IN THE CASE OF:	  

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130018502 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of his annual officer evaluation report (OER) for the period 14 November 2007 through 13 November 2008 from his records and correction of his records to show this period as nonrated time.

2.  The applicant states the OER was based on false information and was motivated by a desire to retaliate against him for reporting violations of General Order Number 1.  The OER contained numerous falsehoods and errors.  This will continue to mar his otherwise spotless record as long as it is allowed to remain.  He made a timely request for correction through the National Guard Bureau (NGB).  NGB claimed to have "misrouted" the request which was subsequently improperly rejected for being "untimely" due to their error.  Additionally, an Inspector General (IG) investigation into this event lasted nearly 5 years without reaching a result.

3.  The applicant provides copies of the following:

* contested OER
* memorandum for Detachment 23, dated 19 January 2009
* two supporting statements for his evaluation report appeal
* OER appeal memorandum
* evaluation report appeal
* explanation of evaluation report appeal
* email correspondence from the NGB Appeals and Analysis Branch


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.  The applicant was appointed as a warrant officer (WO) one in the Rhode Island Army National Guard (RIARNG) on 3 August 1991 with prior enlisted service.  He was promoted to chief warrant officer two (CW2) on 3 October 2001.

3.  His records contain and he provided a copy of his annual OER for the period 14 November 2007 through 13 November 2008 for his duties as an Aviation Life Support Equipment (ALSE) officer.  His rater was the detachment commander, a chief warrant officer five (CW5) and his senior rater (SR) was the battalion executive officer, a lieutenant colonel.  The OER shows in:

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

	b.  Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Emotional" and an "X" in the "Yes" block for all other attributes;

	c.  Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments:

[Applicant] has performed in an [sic] satisfactory manner during this rating period.  As the detachment Aviation Life Support Equipment (ALSE) Officer he has monitored aircraft and crewmember ALSE requirements to ensure equipment servicibility [sic] and training requirements are met.  [Applicant] consistently demonstrates his technical and tactical proficiency in the performance of his assigned crewmember duties.  [Applicant] has demonstrated behavior for which he was twice verbally counseled during this rating period.  This stress related behavior was manifest in interpersonal relationships within this unit.  [Applicant] has successfully completed all APART [Annual Proficiency and Readiness Test] and flying hour requirements for this rating period.  [Applicant] is a regular participant in physical training and consistently scores well on the APFT [Army Physical Fitness Test].  [Applicant] has completed the Warrant Officer Basic Course and Branch qualification.

	d.  Part Vc (Comment on Potential for Promotion), the rater entered the comment:  "[Applicant] is capable of working in areas of higher responsibility."

	e.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR placed an "X" in the "Other" block and entered the following comments:

[Applicant] has met all the basic performance objectives of his assigned duties and in fact excelled in some of them.  However, I cannot pass judgment on his potential for greater responsibility and or promotion due to concerns I have regarding behavioral patterns manifested during the rating period.  I believe that the dubious behavior stems from his inability to adequately manage stress.  [Applicant] is recommended to undergo professional stress management from a qualified aeromedical physician.  Upon the conclusions of this treatment, [Applicant] should be re-evaluated and all earned opportunities granted him.  Stress is a realistic byproduct [sic] of combat and I urge [Applicant's] future leadership to evaluate him based on his attitude and ability after he successfully completes the treatment we are affording him and not strictly on this OER.

	f.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the SR accessed him as "Center of Mass";

	g.  Part VIId (List Three Future Assignments for Which This Officer is Best Suited), the SR listed the following future assignments:  C12 Pilot, Tactical Operations Officer, and ALSE Officer.

4.  He also provided copies of the following:

	a.  A memorandum for Detachment 23 from the Commander, Aviation Task Force-Kuwait, dated 19 January 2009, subject:  The Chain of Command for Processing Complaints or Request[s] for Action, states actions requested by any member of Detachment 23 would be submitted to/through the detachment commander, verbally or in writing.  If it was within the authority of the detachment commander to approve/disapprove the issue, it would be resolved at that level.  If the issue was not resolved to the member's satisfaction, the member could appeal it to the next higher authority in the chain of command after requesting and receiving permission to do so.

	b.  A memorandum for the U.S. Army Human Resources Command (HRC) from the Commander, Company D, 126th Aviation (Theater Aviation Company), dated 4 March 2011, subject:  Supporting Statement for Evaluation Report Appeal of (Applicant), states:

		(1)  He was deployed with the applicant during the rating period in question.  He acted as the detachment operations officer and instructor pilot during the deployment and would echo CW5 M____'s comment about the applicant's technical and tactical proficiency in crewmember duties, as well as the applicant's knowledge of ALSE and performance as the detachment ALSE officer.

		(2)  The "behavior" the applicant was "verbally counseled" for was absolutely justified in his opinion as a senior warrant officer.  The senior noncommissioned officer (NCO) with which the interchange happened has since been found guilty in an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation of threatening an officer.  The NCO had also made threats to the WO's in the unit.

	c.  A memorandum for HRC from the Commander, Detachment 3, Operational Support Airlift Command, dated 16 August 2011, subject:  Supporting Statement for Evaluation Report Appeal of (Applicant), states:

		(1)  He was deployed in the capacity of executive officer and the standardization instructor pilot for Detachment 23 with the applicant during the rating period covered by the OER.  He witnessed the applicant performing in a technically and tactically proficient manner, as was expected of him.  The applicant was also being considered for pilot in command.  He also witnessed the applicant volunteer for extra duties such as telephone and computer officer.  In addition, the applicant was invaluable as the expert in the proper use, care, and maintenance of all ALSE in the detachment.

		(2)  It was his honest opinion that the applicant, a promising junior WO in the detachment, received that OER in reprisal for making a protected communication.  This was a violation of Army Regulation 20-1 (Inspector General Activities and Procedures), section IV, paragraph 1-11.  The applicant subsequently submitted an Army Regulation 15-6 IG complaint which was still ongoing at that time.
		(3)  That OER should be appealed.  The OER referenced two verbal counselings for actions on the applicant's part that were absolutely justified and warranted.  The applicant displayed the utmost professionalism as a Soldier and WO.  The senior NCO, with whom the applicant had the interchange had a political monopoly with the commander/rater.  The NCO had been found guilty of threatening an officer with bodily harm by the investigating officer and State Aviation Center.  The two verbal counselings, for which he was present, were also transferred to paper at a later date, unbeknownst to him.  The applicant did the right thing and seemed to have paid the price, which should be corrected immediately.

	d.  A memorandum for the Chief of Staff, Command Readiness Center, RIARNG from the J-3, dated 20 September 2011, subject:  (Applicant) OER Appeal, states:

		(1)  It was his firm opinion that the applicant's OER covering the period 14 November 2007 through 13 November 2008 contained perceptions about the applicant that he would consider unfounded characterizations and inconsistent with his knowledge of the applicant's professional behavior.

		(2)  In addition, an Army Regulation 15-6 investigation reviewing a broad spectrum of Detachment 23's Calendar Year 2008 deployment in support of Operation Iraqi Freedom found a toxic leadership climate existed, inconsistent with Army values.  He believed that, at a minimum, the applicant's OER was authored with bias and vindictiveness.  As such, he believed it should be discounted when reviewing the applicant's career performance.

	e.  A memorandum for HRC from the applicant, dated 11 October 2011, subject:  Explanation of Evaluation Report Appeal from 20071114 thru 20081113 for (Applicant), states:

		(1)  The contested OER included the beginning of a deployment.  The author of the contested OER was a toxic leader.  He authored that OER in reprisal of a protected communication to the IG during the beginning of the deployment regarding Mr. M____'s (his rater) disregard of General Order Number 1.  Mr. M____ also took exception to a verbal counseling given by him to the senior NCO, who physically threatened him with bodily injury.  A preliminary finding as such was referenced by CW4 D____.




		(2)  The SR was influenced by Mr. M____ to add unfavorable comments.  The SR had not known him before the OER and therefore wrote such comments purely under the suggestion of Mr. M____.  Mr. M____ went further to vindictively mandate an improper medical evaluation as punishment for going to the IG.  The IG investigation, case number NRI-XX-XXXX (currently at NGB), covers those points as well.

		(3)  He hoped to have a decision from NGB, the Department of the Army, or the Department of Defense regarding that case to include that appeal.  He had waived almost the entire 3-year grace period in order to realize that hope, but a decision was not rendered in time and he needed to submit the appeal without further delay.

	f.  A memorandum for HRC from the applicant, dated 11 October 2011, subject:  Evaluation Report Appeal from 20071114 thru 20081113 for (Applicant), states:

		(1)  The basis of that appeal was substantive inaccuracy.  The OER contained inaccurate characterizations made by a toxic leader in reprisal for communicating with the IG.  He had an ongoing IG case that was pending regarding the commander who authored the OER.  It was his hope that the investigation findings would have been included with that appeal.

		(2)  He requested complete removal of the OER from his records.  If that request exceeded the 3-year period, he requested approval of a waiver as there was an upcoming Selective Retention Board (SRB) and due to the lengthy investigation process, only now could he ascertain what evidence was available for submission.

	g.  Email correspondence from the NGB Appeals and Analysis Branch, dated 3 October 2013, advised him of the following:

		(1)  They received his appeal request and a memorandum was sent to him stating his request had gone beyond the 3-year time frame from the through date.  Unfortunately, it had been misrouted and by the time NGB received his packet, the 3-year limit had expired.

		(2)  Upon speaking with the Officer Special Review Board (OSRB), NGB further determined that because the OER in question was in his restricted folder, OSRB did not have the authority to direct removal of documents from the restricted folder of his OMPF.  However, he could apply to the ABCMR.


5.  His records contain the following documents:

* ARNG Current Annual Statement, dated 1 July 2013, showing he was credited with 25 years of creditable service for retired pay and was issued a Notification of Eligibility for Retired Pay at Age 60 (20-year letter)
* a memorandum from the RIARNG, dated 7 February 2013, subject:  Selection for Retention under the Provisions of National Guard Regulation 635-102, showing he was selected for retention by the Calendar Year 2013 SRB and his file would be reviewed by the 2014 SRB

6.  His records are void of any documentation pertaining to his IG appeal or the determination of this appeal.

7.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System.

	a.  Paragraph 4-4 provides that alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.  However, appeals by ARNG members will be forwarded as necessary to NGB 
(NGB-ARP-C), through the State Officer Personnel Manager office.

	b.  Paragraph 4-8 provides that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within 3 years of an OER through date.

	c.  Paragraph 4-11 provides that the burden of proof rests with the appellant to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.

	d.  Section II (Terms) provides that nonrated time is when the rated Soldier cannot be evaluated by the rating officials.  Such time periods include, but are not limited to, school attendance, in-transit travel, hospitalization or patient status, convalescent leave, leave periods of 30 days or more, and periods when the rater has not met minimum qualifications. Periods such as breaks in service or time spent in an Individual Ready Reserve, Ready Reserve, or Inactive National Guard status are not ratable periods; therefore, these periods will appear as gaps in a rated Soldier's evaluation report history.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF and its composition.  Once a document is placed in the OMPF, 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 the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention and the documents he provided were carefully considered.

2.  His records are void of the determination of the IG findings and he did not provide a copy of such.

3.  There is no evidence of record and he did not provide sufficient evidence showing this OER contains material error or is inaccurate.  The evidence shows he chose to appeal the OER in 2011, almost 3 years after the through date.  Upon receipt of his appeal, NGB advised him that his request was past the 
3-year time period for submission.  Notwithstanding his contention of waiting for the IG findings, it appears he did not exercise due diligence in appealing the contested OER through the administrative appeals process.

4.  There is no evidence of record and he did not provide sufficient evidence showing the OER is incorrect, inaccurate, or unjust.  Without evidence to the contrary, it appears this OER represents a fair analysis of the applicant at the time.  In accordance with regulatory guidance, there must be compelling evidence to support removal of a properly-completed, facially-valid OER from a Soldier's records.

5.  Absence evidence meeting this regulatory standard, there is an insufficient evidentiary basis to support 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 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)                                         AR20130018502



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ABCMR Record of Proceedings (cont)                                         AR20130018502



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