BOARD DATE:	  8 April 2014

		DOCKET NUMBER:  AR20130017223 


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 the following documents be removed or transferred to the restricted section of his Army Military Human Resource Record (AMHRR):

* his Relief-for-Cause Officer Evaluation Report (OER) for the period 26 May 2011 through 21 October 2011 (hereafter referred to as the contested OER)
* an elimination action memorandum signed by his commanding general, dated 29 October 2012

2.  The applicant states:

* the contested OER violated Army Regulation 600-20 (Army Command Policy) and Army Regulation 623-3 (Evaluation Reporting System) because the OER was based on inaccurate and untrue statements, the rating official's lack of objectivity and fairness, and personal animosity
* the contested OER stems largely from an informal Equal Opportunity (EO) complaint he filed against his rater for making the following remarks during his annual OER counseling session:

*	"Do you speak English?"
*	"You can't be a commander, do you follow me?"
*	"I don't know how you got this far with your current rank (major)"


* his rater was directed by the brigade commander at the time to apologize for his inappropriate and culturally insensitive comments
* the EO complaint resulted in further bias and retaliation from both his rater and senior rater
* Army Regulation 600-8-104 (AMHRR Management), paragraph 4-2, Appendix B does not cover or give specific guidance on filing general officer administrative letters in the performance or "disciplinary" folders
* the elimination action memorandum is not an adverse action against him and could send an unintended message to promotion board members

3.  The applicant provides:

* counsel release letter and email
* Officer Record Brief (ORB)
* self-authored statements
*	three DA Forms 2823 (Sworn Statement)
*	email
*	tracking/database spreadsheets
*	six OERs of fellow officers
*	four DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER))
*	policy letters
*	briefing slides
*	officer professional timeline slide

CONSIDERATION OF EVIDENCE:

1.  After having prior honorable enlisted service in the Puerto Rico Army National Guard, the applicant was appointed as a second lieutenant in the U.S. Army Reserve on 13 June 1998.  He was promoted to major on 1 January 2008.

2.  The applicant's ORB shows he was assigned as a Brigade S1 for the period 20 July 2010 to 20 November 2011.

3.  DA Forms 4856 (Developmental Counseling Form) show:

* on 4 March 2011, the applicant received formal counseling on the expectations of his rater
* on 23 June 2011, the applicant received quarterly performance counseling

4.  In June 2011, a new brigade commander assumed command.

5.  On 12 August 2011, the applicant received a Memorandum of Concern from the brigade commander.

6.  During the period 20 September through 22 September 2011, the 20th Support Command G-1 inspected 16 areas within the Brigade's S1 Human Resource at the different echelons.  The Brigade S1 team failed in the finance/leave and pass program, awards, flags, personnel tempo, family care plan, sponsorship, evaluations, Army Substance Abuse Program, and postal operations.

7.  The contested OER for the period 26 May 2011 through 21 October 2011 is currently filed in his AMHRR shows in:

   a.  Part IIb (Authentication), the applicant did not have an intermediate rater; Part IId is marked as a referred report; and Part IIe (Signature of Rated Officer) is not signed by the applicant.

	b.  Part IV (Performance Evaluation – Professionalism), the rater placed an "X" in the "No" block for "duty."

	c.  Part IVb, the rater placed an "X" in the "No" blocks for "mental," "interpersonal," "technical," "tactical," "communicating," "decision-making," "motivating," "executing," "assessing," "developing," and "learning."

	d.  Part IVd (Were Developmental Tasks Recorded on DA Form 67-9-1a and Quarterly Follow-up Counselings Conducted?), the rater placed an "X" in the "N/A" block.

	e.  Part V, the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.  His comments state:

[Applicant's] performance as the Brigade S1 is not in keeping with the high standards expected of a field grade officer in today's Army.  During this rating period, [applicant] displayed a complete lack of competence when dealing with subordinates, peers, and superiors through both written and oral communication.  [Applicant] frequently makes the same mistakes, even after multiple corrections and counseling sessions with both myself and the Brigade Commander.  OER's, awards, and personnel actions consistently pass through his office with multiple errors, generating additional delays in processing even the most basic personnel management requirements.  Although multiple personnel management resources and tools were provided by the chain of command, [applicant] never seemed capable of producing any functional mechanism or system for tracking basic personnel actions or tasks.  On countless occasions, this lack of personnel management systems directly resulted in multiple NCOER's and OER's to be late to the Department of the Army.  [Applicant] does not appear to take any responsibility for failure and is quick to shift blame to someone else.  The aforementioned duty performance factors justify my recommendation for [applicant's] immediate relief as the…Brigade S1.

	f.  Part Vc (Comment on Potential for Promotion), the rater stated, "Though [applicant] is a dedicated officer, he simply cannot or will not perform his duties as Brigade S1 or maintain his responsibilities as an officer.  He is incapable of performing at the field grade officer level.  I do not recommend him for promotion to LTC [lieutenant colonel].  I also see no potential for further service in the Army."

	g.  Part VIIa the Senior Rater placed an "X" in the "Do Not Promote" block.  The Senior Rater's comments on the applicant's promotion potential to the next higher grade and the applicant's performance state:

Fully concur with rater's assessment.  [Applicant's] lack of expertise in the Human Resources area and ineffective leadership skills has [sic] adversely impacted the Brigade's personnel action readiness.  After numerous counseling sessions and a Brigade Commander's Letter of Concern, [applicant] has continued to struggle with the most basic aspects of his area of expertise and lacks the skills to lead Soldiers and systems.  He is incapable of providing sound analysis and lacks the ability to act on the more complex issues expected of a field grade officer.  He is unmotivated, repeats the same mistake over and over again and because of his lack of efficiencies and a tendency to place blame on others, he has been unable to establish functioning systems.  He would be best served by pursuing another profession outside the Army.  Do not promote.  Officer refused to sign report.

   h.  Part VIIb the Senior Rater rated the applicant's potential compared with officers he rated in the same grade as below center of mass, do not retain. 

8.  On 4 November 2011, the applicant requested a Commander's Inquiry regarding the contested OER due to the report being in violation of Army Regulation 623-3 for being inaccurate, containing untrue statements, and the rating official having a lack of objectivity and fairness.  There is no evidence to show a Commander's Inquiry was conducted.

9.  On 21 December 2011, the contested OER was filed in his AMHRR.

10.  On 9 March 2012, the applicant's commanding general initiated elimination action against him and required him to show cause for retention on active duty pursuant to Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2, due to substandard performance of duty.

11.  On 30 July 2012, a Board of Inquiry determined there was insufficient evidence to prove the applicant had a downward trend in overall performance resulting in an unacceptable record of efficiency as indicated by his service record and Relief-for-Cause OER.  The Board of Inquiry recommended the applicant be retained on active duty.

12.  On 11 September 2012, a legal review found the Board of Inquiry was conducted in compliance with legal requirements.  The findings were determined to be supported by the preponderance of the evidence and the recommendations were consistent with the findings.

13.  On 29 October 2012, the applicant's commanding general concurred with the Board of Inquiry's recommendation that the applicant be retained on active duty and closed the elimination action.  A copy of this document is filed in the performance section of the applicant's AMHRR.

14.  On 31 January 2013, the Officer Special Review Board denied the applicant's appeal of his contested OER.

15.  The applicant provides the following, in pertinent part, in support of his application:

	a.  Lieutenant Colonel EMJ, former Executive Officer, 48th Chemical Brigade during part of the period of the contested report, provided a DA Form 2823 and stated:

…from July 2010 until July 2011, I was in a position to know the staff expectations of the Brigade S1 and specifically, [applicant].  I had direct, personal knowledge of [applicant's] duty performance as the…S1 and the Brigade's established processes and procedures for awards and evaluations during that time.  [Rater] made an erroneous statement in the rater portion of the Relief-for-Cause OER…The fact is, [applicant] and his staff held monthly teleconferences with the battalion S1 sections prior to the brigade command and staff meetings to discuss awards and evaluation statuses.  The Brigade Command and Staff contained slides with awards and evaluations tracked in a 30/60/90 day status as coordinated with the battalions.  The Brigade S1 section had an established, functioning, and effective tracking system for all personnel actions that was in line with the Brigade policies and SOP [Standing Operating Procedures].  The Military Evaluations Processing Policy was signed on 3 December 2009, by the Brigade Commander.  The SOP for Peacetime Military Awards was signed on 20 September 2010, by the Brigade Commander.  When subordinate battalions followed the established policies and SOPs…, [applicant] and the S1 office ensured evaluations, awards or other personnel actions were sent to the brigade command group free of errors or discrepancies.  If a battalion commander or executive officer sent an evaluation or an award directly to the command group for signature, the S1 office would frequently identify unacceptable errors after receiving them for processing, resulting in removing digital signatures and returning the action to the unit for signatures causing additional delays.  [Applicant] was directed by [rater] and [brigade commander] to hold ACOM [Above Center of Mass] Officer Evaluation Report until after all the Center of Mass Reports (COM) from the brigade staff and subordinate battalions were reflected on IWRS [Integrated Web Records Systems], which occurred right after the Brigade change of command.  The only Officer Evaluation Reports that were counted as late to HRC [U.S. Army Human Resources Command] were those ACOM evaluations [applicant] was directed to hold.  There were no NCOERs [noncommissioned officer evaluations], awards, or other late actions….[Rater] and [brigade commander's] written narratives and block checks are not in keeping with the comments written by the exact same rater in the Relief-for-Cause OER for months earlier….It is my belief [brigade commander] and [rater] influenced the incoming commander [senior rater] and her perception of [applicant].  I believe this to be true because I personally witnessed the frustration [brigade commander] and [rater] had with the directed process of closing out all the ACOM Officer Evaluation Reports prior to the Brigade change of command.  I also believe the informal EO complaint [applicant] filed against [rater] for his inappropriate comments regarding his language skills led to further bias and retaliation.

	b.  Master Sergeant, Retired BEP, former Brigade S1 Noncommissioned Officer-in-Charge, provided a DA Form 2823 and stated he worked for the applicant from 20 July 2010 to July 2011 and that he had no interaction with the senior rater of the applicant's contested OER.  He further wrote:

There were some issues with Battalions not meeting suspenses, or submitting personnel actions, evaluations, awards with multiple administrative errors, some errors were easily corrected at the Brigade, however, some needed to be returned without action until corrections were made.  These issues were addressed during Command and Staff….The processing of evaluations became a priority leading up to the Brigade Change of Command….During this time Battalions were sending reports directly to [brigade commander] for signature without routing them through the S1 for review.  Once [brigade commander] signed the evaluations and sent them to [applicant], that's when [applicant] would discover the administrative errors…evaluations signed outside the 14-day window.  I have never had an issue with understanding communications with [applicant], we communicated daily, several times throughout the day….During one of our conversations…I noticed that something was clearly bothering [applicant] and I asked him what the problem was or the issue, he began to tell me about the incident he had with [rater]…I could see that [applicant] was visibly shaken by [rater's] remarks.  [Applicant] went through his chain of command about the issue which resulted in [rater] receiving a direct order to apologize.  [Applicant] had a great working relationship with S1 personnel as well as other staff sections.  [Applicant] created a positive working environment by providing direction and clear guidance…

	c.  Chief Warrant Officer Two (CW2) CVD, formerly assigned to the 48th Chemical Brigade S-6 section from October 2007 to October 2011 provided a DA Form 2823.  CW2 CVD stated his association with the applicant began on or about May 2010.  He became the interim brigade S-6 for a period of about 6 months and saw the applicant more frequently during staff meetings and other collaborative settings.  He further wrote:

[Applicant] was very professional and seemed to be doing well under the command of [brigade commander]…Just before and upon our change of command in June 2011, there seemed to be a high level of stress among all the BDE [brigade] staff sections.…I can, however, say that there were many discussions about inaccurate and late reports from the battalions while the BDE S-1 took the brunt of the blame.  The main issues seemed to be late awards and evaluations from the battalions as well as inaccurate personnel accountability (battalion commanders were reporting different numbers to the BDE commander than their battalion S-1's were reporting to the BDE S-1.  It became apparent that there was little support for the BDE S-1 from the subordinate commands but [senior rater] placed much of the blame on [applicant] as he was the senior HR [human resources] staff officer for the brigade….[Applicant] and his staff attempted many teleconferences and VTC's [video teleconferences] to work the issues with the battalions but nothing seemed to change.  As it seems, [applicant] was the victim of a non-supportive and very dispersed brigade.  I can vouch for [applicant's] professionalism and dedication to his job…

	d.  The applicant provides email, dated June 2011 through September 2011 which show:

*	the rater and senior rater of the contested OER were aware of policy issues regarding awards and evaluations within the unit and acknowledged the policies needed updating
*	the applicant and other unit administrators provided the rater and senior rater with issues causing the lateness and problems with awards and evaluations and solutions in June 2011
*	the applicant advised the rater and subordinate units in June 2011 of all upcoming suspenses on awards, evaluations, and other personnel actions
*	the applicant was not always included in email when established policies were modified or directions were given to lower level units
*	evaluations were intentionally held at the brigade at the direction of the previous commander and submitted late to Headquarters, Department of the Army (HQDA)
*	the rater acknowledged better assistance was required from the battalions on quality assurance and quality control
*	subordinate units were non-compliant with established policies and procedures causing awards and evaluations to be late
*	the senior rater acknowledged the applicant was aggressively engaging with the subordinate units
*	the applicant and subordinate units were directed to report statistics differently from reports coming from the commanders
*	the applicant and his staff and subordinate units had established tracking procedures for awards and evaluations and other personnel actions

	e.  The applicant provides the following SOP and policy letters issued by the 48th Chemical Brigade:

* Military Evaluations Processing Policy, issued by the brigade commander, dated 3 December 2009
* 48th Chemical Brigade SOP – Peacetime Military Awards, issued by the brigade commander, dated 20 September 2010
* SOP for the Evaluation Reporting System, containing the signature block of the senior rater and the contested OER, undated and unsigned

	f.  The applicant provides slides showing weekly, bi-weekly, monthly, and quarterly meetings were held to identify and report on awards and evaluations, manning, and other personnel actions.  The slides show defined timelines, defined suspense dates, and explanations for lateness for the period June through November 2011.

	g.  The applicant provides copies of error-free evaluations of other officers and enlisted members, with their permission, in the brigade submitted by him to the rater for signature during the period of the contested report.

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

	a.  Paragraph 3-36 provides that the rated Soldier may appeal the report if information that was unknown or unverified when the report was prepared is brought to light or verified and is so significant that it would have resulted in a different evaluation of the rated Soldier.

   b.  Paragraph 3-39a that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to:

* be administratively correct
* have been prepared by the properly designated rating officials
* represent the considered opinions and objective judgment of the rating 	officials at the time of preparation

   c.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.

	d.  Relief-for-cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, part IV.  These standards will apply to conduct both on and off duty.  The rated officer will be evaluated only on performance during the current rating period, with the exception of the statement clarifying the relief.


   e.  Paragraph 6-11d that in a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request.

17.  Army Regulation 600-8-104 governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the AMHRR, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the AMHRR unless directed by certain agencies, to include this Board.  

   a.  Appendix B-1 states an OER is filed in the performance section of the AMHRR.
   
   b.  Appendix B-1 states Investigation Reports – Authenticated Extract, Completed Investigation Report Result Elimination/Discipline will be filed in the performance section of the AMHRR.
   
   c.  HRC publishes a list of documents required for filing in the interactive Personnel Records Management System (iPERMS).  This list supplements Army Regulation 600-8-104 and shows that allied documents pertaining to the DA Board – Board of Inquiry Correspondence, Special Selection, Promotion, Promotion Revocation, or Standby Advisory Board are filed in the restricted section.
   
   d.  The regulation fails to indicate where favorable elimination action letters are to be filed.

18.  Army Regulation 600-20 prescribes the policies and responsibilities of command, which include the well-being of the force, military discipline, and conduct.

     a.  Paragraph 2-1 states, in pertinent part, that commanders are responsible for everything their command does or fails to do.  However, commanders subdivide responsibility and authority and assign portions of both to various. 

     b.  Paragraph 2-17 states that when a senior commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the senior commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first general officer (to include one frocked to the grade of brigadier general) in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.  If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required; however, Army Regulation 623-3 guidance concerning administrative review of relief reports remain applicable.

     c.  Paragraph 6-2 states the U.S. Army will provide EO and fair treatment of military personnel and family members without regard to race, color, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior.  This policy states racism is any attitude or action of a person or institutional structure that subordinates a person or group because of skin color or race.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER is inaccurate, contains untrue statements, and the rating official lacked objectivity and fairness.  He also contends the elimination action letter signed by his commanding general is not covered by Army Regulation 600-8-104 and should be filed in the restricted section of his AMHRR.

2.  An OER is a measure of an officer's performance and potential during a period of time.  OER's accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.
3.  The evidence presented by the applicant shows that while serving as the Brigade S1, he had some issues with evaluations and awards that were at times beyond his control.  However, the contested report addresses his ability to perform all his duties.  The 20th Support Command G-1 inspection shows he was not performing the duties assigned to him as evidenced in his contested report.

4.  He did not provide any results from the Commander's Inquiry that he requested.

5.  The record shows the contested OER was accepted by HQDA and is included in his official record.  As such, the document is presumed to be administratively correct and to represent the considered opinions and objective judgment of his rater and senior rater.  The evidence he provides does not clearly and convincingly establish that the presumption of regularity should not be applied.

6.  In view of the above, there is no basis for granting the applicant's requested relief pertaining to the removal or transfer of his contested OER.

7.  The governing regulation fails to show a designated filing location for favorable elimination action letters.  Therefore, any doubt should be resolved in favor of the applicant and he is entitled to his requested relief to have this document moved to the restricted section of his iPERMS record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x___  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by transferring the elimination action memorandum, dated 29 October 2012, to the restricted section of the applicant's iPERMS record.



2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing or transferring the contested OER to the restricted section of his iPERMS record.



      _______ _ 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.



 

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ABCMR Record of Proceedings (cont)                                         AR20130017223



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