IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000062 


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:

	a.  removal of an Officer Evaluation Report (OER) for the rating period 20080429 through 20090328 (hereafter referred to as the contested OER) from his Official Military Personnel File (OMPF);

	b.  to upgrade the Army Commendation Medal (ARCOM) he received for his deployment to Iraq to the Bronze Star Medal (BSM);

	c.  to upgrade the Meritorious Service Medal (MSM) he received for his retirement to the Legion of Merit (LOM).  

2.  He states he was recommended for the LOM as a retirement award; however, it was downgraded to the MSM.  He also states he was recommended for the BSM for his service in Iraq; however, it was downgraded to an ARCOM.
  
3.  He contends the contested OER contains both substantive and administrative errors and was written in retaliation for requesting a Commander’s Inquiry (CI) and initiating an Inspector General (IG) complaint as evidenced by the vindictiveness of the written comments.

4.  He also states that the comment, “was of little to no value added to the Logistics Civil Augmentation Program (LOGCAP) mission in Iraq,” is the particular comment he is referring to.  His actual accomplishments are in complete contradiction with that statement and can be supported with completed projects and statements of support. 

5.  In a self-authored document, which he states that during his entire Active/Reserve duty, he lived up to the Army Values and performed in an exemplary manner.  He served in command positions at various levels, including a joint tour as Chief of Staff of a Standing Joint Force Headquarters, core element.  

6.  He also states the contested OER does not represent the performance of a colonel (COL) with over 31 years of dedicated service.  He discussed the administrative errors on his evaluation report with Mr. D____ M_____, Army Sustainment Command (ASC) G-1, who informed him the changes he identified would not be made.  He signed the report and then submitted an appeal, which did not yield the desired result.  He concludes the contested report contains the following administrative errors:

	a.  Part Ih (Reason for Submission) – As reads 04 REFRAD, should read either 02 ANNUAL, 04 CHANGE OF DUTY or 05 RELIEF FOR CAUSE:

		(1)  His original REFRAD date was 3 July 2009; and

		(2)  He was relieved of his duties as Deputy Program Director on 
19 March 2009, which was three months prior to his scheduled REFRAD.

	b.  Part Ii (Period Covered):

		(1)  As reads 20080429 thru 20090328;

		(2)  Should read 20080429 through 20090319; and

		(3)  On 19 March 2009, he was officially relieved of his duties.

	c.  Part Ij (Rated Months):

		(1)  As reads 11; should read 5; and

		(2)  He was not under the supervision of the rater or senior rater until 
1 October 2008, at which time he assumed the duties of Deputy Program Director, LOGCAP.


	d.  Part IIc (Senior Rater):

		(1)  As reads R______ M. R_______, Major General (MG); should read J_____ P. P______, Senior Executive Service (SES); and

		(2)  MG R_____ was not in his rating chain per official orders and he should not have been designated as his senior rater.

	e.  Part IIIc (Significant Duties and Responsibilities):

		(1)  Dates entered on the contested OER do not match the dates on the DA Form 67-9-1;

		(2)  His objectives and accomplishments were based on the duties and responsibilities annotated on his support form; and

		(3)  The first time he was presented with his duties and responsibilities was when he was presented with the completed contested OER. 

7.  His self-authored document also outlines what he alleges to be substantive errors:

	a.  No counseling statements to support the negative write up:

		(1)  Senior leaders visited his operation in Iraq on several occasions; none expressed any concern with his performance;

		(2)  He was relieved from his position as Deputy Program Director without any indication that his performance was not meeting the standards;

		(3)  He was never told the reason why he was being relieved or given an opportunity to rebut;

		(4)  If an investigation took place, he was not informed of it or shown any results;

		(5)  In a memorandum from MG R_____, dated 15 August 2009, it was stated in paragraph 4 that the applicant’s argument that he was recommended for an award in January had no bearing on MG R_____’s obligation to rate him accurately at the end of the rating period;

		(6)  He states that it was MG R______’s assertion that in a little over a month, his performance went from performing at the Bronze Star Medal (BSM) performer to a Do Not Promote performer; and

		(7)  As of 18 February 2009, no issues were brought to his attention that concerned his duty performance.

	b.  The ratings and remarks are not supported by the evidence:

		(1)  Part IVb (Leader Attributes/Skills/Actions):

		(a)  His rater describes him as lacking in the areas of mental attributes and conceptual and interpersonal skills.  There is no documentation to support these claims;

		(b)  He has received numerous emails and letters of support from superiors whom he worked with in the past; co-workers who have personal knowledge of his performance; and subordinates who actually served with him in theater and personally observed his daily performance;

		(c)  Mr. T____ came to theater and observed him for a total of 12 days; and

		(d)  MG R______ never came to theater when he was there.

		(2)  Part Va/b (Unsatisfactory Performance - Do not promote):

		(a)  The rater made reference to third-party assertions or complaints without any supporting documentation;

		(b)  There was no evidence of complaints from general officers (GO); and

		(c)  Both the rater and senior rater lacked the professionalism to sit down with him to discuss the contested OER and explain the reasons behind their ratings and comments.

	c.  Non-specific, ambiguous and contradictory statements such as:

		(1)  Various concerns about his overall performance and lack of leadership as the LOGCAP lead were expressed by GOs;

		(2)  Specifically, he was not representing LOGCAP or the U.S. Army Materiel Command (AMC) very well and was of little or no value added to the LOGCAP mission in Iraq;

		(3)  He was seen as having a defeatist attitude and lacking enthusiasm to lead or inspire those around him; and

		(4)  He was also labeled as an ineffective and inefficient leader who was full of excuses as to why he cannot accomplish tasks.

	d.  Points of Interest:

		(1)  His rating official failed to discuss the complexity of the mission he undertook during his tenure as Deputy Program Director;

		(2)  Unlike his predecessors, he was responsible for a major acquisition change and conducting a responsible drawdown of contractors/contracted services while maintaining current levels of support without any additional resources or personnel replacements;

		(3)  There were no problems or issues with his performance during the first eight months of his tour in Iraq;

		(4)  He was personally selected by Mr. T_____ to be the Deputy Program Director (after only three months in theater) to replace the then current Deputy Program Director who was being relieved of his duties;

		(5)  Upon assuming the position, Mr. T_____ approved of all the objectives on his DA Form 67-9-1.  He accomplished 90 percent of these objectives during his tenure;

		(6)  In January 2009, he was asked if he wanted to extend his Mandatory Retirement Date (MRD) by an additional year, due to the changes he made to the LOGCAP program and his planning efforts on LOGCAP IV;

		(7)  In March 2009, without any counseling statements or indication that his performance had changed, his performance was suddenly not up to par;
 
		(8)  The entire contested OER is based on series of incidents that occurred in March 2009;

		(9)  Despite MG R_____’s reply to his rebuttal, he did accomplish his missions;
		(10)  He provided LOGCAP services to all personnel entitled to these services;

		(11)  He held his personnel and LOGCAP contractors accountable for their actions and ensured the LOGCAP contract was properly and legally executed and managed;

		(12)  When services were not delivered as required, he personally became involved; and 

		(13)  He performed his duties to the best of his ability based on formal training he received from the LOGCAP Support Unit (LSU), his chain of command and the rest of Team LOGCAP.

8.  He provided:

* a seven-page self-authored document
* the contested OER 
* copies of orders
* a DA Form 67-9-1 (OER Support Form)
* a DA Form 638 (Recommendation for Award)
* organizational charts
* personal character statements
* various emails

CONSIDERATION OF EVIDENCE:

1.  His military personnel record contains Orders 08-161-00013, dated 9 June 2008, which show he was ordered to active duty as a member of his USAR unit for the purpose of deploying in support of Operation Iraqi Freedom (OIF).  The report date on the orders was 1 June 2008 and early reporting was not authorized.   

2.  He provided a copy of Headquarters, AMC, Permanent Orders 249-01, dated 5 September 2008.  These orders establish the U.S. Army Contracting Command (ACC) as a Major Subordinate Command assigned under the command authority of the AMC, effective 1 October 2008.  The stated mission of the ACC was to exercise command authority over the U.S. Army Expeditionary Contracting Command and the U.S. Army Installation Command (ICC), and to exercise both command and procurement authority over the AMC Acquisition Centers and the LOGCAP Program Office.  

3.  He provided a series of email transmissions which took place between him and Mr. T_____ from August 2008 through January 2009.  He highlighted certain messages which show he received several compliments from Mr. T______.

4.  The LOGCAP Forward – Iraq organizational chart he provided depicts the program overview and the chain of command in a descending order:

	a.  AMC, Fort Belvoir, VA – General (GEN) D________;

	b.  ACC Forward – Mr. P_______, Executive Director;

     c.  LOGCAP Executive Director – Mr. T_________;

	d.  LOGCAP Deputy Program Directors – Applicant/others; and

	e.  ASC Contracting providing matrix support to the LOGCAP Deputy Program Directors.

5.  He provided an email transmission that took place between him and the LSU commander on 8 January 2009.  This document shows that the LSU commander asked him if he wanted to extend his MRD because he personally thought he was doing a great job.  He also told the applicant to continue to find ways to improve Team LOGCAP and build strong relationships.  

6.  A DA Form 638, dated 19 January 2009, shows he was recommended for award of the BSM for service during the period 24 June 2008 to 23 May 2009.  Part II (Recommender Data) contains the name and digital signature of Mr. T_______, who was the applicant’s rater and supervisor.  

7.  He provided an email dated 8 February 2009 that shows, in part, Brigadier General (BG) P______ assumed command of the Joint Contracting Command – Iraq/Afghanistan (JCC-I/A) effective that same date.  

8.  An email transmission took place between the applicant and Mr. T______ on 12 and 13 March 2009.  This transmission stemmed around several emails concerning Rustamiyah equipment.  The issue was that Multi National Forces – Iraq (MNF-I) was looking at non-excess property and deciding the highest and best use.  The attorney for ASC stated that prior to equipment being declared excess, MNF-I should not have been interjecting on the use of property.  Mr. T_____ informed the applicant that he was not authorized to sign the Fragmentation Order (FRAGO) and that it must be signed by the AMC Rear.  


The applicant acknowledged the instructions given to him and informed Mr. T_____ he had not responded to the FRAGO.  

9.  He provided another series of email transmissions that revolved around the Monthly Contractor Boots-on-Ground (BoG) report.  The email noted that LOGCAP was not reporting the monthly numbers of contractors on ground and that there may have been some disconnect between agencies.  The applicant informed his rater he was not aware of the issue until the morning of 14 March 2009, and that he was coordinating for the report to be sent.  His rater acknowledged by stating, ok.  

10.  The facts and circumstances surrounding his official relief are not available for review.  However, the contested OER contains the following entries:

* Part Ih – 04 REFRAD
* Part Ii – 20080429 – 20090328
* Part Ij – 11
* Part IIc – R_____, R_____ M., ASC, Commander

11.  Part II (Authentication) shows all parties concerned signed the contested OER on the following dates:

* Rater – 20090608
* Senior Rater – 20090611
* Rated Officer – 20090701

12.  Part IVb shows an “X” was placed in the "NO" block for the following leader attributes/skills/actions:

* Mental
* Conceptual
* Interpersonal
* Decision-Making
* Motivating

13.  An “X” was also placed in the "Unsatisfactory Performance, Do Not Promote" block of Part Va and an “X” was placed in the "Do Not Promote" block of Part VIIa (Senior Rater – Evaluate the rated officer’s promotion potential to the next higher grade).


14.  Part VIIb (Potential compared with officers senior rated in same grade) shows he was rated “Below Center of Mass – Do Not Retain.”  Part VIIc (Comments on Performance/Potential) contains the following comments:

	a.  He failed to adequately respond to concerns from senior officers for LOGCAP related support issues;
	b.  His inability to deal with time-sensitive and complex LOGCAP support issues resulted in a lack of confidence by supported units and the LOGCAP Program Manager;

	c.  He lacked the basic leadership skills to operate at the COL level; and

	d.  Do not promote and do not retain on active duty. 

15.  He submitted a memorandum, dated 1 July 2009, which shows he acknowledged receipt of the referral memorandum that accompanied the contested OER.  His senior rater issued these documents to him on 12 June 2009.  He also noted he understood his rights to a Commander’s Inquiry and Appeal.   

16.  He also submitted a memorandum, Subject:  Rebuttal to Referred OER, to MG R____, on 1 July 2009, and a request for a CI to the Commander, AMC Fort Belvoir on 4 August 2009.  

17.  He provided a copy of U.S. Army Garrison, Fort Belvoir, Orders 103-0004, dated 13 April 2009.  These orders show he was REFRAD effective 3 July 2009.

18.  On 15 August 2009, MG R____ responded to the applicant’s rebuttal to the contested OER and noted that after careful consideration, he determined the contested OER would stand as written.  He stated that the applicant failed to maintain an acceptable level of performance during the rating period and his ineffective leadership during this period drew the attention of GOs.  

19.  MG R______ also noted that the fact the applicant was recommended for an award in January 2009 had no bearing on his obligation to rate him accurately at the end of the rating period.  As the LOGCAP Deputy Program Director, the applicant was responsible for managing the LOGCAP mission and the needs of Soldiers and civilian personnel in the Iraqi theater.  Given the applicant's failure to complete his mission successfully, it was his obligation as the senior rater to render an OER that reflected an honest and candid evaluation of the applicant’s performance. 

20.  On 12 November 2009, he received the response to his request for a Commander’s Inquiry.  This document showed the Commander of AMC found the ratings to be fair, just and appropriate, based on the performance details provided by the applicant, his customers and his rating chain.  It was noted that the OER would be allowed to stand as written and forwarded to HRC for administrative processing.  

21.  A memorandum for record and several email transmissions from his peers and subordinates state the applicant's performance in the deployed theater was nothing short of outstanding and that he had their support if needed. 

22.  A personal statement given by MG Mc_____, Deputy Commander, Support, U.S. Forces – Afghanistan, dated 3 August 2010, shows that his interaction with the applicant was limited; however, he could say with surety that the applicant’s performance was an improvement over the actions of his predecessor.  His perception was that the applicant was an honest and forthright man of values and that he understood the requirements that his job entailed.  He stated that while he could not speak to the applicant’s performance after he left the job in Iraq, he was surprised at the severity of the OER covering the period 20080429 through 20090328.  

23.  The award recommendation for the BSM, submitted by Mr. T____ for the period 20080624 to 20090518, shows the applicant was described as doing the following:

* Distinguished himself while serving as a Logistics Support Officer and then as the Deputy Program Director for LOGCAP – Iraq, Baghdad
* A force multiplier who provided outstanding hands on management and superior leadership of a multi-billion dollar program under increased operational tempo and hostile fire conditions
* He fostered an environment of innovation
* He devised a LOGCAP III to LOGCAP IV transition plan to meet the intent of the Commander, Army Sustainment Command, the operational requirements of the supported commanders and meet the Congressional directives to increase competitiveness in the LOGCAP contract
* He was fearless in the performance of his duties regardless of the potential for imminent harm from hostile forces or indirect fire
* He led from the front and completed all missions 
 
24.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and procedures pertaining to the Officer Evaluation System and Officer 


Evaluation Reporting System (OERS).  It also provides guidance regarding redress programs including CIs and appeals.  

25.  Army Regulation 623-3 provides the basic rules applicable to modifications of previously submitted reports.  It states that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly designated rating officials.  The report is accepted as representing the considered opinions and objective judgment of the rating officials at the time of preparation and states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  

26.  Chapter 6 of the same regulation contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-11 outlines the burden of proof that must be met to support a successful OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

27.  Army Regulation 623-3, Chapter 3, states that the following types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA:

	a.  A relief for cause report submitted under the provisions of paragraph 
3–58;

	b.  Any report with negative remarks about the rated officer’s Values or Leader Attributes/Skills/ Actions in rater’s narrative evaluation;

	c.  Any report with a rating of “NO” in Part IVa–c;

	d.  Any report with an entry of “FAIL” in Part IVc, indicating noncompliance with Army Regulation 350–1; or an entry of “NO" indicating noncompliance with Army Regulation 600–9 (Army Weight Control Program);

	e.  Any report with a performance and potential evaluation in Part Va of “Unsatisfactory performance.  Do not promote” or narrative comments to that effect from any rating official;

	f.  Any report with a performance and potential evaluation in Part Va of “Other” where the required explanation has derogatory information;

	g.  Any report with a senior rater promotion potential evaluation of “Do Not Promote” in Part VIIa	;

	h.  Any report with a promotion potential evaluation of “Other” in Part VIIa where the required explanation has derogatory information;

	i.  Any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb; and

	j.  Any report with negative comments in Parts Vb, Vc, VI, or VIIc.

28.  Chapter 2 of the same regulation establishes the rules for designating the senior rater.  It states, in part, that a senior rater will be an officer of the U.S. Armed Forces or an employee of Department of Defense (DOD) who is senior to all U.S. Armed Forces and DOD members of the rating chain.  Senior raters may evaluate the rated Soldier with fewer than 60 days as a senior rater if they also served as the rated officer’s intermediate rater in a previously published chain, and the combined total of time served in the rating chain equals 60 days or more. Military senior raters will be at least one grade higher than the rated officer and civilian senior raters will be at least SES to senior rate officers in the grade of COL.

29.  Army Regulation 600-8-22 (Military Awards) states the BSM is awarded in time of war for heroism and for meritorious achievement or service, not involving participation in aerial flight, in connection with military operations against an armed enemy, or while engaged n military operations involving conflict with an opposing armed force in which the United States is not a belligerent party.  

30.  Army Regulation 600-8-22 also states the LOM is awarded to individuals who distinguish themselves by exceptionally meritorious conduct in the performance of outstanding services and achievements.  The performance must merit recognition of key individuals for service rendered in a clearly exceptional manner.  Performance of duties normal to the grade, branch, specialty, or assignment and experience of an individual is not an adequate basis for this 


award.  In peacetime, service should be in the nature of a special requirement or an extremely difficult duty performed in an unprecedented and clearly exceptional manner.  However, justification may accrue by virtue of exceptionally meritorious service in a succession of important positions.  

31.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

32.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander,  U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his ARCOM to the BSM and to upgrade his MSM to the LOM was carefully considered.

2.  Although his chain of command recommended him for a higher level of award for his service in Iraq and his more than 30 years of military service, it is the approval authorities discretion to either approve, disapprove or downgrade the recommended award.  The approval authority in both cases chose to downgrade the recommended award and as a result, he is not entitled to an upgrade of these awards. While the available evidence is insufficient for upgrading the applicant's awards, this in no way affects his right to pursue his claim for the upgrades by submitting a request through his Member of Congress under the provisions of 10 USC 1130.

3.  His contention that the contested OER was inaccurate, unjust and biased was carefully considered, along with the evidence he provided.  However, there is insufficient evidence to support removal of the contested OER.   

4.  While all the facts and circumstances surrounding his relief are not available, it appears that all regulatory requirements were followed by his rating officials in that the contested OER was referred to him in writing and he was given adequate time to submit an appeal or a CI. 

5.  The available evidence shows his rebuttal to the referred report was not favorably considered by his senior rater and the results of the CI also stated the contested OER would stand as written.  

6.  He also noted administrative discrepancies with the type of report rendered, period covered, rated months and senior rater.  While his orders show he was REFRAD on 3 July 2009, the error in the type of report, period covered and number of rated months is not significant enough to constitute removal of the contested report.  His argument that his senior rater should not have been MG R___ is also lacking compelling evidence.  He did not provide sufficient evidence or a convincing argument that his rating chain was not established in accordance with Army Regulation 623-3 or that the senior rater did not meet the minimum qualifications.  

7.  The supporting third-party statements he provided were also carefully considered.  However, while these statements attest to his excellent duty performance and unlimited potential, none of the individuals providing the statements were in a position to understand the perspective and expectations of his rating officials at the time.  Therefore, they do not provide a sufficient evidentiary basis to conclude the contested OER was not fair and accurate.

8.  In view of the facts of this case and notwithstanding the applicant’s claims to the contrary, it appears the evaluations of his rating officials contained on the contested OER represent their considered opinions and objective judgment.  

9.  As a result, it is concluded that the contested OER was processed and accepted for filing in the applicant's OMPF in accordance with applicable regulations.  Therefore, he is not entitled to the requested relief.     

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)                                         AR20110000062



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000062



15


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1