BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20120020454 


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 a Change of Rater Officer Evaluation Report (OER) he received for the period 16 March 2009 through 8 February 2010 from his Army Military Human Resource Record (AMHRR).

2.  The applicant states the contested OER is unjust and further refers to counsel.

3.  The applicant provides his counsel’s statement and the indexed list of 25 enclosures as indicated on his application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant’s contested OER from his AMHRR together with all accompanying and/or related documents referencing said report.

2.  Counsel states:

	a.  The contested OER, when issued, was inaccurate and unjustified considering the applicant’s superb abilities as a commander in both combat and garrison environments.

	b.  The contested OER is an inexplicable anomaly completely bookended by outstanding ratings and accomplishments before and after its issuance, and he provides a brief synopsis of these reports.
	c.  Specific rater and senior rater (SR) complaints against the applicant in the contested report are suspect according to officers and senior noncommissioned officers (NCOs) with firsthand knowledge of his duty performance during the relevant rating period.

	d.  Others with general knowledge of the applicant’s abilities and performance history discount the accuracy and reliability of the contested OER.

	e.  A logical inconsistency on the contested OER raises doubts about the reliability of the report in its entirety, in that:

(1)  On page 1, block IVd (Officer Development), the rater checked the 
“NO” block indicating he did not record developmental tasks on a DA Form 
67-9-1a (Developmental Support Form), and did not conduct quarterly follow-up counseling even though Army Regulation 623-3 requires raters to use this form or an equivalent for captains at the beginning of the rating period and quarterly thereafter for follow-up counseling.  Yet, one of the primary complaints against the applicant is that he marginally performed, “despite repetitive coaching, formal and informal counseling….”

(2)  In part Vb, the rater says he subjected all of the applicant’s shortfalls 
(“events”) to on-the-spot corrections, counseling, and coaching”; howbeit, in the same document he says he did not even once use the required Army developmental counseling form, designed to enhance and promote ongoing superior/subordinate communication and to capture exactly the kinds of corrective actions the applicant is accused of ignoring or failing to follow.

	f.  If upon return from combat in Iraq the applicant’s performance was truly as bad, so incompetent, and continuously resistant or unresponsive to multiple counseling as the rater and SR suggest, why wasn’t the applicant issued a “relief for cause” OER?

	g.  The applicant had talent, drive, boundless potential, and an indomitable spirit before his career received a body blow from the contested OER.  Remarkably, he still possesses all those same qualities, and he deeply loves the uniform he wears proudly as a Reserve officer.

3.  Counsel provides the same supporting documents as the applicant.


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant on 31 May 1997.  He was promoted to first lieutenant on 10 August 1999.  He continued to serve in the Reserve component until he was honorably discharged on 5 June 2003.

2.  On 6 June 2003, the applicant entered the Regular Army as an infantry officer and was promoted to captain (CPT/O-3) on 1 March 2005.

3.  While serving with Company B, 52nd Infantry Regiment, 2nd Stryker Brigade Combat Team (SBCT), 25th Infantry Division, Schofield Barracks, Hawaii, the applicant was evaluated as an Infantry Company Commander (his first company command) for the period 16 March 2008 through 15 March 2009.  This report contained all highly favorable comments from both the rater and SR and shows:

   a.  The rater placed him in the first block (Outstanding Performance, Must Promote) indicating the applicant:
   
* easily ranked in the top 3 of 7 company commanders he rated in the Task Force while deployed to combat in Northwest Baghdad
* is an intelligent and dedicated officer who demonstrated a degree of maturity, aggressiveness, and tactical flexibility not achieved by many of his commanders
* operated in their most contentious area over the last eight months conducting a very effective counterinsurgency company against Sunni Extremist Group cells by disintegrating their networks and eroding their resources
* his company was responsible for the detention of 40 extremists fleeing the Taji area for fear of detention
* applied non-lethal effects to consolidate security gains through countless face-to-face engagements and by developing and executing 35 essential service projects to repair and pave roads, refurbish schools, increase medical capabilities, and improve sanitation; said projects totaling $4,300,000.00 and created over 400 temporary jobs in the area
* led his company in developing micro-grants to support 51 local businesses with $196,000.00, helping to stabilize the area and stimulate local economic markets 
   
   
b.  The SR placed the applicant in the first block (Best Qualified) indicating the applicant or applicant's:
   
* ranked 5 of the 29 company-level commanders he senior rated across the SBCT
* demonstrated remarkable command abilities in combat
* was selected by the SR for a second company (command) based on his obvious talents
* tactical and technical competence coupled with his superb interpersonal team building skills makes him a clear pick for the most selective positions
*  is unlimited in potential and very competitive for below-the-zone selection for MAJ
* Send to intermediate level education (ILE) once he completes his second command and assign him immediately as a battalion S3 or executive officer
* will continue to excel as a field grade officer

4.  While serving with A Company, 1st Battalion, 27th Infantry Regiment, 2nd Division, 25th SBCT, Schofield Barracks, Hawaii, the applicant was forwarded the contested OER, a Change of Rater report, covering the period 
16 March 2009 through 8 February 2010.  The contested OER evaluated him as the Company Commander of a 178-man SBCT Rifle Company, which consisted of nine rifle squads, three weapons squads, a mobile gun system platoon, a mortar section, sniper section, and headquarters section, and headquarters section capable of deploying anywhere in the world by land, sea, or air.  He was responsible for:

	a.  the training and tactical employment of the company in full spectrum operations with a focus on urban operations;

	b.  mastering new weapons and equipment to include digitized command and control systems;

	c.  the combat readiness, physical fitness, welfare, morale, conduct, and force protection of the company and the well being of their families; and

	d.  accounting and maintaining vehicles and organization equipment valued in excess of $25 million dollars.


5.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a lieutenant colonel (LTC), evaluated the applicant as follows:

	a.  Part IVa (Army Values) – the "Yes" block is checked in response to every question;

	b.  Part IVb (Leader Attributes/Skills/Actions) - the "Yes" block is checked in response to every question;

	c. Part IVc (Army Physical Fitness Test (APFT)) – the applicant passed the APFT and met the height/weight requirement); and

	d.  Part IVd (Officer Development) – the "NO" block was checked under the sub-heading "Were developmental tasks recorded on a DA Form 67-9-1a and quarterly follow-up counseling conducted?"

6.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the second block (Satisfactory Performance, Promote) and provided comments in Part Vb (Comments) that include the following:

	a.  the applicant performed in a marginal manner during this reporting period;

	b.  despite repetitive coaching, formal and informal counseling, he has not performed satisfactorily with respect to collective training management and execution of leader development;

	c.  the applicant struggles to adequately execute mission-type orders or meet commander's intent; either through inaction or inability, his subordinates are not being developed to do so either;

	d.  this rating period has been marked by numerous collective training and leader development events that have not been properly planned, resourced, or executed by the applicant;

	e.  the applicant has not demonstrated the potential to succeed as a field grade officer in the infantry community; he has been counseled accordingly; and

	f.  the applicant does have the potential to serve in a different career field where he will have closer supervision, execute specified tasks, and not have to develop or supervise subordinates.


7.  In Part Vc (Comment on Potential for Promotion), the rater indicated the applicant should NOT be promoted if he remains in the Operations Career Field; and that based on his assessment he should be promoted if he is in a career field where his individual skills and education would be of a greater benefit to the Army.

8.  In Part Vd (Identify any Unique Professional Skills or Areas of Expertise of Value to the Army….), the rater indicated the applicant should serve in the Foreign Area Officer (FAO) career field (FA 48).  He is well qualified to serve as an FAO, he has an operational background, deployment experience, an outstanding DLAB score, and a Masters of Arts in Diplomacy.

9.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the SR placed the applicant in the second block (Fully Qualified) and marked the "YES" block indicating a completed DA Form 67-9-1 was received with this report and considered in his evaluation and review.

10.  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the SR did not mark any block.  In Part VIIc (Comment on Performance/Potential) the SR's supporting comments included:

	a.  the applicant performed in a marginal manner during this rating period, he is in the bottom fifty percent of the officers he currently rates in the same grade;

	b.  he is motivated, physically fit, adheres to Army values and has given one hundred percent in service to our nation and Soldiers;

	c.  while the applicant can thrive in a highly-centralized environment, he has not demonstrated the potential to successfully command or execute as a field grade officer in the current autonomous operational environment;

	d.  the applicant is challenged with executing collective training and leader development; and

	e.  send to ILE when available and promote to major outside the operational career field; and 

	f.  his background, education, and experience lend him toward best serving the Army as an FAO.




11.  A DA Form 638 (Recommendation for Award) shows:

   a.  The applicant's supervisor, a CPT/O-3, recommended him for award of the Army Commendation Medal (ARCOM) during the period 26 February 2007 – 15 February 2010;

	b.  Part III (Justification and Citation Data) Achievement #4 includes a citation which shows, "Assuming Command of Alpha Company, 1st Battalion, 27th Infantry on 27 July 2009, CPT T____ set the standard in preparation and execution of the unit's reset of personnel and equipment valued in excess of $56 million.  In addition, CPT T____ planned, prepared, and deployed his company to its first major post-OIF collective at Pohakuloa Training Area (PTA) in November 2009.  His diligence and commitment to excellence ensured Alpha Company would continue to succeed in the Battalion's training and preparation for its return to Iraq; and

	c.  Part IV (Recommendations/Approval/Disapproval) shows the applicant's SR, as listed on the contested report, approved this award as the brigade commander.

12.  On 3 March 2010, the applicant appealed the contested report to the Department of the Army (DA), Officer Special Review Board (OSRB).  He contended the contested OER was substantively inaccurate, does not portray a valid representation of his performance, and he submitted much the same supporting argument and evidence that he has provided to this Board.  He also stated:

	a.  the period covered on the contested report and rated months were incorrect and should have rated him during the period 27 July 2009 through 8 February 2010 for seven months only and 4 months should have been identified by the appropriate nonrated code;

	b.  the rater and SR completed the contested OER without requesting or reviewing a DA Form 67-9-1a and as a result were not able to fully evaluate him;

	c.  in response to the "marginal performance" comments made on the contested report he provided a list of his contributions made during the rating period; and

	d.  the negative comments on the contested report were unsupported by quantitative facts and contradicts Part IVb of this report where the "YES" block was marked in every category and "SATISFACTORY PERFORMANCE, PROMOTE" was marked.
13.  On 10 November 2010, the OSRB determined:

	a.  The applicant was correct in noting his rating period should have been only for 7 months, commencing on or about 27 July 2009.  However, he signed the report validating the administrative information, and the governing regulation recommends a change to administrative data only in the most unusual of circumstances when it would cause the appellant harm, an administrative change will not be directed.

	b.  The applicant misinterpreted section IVd of the OER because this section is used by the rater to evaluate whether the rated officer rates any CPTs/LTs/CW2s/WO1s and whether the applicant is in compliance with the requirements of the Developmental Support Form.  By placing a "NO" in this section, the rater indicated the applicant was not in compliance with the form’s requirements for the Soldiers he rated.

	c.  Although the applicant contends he was not provided an opportunity to provide his Developmental Support Form the SR indicates he used the form in preparation of the applicant's OER.  Even if the applicant did not submit a Developmental Support Form to his rating officials, failure to comply with any or all the form’s requirements does not invalidate the OER.

	d.  In response to the applicant's claim that the rating officials failed to include his accomplishments and contributions made during the period of the contested report, the rating officials retain the ultimate discretion of what is inserted in an evaluation report.

	e.  The derogative negative comments found on the contested report were supported by quantitative facts when the rater formally and verbally counseled the applicant several times between August and December 2009.

	f.  The applicant failed to provide any evidence to support his claim alleging multiple infractions of Equal Employment Opportunity (EEO) policy, a hostile working environment, and discrimination in the workplace.  In addition, he did not request a commander's inquiry to investigate these matters.

	g.  The OSRB concluded the applicant failed to provide evidence to show the contested report was not processed in accordance with applicable laws and regulations.   Thus, the OSRB voted to deny his appeal.

14.  On 1 October 2012, the applicant separated from active duty by reason of "Non-Selection, Permanent Promotion" in the rank of CPT.  He completed 9 years, 3 months, and 26 days of creditable active duty service.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he was retired, but shows a separation code of JGB indicating he was involuntarily discharged due to non-selection for permanent promotion.

15.  On 2 October 2012, he was appointed in the USAR, infantry branch for an indefinite period.  His record reveals an excellent evaluation history that was marked by his selection for promotion to major below the zone, both prior to and subsequent to the period of the contested report.

16.  On 17 June 2013, he was promoted to the rank of MAJ/O-4.

17.  The applicant provides third-party supporting statements from Soldiers who were assigned to his unit, in the indicated positions, during the contested rating period.  These individuals made the following comments:

	a.  "company first sergeant" (currently a master sergeant (MSG/E-8):

* he was the most senior company first sergeant in the battalion and often observed the applicant's performance as company commander
* in his 20 years of military service, the applicant was by far the most loyal, dedicated, and competent infantry commander he's witnessed
* the applicant should have been rated in the top 25 percent of his peers during the rating period in question
* he personally attended battalion training meetings in which the applicant provided clear, concise mission statements and detailed concept of operations briefs that the commander (rater) and S-3 approved
* there were no issues in the applicant's ability to plan collective training or detailed operations which were nested in the commander's intent
* the applicant worked countless hours to properly coach, teach, and mentor junior and senior leaders
* the applicant allocated one 2-hour block of formal officer professional development (OPD) on a weekly basis which was outlined in the company training schedules and provided to the battalion staff two weeks in advance of actual training
* the applicant trained the leader as well as the trainer to ensure every level understood his respective task, purpose and end state
* given the need for qualified, distinct combat leaders to lead our most valuable asset, our Soldiers, the contested report is an injustice to the Army as well as to the applicant and should be removed from the applicant's record

	b.  CPT/O-3 – "battalion assistant S-3" and "battle captain" in the Battalion Tactical Operations Center (TOC):

* he noticed the applicant's high level of determination, work ethic, and abilities
* select leadership within the battalion isolated the applicant personally and professionally for reasons unknown
* he consolidated numerous slide show presentations and operation orders from the applicant and other company commanders for battalion meetings
* during some of the briefings, the applicant's training slides were deemed unacceptable and in need of repetitive revisions; however, the applicant's initial presentations were in no way inferior to those of the other companies, who were not criticized but often applauded
* ultimately, the applicant's training plans were always approved and signed by the commander
* the applicant's unit received a "T" (for Trained) rating for all of their critical collective tasks during their one-month training rotation to the PTA
* he often observed key members of the battalion leadership publicly tolerating and in some cases, encouraging derogatory and negative remarks about the applicant's company in front of other Soldiers and officers in the TOC
* in all measures, he witnessed that the applicant's company equaled or exceeded the other companies within the battalion
* the battalion S-3 commented that everyone should refer to "able" company as "unable"
* even while in fear of the negative consequences to his own career, he is willing to make these statements to anyone in any situation

	c.  "stryker platoon leader" and "Headquarters and Headquarters Company (HHC) Executive Officer (XO)" - (CPT/O-3):

* as the HHC XO, he observed the applicant's company command performance as a third-party bystander
* in all of his 13 years of military experience, the applicant was a top performer and an outstanding company commander who easily ranked in the top 10 percent of his peer group
* the applicant was successful in executing all mission-type orders with minimal to no guidance and he clearly understood specified, implied, and key tasks within the battalion/brigade commander's intent
* despite the lack of support from the respective battalion staff and command group, the applicant had a distinct acumen to solve complex problem sets associated with collective training management and execution
* he greatly benefited from the applicant's guidance, as he spent tireless hours to ensure each of his platoon leaders understood their mission statement, task, purpose, specified tasks, implied tasks, and key tasks of any mission our company undertook
* the applicant properly managed and resourced collective training events
* in the Battalion Training Resource meetings, he noticed "Able" company always met suspense’s to properly allocate resources in a timely manner
* the applicant was very detail oriented and could even plan platoon and squad level rehearsals according to the operations orders within the given timeline demonstrating he genuinely cared for his Soldiers and continued to support the higher command's intent
* the battalion commander treated the applicant rather poorly in comparison to other company commanders and military officers within the organization
* despite the poor treatment and condescending approach the applicant received, he continued to drive on, remained positive, taught, and led his company professionally
* he briefed his company's future plans in detail with mission planning more precise than his peers
* the applicant's company excelled in all training areas in comparison with sister companies
* while maximizing training, conducting multiple recons at the PTA, and continuing to balance reset operations from a previous 15-month deployment in support of Operation Iraqi Freedom (OIF), the applicant's company had the highest number of Soldiers to qualify for the Expert Infantryman Badge within the brigade
* the applicant fostered a healthy command climate by rewarding his Soldiers with attendance at military school to hone their fieldcrafts; of note, several of his Soldiers attended and graduated the most coveted leadership course, Ranger School
* the applicant's company had the highest pass rate for the Ranger School within the battalion and brigade at 100 percent
* as it pertains to collective training events, the applicant's company received first time GO's (pass rate), more than any other company due to his thoroughness in detailed planning, coordination of resources, collective training management, and his ability to critically think
* the applicant's collective training events included "Stryker Gunnery Crew, Team, Squad, and Platoon Live-Fire Exercises resulting in an "T" for Trained rating for all critical collective tasks, the highest mark a unit can receive during the training period
* as for developing leaders, he now understands Army Doctrine and infantry tactics through the applicant's mentorship
* the applicant was the only company commander who always scheduled officer professional development at a minimum of 1 – 2 hours weekly
* all of the applicant's junior officers were selected for duties of higher responsibility prior to his change of command ceremony

18.  The applicant provides three supporting statements from officers serving in the ranks of colonel (COL/O-6) who observed the applicant's performance while serving in the stated positions, relative to the applicant, during the periods indicated:

	a.  Brigade commander from June 2010 to the present:

* the applicant serves as an influential leader in roles of increasing responsibility to include his current position as the battalion S-3
* the applicant has continuously met the higher command's intent and has successfully executed mission type orders with little to no guidance
* his ability to plan, coordinate, and resource assets for collective training and management has met both his battalion and brigade commander's intent to successfully prepare Soldiers for combat operation in Afghanistan and Iraq
* the applicant hosted weekly sessions to improve individual, leader, and section's ability to perform within his battalion
* the applicant continues to perform in an outstanding manner and is rated in the top 25% of his peers

	b.  Brigade deputy commander from June 2007 to June 2009:

* the applicant ranked in the top 5 of the 21 captains he senior rated across the brigade staff
* the applicant's performance as an SBCT battle captain was exceptional
* the applicant was instrumental in establishing the enduring systems and processes that contributed to the brigade's success during combat operations in support of OIF
* the applicant was selected to take command of an infantry company in 2008 and immediately took charge in a very difficult combat environment during which time he proved to be a capable, competent commander employing both lethal and non-lethal operations in an extremely complex, autonomous, operational environment
* based on the applicant's performance and hands-on leadership, he was nominated and selected to take command of an Anti-tank company, a specialty company within the SBCT
* based on the applicant's previous performance, he expects the applicant will continue to perform at a high level in all tasks assigned

	c.  2nd Squadron, 14th Cavalry Squadron Commander in the 2nd SBCT, 25th Infantry Division from August 2007 – June 2009 and the applicant's rater from March 2008 – March 2009: 

* the applicant led his company's lethal and non-lethal targeting operations in an extremely difficult operational environment where company commanders had to operate within his intent but with great initiative
* the applicant's company led the others in the Task Force in the detention of key insurgents and the erosion of extremist group assets
* the applicant's efforts led to a significant decrease in violence in his company's area of responsibility and helped protect a key economic center for their brigade
* his active, well-thought, and aggressive approach to both lethal and non-lethal combat operations produced tangible results in the security and stability of his area of operations
* while deployed, the applicant focused on developing his leaders during day-to-day operations
* the applicant worked with each of his platoon leaders and their noncommissioned officers (NCOs) to improve the efficiency and effectiveness of platoon and company level operations in combat, and shared those gains with his fellow company commanders in the task force
* the applicant ranked as one of the top company commanders in the task force
* the applicant's tactical and technical expertise coupled with his interpersonal team-building skills made his company stand out amongst others
* based on the applicant's demonstrated talent and potential, he recommended the applicant for command of a second company

19.  The applicant provided multiple OERs from his subordinate officers and one senior NCO's evaluation report during the period in question.  Each of these reports lists the applicant as the rater and includes highly-favorable comments from both the rater and SR.  The applicant's SR as listed on his contested report is listed on each of these subordinate evaluation reports as the SR and placed every junior officer in the first block "Outstanding Performance, Must Promote."  The SR also placed the senior NCO in the second block (Successful) for overall performance and in the first block (Superior) for overall potential and performance.

20.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports.  It also provides guidance regarding redress programs, including commander inquiries and appeals.

	a.  It states that the burden of proof rests with the appellant.

	b.  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 paragraphs 3-57 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.

	c.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

21.  Department of the Army Pamphlet (DA Pam) 623-3 (Evaluating Reporting Systems) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System (ERS).  

22.  Both Army Regulation 623-3 and DA Pamphlet 623-3, chapter 2 governs the purpose and development of rating chains on qualifications and special evaluation report requirements.  Paragraph 2-13 of these sources provides the additional roles for raters (DA Form 67-9-1a) and states

   a.  The raters of CPTs, LTs, CW2s, and WO1s will ensure that a DA Form       67-9-1a (or equivalent) is initiated at the initial face-to-face counseling.  The initial developmental tasks will be established and recorded.  The rater will obtain the SR's approval and initials. The DA Form 67-9-1 (or equivalent) will then be used as a working tool throughout the remainder of the rating period.
   b.  Raters of CPTs, LTs, CW2s, and WO1s will also conduct quarterly follow-up counseling sessions to discuss performance, update and/or revise developmental tasks, as required, and assess developmental progress. Summary or key comments will be recorded on the DA Form 67-9-1a (or equivalent).

DISCUSSION AND CONCLUSIONS:

1.  The OSRB’s decision to deny the applicant’s appeal was accomplished in accordance with the governing regulation.  However, there are significant equity considerations in this case that require further evaluation.

2.  The evidence of record confirms that with the exception of the contested report, the applicant’s evaluation history prior to the contested report was outstanding.  Further, his subsequent evaluation reports all place him above center of mass or in the top block, and portray him as an excellent performer with unlimited potential.  This clearly establishes that the contested report was an aberration.

3.  The OER regulation states that in considering an appeal, third-party statements should be provided from persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  It further states that such statements are afforded more weight if they are from persons who served in positions affording them good opportunity to observe, firsthand, the appellant's performance as well as interactions with rating officials.

4.  Notwithstanding the OSRB finding to the contrary, the third-party statements provided by the applicant are from credible individuals who served in positions that afforded them an excellent opportunity to observe the applicant’s performance as well as his interaction with the rater.  These statements fully supported the applicant’s claim that the rater did not want him and that his leadership style bordered on abusive.

5.  More importantly, the third-party statements cast doubt on the rater's and SR's version of the facts and circumstances surrounding his performance that led to the contested report.  They attest to the fact that the applicant’s performance, officer professional development, collective training management and execution, were exceptional and that he either equaled or excelled above that of his peers during the period in question, which raises significant doubt about the comments made on the contested report.

6.  There are contradictions found on the contested report showing:

	a.  The rater's indication that he did not record developmental tasks on the DA Form 67-9-1a in block IVd of the contested report is a direct contradiction with the SR's claim that he received and considered this form in his evaluation and review of the applicant's performance.
	b.  The rater marked the favorable "YES" block in response to every question regarding the applicant's performance evaluation and professionalism in part IV and evaluated his performance and potential as "Satisfactory Performance – Promote" in part V.  However, this blocking is followed by continuous negative rater and SR comments of the applicant's marginal performance which is in direct contradiction to his performance as evidenced in the third-party statements he provides.

	c.  Finally, the OSRB confirmed the rating period covered on the contested report is incorrect, but would not change it as it is only an administrative error and causes the applicant no harm.

7.  In reference to the rater's statement, the applicant "has not performed satisfactorily with respect to collective training management and execution or leader development" and that he "struggles to adequately execute mission type orders or meet the commander's intent; either through inaction or inability his subordinates are not being developed to do so either," the evidence includes multiple subordinate OERs and one senior NCOER which confirms each of these subordinate Soldiers all received highly-favorable comments from their rater and SR.  Further, the junior officers were all rated "Outstanding Performance, Must Promote" and "Best Qualified" by their rater and SR, respectively.  The senior NCO was rated "Fully Capable" by his rater and he received a "successful" overall performance rating and "superior" overall potential and performance rating by his SR.  Accordingly, these reports show the applicant's ability to effectively lead and develop his subordinates.

8.  In addition, the applicant was awarded the ARCOM, approved by his SR, during the contested period which confirms he planned, prepared, and deployed his company to its first major post-OIF collective at the PTA in November 2009 and his diligence and commitment to excellence ensured his company would continue to succeed in the Battalion's training and preparation for its return to Iraq.  Further, it confirmed he set the standard in preparation and execution of the unit's reset of personnel and equipment valued in excess of $56 million.

9.  In view of the facts of this case, the applicant has met his burden of proof by providing the clear and convincing evidence necessary to support a successful OER appeal.  Therefore, as a matter of equity, it would be appropriate to remove the contested report from the applicant’s record and to insert a statement of explanation regarding the resulting non-rated period.

10.  Once the contested OER is removed, it would be appropriate to place the applicant’s corrected record before a Special Selection Board (SSB) for reconsideration for promotion to MAJ under the criteria of any Promotion Selection Board for which he was eligible on or after 8 February 2010.  In the event the applicant is selected for promotion by the SSB, his promotion effective date and date of rank should be established as if he had been originally selected by the applicable Promotion Selection Board.

11.  It is noted that the applicant's DD Form 214 currently shows what appears to be an incorrect type of separation, retirement instead of discharge.  However, based on the removal of the subject OER and if the SSB selects him for promotion then it would be in the best interest of justice and equity that he be returned to the Regular Army if he desires.  The DD Form 214 should then be voided and his records corrected to show the separation did not occur.

12.  In view of the foregoing, the applicant’s request should be granted.

BOARD VOTE:

__X___  ___X_____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing from his records the contested OER ending 8 February 2010;

	b.  declaring the period of service covered on the OER as a nonrated period of service; and

	c. placing a non-prejudicial statement in his records explaining the gap created in OER rating periods as a result of this action.

2.  Upon completion of the corrective action outlined in the preceding paragraph, the records of the individual concerned should be submitted to a duly constituted SSB for promotion reconsideration to MAJ under the criteria followed by any Promotion Selection Board for which he was eligible on or after 8 February 2010. In the event he is selected for promotion by the SSB, and he elects to return to active duty as discussed below, then his promotion effective date and date of rank for major should be established as if he had been originally selected by the applicable Promotion Selection Board, and he should be provided all back pay and allowances due as a result.

3.  Should the applicant be selected for promotion by the SSB, then he should also be afforded the opportunity to either remain in the USAR or to return to the Regular Army.  He should be required to make this decision within 90 days of the SSB decision.  Should be elect to return to the Regular Army, his records should be corrected to show no break in his active duty service.




      _______ _  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)                                         AR20120020454



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020454



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1