in section IV.b of the OER yet did not specifically cite in block V.b the poor decision he made in accordance with the Army regulation. No specific guidance was issued to him regarding the tasker in question or otherwise. The OER was required to be referred and had not been referred in accordance with the Army regulation. 17. On 6 April 2011, the USARC CG notified him that a Supplementary OER Review had been completed and as a result he submitted the following comments: a. The rater box checked a "NO" in Part IVb.b.3.2 of the Relief for Cause OER, but he did not enter a comment about "Decision-Making in Part Vb. b. Notwithstanding, the Relief for Cause OER should remain as the relief action was based on the senior rater's comments regarding losing confidence in his ability to command his brigade. c. Brigadier General K____, the rater, was reassigned to the USAR Control Group (Inactive List) on 1 May 2010 and correcting the OER at that time would not change the end result. 18. He provides a redacted U.S. Army Inspector General Agency Report of Investigation, dated 22 February 2012, which shows the CG, his former senior rater, relinquished command of the USACAPOC on 24 October 2011, due to a substantiated allegation and conclusion that he failed to foster a healthy command climate. 19. Army Regulation 623-3 establishes the policies and procedures for preparing, processing, and using the evaluation reports. The regulation states that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 20. Army Regulation 600-37 (Unfavorable Information) sets forth policy and procedures to authorize placement of unfavorable information about Army members in individual official personnel files, and ensure that the best interest of both the Army and the Soldier are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. It states that once an official document has been properly filed in the Official Military Personnel File, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. DISCUSSION AND CONCLUSIONS: 1. The applicant's contentions have been noted and his supporting evidence has been considered. 2. The available evidence shows that the applicant failed to comply with the CG's directive. Although he did not believe there was malice intended which might constitute disrespect to a superior officer, the IO stated that the evidence could support a decision to consider a Relief for Cause action for ineffective leadership. 3. The question in this case is whether or not the comments made by the applicant's rater and senior rater properly reflect his performance during the rating period. While they are considered derogatory, he has not shown that the comments contained therein are inaccurate, unfair, or untrue. 4. The comments made in the referred OER by his rater and senior rater clearly provide their observations of the applicant's performance, discipline, and judgment during the rating period. Contrary to what the applicant contends, the comments made are not prohibited and the OER appears to have been processed in accordance with applicable laws and regulations. 5. According to the applicable regulation, an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rests with the applicant. To justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error. 6. It is clear that the applicant disagrees with the comments made by his rater and senior rater on his referred OER. However, his disagreement is not a basis for granting his request to remove the OER from his record. Contrary to the IO's recommendation, the CG was within his rights to relieve the applicant for cause and to file the OER in his record. The basis for the CG's decision is supported by a preponderance of the evidence, is not in violation of any rules or directives, and is not arbitrary or capricious. 7. Although the applicant believes that the CG's 24 October 2011 relinquishment of his command is a basis for removing the OER from his record, it is not. The applicant was relieved of his command on 18 February 2010 and the basis for the CG's subsequent relinquishment does not appear at all to be related to any action involving the applicant. 8. The applicant has failed to show substantial error or injustice in the actions taken by the Army in his case. In view of the foregoing, his request should be denied. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ___________x____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20140001278 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140001278 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1