IN THE CASE OF:	  

		BOARD DATE:	    5 September 2013

		DOCKET NUMBER:  AR20120017858 


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 removal of his referred change-of-duty officer evaluation report (OER) for the period 16 June 2003 through 5 January 2004 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR).

2.  The applicant states he was presented two OER's for signature at the same time.  Both were referred reports written by the same rating chain.  He appealed both OER's at the same time and successfully got the second OER removed from his AMHRR for containing false information (Army Special Review Boards (ASRB) Docket Number AR20080000490).  He now wants the contested OER removed as well.  He further states:

	a.  The senior rater (SR) was influenced by emotion and his misunderstanding of events during the second rating period while he prepared his comments for the contested OER.

	b.  The SR was not familiar enough with his work to fairly issue a poor rating, let alone a referred report.  He relied on others to describe his performance.

	c.  The information the SR received was one-sided and he didn't provide him the opportunity to defend himself or explain his side of what had happened.

	d.  Several witnesses have contradicted the SR's rating.  He included statements by some who would have been in a position to provide an honest evaluation of his performance during the rating period.

	e.  His OER for the period 10 February 2003 through 15 June 2003 for the same job demonstrates the traditional supervisory role of the S2X.

	f.  There were serious rating chain and counseling issues.  Up until the end of the rating period he was never once given negative counseling regarding his performance.  He was never counseled by his rater or SR at the beginning or at any time during the period of the contested OER.  Toward the beginning of the rating period his company commander informed him he would be his rater and the squadron commander would be his SR.  He was never informed of any change before the end of the rating period.

	g.  He has a strong feeling the rating was assigned to him at least partially in a knee-jerk reaction to what the command group perceived as an embarrassment to the brigade.  Months earlier a Soldier of his alleged she was raped in Kuwait while they were waiting to go into Iraq.  She had been moved to another installation during the investigation.  Although discouraged by the brigade command group from doing so, he and his first sergeant visited her in order check on her morale and take her some of her belongings.  The Soldier eventually went home and ended up giving an interview on national television in which she expressed her disappointment with how she had been treated.  She had stated that only one person in her chain of command had tried to take care of her and that was him.  He learned the brigade leadership saw the interview and were not pleased, and that a copy of the television interview transcript was on his SR's desk the night before he was given his ratings.

	h.  The rating given to him by his SR in no way communicates his true performance at the time and is wrongfully holding him back from further progression.

3.  The applicant provides:

* contested OER
* memorandum for record (MFR) from the U.S. Army Human Resources Command (HRC), dated 22 May 2008
* memorandum from HRC to the applicant, dated 23 May 2008
* MFR from Major (MAJ) M____, dated 18 September 2006
* Commander's Inquiry (CI) for applicant's OER from 6 January 2004 to 15 March 2004, dated 24 July 2004
* MFR from Captain (CPT) T____, dated 1 July 2007
* MFR from Chief Warrant Officer Four (CW4) C____, dated 8 May 2007
* MFR from Company E, 309th Military Intelligence (MI) Battalion, 111th MI Brigade, Fort Huachuca, AZ, dated 8 August 2003
* OER for the period 10 February 2003 through 15 June 2003
* CI for the applicant's OER from 16 June 2003 to 5 January 2004, dated 24 July 2004
* Microsoft/National Broadcasting Company (MSNBC) Dateline interview transcripts titled, "Rape allegations among U.S. armed forces"

CONSIDERATION OF EVIDENCE:

1.  At the time of his application, the applicant was serving on active duty in the Regular Army in the rank of MAJ.  He was promoted to lieutenant colonel (LTC) on 1 August 2013.

2.  He provided a copy of his change-of-rater OER for the period 10 February 2003 through 15 June 2003.  He was assigned to the 209th MI Company, 3rd Brigade Combat Team, 2nd Infantry Division, Fort Lewis, WA.  His rater was MAJ J____, Brigade S-2X, and his SR was LTC C____, Squadron Commander.

3.  The contested OER for the period 16 June 2003 through 5 January 2004 currently filed in his AMHRR has been amended as directed in ASRB Docket Number AR20080000490.  He was assigned to the 209th MI Company, 3rd Battalion, 2nd Stryker Brigade Combat Team (SBCT), in Mosul, Iraq, as the Tactical Human Intelligence (HUMINT) Platoon Leader.  His rater was MAJ H____, Brigade S-2, and his SR was LTC R____, Brigade Commander.

	a.  In Part IVa (Army Values), the rater placed an "X" in the "YES" blocks for all Army values.

	b.  In Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in all of the "YES" blocks.

	c.  In Part V (Performance and Potential Evaluation), the rater placed an "X" in the "Outstanding Performance, Must Promote" block.  His comments state:

[Applicant] has done a good job.  He trained and led his Tactical HUMINT Teams (THT) through two intense back-to-back training center rotations at both NTC [National Training Center] and JRTC [Joint Readiness Training Center].   After successfully completing training at the CTCs [Combat Training Centers], he developed TTPs [tactics, techniques, and procedures] and revised platoon tactical operating procedures to ensure best use of THTs in future operations.  After the brigade was proven fully mission capable and ready to conduct its wartime mission, [Applicant] successfully deployed his teams to Iraq in support of Operation Iraqi Freedom.  While in Iraq, he supervised his teams' intelligence collecting operations in the Former Saddam Regime stronghold, city of Samara, leading to the capture of over 150 anti-coalition forces and criminals, and some of the largest weapon caches in the AO [area of operations].

[Applicant] has unlimited potential – promote and continue to challenge him with difficult jobs.

	d.  In Part VII (Senior Rater) the SR placed an "X" in the "Fully Qualified" block in his evaluation of the applicant's promotion potential to the next higher grade.  His comments on the applicant's performance and potential, as amended per ASRB Docket Number AR20080000490, state:

Continues to perform in an acceptable manner.  I relied on [Applicant] to prepare the Brigade for deployment with critical SAEDA [subversion and espionage directed against the Army] Briefs and force protection operations to ensure the safe passage of the Brigade from CONUS [continental United States] to the theater of operations.  [Applicant] possesses potential, but was removed from this position due to a lack of leadership maturity and of good judgment.

Promote with peers and continue to challenge.

4.  The applicant provided a CI into the contested OER by the Commanding General, Headquarters, Task Force Olympia, Mosul, Iraq, conducted on 24 July 2004.  The CI found administrative errors which did not materially alter the overall accuracy or content of the report.

	a.  The applicant's comments in response to the contested OER were not reviewed by the SR before it was submitted to HRC.  However, the applicant's comments are included with the OER in his file at HRC.

	b.  During the rating period, the identity of the rater was unclear to the applicant and to his company commander.  The company commander believed he was the applicant's rater and performed some counseling in that capacity.  The rater, MAJ H____, knew throughout the rating period that she was his rater.  A written rating scheme was not available to settle this matter.  There was no prejudice to the applicant because the company commander indicated he would have given the applicant a less favorable rating than the contested OER given by MAJ H____.

	c.  The CI concluded that although the contested OER contained administrative errors, they did not adversely affect the overall evaluation of the applicant.  Though the rater and the SR's assessments are different, this can be attributed to a normal differing of views regarding the applicant's performance and potential.

5.  The applicant provided a CI into his OER for the period 6 January 2004 through 15 March 2004 conducted on 24 July 2004.  This OER was removed from his AMHRR per ASRB Docket Number 20080000490.

6.  The applicant provided a statement from MAJ M____, dated 18 September 2006, who was then serving as the Brigade S-1 for 3rd Battalion, 2nd SBCT, in Iraq.  He stated that to the best of his recollection, the applicant received both the contested OER and the removed OER at the same time.

7.  The applicant provided a statement from CW4 C____, dated 8 May 2007, referring to events that led to the OER that was removed per ASRB Docket Number AR20080000490.

8.  The applicant provided a statement from CPT T____, dated 1 July 2007.  He stated that during the period 1 June 2003 to 15 March 2004 he was the Brigade S-2X for 3rd Battalion, 2nd SBCT.  He worked directly with the applicant, both while he was the HUMINT Platoon Leader and then when he was the S-2X liaison officer.  He stated that in regard to the applicant's dismissal as the HUMINT Platoon Leader, it was his opinion that the applicant was not treated in a fair and impartial manner.  He stated the applicant had established successful relationships with multiple echelons of the HUMINT community during the deployment and was effectively a mission-focused combat multiplier.  While he was not in the same area of operations as the applicant when the events for his dismissal took place, he has a strong belief that these actions took place because of personality conflicts with brigade leadership.

9.  The applicant provided transcripts of MSNBC Dateline interviews pertaining to rape allegations among the U.S. Armed Forces.  His annotation on page 3 of the transcripts indicates that Sergeant (SGT) W____ was the Soldier he mentioned in his statement as having been attacked in Kuwait.  However, nothing in the transcripts identifies the SGT's unit or her platoon leadership.

10.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and Officer Evaluation Reporting System.

	a.  A rating chain is established to provide the best evaluation of an officer’s performance and potential.  A rating chain also ties the rated officer’s performance to a specific senior and/or subordinate relationship.  This allows for proper counseling to develop the rated officer and accomplish the mission.

	b.  Rating chains must 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 to each rated officer and each member of the chain.  Any changes to rating chains will also be published and distributed as they occur. No changes may be retroactive.

	c.  Paragraph 1-10a stated performance evaluations were assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance was evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.

	d.  The SR must be an officer of the U.S. Armed Forces or an employee of the Department of Defense.  Normally, the senior rater must be a supervisor above the rater in the rated officer's chain of command or supervisory chain.  The SR uses his or her position and experience to evaluate the rated officer from a broad organizational perspective.  His or her evaluation is the link between the day-to-day observation of the rated officer’s performance by the rater and the longer-term evaluation of the rated officer’s potential by Department of the Army selection boards.

	e.  Paragraph 3-57 stated evaluation reports accepted for inclusion in the official record of a Soldier were presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

	f.  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.

	g.  Chapter 6 prescribed the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-10 provided guidance for the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It stated that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-57 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  He contends his OER for the period 10 February 2003 through 13 June 2003 demonstrated the traditional supervisory role of the S-2X and his section.  However, he was assigned to the 3rd BCT in Fort Lewis, WA, during the period of that report and during the period of the contested OER he was assigned to the 2nd SBCT in Iraq.  Therefore, the change in his rating scheme was not unusual and there is no evidence that a rating scheme in the 3rd BCT can be determined as "traditional."

2.  The applicant contends that the rating given to him by his SR in no way communicates his true performance at the time.  He contends that the SR was influenced by emotion and his misunderstanding of events during the second rating period (6 January 2004 through 15 March 2004) while he prepared his comments for the first. Since the second OER has been removed per direction of the ASRB, there is no ability to determine whether this is the case.

3.  He contends the SR was not familiar enough with his work to fairly issue a poor rating, let alone a referred report.  He contends that the SR relied on others to describe his performance.  He contends that the information the SR received was one-sided and he never provided the applicant the opportunity to defend himself or explain his side of what had happened.  According to the CI, his comments were included with the contested OER in his file at HRC.  These comments are not now in his AMHRR and appear to have been removed as result of ASRB Docket Number AR20080000490.  It is not clear what event(s) he is referring to in his statement "…explain his side of what had happened."

4.  MAJ M____'s statement confirms the applicant's contention that he received two OER's at the same time.  However, the MAJ's statement does not contradict the contested OER or provide evidence concerning the SR's rating.

5.  CPT T____ stated he didn't think the applicant was treated fairly and he had a strong belief that actions took place because of personality conflicts with brigade leadership.  However, CPT T____ was not in his chain of command and he was not privy to the guidance and/or expectations between the applicant and the rating officials.  He also admitted he was not in the same area of operations as the applicant when the events for his dismissal took place.  Additionally, CPT T____ did not provide compelling evidence to overcome the presumption of regularity regarding the evaluation of the applicant by his rating officials.

6.  The statements from CW4 C____ referred to events that led to the OER that was removed per ASRB Docket Number AR20080000490.  However, they do not contradict the contested OER or provide evidence concerning the SR's rating.

7.  He contends his ratings were given to him at least partially because of an interview given by a Soldier on MSNBC Dateline who alleged she was raped while in Kuwait.  He learned the brigade leadership saw the interview and were not pleased and a copy of the interview transcript was on his SR's desk the night before he was given his ratings.  However, he has not provided any substantive evidence to support this contention.

8.  He contends the contested OER is wrongfully holding him back from further progression.  However, he was promoted to MAJ since the period of the contested OER and he was recently promoted to LTC.  Therefore, the evidence does not support his contention.

9.  OER's accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

10.  To support removal or amendment of a report, there must be evidence that clearly and convincingly establishes 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.  The burden of proof rests with the appellant.

11.  An OER is a measure of 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 SR did not comply with the regulatory requirements for evaluating him in a fair and unbiased manner.

12.  There is no evidence the contested OER was not a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question.  The applicant has failed to provide clear and convincing evidence to overcome the presumption of regularity.

13.  In view of the above, there is an insufficient basis to remove the contested OER from the applicant's AMHRR.

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 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)                                         AR20120017858



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ABCMR Record of Proceedings (cont)                                         AR20120017858



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