IN THE CASE OF:	  

		BOARD DATE:  29 May 2012

		DOCKET NUMBER:  AR20110017478 


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 reconsideration of the Army Board for Correction of Military Records (ABCMR) decision denying his request to remove his Officer Evaluation Report (OER) for the period 20080429 through 20090328 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). 

2.  The applicant states the period from 20080429 through 20080601 should have been classified as unrated time as neither the rater nor the senior rater observed his performance or had any input into his performance expectations until 1 October 2008.  He also states he should have received a change of rater OER when he took over the duties of the Deputy Program Director (DPD) for Iraq.

3.  He states Major General R____n should not have been his senior rater when the LOGCAP (Logistics Civil Augmentation Program) was transferred from Army Sustainment Command to Army Contracting Command on 1 October 2008.  Major General R___n never provided him with his support form so he could determine what his chain of command's goals and objectives were.

4.  He states Mr. T______n never provided him with a copy of his support form and all communications he had with Mr. T______n through February 2009 indicate that he was performing his duties in accordance with his expectations.  He received no counseling from his rater and he believed, based upon meetings and emails with his rater, that he was performing his duties to standard as he was never told otherwise until March when he was told he was being relieved of his duties.  Everything changed when he wrote a letter to the Stars and Stripes in February 2009.  

5.  He had volunteered to extend his retirement and deploy to Iraq as part of the Logistics Support Unit (LSU) in support of the LOGCAP Contract.  In June 2008 upon arrival in Iraq, he was picked up by a contractor and transported to temporary housing where he was not treated according or provided quarters appropriate to his rank.  A siren sounded during the night and he was alone and isolated.  He did not know where to seek cover and he had no ammunition for his sidearm.  He was afraid for his life.  He did not realize it at the time but he had become afflicted with PTSD that first night.

6.  In January (2009) COL C_______e, commander of the LSU, demanded he upgrade an award for an officer who redeployed to a Bronze Star Medal that he did not earn.  He was pushed to upgrade the award.  While traveling to Balad his flight was diverted to act as escort for a fallen Soldier.  His unit marched out and saluted as the remains were brought out and placed on the helicopter.  The next morning his PTSD got the better of him after having witnessed this event and in an angry outburst he drafted and sent an opinion letter to the Stars and Stripes. His performance until then was not an issue and he was being put in for an award for his performance of duty.  The contested OER was based on an opinion letter, not his performance of duty.  He noticed a change in his behavior and self-referred to the Combat Stress Clinic for treatment and was later diagnosed with PTSD by the Department of Veterans Affairs (VA). 

7.  He states there were two other events that led to his relief in March (2009).  

	a.  The KBR representative who provided the number of KBR contractors to the Joint Contracting Command - Iraq (JCC-I) went on R&R and his replacement provided the numbers to the AMC representative, who failed to provide the numbers to JCC-I.  The JCC-I elevated the situation to the general officer level because they did not receive the numbers.  He was blamed for the numbers not being timely provided even though by law he could not direct the contractor to do anything that would result in a charge to the government.

	b.  The second incident involved air conditioning units at a base that was closing.  He learned after his relief that he was blamed for the air conditioning units being removed.

8.  He states the contested OER was based on the writing of a letter to the editor brought on by his PTSD and two events in March which were elevated to the general officer level.  These two events and the letter were the basis of the contested OER, not his performance of duty or the goals and objectives that he did accomplish prior to March and were overshadowed by these events.

9.  The applicant provides a statement, dated 22 August 2011, with a specific list of 23 enclosures.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR2011000062, on 
5 July 2011.

2.  He submitted 23 enclosures with his request; however, only the following documents are new evidence that was not previously considered by the ABCMR:

* email, dated 8 August 2008, between the applicant and Colonel C_______e
* email, dated 15 August 2008, between the applicant and Mr. T______n
* a Memorandum for the Record (MFR), dated 29 July 2009, from Colonel Q_____e
* an undated statement from Colonel R_____d
* additional emails, dated from 10 February 2009 to 23 March 2009, supporting him
* three AMC CUB (acronym unknown) updates for 3 March, 10 March, and 17 March 2009
* emails, dated from 11 October 2008 to 12 March 2009, between Mr. T______n, the applicant, and others
* Travel Itinerary, dated 3 February 2009
* his outpatient treatment record from the 98th Medical Detachment 
* emails, dated 21 January 2009 to 24 March 2009
* emails, dated 4 February 2009 to 13 March 2009
* a letter, dated 28 July 2010, from the VA

3.  He was ordered to active duty as a member of his U.S. Army Reserve unit for the purpose of deploying in support of Operation Iraqi Freedom.  The report date on the orders was 1 June 2008 and early reporting was not authorized.

4.  His DA Form 67-9-1 shows he had a mandatory initial face-to-face counseling on duties, responsibilities, performance objectives for the rating period on 
7 October 2008.

5.  On 25 March 2009, BG W, Commander, Army Materiel Command, Southwest Asia, reprimanded the applicant for his lack of consideration towards one of his subordinates when he wrote a letter to the editor that was published in the 
3 February 2009 Stars and Stripes newspaper.  In the letter, A User of Mental Health Card, the applicant described a subordinate lieutenant colonel who he perceived to be abusing claims of combat stress.  The reprimand admonished, that while the applicant may have a limited free speech right in the military, he included enough detailed information about his subordinate that she, as well as others within the command, immediately recognized about whom he was writing. This caused considerable and unnecessary embarrassment to the Soldier.  His conduct was inexcusable and caused the commander to question his judgment and suitability to lead Soldiers.  The reprimand was imposed as an administrative measure and not as nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ).

6.  The contested OER covers the period from 29 April 2008 to 28 March 2009 and the reason for submission was release from active duty.  His rater was Mr. T______n, SES, Executive Director and his senior rater was Major General R___n.  The contested OER was a referred report and includes the following entries:

	a.  In Part IVb.1 (Attributes), the rater placed an "X" in the "No" block for Mental.

	b.  In Part IVb.2 (Skills), the rater placed an "X" in the "No" blocks for Conceptual, Interpersonal skills.

	c.  In IVb.3 (Actions), the rater placed an "X" in the "No" blocks for Decision-Making and Motivating.

	d.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block and entered appropriate comments in Part Vb, as follows:

Serious concerns about [the applicant's] overall performance and lack of leadership as the LOGCAP lead was expressed by General Officers.  Specifically, [the applicant] was not representing LOGCAP, nor the Army Materiel Command, very well and was of little to no value added to the LOGCAP mission in Iraq.  On the personal level, he was liked, on the professional level he lacked the leadership, managerial skills, and motivation to accomplish the mission.  It was reported to [the rater] that he continues to say what he can't do and is unwilling, or in most cases, unable to step up and make things happen in a proactive way.  He was seen as having a defeatist attitude and lacking the enthusiasm to lead or inspire those around him.  He was also cast as ineffective, inefficient leader who is often full of excuses as to why he cannot complete tasks.  He did perform administrative duties exceptionally well.  He re-organized the LOGCAP Forward-Iraq office into an organization with a functional staff and Regional Teams each headed by colonels as officers-in-charge to provide better coordination and responsiveness to the Divisions and Corps.  He also developed a comprehensive training program for customers, new LSOs/LMSs and sustainment/reinforcement training.

	e.  In Part Vc (Comments on Potential for Promotion), the rater stated "Do not promote to General Officer."

	f.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block and entered the following comments:

[The applicant] failed to adequately respond to concerns from senior officers in Multi-Nation Corps-Iraq and Multi-Nation Force-Iraq for LOGCAP related support issues.  His inability to deal with time-sensitive and complex LOGCAP support issues resulted in a lack of confidence by both supported units and the LOGCAP Program Manager.  Although [the applicant] possesses the administrative skills to operate at the Colonel level as demonstrated by the LOGCAP IV transition brief, which he developed and gave to the MNC-I staff, he lacks the basic leadership skills necessary to operate at this level.  Do not promote and do not retain on active duty.

	g.  The contested report was signed by the rater on 8 June 2009, the senior rater on 11 June 2009, and the applicant on 1 July 2009.

7.  On 1 July 2009, he submitted a rebuttal to the referred OER.

	a.  He stated he was never provided with his rater and senior rater's OER support form at the beginning of his rating period.  His rater failed to discuss performance objectives for the current rating period during his initial face-to-face counseling.

	b.  He was never counseled for anything the rater states in his narrative on his OER.   There are no specifics on any of the deficiencies he alleges in his narrative.  He never received any feedback or developmental counselings from his rater during the rating period nor did he ever receive a rehabilitative counseling.  If his performance was as unsatisfactory as alleged there would have been a Commander's inquiry and he would have been relieved for cause.  While he was relieved, he was never told the reason why he was being relieved nor given any opportunity to rebut the relief.

	c.  His rater's narrative does not point to any specific failures, only generalities. There are no specifics to back up these statements and he never received an oral or written counseling to document these alleged shortcomings or how to overcome them.

8.  On 4 August 2009, he requested a Commander's Inquiry.  He listed what he felt were injustices and violations contained in the contested OER.

	a.  The chain of command failed to provide him with his rater and senior rater's OER support form at the beginning of his rating period.

	b.  No counseling statement to support the negative write-up.

	c.  The ratings and remarks are not supported by the evidence.

	d.  There were contradictory statements contained in the OER.

9.  A letter, dated 12 November 2009, from General D______y, Commanding General, Headquarters, U.S. Army Materiel Command, Fort Belvoir, VA states she asked Major General B___h, Assistant Deputy Commanding General, to conduct a Commander's Inquiry based on the applicant's request.  

	a.  The Commander's Inquiry focused on matters related to the clarity of the evaluation, facts contained in the report, compliance with Headquarters, Department of the Army policies and procedures and conduct of the rated Soldier and members of the rating chain.

	b.  General D______y found the ratings to be fair, just and appropriate, based on the performance details provided by the applicant, his customers, and his rating chain.  The OER would be allowed to stand as written and forwarded to HRC for administrative processing.

10.  He provided the following new evidence not previously considered by the ABCMR.

	a.  Email, dated 8 August 2008, between the applicant and COL C_______e discussed the applicant's upcoming assignment in Iraq.

	b.  Email, dated 15 August 2008, between the applicant and Mr. T______n concerned request for LOGCAP support and the applicant's concerns about memoranda of agreement.  

	c.  Email, dated 15 August 2008, between the applicant and Mr. T______n concerned a request for LOGCAP support for the 168th Engineer Brigade and the applicant's concerns about memoranda of agreement.  

	d.  The MFR, dated 29 July 2009, was written by a COL who worked directly under the applicant.  He stated the applicant was the driving force in instituting a number of long overdue reforms, stepped up to all challenges confronting the Deputy Program Director, and put great emphasis on a positive command climate and equal opportunity workplace.

	e.  In his undated statement, COL R_____d stated he was not the applicant's rater.  However, it was his opinion that he provided a valuable insight into the program.  He stated the applicant depended on his staff's research and recommendations.  On occasions when some recommendations were not thought out or not thoroughly developed the individuals involved were informed that their actions were not acceptable.  Some personnel responded favorably and others did not.  When the Program began to lose personnel, the applicant sent his staff personnel to the field to continue supporting their customers.  Although change was inevitable, it was met with resistance.  He believes that all of the applicant's intentions were to better the Program.

	f.  The emails dated from 10 February 2009 to 23 March 2009 were from subordinates and peers who appreciated having served with the applicant.

	g.  The AMC CUB updates do not mention the applicant's name or performance.

	h.  emails, dated from 11 October 2008 to 12 March 2009, concerned a meeting with Major General M____e, a work stoppage by civilian contractors, and LOGCAP current operations updates.

	i.  The Travel Itinerary, dated 3 February 2009, was for Mr. T______n’s trip to Iraq to evaluate the performance of contractors as well as LOGCAP IV transition planning.

	j.  His outpatient treatment records, from 19 February to 12 March 2009, from the 98th Medical Detachment show his primary diagnosis as adjustment disorder with anxiety and depressed mood.
	k.  The VA letter, dated 28 July 2010, notified him he received an increased evaluation for PTSD with adjustment disorder with mixed anxiety and depressed mood to 30 percent effective 4 July 2009.

	l.  emails, dated 4 February 2009 to 13 March 2009, concern monthly contractor BoG (boots on ground) reports.

	m.  emails, dated 21 January 2009 to 24 March 2009, concerned air conditioning units at Rustamiya.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  

	a.  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.

	b.  Paragraph 1-4(b)(4) states that commanders at all levels will ensure that rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by name, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any
changes to rating chains will also be published and distributed.  No changes may be retroactive.

	c.  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 action, 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.

	d.  Paragraph 2–2 states commanders will establish and file rating chains in accordance with locally developed procedures and Army and DOD regulations. Rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location.  They will be established by name, given effective dates, published, and distributed manually or electronically to each rated officer, NCO, and civilian member of the rating chain.  Any changes to rating chain will also be published and distributed as required.  No changes may be retroactive.

	e.  Paragraph 2-12 stipulates that raters will 

* provide their support forms, along with the senior rater's support forms, 	to the rated Soldier at the beginning of the rating period
* discuss the scope of the rated Soldier's duty description with the rated 	Soldier within 30 days after the beginning of the rating period 
* counsel the rated Soldier
* advise the rated Soldier as to changes in his or her duty description 	and performance objectives, when needed, during the rating period 
* assess the performance of the rated Soldier using all reasonable 	means, to include personal contact, records, and reports, and the 	information provided by the rated officer on his or her DA Form 67-9-1 	and/or DA Form 67-9-1a
* review the applicable support forms at the end of the rating period and, 	as appropriate, provide more information about the job description or 	performance objectives to other rating officials for use in preparing 	their evaluations
* verify the rated individual's APFT and height and weight data for entry 	on the evaluation report 
* provide an objective and comprehensive evaluation of the rated 	Soldier's performance

	f.  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 Headquarters, Department of the Army. 

	g.  Paragraph 3-39 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.

	h.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	i.  Paragraph 6-7h(3) states that the rated Soldier’s authentication in Part II of a DA Form 67–9 or DA Form 2166–8 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the APFT performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances.  The rated Soldier’s signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

	j.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  Commanders at all levels ensure that rating chains correspond as nearly as practical to the chain of command and supervision, are drawn up by name, given effective dates, published, and made available to each rated Soldier and each member of the rating chain.  Any changes to rating chains will also be published and distributed.  
2.  He contends the period from 20080429 through 20080601 should have been unrated.  He contends he had a different rater during the period from 20080601 through 20080920 and should have received a change of rater OER for this period.  He contends his rating chain does not coincide with the supervisory chain.  However, he has not submitted any evidence of the rating chain that was established or changed during the period of the contested OER.

3.  When the applicant signed the contested OER on 1 July 2009, he verified the accuracy of the administrative data in Part I and the rating officials in Part II.  This action increases administrative accuracy of the report since the rated individual is most familiar with and interested in this information.

4.  The lack of counseling alone is not grounds for an appeal.  In any case, the applicant had an equal responsibility to ensure initial and quarterly counseling occurred.  After all, he was a field grade officer who has had multiple OERs in the past.  He was aware or should have been aware of the counseling process mandated by the evaluation regulation.

5.  He attributes his PTSD to being the reason he sent an opinion letter to the Stars and Stripes.  His outpatient treatment records, from 19 February to            12 March 2009, from the 98th Medical Detachment show his primary diagnosis as adjustment disorder with anxiety and depressed mood, not PTSD.  The opinion letter he mentions is not mentioned in the contested OER.  The letter from the VA is a notice of an increase of evaluation and does not indicate when he was diagnosed with PTSD.

6.  An OER is a measure of an officer's performance and potential during a period of time.  His senior rater was Major General R___n.  At the applicant's request, General D____y asked Major General B___h to conduct a Commander's Inquiry. concerning the contested OER.  Upon conclusion of the inquiry General D____y found the ratings to be fair, just and appropriate, based on the performance details provided by the applicant, his customers, and his rating chain.  General D____y determined the contested OER would be allow to stand as written and forwarded to HRC for administrative processing. 

7.  There is no evidence, and the applicant provided insufficient evidence, to show that his rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

8.  The supporting third-party statements and emails he provided were carefully considered.  However, these individuals providing the statements were not in a position to understand the perspective and expectations of his rating officials at the time.

9.  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify removing the OER from his OMPF.  After a comprehensive review of the evidence in his OMPF, his contentions and arguments, and the evidence submitted in support of his application, other than his dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.  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 to amend the decision of the ABCMR set forth in Docket Number AR AR2011000062, dated 5 July 2011.




      __________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)                                         AR20110017478



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ABCMR Record of Proceedings (cont)                                         AR20110017478



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