IN THE CASE OF:	  

		BOARD DATE:	  10 October 2013

		DOCKET NUMBER:  AR20130002491 


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 the senior rater's (SR) comments from his 
DA Form 67-9 (Officer Evaluation Report (OER)) (hereafter referred to as the contested OER) for the period 1 September 2011 to 15 August 2012.  

2.  He states he became aware while in training for deployment and during deployment, that his SR [Lieutenant Colonel (LTC) R.G., disliked his rater, Captain (CPT) M.R.  He found no reason for his SR's biased hatred for his rater.  He states there is no factual basis for the allegations made by his SR and there are no documents such as counseling statements or letters of reprimand.  He contends that his SR:

* belittled him in front of an Intelligence Liaison team in an attempt to intimidate him 
* failed to follow proper support form counseling or performance counseling
* included inappropriate comments in the SR portion of the contested OER
* commented on his personality which does not qualify or quantify duty performance
* gave him an unjustly poor rating because of his association with the rater
* intentionally and maliciously delayed referring the contested OER to him 
* contradicted the rater's evaluation who had constant observation of his duty performance
* reassigned personnel so he had to assume their duties

3.  He also contends the SR's comments suggested a working group was formed because of his perceived lack of intelligence that did not suit his purposes.  He was not replaced when the G-2 for the 1st Cavalry Division visited, he attended every briefing for operations and intelligence, and he even attended meetings that were held in Polish due to his knowledge of Slavic languages.  He attended meetings with his rater and they screened information to pass on to the Polish intelligence section.  He included support letters in his appellate packet from those who directly observed him and certificates.  He received a Polish award and a U.S. Joint Commendation award.  He questioned why the command would approve awards if his performance was not satisfactory.  

4.  He further contends that his SR abused his authority and used his position as SR to subvert any due process.  His SR didn't inform him or take any actions to correct him if there were any shortcomings of his performance during deployment.  

5.  He provides:

* Contested OER
* Memorandum for Record disputing SR's comments
* Active duty orders
* Deployment orders
* Awards, commendations, and certificates translated in Polish
* Orders for award of the Joint Service Commendation Medal 
* Memorandum recommending award of the Defense Meritorious Service Medal with narrative
* Letter of Appreciation
* Two letters of support

CONSIDERATION OF EVIDENCE:

1.  After completing prior enlisted service in the U.S. Army Reserve and the Army National Guard, the applicant was appointed as a Reserve warrant officer on 12 November 1999 in the rank of warrant officer one (WO1).  

2.  He was promoted to Chief Warrant Officer Two (CW2) on 29 November 2001.

3.  On 17 December 2001, he was appointed in the Army National Guard in the rank of CW2.  

4.  He was ordered to active duty on 15 October 2006 in support of Operation Enduring Freedom.  He served in Afghanistan from 18 December 2006 to 2 September 2007.  He was released from active duty (REFRAD) on 9 October 2007.

5.  He was promoted to Chief Warrant Officer Three (CW3) on 25 October 2007.

6.  On 20 June 2011, he was ordered to active duty in support of Operation Enduring Freedom.  He served in Afghanistan from 5 September 2011 through 27 April 2012.  He was REFRAD on 24 June 2012.  

7.  The contested report is a REFRAD OER covering the period 1 September 2011 through 15 August 2012.  This report indicates the applicant was rated as the Intelligence Officer, Task Force White Eagle, Combined Joint Task Force (CJTF)-1, Forward Operating Base (FOB) Ghazni.  This contested report shows:

	a.  the rater is listed as CPT M.M.R., Deputy S-2, and he digitally signed the report on 12 August 2012;

	b.  the SR is listed as LTC R.A.G., Deputy Chief of Staff for Operations (DCSOPS), and he digitally signed the report on 12 August 2012;

	c.  in Part IId, the OER was a referred report and he digitally signed the report on 4 September 2012.  The applicant elected to submit statements.  He reiterated the contentions cited in his application.  He stated the SR was biased and prejudicial in his rating and poorly rated him because he was not a full-time employee of the Illinois Army National Guard.  The rater submitted the completed contested OER to the SR while the unit was still at FOB Ghazni, Afghanistan.  The SR's portion of this OER should be redacted in its entirety; 

	d.  the rater placed an "X" in all the "Yes" boxes in Part IV (Performance Evaluation - Professionalism (Rater));

	e.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Outstanding Performance, Must Promote" box; 

	f.  in Part Vb (Performance Narrative), the rater entered positive comments such as "As Biometrics Officer, Chief [applicant's name] provided training and motivation to double the amount of Task Force Enrollments in Ghazni Province…"; 

	g.  in Part Vc (Potential for Promotion Narrative), the rater stated:  Highest potential and extremely knowledgeable and conscientious Intelligence Officer; Must promote immediately; He is the Senior Intelligence Officer for the Illinois Army National Guard; He has mentored all of the Illinois Army National Guard Military Intelligence Warrant Officers; and 

	h.  in Part VIIa and c (SR – Comment on Performance/Potential), the SR rated the applicant's promotion potential to the next higher grade as "Do Not Promote and placed an "X" in the "Yes" box indicating a completed DA Form    67-9-1 (OER Support Form) was received with this report and considered in his evaluation and review.  The SR assessed him as "Below Center of Mass Do Not Retain" and made the following comments:

Non-concur with the rater’s comments.  CW3 [applicant's name]'s abrasive and confrontational ways during the deployment was a detriment to the team and his coalition partners.  He was a non-factor throughout the deployment as the Polish officers in the S2 section did not include him as part of the team.  Due to lack of support by CW3 [applicant's name] in assisting the Polish officers and NCOs [noncommissioned officers] in the S2 section, the Polish BCT [Brigade Combat Team] commander had to request division to provide SMEs [subject matter experts] and products for the BCT.  In essence, the Division G2 section produced a significant amount of intel products tailored at the BCT-level due to lack of support from the embedded US S2.  This lack of support and not being integrated within the coalition staff was noticed by the division during their staff visit in December of 2011.  Within the team, CW3 [applicant's name] was a non-factor.  Recommend that CW3 [applicant's name] retire upon redeployment.

8.  A review of the applicant's military record in the interactive Personnel Electronic Records Management System (iPERMS) revealed the applicant's contested OER was filed in the performance section of his Army Military Human Resource Record (AMHRR).

9.  On 16 August 2012, he was discharged from the Army National Guard and transferred to the Retired Reserve.  

10.  He provided the following documents in support of his claim:

   a.  Memorandum, dated 9 January 2011, recommending him for award of the Defense Meritorious Service Medal for service during the period 5 September 2011 to 30 April 2012.
   
   b.  Letter of Appreciation, undated, from the S-3, Brigade Staff, 15th Mechanized Brigade, commending him for his contributions to their brigade including the biometric collection of their brigade, training personnel, and assisting in the targeting process by helping make intelligence products and understanding procedures in the field.  
   c.  Headquarters, CJTF - Permanent Orders 087-015, dated 27 March 2012, awarding him the Joint Service Commendation Medal for the period 5 September 2011 to 30 April 2012.
   
   d.  Certificate of Appreciation, dated 18 April 2012 commending him for his outstanding service to Joint Task Force Ghazni.  
   
   e.  Letter of support, dated 15 August 2012, from a civilian who worked with the applicant and his rater in the White Eagle Fusion Cell on FOB Ghazni from February 2012 to mid April 2012.  She stated she witnessed the applicant's and his rater's commitment to the Polish Intelligence Officers and their receipt of awards.  The applicant was never late for an appointment, always had a positive and respectful attitude, and tried his hardest at speaking the Polish language.  The applicant and his rater displayed a genuine effort to assist her and every person who entered the Task Force White Eagle Fusion Cell.  
   
   f.  Letter of support, dated 18 August 201, from a linguist in the Ghazni Fusion Cell who stated he was able to see and experience the support the applicant provided to facilitate and maintain multi-national cooperation.  The linguist stated he could verify the applicant was a resource utilized by U.S. and Polish personnel.  He described the applicant as direct, helpful, and efficient. 

	g.  Certificate, dated 4 December 2012, commending him for his efforts to increase safety within Ghazni Province in Afghanistan.  

11.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by, among other agencies, the ABCMR and Department of the Army Suitability Evaluation Board.

12.  Table 2-1 of Army Regulation 600-8-104 states an OER will be filed in the performance section of the AMHRR and case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the AMHRR.



13.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9.

   a.  Paragraph 1-8c states the primary function of the ERS is to provide information to HQDA [Headquarters Department of the Army] for use in making personnel management decisions. Components of this information include, evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   b.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.  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.  Paragraph 2 governs the purpose and development of rating chain qualifications and special evaluation requirements.  It stipulates raters will provide their support forms, along with the SR's support forms, to the rated Soldier at the beginning of the rating period.  The SR will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period.  This counseling will include, as a minimum, the rated Soldier's duty description and the performance objectives to attain.  

   (1)  The rated Soldier will participate in counseling, assessments and a 
final evaluation.  Assessment will be conducted with the rating chain throughout and at the end of the rating period.  Rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

   (2)  The rater will verify the initial face-to-face counseling by initialing on 
the working copy of the DA Form 67-9-1 and will forward a copy to the SR for approval and validation (for officers) and verification of face-to-face counseling (for NCOs).  

   d.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	e.  Paragraph 3-36 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the Soldier 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 Soldier.

   f.  Paragraph 3-34 stipulates that any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before they are sent to HQDA. 

   g.  Paragraph 3-36a states the SR will place an “X” in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an “X” in the appropriate box in Part IId.  

   h.  Paragraph 3-39 states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the Soldier 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 applicant.




	i.  Paragraph 6-13 prescribes policies for appeals based on substantive inaccuracy.  Paragraph 6-13b(2) stipulates that a personality conflict between the Soldier and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided sufficient evidence to show the contested OER was not processed in accordance with applicable laws and regulations.

2.  The applicant contends the SR failed to follow proper support form counseling or performance counseling.  However, there is no evidence to either prove or disprove this contention.  The contested OER shows the SR received a completed OER support form and considered it in his evaluation and review of the applicant.  Further, failure to counsel alone is not sufficient evidence to invalidate a report.  

3.  The applicant had a considerable amount of responsibility to ensure the counseling was taking place according to the guidance in Army Regulation 623-3 noted above.  It provides that the rated Soldier has a responsibility to participate in the evaluation process.  The applicant should have been aware of his responsibilities during the rating period and if he had not been periodically counseled, he should have made an effort to approach his rater and discuss the requirement of periodic counseling.

4.  The applicant contends the SR's portion of the contested OER included inappropriate comments.  However, he has not provided sufficient evidence to show the ratings on the contested OER were in error or that they were not the opinions and objective judgments of the rating officials at the time the report was rendered.  Further, he has not provided any compelling evidence to refute the ratings and evaluations rendered by the rating officials.

5.  The applicant contends the SR gave him an unjustly poor rating because of his association with the rater.  However, his service record is void of evidence which supports his claim.

6.  The applicant contends the SR intentionally and maliciously delayed referring the contested OER to him.  However, the contested OER was referred to the applicant and he elected to submit a response.  He digitally signed the OER verifying the accuracy of the administrative data.

7.  There is no evidence nor has the applicant provided any, such as a Commander's Inquiry or an Inspector General Complaint, to show that the contested report was unfair or unjust; or that the comments and ratings listed on the report were not consistent with his performance of duty during the rating period.  In view of the facts in this case, there is no basis on which to approve his request.

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)                                         AR20130002491





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ABCMR Record of Proceedings (cont)                                         AR20130002491



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