IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110013826 


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:

The applicant, in effect, defers to counsel.  He signed the application and counsel co-signed the attached "Supplemental Statement" which sets out the request.  The applicant then co-signed an attached 16-page iteration and expansion.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Officer Evaluation Report (OER) for the period 18 June 2004 through 8 May 2005 and all associated documents be expunged from the applicant's records and that the applicant be reconsidered for promotion to lieutenant colonel by a special selection board under the criteria for any and all boards that viewed the subject OER.

2.  Counsel states in support of the request:

	a.  The Officer Special Review Board (OSRB):

* simply observed that there is no investigative information – counsel says this happened because the applicant did not request an inquiry
* concluded the opinions rendered by several other officers about the applicant's outstanding performance were not germane because they were not in the applicant's rating chain
* decided the failure to counsel the applicant about his performance was inconsequential because he had received memoranda addressing his 


inadequate performance; therefore, the OSRB ruled the failure to counsel him an inadequate basis to overturn the OER

	b.  The casual dismissal of the observations of senior personnel who were aware of obvious and inappropriate bias by the applicant's rating chain was inappropriate.  Those individuals were all in positions to know and understand the conflict between the applicant and his rating chain.

	c.  Even if absence of counseling was not an independent basis for expunging the contested OER, it demonstrates a complete lack of regard for the applicant's rights.  

3.  Counsel provides 22 documents in support of the request.  Enclosure A is the documents submitted to the Human Resources Command (HRC), St Louis in May 2010 and identified then as enclosure 1; Enclosure B is the OSRB review of the case and Enclosure C is all the documents previously submitted to the OSRB.  Each carries and will be described by its original identification.

CONSIDERATION OF EVIDENCE:

1.  At the time of the subject OER the applicant, a U.S. Army Reserve, Civil Affairs (CA) branch major, was on active duty.

2.  The subject OER described the applicant's duties as a CA Plans and Operations Officer for the Special Operations Command Central (SOCCENT), United States Central Command (USCENTCOM).  He was responsible for advising the commander on civil affairs considerations associated with military operations in operations Enduring Freedom and Iraqi Freedom.  He represented SOCCENT in CA conferences, maintained current awareness of ongoing operations involving USCENTCOM, and provided CA input to the Combined Force Special Operations Component Command (CFSOCC) Joint Operations Center briefings.

3.  In Part IV (Performance Evaluation- Professionalism) of the subject OER the rater:

	a.  marked the applicant "Yes" in all seven areas of Army Values, and

	b.  marked him "Yes" in all Attributes, Skills and (Leadership) Actions except for "Communicating" with individuals and groups and "Building" by improving teams, groups and units.



4.  In part V (Performance and Potential), the rater:

	a.  marked the box labeled "Unsatisfactory Performance, Do Not Promote," and

	b.  commented that the applicant had:

* performed poorly when tasked as the lead CA planner and co-chairman of consequence management issues for a joint exercise in Doha, Qatar where he had demonstrated lack of planning and coordination skills during the initial and mid-planning stages
* lacked focus, subject matter expertise, and interpersonal and communication skills - he was relieved of that duty 
* when assigned duties as the Joint Operations CA Desk Officer and deployed in that capacity – despite counseling and mentoring by several senior officers - he did not improve his accountability or communications and he seemed to have an agenda of his own and was considered not a team player

5.  The senior rater marked the applicant in the box labeled, "Do Not Promote," and indicated that he was senior rater for nine majors.

	a.  He rated the applicant's potential compared to the others as, "Below Center of Mass."

	b.  He also commented that the applicant:

* had demonstrated lack of basic staff officer skills for a fast-paced operational environment
* was hampered by an absence of oral communication and interpersonal skills
* lacked the ability to adjust rapidly
* should be assigned to positions that would give him the opportunity to continue his development as a field grade officer

6.  On 3 June 2005, the senior rater referred the OER to the applicant for acknowledgement and comment.

7.  The applicant's 20 June 2005 13-page memorandum to HRC, St Louis acknowledged receipt of the OER and described it as erroneous, inconsistent with the guidelines of Army Regulation 623-105 (Officer Evaluation Reporting 


System), and a malicious attempt to tarnish his unblemished career.  Specifically the applicant maintained:

	a.  the rater and senior rater had failed to provide him with copies of their OER support forms;

	b.  the rater had not discussed with him the nature and extent of his duties;

	c.  his rater had not counseled him about shortcomings or informed him of changes to his duties; the rater had not documented any of the required counseling; they did not make it clear that the applicant was supposed to be the lead planner; he was never instructed that his duties included anything other than CA issues; the rater and LTC R____ were actually the co-chairmen of the planning committee; the applicant didn't fail, they did;

	d.  they failed to keep him informed of changes in his duties and responsibilities;

	e.  the senior rater failed in ensuring that the rater fulfilled all of the above responsibilities;

	f.  none of the applicant's contemporaries had completed the Command and General Staff College yet completion of this course demonstrates the applicant can succeed at a higher levels of responsibilities; and

	g.  none of the applicant's contemporaries had to perform under such a hostile command environment.

8.  The applicant appealed the OER in May 2010.  His counsel (who is also counsel for the present case) submitted a memorandum to the Commander, HRC, St. Louis which asserted:

	a.  the ten attached third-party statements demonstrated that the OER was substantially inaccurate and factually incorrect;

	b.  the applicant's chain of command had violated Army Regulation 623-105 by:

* failing to provide him with an OER support form
* failing to discuss his responsibilities or adequately notify him of his duties 


	c.  the 3-year limitation on appeals should be waived because of the time required for the applicant to obtain the supporting statements, especially considering that most of the individuals had been transferred or were deployed or both;

	d.  approval of the appeal was justified because, despite his nonselection for promotion, the applicant had been recommended for continuation by the last two promotion boards.

9.  Attached to the appeal was:

	a.  Enclosure 1 – the OER itself, the original referral, and the applicant's original 13-page memorandum.

	b.  Enclosure 2 – a "Detailed Explanation of Relevant Facts, Circumstances and Arguments."  This 16-page document composed by counsel and co-signed by the applicant recapitulates the applicant's previous assertions and adds a new rationale to the effect that the applicant was the victim of religious prejudice because he was a Muslim.

	c.  Enclosure 3 – nine Supporting Statements of Applicant's Quality of Work labeled 3a through 3h as follows:

		(1)  In a 24 August 2005 memorandum LTC Ryan J. W____ stated that he was the CFSOCC intelligence officer.  He had observed the applicant in his daily briefings and thought his conduct was always appropriate.  He provided the applicant with intelligence that was relative to civil affairs and also advised the applicant on his briefing techniques.  The commanding general had asked him to look into the reported discord between the applicant and his chain of command. The applicant expressed the opinion that he was being singled out because of his Muslim beliefs.  LTC W____ felt that, whereas the underlying basis of the problem was not religious, the chain of command could have been more tolerant of the applicant's worship requirements.  He concluded that any difficulties the applicant had stemmed from personality issues rather than his professional performance.

		(2)  Mr. S____, in a 5-page memorandum dated 21 July 2005, identified himself as responsible for USCENTCOM’s Chemical, Biological, Radiological, and Nuclear Passive Defense Program under the Cooperative Defense Plan (CDP).  He worked with the applicant while providing information for the Consequence Management and Disaster Preparedness programs.  Mr S____'s 


group was just one of many the applicant had to coordinate with for the planning of the conference.  He was not aware of the rating chain's expectations once he was designated as the Civil Affairs Planner.  Neither the rater nor senior rater was present.  The applicant only had the CA lead planner role because they had started the process then "bailed out" on him.  The only overt disagreement during the entire process was when the applicant declined to pay for a hotel room he had not occupied.  His relief and subsequent absence from the final planning conference shocked everyone.

		(3)  MAJ S____ reported, in a 9 March 2005 memorandum, that when he attended the Eagle Resolve 05 Monday planning session there was obvious tension between the applicant and CENTCOM personnel.   This was the result of CENTCOM pressing the applicant to pay for a hotel room he felt he did not owe (there are actually five slightly different copies of this same memorandum, all unsigned).

		(4)  LTC A____ related, in a 15 July 2005 memorandum, that he had been the Deputy Director of the CSFOCC in Qatar.  He observed the applicant in briefings and frequently worked with him to ensure that the briefing were of the highest caliber; however, they were "already acceptable when I reviewed them." He reports using the same technique of using an impartial officer to preview his work before presenting it to senior officers.  He considered the applicant's communication skills strong and his interpersonal skills fully acceptable.

		(5)  MSG D____, a retired U.S. Air Force master sergeant, stated, in an October 2008 memorandum, that he was involved in the planning conference for Eagle Resolve 2005.  He found the applicant's interpersonal skills to be highly acceptable.  He also observed the applicant who volunteered his own time to escort troops who were on leave from the combat zones of Iraq and Afghanistan.  He thinks the characterization of the applicant's interpersonal skills as inadequate as undeserved and inaccurate.  He also observed the applicant in several briefings and neither noticed any deficiencies nor heard any criticisms.  He thinks the fault finding with the applicant's communication skills to be "incorrect and unwarranted."

		(6)  LTC M____ , in an October 2008 memorandum, indicates that he observed the applicant at weekly joint planning group (JPG) meetings and, although he was unaware of the working relationships between the applicant and his superiors the "tensions were evident."  The applicant was respected and well received by others and the perceived friction between the applicant and his superiors did not affect his relationship with other members of the SOCCENT team.  He too found the criticisms of the applicant's communication and interpersonal relationship skills unfair and unfounded and thinks the OER did not accurately describe the applicant.

		(7)  MSG K____, a Special Forces Master Sergeant and the Joint Operations Center (JOC) Noncommissioned Officer in Charge (NCOIC), reported in a 20 July 2005 memorandum that he had observed the applicant's functioning as the CA Desk Officer and his presentations briefing.  He noted that the applicant was under much pressure.  He thought the criticisms of the applicant's functioning were unfair because he performed his duties as the CA Desk Officer in an environment that was hostile to him.  The applicant was one of the more personable officers.  He had to work directly with the applicant on several occasions and did not find him to be lacking in interpersonal skills.  He found the applicant's communication skills more than adequate.  He was not aware of any instance when the leadership expressed displeasure with the applicant's briefing skills.  The applicant was not authorized to stay in the hotel and therefore had to commute 35 or 40 kilometers for the conference planning sessions.  There was a stark contrast between the level of support the applicant received and that afforded to the individual who replaced him; nevertheless, the applicant supported his successor.  The criticisms in the OER seemed to be based more on personal conflicts than on the applicant's abilities.  As the JOC NCOIC he was tasked to look into the applicant's phone usage, but he was never asked to do this on any other officer.

		(8)  An October 2008 statement from LTC B____, an infantry officer, noted similar detailed descriptions.

		(9)  An October 2005 statement from COL M____ states he observed the applicant as a briefer and he and the applicant seemed to be on the same schedule for daily physical training (PT).  The applicant was conscientious about this PT.

	d.  Enclosure 4 – an after-action review on Exercise Eagle Resolve 2005 (ER05) by LTC O____.  ER05 had taken place from 1 through 12 May 2005.  LTC O____ had observed that changes in the lead planner resulted in miscommunication and required last-minute clean up.  No continuity files were available.  A lead planner was secured in late February 2005.

	e.  Enclosure 5 – applicant's OER Support Form for the rating period in question.

	f.  Enclosure 6 – a January 2007 email exchange reporting considerable confusion but apparently not involving the applicant's area of concern.


	g.  Enclosure 7 – a 7 February 2005 memorandum for record (MFR) which LTC Thomas M.  W____ signed as the Lead Planner, Eagle Resolve.  He described several instances of the applicant's poor planning and poor preparation.

	h.  Enclosure 8 – an email about transportation and housing arrangements for a January 13-14 planning session.

	i.  Enclosure 9 – a 10 January 2005 MFR by the applicant to the effect that he believed he had no responsibility to pay for an unused hotel room, because his bosses had made the decision that he would commute to the conference.  There is an attached email.

	j.  Enclosure 10 – two more MFRs dated 11 January 2005 by the applicant stating approximately the same thing.

	k.  Enclosure 11 – a 12 January 2005 MFR by the applicant concerning waivers and options about the transportation and hotel arrangements of the ER05 Planning Conference.  He interpreted these arrangements as a signal that he lacked support.

	l.  Enclosure 12 – a 13 January 2005 MFR about the trouble he had in obtaining a vehicle as a signal for him to expect lack of support.

	m.  Enclosure 13 – an MFR by the applicant about a trial run from the base to the hotel so he would know how to go and how much time it would take.

	n.  Enclosure 14 – a report that he was a little late because of traffic and of the day's activities on the first day of the conference.

	o.  Enclosure 15 – an 18 January 2005 MFR by the applicant describing his long day and the irregular measures required for him to meet the requirements of doing his assignment.

	p.  Enclosure 16 – a similar MFR.  The applicant reports he had no problem getting to the conference on time, he left earlier.  There were distractions and interruptions but the work got done.  The issue of payment for the unoccupied hotel came up again.  The applicant again refused to pay without authorization, but that eventually came through.  LTC W____ was also upset with the applicant who did not have his cell phone.


	q.  Enclosure 17 – a 10 February 2005 four-page MFR by the applicant describing face-to-face counseling with LTC Paul W____ and LTC Kevin N____ concerning the applicant’s performance as the CA Desk officer and the ER05 Lead Planner which was reportedly unfavorable.  LTC N____ was of the opinion from observation and from reports that the applicant was confrontational and not a team player.  The applicant recorded that he previously had asked for their support forms and that he had received no guidance or feedback.  LTC W____ reported that none of the principals were satisfied with the applicant’s work as the CA Desk Officer.  The applicant explained that LTC Q___ “took things out on me” and had created a hostile environment and that there was a double standard depending on rank.  The applicant also reported that contending with the anti-Islamic climate was de-motivating.  Both LTC Paul W____ and LTC Kevin N____ admitted that they had had some problems and that the environment was not easy to work in.

	r.  Enclosure 18 – a 28 February 2005 General Officer Memorandum of Reprimand (GOMOR) concerning the applicant's inadequate performance during the ER05 planning conferences.  The GOMOR described the applicant as embarrassingly unprepared, late on two mornings, and absent from two Main Planning Conferences.  The GOMOR noted the applicant had been described as having a negative attitude lacking motivation and inattention to detail.

	s.  Enclosure 19 – the applicant's unsigned 16-page response to the GOMOR.

	t.  Enclosure 20 – an extract of chapters 2 and 3 of Army Regulation 623-105.

	u.  Enclosure 21 – copies of the applicant's OERs for the periods ending
7 May 2006, 7 May 2007, 7 May 2008, 9 April 2009, and 1 February 2010.

	v.  Enclosure 22 – the certificate and citation for the applicant's Meritorious Service Medal for his performance of duty in various assignments from August 2004 through 2006.

10.  On 29 October 2010, the OSRB considered all of the above documents and denied the applicant's request to remove the subject OER from his record.

11.  Unrelated to the subject OER, the applicant received a GOMOR dated
24 June 2008 for falsifying his orders in order to obtain better housing in Iraq.

12.  The appeal of this OER to HRC is dated 20 May 2010.

13.  Army Regulation 623-105 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  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 or 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.  The burden of proof rests with the appellant.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army Officer or NCO Corps.  Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to HQDA.

	c.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

DISCUSSION AND CONCLUSIONS:

1.  The only indication of any religious prejudice was the applicant's own assertions that he was discriminated against because he was a Muslim.  LTC W____, who was tasked by the superior commander with investigating the case, offered only that the underlying basis of the problem was not religious, but the chain of command could have been more tolerant of the applicant's worship requirements.


2.  None of the applicant's supporters provided any details as to the nature or extent of the alleged disagreement between the applicant and his chain of command nor did they explain why they thought his successes were so significant that they outweighed the basis for their ratings/comments.  For the most part they described his abilities as a briefer.  They did not address the crux of the reasons for the ratings/comments and the associated OER, which were his failures at planning and communication.  The difference between briefing and communication may be explained, said difference being simply that communication involves listening whereas briefing does not.

3.  The applicant and counsel claimed that it took until 2010 to get the appeal together, but most of the supporting statements were dated in 2005 and the remainders were dated in 2008.

4.  It appears that the applicant did not find it necessary to appeal this OER until after he received a GOMOR for an unrelated incident.

5.  An OER accepted for inclusion in the official record of the Soldier is presumed to be administratively correct.  To justify deletion or amendment of such an OER the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to provide such evidence.

6.  The applicant's evidence and arguments in this request to the ABCMR are essentially the same as originally submitted with his appeal to HRC, St Louis.

7.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20110013826



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ABCMR Record of Proceedings (cont)                                         AR20110013826



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