IN THE CASE OF:  

		BOARD DATE:  4 June 2013

		DOCKET NUMBER:  AR20120015993


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 correction of his DA Form 67-9 (Officer Evaluation Report (OER)), for the rating period 25 August 2008 through 24 August 2009 (hereafter referred to as the contested OER), as follows:  

   a. Part III (a) (Duty Description – Principle Duty Title), amend Principle Duty Title from "Program Integrator, DCMA (Defense Contract Management Agency) Canada London" to "Commander, DCMA Canada London";

   b. Part IV (Performance Evaluation – Professionalism (Rater)), redact Part IV in its entirety; 

   c. Part V (Performance and Potential Evaluation (Rater)), redact Part V in its entirety; and

   d. In the alternative, the applicant requests removal of the contested OER from his Army Military Human Resources Record (AMHRR).

2.  The applicant states:

* the principle duty title listed is inaccurate – he served as the organization's commander, not as a program integrator
* he had an assumption of command ceremony and he attended conferences and functions designated for commanders – he wouldn't have otherwise attended these functions if he were not the unit's commander
* he performed the functions of a commander immediately upon his arrival
* the Performance Evaluation in Part IV is inaccurate – he did not vary his leadership style and he used the same proven methods he used in previously successful positions
* he was successful in motivating, inspiring and building his team
* the Potential and Performance Evaluation in Part V is inaccurate – at no time did he bully or belittle his employees; nor did he treat them with disrespect, threaten, or abuse them in any way
* if the negative allegations against him were true, he wouldn't have received the Legion of Merit as he did on 21 October 2011
* he could not have degenerated into the Soldier and leader this OER depicts in the short time he commanded DCMA Canada (London)

3.  The applicant provides 2 binders of supporting documentation, tabbed as follows:

* TAB 1 – several emails with officials at U.S. Army Human Resources Command (HRC) and DCMA, and a copy of the contested OER
* TAB 2 – an email string concerning his orders for his assignment to DCMA
* TAB 3 – an email string concerning orders and an e-MILPO slotting summary 
* TAB 4 – DA Form 4037 (Officer Record Brief (ORB)), dated 1 October 2008
* TAB 5 – ORB, dated 25 September 2007
* TAB 6 – an email, the Assumption of Command ceremony program, and numerous color photographs depicting his Assumption of Command ceremony
* TAB 7 – DCMA Americas (Canada) Theatre Organization Structure wiring diagram
* TAB 8 – color photographs depicting a ceremony
* TAB 9 – an extract from "Communicator – News for DCMA Professionals," a DD Form 1610 (Request and Authorization for Temporary Duty (TDY) Travel of DOD Personnel), and a DD Form 1351-2 (Travel Voucher or Subvoucher)
* TAB 10 – an email string concerning his command initiatives
* TAB 11 – an email concerning the DCMA command brief
* TAB 12 – several past OERs, covering the periods 20070514-20080107, 20080108-20080824, and 19910602-19911218
* TAB 13 – DCMA Canada scorecard
* TAB 14 – an extract of a news article with photo depicting the applicant and 3 civilian employees who participated in a Multiple Sclerosis fundraiser
* TAB 15 – DA Form 4980-11 (Legion of Merit Certificate) 
* TAB 16 – various DD Forms 1610 and DD Forms 1351-2 
* TAB 17 – email traffic regarding the contested OER, his Senior Rater's command goals and objectives, numerous previous OERs, a news article, and a certificate titled "Who's Who Among Students in American Universities and Colleges"

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, the contested OER be redacted or removed from the applicant's records.

2.  Counsel states the basis of the applicant's appeal is substantive inaccuracy and his request and support documentation will show the lack of fairness shown by DCMA rating officials and their extreme antagonistic behavior toward an Army officer.  

3.  Counsel provides no additional evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 13 June 1982, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1.  He served in a variety of command and staff assignments, in positions of increased responsibility, in stateside, overseas, and combat locations.  

3.  On 7 October 2000, he was promoted to the rank/grade of lieutenant colonel (LTC)/O-5, in the Army Acquisition Corps.

4.  On or about 22 May 2008, he was notified of his impending reassignment to DCMA Canada (London). 

5.  On 15 July 2008, in an email discussion regarding his possible attendance at an upcoming commander's conference related to his assignment to DCMA, he was informed by a DCMA staff member that his position was not a Commander's position; rather, a Director's position.  In a subsequent reply, he acknowledged receipt of this information and asked for guidance on how to have the position titled changed back to "Commander."

6.  Subsequent replies on 16 July 2008 show he received further guidance from officials at DCMA regarding the approved policy changes and pending changes to DCMA authorization documents; specifically, regarding changes to the duty titles of former "Commander" positions.  In one exchange with a member of the Army Service Support Team, Military Personnel Operations, DCMA, he was advised:

The duty title for your position is "Director."  All DCMA 51 [Army Acquisition Corps] billets previously identified as "Commander"  was [sic] changed by Lieutenant General (LTG) Yxxxxxx about two years ago.  While the current TDA (Table of Distribution and Allowances) reflects "Commander," the change was submitted to USAFMSA (U.S. Army Force Management Support Agency) and should be updated by FY (Fiscal Year) 2009.  

7.  On or about 1 September 2008, he was reassigned to DCMA Canada (London).  His ORB shows his duty title as "CDR (Commander) Ontario," and Section II (Personnel) of the DCMA's Table of Distribution and Allowances (TDA), effective 1 October 2008, shows his position was coded with the duty title "CDR Ontario."

8.  On 24 August 2009, he received the contested OER for his duty performance as the Program Integrator, DCMA Canada (London).  It was filed in his AMHRR on 11 June 2010.

   a. Part II (d) (Authentication), (This is a referred report, do you wish to make comments?) contains a checkmark in the block, indicating the senior rater identified the report as a referred report.  However, there is no checkmark in either the "Yes" or "No" blocks, indicating the rated officer did not disclose whether or not he would make comments related to the referred report.  Additionally, the rated officer did not sign the report.

   b. Part IV (a) (Army Values) (5) (Respect), contains a checkmark in the "No" block, indicating the rater believed the applicant did not possess the Army value "respect."

   c. Part IV (b) (Leader Attributes/Skills/Actions) (b.2) (Skills (Competence)) (2) (Interpersonal), contains a checkmark in the "No" block, indicating the rater believed the applicant did not possess interpersonal skills.

   d. Part IV (b) (Leader Attributes/Skills/Actions) (b.3) (Actions (Leadership)) (3) (Motivating), contains a checkmark in the "No" block, indicating the rater believed the applicant did not possess motivating skills.

   e. Part IV (b) (Leader Attributes/Skills/Actions) (b.3) (Actions (Leadership)) (8) (Building), contains a checkmark in the "No" block, indicating the rater believed the applicant did not possess team building skills.

f. Part V (b), contains the following extract:

LTC [Applicant]'s performance was unacceptable in two CMOs (Contract Management Offices) in separate theaters.  He deployed to Iraq as Deputy to the CMO Commander immediately upon reporting to my command.  Five months into a 12-month deployment, he was redeployed.  Feedback from his Army O-6 Commander noted he exhibited poor leadership behavior and had four grievances filed against him due to an overbearing and bullying style of leadership, which created a hostile environment and resulted in personnel requesting redeployment due to fear of him personally.  LTC [Applicant] was moved to other duties and replaced as Deputy.  Upon redeployment, LTC [Applicant] was counseled on command climate expectations; however, after only 2 weeks a complaint was received regarding his behavior causing me to counsel him again.  Two months later, a key employee unexpectedly resigned, prompting complaints from 100% of both the remaining and recently departed staff, alleging a hostile and intimidating work environment.  They stated LTC [Applicant] yells, belittles, derides, is abusive, threatens termination, and makes negative, disrespectful comments to them about other staff members and about them personally.  LTC [Applicant] denied the allegations stating he treats everyone with dignity and respect.  I lost confidence in his ability to perform his assigned duties and reassigned him.

g. Part VI (Intermediate Rater), contains the following extract:

I have placed LTC [Applicant] in two leadership positions within my Division and he had almost identical performance issues in each position.  Despite two separate operational Commands, two separate CMO Commanders; Army and Navy O-6s, two different theaters, there was one common theme of performance deficiency. LTC [Applicant]'s mission includes supporting critical major acquisition programs supporting warfighters in Iraq and Afghanistan; however, employee transfers and resignations due to his negative command culture have placed the support of these programs in jeopardy.

   h. Part VII (c)  (Senior Rater – Comment on Performance/Potential), contains the following extract:

As expressed by his staff, the command climate LTC [Applicant] has instituted is in direct conflict with my promulgated commitment to provide a work environment free of insulting, degrading or offensive treatment, and harassment in any form.  As a leader and supervisor, he had an obligation to ensure an environment of mutual respect, dignity and fairness.  Although placed in positions of trust and significant responsibility, LTC [Applicant] did not meet this obligation.  As such, I have lost confidence in LTC [Applicant]'s ability to lead in my agency.  The rated officer refused to sign.

9.  Following his service with DCMA Canada (London), he executed a permanent change of station (PCS) move to Fort Huachuca, AZ.

10.  Section II of the DCMA's Table of Distribution and Allowances (TDA), effective 2 October 2009, shows his position was coded with the duty title "Director, DCMA Ontario."

11.  On 31 December 2011, he was honorably retired from the Army, at the conclusion of 28 years and 22 days of faithful and honorable service to the Nation.  On 1 January 2012, he was placed on the Retired List in the rank/grade of LTC/O-5.

12.  There is no documentation in his available record that shows he appealed his OER through HRC to the Army Officer Special Review Board (OSRB).  

13.  The applicant provides 2 binders of supporting documentation, including:

   a. Several documents that show he served as a Commander, including an Assumption of Command Ceremony program and several color photographs taken at the ceremony.  It appears that this ceremony was honorary and symbolic in nature, undertaken as part of Army tradition.  

   b. Numerous past OERs that show he received excellent ratings during those rated periods.

   c. Various DD Forms 1610 and DD Forms 1351-2, which document several TDY periods he performed while assigned to DCMA Canada (London).

14.  All Army Activities (ALARACT) message 159/2006, dated 29 August 2006, announced changes to the Army's Centralized Selection List (CSL) command and key billet policy.  This message stated:

	a.  As a result of an annual review of the CSL command and key billet process, certain changes were approved and effective beginning with the Fiscal Year (FY) 2008 U.S. Army Colonel (COL) and LTC Command and Key Billet Selection Board.  

	b.  The CSL Key Billet program is expanded from division level staff officers to other non-staff positions.  CSL-Key Billets (CSL-KB) are not commands, but duty assignments at the LTC or COL rank requiring specific, highly developed skills and experience deemed so critical to a unit's mission that an officer is selected for assignment by Headquarters, Department of the Army (HQDA) (emphasis added).  These positions are primarily charged with managing resources and controlling assets.  There are two general CSL-KB categories and three categories specific to the Army Acquisition Corps. 

		(1)  The two general categories are: General Staff and Director.

		(a)  The General Staff category is comprised of officers centrally selected by HQDA to perform as primary and special staff officers at the division level or 2-star command equivalent.  These officers are principal advisors to the commanding general and chief of staff.

		(b)  The Director category is comprised of officers selected by HQDA based on their specific skills and experience to execute duties as a director who manages resources and the complexity of an organization.

		(2)  Army Acquisition Corps units that were previously designated as CSL commands are now categorized into one of the three CSL-KB categories listed below:

		(a)  Product managers are responsible for the leadership, development of overall program management, plans, requirements, execution, control and direction of the work and associated resources required for life cycle management of the program/system and associated products.  A product manager is an LTC or civilian GS-14 or broadband equivalent converted grade.

		(b)  Project managers are responsible for the leadership, development of overall program management, plans, requirements, execution, control and direction of the work and associated resources required for life cycle management of the program/system and associated products.  A project manager is a COL or civilian GS-15 or broadband equivalent converted grade.

		(c)  Directors are responsible for the direction, guidance and leadership of major acquisition contracting and testing organizations and facilities.  Depending on the span of control and/or scope of responsibility, a director is either a COL or civilian GS-15 or broadband/ equivalent converted grade; or an LTC or civilian GS-14 or broadband/ equivalent converted grade.  Directors are DA centrally selected by a secretariat board.

15.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the Army's ERS, including the DA Form 67-9.

   a. Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct; prepared by the proper rating officials; and represent the considered opinion and objective judgment of rating officials at the time of preparation.

   b. 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 or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the correction of the contested OER, based on perceived substantive inaccuracies.

2.  The applicant contends the contested OER is incorrect, because it shows his Principle Duty Title was that of "Program Integrator, DCMA Canada London"; however, he served as the organization's commander, not as a program integrator.  He had an Assumption of Command ceremony, and he attended conferences and functions designated for commanders – he wouldn't have otherwise attended these functions if he were not the unit's commander.  Additionally, he performed the functions of a commander immediately upon his arrival.

3.  His contentions are acknowledged; however, the evidence of record clearly shows he was counseled regarding approved changes to Army Acquisition Corps positions, and e-mails show he acknowledged those changes. He was aware of those changes prior to arriving for duty with DCMA Canada.  The DCMA TDA, effective 2 October 2009, shows his former duty title changed from "CDR Ontario" to "Director, DCMA Ontario."  As promulgated in ALARACT message 159/2006, Army officials directed the changing of duty position titles prior to his tenure with DCMA. 

4.  He contends the Performance Evaluation in Part IV is inaccurate – he did not vary his leadership style and he used the same proven methods he used in previously successful positions.  He contends he was successful in motivating, inspiring and building his team; however, he failed to provide evidence that sufficiently refutes the ratings contained in the contested OER.  

5.  He contends the Potential and Performance Evaluation in Part V is inaccurate – at no time did he bully or belittle his employees; nor did he treat them with disrespect, threaten, or abuse them in any way.  He contends he could not have degenerated into the Soldier and leader this OER depicts in the short time he was in command.  In his request memorandum, he takes issue with his rater's characterization of his performance; however, the contested OER shows that all 3 of his rating officials evaluated his performance in a similar manner, yet he makes no mention of any inconsistencies in either his intermediate rater or senior rater's evaluation.  Lastly, none of the submitted evidence contradicts the narrative evaluations presented in Parts V, VI, or VII.   

6.  He contends that if the negative allegations against him were true, he wouldn't have received the Legion of Merit as he did on 21 October 2011.

    a. Rating officials assess an officer's performance and potential against standards – the Army Values, the Army's leadership doctrine framework, the organization's mission, and a particular set of duties, responsibilities, tasks, and objectives.  The intent is to drive rated Soldiers to meet or exceed the standards. An OER assesses the quality of Soldiers and determines the selection of future Army leaders and the course of their individual careers. OERs give the rated Soldier formal recognition for his or her duty performance; calibrate a measurement of his or her professional values and personal traits; and assess his or her potential for promotion, specialized schooling, command, and/or positions of greater responsibilities.

   b. An award, on the other hand, is a recognition given to individuals or units for certain acts or services.  It is the Army's policy to recognize individual acts of heroism, extraordinary achievement or meritorious achievement when such acts have been of significant benefit to the United States or materially contributed to the successful prosecution of a military campaign by Armed Forces of the United States.  Such acts or achievements will be recognized through the award of an individual U.S. decoration.

   c. In the applicant's case, his Legion of Merit award covered the last 10 years of his career, including the period he served with DCMA.  While this award presents a favorable view of the applicant's career at the time of his retirement, it does not negate performance during that 10 year period that was evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values and the Army's leadership framework. His rating officials appear to have determined he failed one or more of the Army values.  Values are needed to maintain public trust, confidence, and the qualities of leadership and management needed to sustain an effective Officer Corps.  These values and leader attributes, skills, and actions emphasize and reinforce professionalism and are considered in the evaluation of the performance of all officers.

7.  In order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that (a) the presumption of regularity should not be applied to the report under consideration; and (b) action is warranted to correct a material error, inaccuracy, or injustice.

8.  The applicant has not provided sufficient evidence to show the ratings on the contested report were in error; that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered; or that the contested report was inaccurate, unjust, or otherwise flawed.  The evidence presented does not establish 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.

9.  The contested OER is facially correct; therefore, there is an insufficient evidentiary 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)                                         AR20090007349



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ABCMR Record of Proceedings (cont)                                         AR20120015993



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