IN THE CASE OF:	  

		BOARD DATE:  30 July 2013

		DOCKET NUMBER:  AR20120021891 


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 Army Military Human Resource Records (AMHRR) by removal of his DA Form 67-9 (Officer Evaluation Report) for the period ending on 15 January 2003.

2.  The applicant states the subject OER is anomalous with the remaining three decades of his service.  It was written by a rater who himself was not retained beyond his initial Title 10 National Guard Bureau (NGB) tour of duty.  It was senior rated by an officer who retired shortly afterward, in a toxic leadership environment.  The rating itself is wholly inconsistent with the service genuinely performed.

3.  The applicant provides copies of:

* DA Form 67-9, for the period 1 June 2002 to 15 January 2003
* Memorandum for Record, subject: Referral Rebuttal Concerning OER (20020601 through 20030115), dated 28 August 2003 (11 pages)
* Memorandum of Reference, dated 14 December 2011
* Letter of Reference, dated 4 January 2012
* Memorandum of support, dated 7 October 2012
* Memorandum of support, dated 23 October 2012

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.  At the time of his application, the applicant was serving as a chief warrant officer five (CW5) with the NGB.

3.  Records show the applicant received a relief for cause OER for the period from 1 June 2002 to 15 January 2003.  This OER states the rating was for his duties as the aviation safety officer to the Commander of the Army NGB.  The OER was signed by all parties, to include the applicant, more than a year later, on 25 February 2004.  It is filed in the performance section of his AMHRR.

	a.  The OER shows it was referred to the applicant and that rebuttal comments were attached.

	b.  Part IVa - Army Values, reports a "NO" for the values of Honor, Integrity, Self-Respect, Duty, and Loyalty.

	c.  Part IVb2 - Skills (Competence), reports a "NO" for Conceptual Skills.

	d.  Part IVb3 - Actions (Leadership), reports a "NO" for Decision-Making, Executing, and Building, and Motivating.

	e.  Part Va - Performance and Potential Evaluation, reports "Other."

	f.  Part Vb - Comments on aspects of the performance and potential for promotion, state, in effect, that the applicant was unsuitable for military service.  He lacked the leadership and professional maturity expected of a senior warrant officer.  He had become increasingly insubordinate and cavalier with passive aggressive behavior thinly veiled as joking innuendo.  He was cautioned on this behavior, but he persisted.  His unacceptable behavior increased on occasion.  When attempting to counsel him, he denied accountability for his behavior; argued the legitimacy of counseling; said counseling was harassment and indicative of a hostile work environment.  He refused to sign the counseling statements or to make a written comment in his own behalf.  He said he did not care what was written on the counseling statements and preferred to just be given the statements so he could take them to the Inspector General (IG).  During counseling, he was asked to be quiet; but continued to talk.  He stood up and was asked to sit down; but he remained standing.  He started to leave and was told to stay; but he left anyway.  During the rating period he was given wide latitude to conduct himself as a career warrant officer.  When asked about his completion of the Army physical fitness test (APFT), he said it did not have to be done.  After an investigation, when notified he still had a responsibility to take an APFT, he responded in an email, "Thanks for the micromanagement."  He was elected as the NGB Warrant Officer Association Chapter President.  Though laudable, he used the position to circumvent established protocols in order to accomplish his goals and attempted to isolate the NGB Command Chief Warrant. He had good writing skills and technical terminology, but his ability belied his determination to be disobedient.  His difficulty with authority and unwillingness to accept responsibility made his overall performance unacceptable.

	g.  Part Vc - Identify any unique professional skills or areas of expertise, states he was incompatible with military service and un-adaptable to Army aeronautics.

	h.  Part VIIa - Senior rater's evaluation of promotion potential, reports a "DO NOT PROMOTE" rating.  His comparison profile was "below center of mass, do not retain."

	i.  Part VIIc - Senior rater's comments, states concurrence with the rater's comments.  He had disregarded guidance given to him and had continued pursuing his own personal agenda.  In doing so, he alienated himself and caused discourse among members of the Safety and Occupational Health Branch.  He continued to be a source of controversy outside of the division.  When counseling was attempted, he displayed his usual denial of responsibility and proceeded to dismiss himself, disobeying a direct order not to leave the room.  His display of arrogance and insubordination was by far the worst behavior the senior rater had ever seen in 21 years of military service, particularly from an officer.  His lack of ability to be subordinate and his questionable loyalty made it difficult to see how he could continue to serve in the military.

	j.  Part VIId - Future assignment, states that he should not be retained in the military of the United States.

4.  Records contain a 12-page memorandum dated 28 August 2003, written in rebuttal to the subject OER.  The applicant explained his position on each of many points in the OER and quoted specific references in the governing regulation.  He did not deny his acts of insubordination as written in the OER; but rather, explained them as the result of a hostile environment.  The applicant based his rebuttal on:

	a.  the rater and senior rater failing to comply with key provisions of Army Regulation 623-105 in the administration of the OER; and

	b.  a personality conflict between the senior rater and himself, stemming from two IG complaints that at the time were still open.

5.  On 14 December 2011, the Survey Team Chief, Aviation Resource Management, U.S. Army Forces Command, wrote a letter of reference in support of the applicant's request to remove the subject OER from his AMHRR.

	a.  This individual contends he was hired in 1999 as the Aviation Safety Section Chief, NGB.  Based on his first hand knowledge, he walked the applicant's application through the process and brought him into the Active Guard Reserve (AGR) program to help put the aviation program back together.

	b.  He tasked the applicant to make an assessment of the NGB aviation accident prevention program.  The results did not reflect very favorably on the performance of the last officers who were responsible for its administration.  The applicant's assessment was accurate and tactful, but did not sit well with the branch chief.

	c.  The negative bias was passed on to the succeeding branch chief who made it his stated goal to "get that warrant officer in line."  The applicant continued to perform in an exceptional manner, earning high praise from 53 State Army aviation officers.

	d.  The new branch chief had only scorn for the applicant and micromanaged him incessantly.

	e.  As the applicant's direct supervisor, the author states he tried to solicit help from all levels of command for what had become a hostile work environment.  The entire chain of command seemed contented to sacrifice this outstanding warrant officer who the author supported for his correctness for all safety matters.

	f.  With the lack of concern for the development of a stellar safety program, and only political correctness from the leadership, the author opted to accept a follow-on assignment in the U.S. Army Forces Command.

	g.  At the same time, the applicant was "snapped up" by the Kentucky Army National Guard (KYARNG).  The author continued to rely upon the applicant's demonstrated expertise as the recognized best aviation safety officer in the Army.

	h.  The author states that in his mind, the subject OER was the result of a personality conflict that the chain of command either did not acknowledge, or simply let spin out of control until the applicant left the AGR program.

	i.  The author states that now there is an unique opportunity to bring the applicant back into the AGR program and to benefit from his expertise and selfless service for several more years.  He strongly encourages the approval of a Department of the Army exception to policy concerning the subject OER and the unfortunate surrounding circumstances.

6.  On 4 January 2012, the Command Chief Warrant Officer, NGB, Arlington, VA, wrote a letter of reference in support of the applicant's request to remove the subject OER from his AMHRR.

	a.  The author states he penned a letter of recommendation in March 2011 for the applicant to be considered by the AGR Review Board to return the applicant to the AGR program.  He was a witness to many of the unfortunate circumstances leading up to, and following the issuance of the subject OER.

	b.  The author states he has known the applicant for the better part of 
30 years and gives his absolute assurance that his performance potential and abilities are wholly consistent with the caliber of officer sought for the AGR program.

	c.  The author states he cannot express his support firmly enough in encouraging the granting of an exception to policy concerning the subject OER in order to enable the applicant to return to the AGR program.

7.  On 7 October 2012, the Joint Forces Land Component Commander and Chief of Staff, KYARNG, wrote a memorandum of appeal wherein he strongly supported the removal of the subject OER from the applicant's AMHRR.

	a.  The author stated the applicant had started his tenure in 2000 as the NGB Aviation Safety Officer.  This was shortly after the author had begun his own tenure as the State Army Aviation Officer for Kentucky.  He quickly came to rely on the applicant's depth and breadth of expertise at the national level as an effective component in the successful implementation of the aviation and safety programs at the state level.

	b.  The applicant's selfless devotion to duty and his outstanding service to the ARNG aviation and safety communities was less supported by his own supervisory chain of command at the NGB.

	c.  Upon discovering that the applicant's tour of duty in the AGR program would end in 2003, the author sought the support of the KYARNG Adjutant General in bringing the applicant to the Commonwealth to build upon their growing aviation program.

	d.  Knowing full well the circumstances and results of the subject OER, the KYARNG actively recruited him for their aviation safety team.  The applicant's subsequent promotion to CW5 and success across three continents served to validate their assertion that the subject OER reflected a very jaundiced perspective of his performance that was clearly inconsistent with the overwhelming majority of his customer base across the 54 states and territories.

	e.  The author states that it was upon his direction that the applicant served as Kentucky's representative to the Army Aviation Manpower Studies in 2008, ultimately resulting in his request to return to national-level service.

	f.  The author states the applicant had served for 6 years as a Kentucky Guardsman.  He commuted 570 miles to and from his home in Northern Virginia, not once with hesitation, with the conclusion that the Kentucky Commonwealth was richly rewarded through his indefatigable service.

8.  On 23 October 2012, the Chief of Staff, ARNG, NGB, wrote a memorandum of appeal wherein he extended his strongest support to remove the subject OER from his AMHRR, and all related adverse information from the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty).

	a.  The author states that it appears the subject OER was issued during a very difficult time within the Army, when they were just beginning to learn of the labels and effect of what they have now come to know as toxic leadership.

	b.  The author states that the applicant's OERs for the decades prior to and succeeding the subject OER appear remarkable in the outstanding nature of the service performed, validating the anomalous nature of the subject OER.

	c.  The author states the applicant has subsequently been promoted and has distinguished himself in the combat theater, earning a Bronze Star Medal and Air Medal.

	d.  The author states that upon correction of his AMHRR, he has given approval to return the applicant to the AGR program so as to continue to benefit from his expertise for the remainder of his promising career.

9.  Army Regulation 623-105 (Officer Evaluation Reporting System), as then in effect, prescribed the policies for completing OERs:

	a.  It stated that OERs accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	b.  OERs are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army Officer Corps.  Performance will be evaluated by observing actions, 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.

	c.  Each OER 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.

	d.  OERs with negative comments in Parts Vb 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 (HQDA).

	e.  Substantive appeals will be submitted within 3 years of an OER's through date.  Failure to submit an appeal within this time frame may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be made in view of the regulation in effect at the time the OER was rendered.  As a rule, the likelihood of successfully appealing a report diminishes with the passage of time.

	f.  This regulation provided that a commander's inquiry (CI) is used to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, the CI is not intended to be a substitute for the appeals process which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his AMHRR should be corrected by removing his OER for the period ending on 15 January 2003 because it is anomalous with the remaining three decades of his service.

2.  The subject OER is a relief for cause report that was referred to the applicant. The OER states the applicant was unsuitable for military service.  He had become increasingly insubordinate and cavalier with passive aggressive behavior.  He lacked the leadership and professional maturity expected of a senior warrant officer.  He denied accountability for his behavior and argued the legitimacy of counseling.  During counseling, he was asked to be quiet; but continued to talk.  He stood up and was asked to sit down; but he remained standing.  He started to leave and was told to stay; but he left anyway.  The applicant was not recommended for promotion.

3.  In the applicant's rebuttal memorandum, he did not deny his acts of insubordination as written in the OER; but rather, explained them as the result of a hostile environment.  His rebuttal simply stated that the rater and senior rater failed to comply with key provisions of the governing regulation and there was a personality conflict between the senior rater and himself, stemming from two IG complaints.

4.  Even though the applicant wrote an extensive rebuttal memorandum several months after the through date of the subject OER, there is no evidence showing he ever requested a commander's inquiry.  Furthermore, there is no evidence showing he ever submitted an appeal to HQDA to correct administrative or substantive errors in the OER.

5.  The applicant argues that the subject OER is anomalous with the remaining three decades of his service.  The governing regulation requires that each OER rate only the period covered.  The quality of the Soldier's performance at any time prior to or after is not evidence of the Soldier's performance during the actual rated period.  In this case, it strongly appears the applicant could not professionally adapt his performance of duty with supervisors who micromanaged him.

6.  The applicant argues that the subject OER was written by a rater who was not retained beyond his initial Title 10 NGB tour of duty; and was senior rated by an officer who retired shortly afterward, in a toxic leadership environment.  His argument implies that the release of these two officers is indicative of their bias in the ratings the applicant received.  However, he has offered no proof of his allegation and his argument is less than convincing.

7.  The applicant desires to have the subject report removed from his AMHRR because it apparently is blocking his return to AGR status, as indicated in the letters and memoranda provided in support of the applicant's request.  However, those recommendations do not sufficiently show that the applicant's acts of unacceptable behavior, as stated in the subject OER, were justified or did not happen.

8.  To justify removal of an OER from the AMHRR, the applicant must produce clear and convincing evidence showing that the presumption of regularity should not be applied to the report.  In this case, the applicant has failed to do so.

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)                                         AR20120021891





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