BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130019518 


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 his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 16 March 2007 through 30 September 2007 (hereafter referred to as the contested OER) be removed from his records.

2.  The applicant states the contested OER contains unsupported allegations of inefficiency as detailed by disinterested third party-observers.

3.  The applicant provides:

* 5 DA Forms 67-9 (Officer Evaluation Report)
* DA Form 1059 (Service School Academic Report)
* 2 letters
* 10 memoranda
* Army Special Review Boards Record of Proceedings Docket Number AR20090018660

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the contested OER from the applicant's records.

2.  Counsel states, in effect:

   a.  The applicant is an accomplished military professional as evidenced by the numerous endorsements he received from senior Army leaders.  Numerous complimentary observations were made about the applicant by senior leaders in the 10 months immediately prior to the date of the contested report.  Suddenly an officer who was hand selected for a second command, an officer who had "proven he can handle the difficult problem sets that exist on the battlefield today, was now described as an officer who had "no potential to lead Soldiers."  That description was not occasioned by a glaring act of misconduct or even clear inefficiency but by retaliatory spite by an officer described as a "toxic" leader, who subjected the applicant to a "hostile work environment."

   b.  The rater and senior rater allege that the applicant failed to identify "high risk Soldiers…and develop mitigation plans to keep them from trouble."  They further allege the applicant "failed to establish, train, or enforce standards that would safeguard his Soldiers' welfare and instill discipline in his formation."  This allegation is refuted by the uncontroverted observations of several eyewitnesses and is facially contradicted by the rater's admission that the applicant devoted great effort and achieved great results in the areas of physical fitness and Soldier skills, a time-honored method of instilling cohesion, unit pride, and personal discipline in Soldiers.

   c.  Supporting witness statements describe how despite being severely short staffed the applicant developed a high-risk personnel matrix which focused the company leadership.  The applicant then moved the high-risk Soldiers to an area of the barracks where they were more visible to unit leadership, and more available to counseling and supervision.  This required the applicant to spend late nights in his office and walking the barracks to maintain good order and discipline.  The matrix and barracks configuration maximized the impact of limited unit leadership and accompanied creative and positive leadership efforts by the applicant to include a warrior skill Olympics for the company which improved readiness and morale.  The applicant's efforts were so effective they stopped all serious incidents in the company for two months.
   
   d.  The applicant's efforts conflicted with brigade policy.  The senior rater instituted a mass recall policy for serious incidents.  In August 2007, a junior Soldier in the applicant's company went absent without leave, got into a fight, and broke his leg.  The Soldier was pending separation from the Army and was restricted to post under the supervision of the charge of quarters.  Following the incident the senior rater sought to confine the Soldier.  To that end he encouraged the applicant to testify that the Soldier was a flight risk.  The senior rater's efforts arguably constituted unlawful command influence which the applicant resisted and gave his honest opinion that a Soldier with a broken leg and no vehicle was unlikely to flee.  A military magistrate agreed and refused to continue pretrial confinement.  The senior rater relieved the applicant from command three days prior to his scheduled change of command.
   
   e.  The senior rater previously supervised the applicant from 2004 to 2006 when the senior rater was the division G3 and the applicant was an assistant operations officer.  The senior rater, as the G3, offered guidance to the applicant, as an assistant G3, before a briefing to the commanding general; however, the senior rater did not know the mission had changed and his comments were no longer relevant to the briefing.  The applicant politely declined to interrupt the senior rater, but the senior rater became incensed the applicant wasn't avidly taking notes.  After that day the senior rater's interactions reflected a hostility that could only be explained by the misperceived slight.  Additionally, a field grade officer who worked in the division plans shop at the time (now colonel (COL) F) perceived what he called a "hostile work environment."  The officer subsequently warned the applicant against accepting a command under the senior rater; however, the warning went unheeded due to the applicant's faith in the professionalism and judgment of a senior Army officer.
   
   f.  COL F states the senior rater "does not treat all subordinates with equality."  Master sergeant (MSG) D explains "it is unpopular to say that anything is racially motivated, but the fact remains [that] many things are."  Both men are career military professionals with more than 20 years of active service.  Neither man points to an incident where the senior rater made an obvious racist utterance.  The applicant is an American of Korean heritage and the senior rater may have consciously or unconsciously applied different standards in evaluating the applicant.  Two senior members of the senior rater's command, one of whom remains on active duty, thought enough of the possibility to put it in writing.  A rare and significant occurrence.
   
   g.  The senior rater opined that the applicant "has no potential to lead Soldiers."  That unsupported intemperate opinion immediately followed then Major General T's opinion that the applicant was a motivated leader who repeatedly distinguished himself including service as a company commander in Iraq where he proved himself to be a combat leader.  Lieutenant General C, in an evaluation that postdates this event, also states the applicant is "a top 10% officer," and has "clear potential for battalion command."  The applicant went on to the Army Command and General Staff College in 2011, where he graduated first place as the Class Distinguished Master Tactician among 450 majors.  
   
   h.  Counsel further states this application establishes that the senior rater's rating of the applicant's performance and potential were inaccurate.  Accordingly, this inaccurate record should be removed immediately, before the applicant's January “2013”, Lieutenant Colonel (LTC) Primary Zone Promotion Board.     

3.  Counsel provides a copy of the contested OER and a copy of the applicant's rebuttal memorandum, dated 21 December 2007.
CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of major.

2.  Records show the contested OER was a Change of Duty report that covered seven months of rated time while the applicant was serving in the rank of captain in the position of Company Commander.  The contested OER was a referred report.

3.  The rater, a LTC in the position of battalion commander, signed his portion of the contested OER on 5 December 2007.  The senior rater, a COL serving in the position of brigade commander, signed his portion of the contested OER on 10 December 2007.

4.  The applicant signed Part IIe (Signature of Rated Officer) of the contested OER on 10 December 2010, that attested the administrative portion of the contested OER was correct and also confirmed the rating officials were those established as the rating chain.

5.  The contested OER contains the following pertinent information:

   a.  In Part IVb.1 (Performance Evaluation-Leader-Attributes) the rater placed an "X" in the "No" block for "Mental";

   b.  In Part IVb.2 (Performance Evaluation-Leader-Skills) the rater placed an "X" in the "No" block for "Interpersonal";

   c.  In Part IVb.3 (Performance Evaluation-Leader-Actions-Influencing) the rater placed an "X" in the "No" block for "Motivating";

   d.  In Part IVb.3 (Performance Evaluation-Leader-Actions-Improving) the rater placed an "X" in the "No" blocks for "Developing" and for "Building";
   
   e.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance" block and entered the following remarks in Part Vb:

   	"[The applicant] struggled to provide effective leadership for his company in a turbulent seven month period of performance.  His company had high rates of indiscipline throughout his tenure.  [The applicant] repeatedly failed to identify high-risk Soldiers and develop meaningful, executable mitigation plans to ensure these Soldiers steered clear of trouble.  When Soldiers were identified as in need of additional supervision, [the applicant] either did not provide for or enforce the measures needed.  Despite constant mentoring and ample guidance, [the applicant] did not develop and enforce a meaningful counseling program in accordance with the guidance he received from his brigade and battalion commanders.  [The applicant] did not develop subordinate leaders who routinely enforced standards and maintained discipline with predictable results -- more Serious Incident Reports.  He did expend much effort on improving his company's physical fitness and basic Soldier skills.  Additionally, he improved his company's supply and maintenance postures by drawing vehicles and establishing maintenance programs.  Ultimately, though, he failed to provide the positive, effective leadership his Soldiers deserved."
   
   f.  The following remarks were entered in Part Vc (Comment on Potential for Promotion):
   
   	"[The applicant] is already promotable to Major, but his future potential is limited."
   
   g.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block, indicated that he senior rated 31 officers in this grade, placed another "X" in the "Yes" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review, and entered the following remarks in Part VIIc (Comment on Performance/Potential):

   	"Do Not Promote or Retain.  [The applicant's] performance during this rating period in command of HHC, 1-67 Armor has not been what is expected of a leader in our Army let alone a senior 2nd time company commander.  On multiple occasions, [the applicant] failed to establish, train or enforce standards that would safeguard his Soldier's [sic] welfare and instill discipline in his formation.  Multiple occasions found him unwilling and/or unable to enforce his own disciplinary measures or those prescribed to him by Army Regulations or his superior commanders.  Already selected to Major, this officer has no potential to lead Soldiers and his continued service in the Army should be limited."

7.  In a statement rebutting the contested OER, dated 21 December 2007, the applicant stated that he executed all of his duties and directives while serving as company commander throughout the rating period.  He wholeheartedly believed that his contributions in positive leadership to the company during a turbulent period of trying to stand up the unit far outweighed his "inability to develop meaningful, executable mitigation plans to ensure these Soldiers steered clear of trouble."  While some of his Soldiers did commit serious incidents, their moral faults should not have been attributed to his lack of proper leadership.

8.  The subject OER was subsequently processed by the U.S. Army Human Resources Command, Alexandria, VA.

9.  There is no indication the applicant requested a commander's inquiry (CI) be completed on the report.

10.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB) and on 15 April 2010, the OSRB, by unanimous vote, determined the evidence submitted did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested OER or that action was warranted to correct a material error, inaccuracy, or injustice.  Therefore, it was determined the overall merits of his case did not warrant the relief requested.

11.  The applicant provides:

   a.  An OER immediately preceding the contested report in which he was also rated as a company commander by a completely different rating chain.  His performance during this period was rated as outstanding and his promotion potential was rated as best qualified.  The report was wholly positive and contained numerous laudatory comments.

   b.  Four subsequent OERs detailing his performance in various positions of responsibility.  In each report his performance was rated as outstanding and his promotion potential was rated as best qualified.  Each report was wholly positive and contained numerous laudatory comments.
   
   c.  A DA Form 1059, dated 16 December 2011, that shows he achieved the course standards while attending the Intermediate Level Education Course at the Command and General Staff College, Fort Leavenworth, KS.  In addition, he was the recipient of the General George S. Patton, Jr. Distinguished Master Tactician Award, was awarded the Master of Military Art and Science Degree, and completed the requirements to earn an Additional Skill Identifier of Historian.  His potential to succeed in positions of increased responsibility and authority was deemed superb.
   
   d.  Several statements that supported his appeal of the results of a Career Field Designation Board.  The board results had assigned him to Functional Area 34 (Strategic Intelligence), and the applicant wanted to remain in the Maneuver Fires and Effects functional category within the Infantry Branch.
   
   e.  Several statements in support of the applicant's appeal to have the contested OER removed from his record.
12.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including CI's and appeals.

13.  Paragraph 3-39 of Army Regulation 623-3 provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

14.  Chapter 6 of Army Regulation 623-3 contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.

15.  Paragraph 6-11 of Army Regulation 623-3 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to remove the contested OER from his records has been carefully examined; however, the evidence of record does not support the applicant's request.

2.  The applicant and his counsel provide substantial evidence to show the applicant's duty performance and potential prior to and immediately after the contested report was rated as "outstanding" and "best qualified."  However, an OER is a measure an officer's performance and potential during a period of time.  The applicant and his counsel provided insufficient evidence to show the applicant's rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  

3.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

4.  Careful consideration was given to the supporting documentation provided with his application.  While each letter of support provides compelling statements on behalf of the applicant, none of the memoranda provide clear and convincing evidence that his rater and senior rater's assessment was anything but their considered opinions and objective judgments of the applicant during the rating period.

5.  In the absence of clear and convincing evidence overcoming the presumption that the contested OER is administratively correct and factually accurate, there is no basis for granting the requested relief.

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)                                         AR20130019518





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ABCMR Record of Proceedings (cont)                                         AR20130019518



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