IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110020118 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) for the period 31 May 2006 through 20 December 2007 be corrected or removed from his official military personnel file (OMPF).

2.  The applicant states the contested OER was not a valid report and there was no justification for it.  There were no supporting documents or counseling forms.  It was solely given to him due to reprisal, because of a "whistle blower" complaint that he and several others made against the S-1 due to prejudice and cursing senior noncommissioned officers (NCO).  The battalion commander allowed it even after the Inspector General (IG) and Equal Opportunity (EO) representative informed him of the officer's actions.  He adds that he was told he was not a team player after he informed the battalion commander that he would not lie on a Soldier who was a part of an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) that he was conducting.  He also reported the battalion command sergeant major (CSM) was interfering in the official investigation.

3.  The applicant also states he made an IG complaint in December 2007 that took nearly 2 years to complete.  After its completion, he made a request to get a copy of the investigation but his request was not properly processed.  He was informed that the legal team was having problems releasing the information and that it would be delayed.  He was then informed that the criterion for releasing the investigation information has changed and that it must be first reviewed by a Judge Advocate general (JAG) lawyer.  

4.  The applicant provides:

* An appeal memorandum and a letter from the U.S. Army Human Resources Command, Fort Knox, KY (HRC-KNX)
* A letter from the Army Special Review Boards
* Officer Record Brief
* Contested OER with supporting documents
* Email from the IG
* Eight statements in support of his appeal
* Multiple email exchange with various individuals
* Appointment of an investigating officer (IO) memorandum
* DA Forms 4856 (Developmental Counseling Form)
* 25th Signal Battalion rating scheme
* Command and Staff slides
* DA Form 67-9-1 (OER Support Form)
* Draft OER for the period 31 May 2005 through 20 December 2007
* DA Form 1559 (Inspector General Action Request)
* Multiple letters written between him and the IG
* 25th Signal Battalion Assessment
* Army Regulation 15-6 interview with a staff sergeant
* IG reprisal denial letter
* DA Form 7279-R (EO Complaint Form)
* DA Forms 67-9 for 20110131-20110525, 20100202-20101106; 20090814-20100201; 20081220-20090813; 20071221-20081220; 20050531-20060530; 20040531-20050530; 20020601-20030331; 20000607-20010606; 19990717-20000606; and 1998030-19981115

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.  Having had prior service, the applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant and executed an oath of office on 20 December 1993.  He served in a variety of stateside or overseas assignments and he attained the rank of major (MAJ) on 1 October 2004.  He was assigned to Headquarters and Headquarters Detachment, 25th Signal Battalion, Qatar, supporting the U.S. Central Command.

3.  During December 2007, the applicant received a relief for cause (RFC) OER which covered 5 months of rated time from 31 May 2006 through 20 December 2007 for his duties as a battalion executive officer.  This OER also contained various non-rated codes.  His rater was a lieutenant colonel, the battalion commander, and his senior rater was a colonel, the brigade commander.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for "Duty."

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for the appropriate attributes and actions; however, he placed an "X" in the "No" block for "Interpersonal" skills.

	c.  In Part IVd (Officer Development), the rater placed an "X" in the "Yes" block to indicate developmental tasks were recorded on a DA Form 67-9-1 and quarterly follow-up counseling conducted. 

	d.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance - Promote" block and entered appropriate comments in Part Vb, as follows:

I directed the relief of [the applicant] because of his inability to resolve interpersonal conflict which had a devastating effect on unit morale and readiness.  He created a hostile work environment for the battalion staff which diminished productivity and fostered an environment where key leaders did not trust one another.  In the end, [the applicant] refused to accept responsibility for his portion of the problem.  He performed the duties of Contracting Officers Representative (COR) for the battalion, overseeing General Dynamics (GDIT) Information Technology (ITT), ITT Corporation, Total Army Communications - Southwest Asia, Central Asia, and Africa 
(TACSEACAA) contracts.  He rewrote many of the Performance of Work Statements (PWS) to ensure that contractors were not working outside the scope of their contracts.  He also initiated a spiritual retreat program that focused on reuniting with families and fostered trust and teamwork.  [the applicant] reinstated the Network Control Station at the battalion headquarters on Camp As Sayliyah.  This ensured redundant observational and situational awareness of the battalion's communications networks throughout the Area of Responsibility (AOR).

	e.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Do Not Promote" and "Below Center of Mass – Do Not Retain" and entered the following comments: 

[The applicant] was relieved from his duties as the battalion executive officer because the battalion commander lost trust and confidence in him.  I rate him as the weakest major in this forward deployed brigade 15 of 15.  [The applicant] has put forth an effort and he made some contributions to the organization but he often struggles with even the simplest of tasks because he lacks the knowledge, skill, and abilities to be an effective field grade officer.  [The applicant] has no potential for continued service in the Army.

4.  The contested OER was referred to the applicant.  On 1 February 2008, he acknowledged receipt and submitted a response in which he stated the:

* Rater contradicts himself in the rating
* Rater never counseled him, initially or quarterly
* Rater did not state what interpersonal skills were lacking
* Overall climate in the battalion was negative
* S-1, CSM, and battalion commander compounded the problem and contributed to the hostile environment within the battalion
* IG identified problems within the battalion but the battalion commander refused to take any corrective action
* Problems centered around the leadership and personalities of officers in general
* Rater did not acknowledge many of his contributions

5.  The contested OER was signed by his rating officials on 30 January 2008 and by the applicant on 3 February 2008.  It was filed in the performance section of his OMPF on 14 May 2008.

6.  On 10 September 2009, he submitted an appeal to HRC-KNX.  He contended the OER contained substantive inaccuracy in the areas of Army values, leader attributes/skills/actions, the support form, performance and potential evaluation, senior rater potential as well as performance and potential ratings, and his overall profile.  He also stated that he had an ongoing IG whistle blower/reprisal complaint.  

7.  On 24 May 2010, the Army Special Review Board notified him that he did not provide evidence of a clear and convincing nature in support of his allegations and that since he had an ongoing IG reprisal complaint he must provide all relevant evidence in support of his request.

8.  On 8 June 2010, an official at the Department of Defense (DOD) IG notified the Department of the Army IG that his office conducted a preliminary analysis of the reprisal allegations raised by the applicant and that further investigation was not warranted.  The DOD IG considered the case closed.

9.  The applicant submitted an appeal to HRC-KNX on 20 September 2011.  However, an HRC official notified him that his appeal was not within 3 years of the through date of the OER and, as such, it was returned without action.

10.  The applicant provides an extensive exchange of emails, multiple letters of support, slides, and other documents that can be summarized as follows:

	a.  Multiple OERs prior to and after the contested OER. 

	b.  An email, dated 6 December 2007, from the Army Central Command IG office highlighting many problems within the 25th Signal Battalion.

	c.  Multiple supporting statements from various former or current NCOs, commissioned officers, and/or civilians who essentially opine that based on their interaction with the applicant the contested OER is unjustified.  The authors describe his performance as outstanding and blame the battalion S-1, CSM, and battalion commander for the overall hostile attitude within the battalion.  Additionally, the authors describe the applicant as a quality performer and an outstanding officer with character, integrity, and ethics.

	d.  A memorandum, dated 2 September 2007, appointing him as an IO to investigate an unrelated issue at Campo Eggers, Afghanistan.  

	e.  Unit rating scheme and slides related to outstanding issues (OERs and inspection results).

11.  Army Regulation 623-3 (Evaluation Reporting System) 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, been prepared by the proper rating officials, and 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 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.

	b.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	c.  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. 

	d.  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.

	e.  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.  The available evidence shows the applicant's rater - his battalion commander lost trust and confidence in him.  It appears the applicant had had some interpersonal difficulties with other members of the battalion.  Accordingly, his rater relieved him from his duties as the battalion executive officer.  The contested OER was referred to him for acknowledgement and rebuttal.

2.  Simultaneous with his initial appeal to HRC, the applicant appears to have filed a whistle blower/reprisal complaint to the IG.  The DOD IG closed his case after conducting an analysis of the reprisal allegations and determining that further investigation was not warranted. 

3.  The contested OER appears to be correct.  An OER is a measure an officer's performance and potential during a period of time.  There is no evidence, and the applicant provided insufficient evidence to show 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 must be of a strong and compelling nature.  

4.  The strong endorsement by former or current NCOs, officers, and civilians are noted.  However, none were in his rating scheme and none were in a position to comment on his performance or potential.

5.  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.


6.  The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  The Board is generally reluctant to remove or transfer adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  

7.  Among the purposes of filing unfavorable information is protection not just for the Soldier’s interests but for the Army’s as well.  Here, the applicant failed his duties as an executive officer during the rating period in question.  The fact that he suffered or could suffer the consequences of his actions is a natural and reasonable consequence of his performance.  

8.  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 the applicant's OMPF, the applicant’s 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 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)                                         AR20110020118



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ABCMR Record of Proceedings (cont)                                         AR20110020118



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