IN THE CASE OF:	   

		BOARD DATE:	  19 March 2014

		DOCKET NUMBER:  AR20130020985 


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 a DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 2 April 2012 through 20 November 2012 be removed from his Army Military Human Resource Record (AMHRR).

2.  The applicant states:

	a.  the "NO" rating for Respect on his OER is not accurate.  During the rating period, he ensured the utmost respect was displayed for his Soldiers and leaders.  During the rating period, and two months after the Command Climate Survey, he led the unit successfully which is clearly stated by his rater and senior rater in his OER.  

	b.  the "NO" rating for Building on his OER is also not accurate.  The rater clearly addressed his development of team building events and he was given recognition for having the best team in the unit. 

	c.  the referred OER should be removed from his file.

	d.  the basis for this appeal is substantive inaccuracy.  The "NO" rating for Respect references "using inappropriate language in front of subordinates."  These incidents occurred between August 2011 and February 2012.  The rating period for the contested OER begins on 2 April 2012.  He points out Army Regulation 623-3 (Evaluation Reporting System) states a report will not refer to performance or incidents occurring before or after the period covered and the determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent action, such as the date of its discovery, a confession, or finding of guilty, or the completion of an investigation.   

	e.  in the alternative, the grounds for substantive inaccuracy is supported by the faulty conclusions of an incomplete and erroneous commander's inquiry.  The inquiry was initiated from an act of reprisal based on information from a platoon leader who was counseled for his poor performance and took advantage of a new battalion and brigade chain of command as well as the fact that he was on leave when the platoon leader went up and reported the alleged incidents.  He was not given the opportunity to speak with the chain of command about the allegations.

	f.  the fact that the Commanding General of the installation withheld a decision of what administrative action was to be taken against him for over 
60 days after the investigation was complete, but rendered a filing determination 7 days after the applicant wrote a rebuttal, indicates that a decision was already made.  The Commanding General also withheld his decision until the conclusion of the Fiscal Year (FY) 2013 Major promotion board so when the General Officer Memorandum of Reprimand (GOMOR) was filed the applicant would have to wait a full year which would be during the FY 2014 Major promotion board, when he is in the primary zone of consideration.     

	g.  the GOMOR being filed in his performance fiche triggered the referred OER which is unjust because it was outside the rating period.  The purpose of the Command Climate Survey is to provide the commander an assessment of the climate of the unit and indicators of strengths and issues of the unit.  Once he received the brief of the Command Climate Survey he immediately addressed the concerns with the company leadership and put measures in place to improve the climate of the unit as well as making the necessary adjustments to himself. He continued to lead the unit successfully. 

3.  The applicant provides:

* OER appeal packet
* Counseling statement
* GOMOR
* Informal Commander's Inquiry
* Open door policy
* memorandum



CONSIDERATION OF EVIDENCE:

1.  Having prior active enlisted service in the Regular Army (RA), the applicant was appointed as a second lieutenant in the RA on 18 August 2005.  He was promoted to captain on 1 October 2008. 

2.  He provides a copy of the findings of an informal commander's inquiry, dated 10 September 2012, investigating allegations of misconduct against his command team.  The investigating officer found:

* that a hostile command climate existed
* the applicant had used inappropriate language and nicknames some of which could be construed as racist when addressing Soldiers
* procedures needed to be reviewed for confiscation of property during health and welfare inspections
* there was the perception of preferential treatment between a first sergeant and specialist

3.  On 29 November 2012, he received a GOMOR for fostering a hostile command climate and using inappropriate, discriminatory, and abusive language to his subordinates.  On 19 December 2012, the imposing authority directed the GOMOR be filed permanently in his AMHRR.

4.  On 25 January 2013, he received a change of rater OER for his duty performance as a company commander.  This report covered 8 months of rated time between 2 April 2012 and 20 November 2012.

	a.  In Part IV (Performance Evaluation – Professionalism), Part A (Army Values), the rater placed a checkmark in the "No" block of number 5 (Respect), indicating a deficiency in that rated area on the part of the rated officer.

	b.  In Part IV (Performance Evaluation – Professionalism), Part B (Leader Attributes/Skills/Actions), the rater placed a checkmark in the "No" block of item b.3. (Actions) number 8 (Building).  This checkmark indicates a deficiency in this particular rated area on the part of the rated officer.

	c.  In Part V (Performance and Potential Evaluation (Rater)), Part A (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the "Satisfactory Performance, Promote" block.  In Part B (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9 and Part IVa, b, and Part Vb, DA Form 67-9-1 (OER Support Form)), the rater stated:
  
Adequate performance by a dedicated and hard working commander.  [Applicant's first name] is truly a fire and forget officer, any missions given is a mission completed; however, inappropriate comments made in front of and to subordinates about junior Soldiers overshadowed his many positive command accomplishments.  His careless comments failed to promote dignity and foster an ethical climate in his unit; however, once informed on the inappropriateness of his comments, he immediately made the necessary adjustments and continued to lead successfully.  During a time of extreme personnel shortages, [Applicant's first name] skillfully managed and trained his personnel in order to maintain continuous law enforcement and access control coverage for the Fort Leonard Wood Community.  [Applicant's first name] developed, planned, and executed the first ever TITAN Pentathlon.  This successful four day team building event incorporated multiple collective and Warrior Tasks/Battle Drills to challenge and recognize the company's best MP team.  While under CPT [Applicant's last name] leadership, the Company exceeded the standards in maintaining discipline by not have [sic] an alcohol or drug offense in a 
90 day period, earning them the Brigade's "Dauntless Discipline Patch."  The rated officer has initialed a 360/Army Multi-Source Assessment and Feedback within the last three years.

	d.  In Part VII (Senior Rater), Part A (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the "Fully Qualified" block.  In Part C (Comment on Performance/Potential), the senior rater stated:

Satisfactory performance by a determined leader.  CPT [Applicant's first name] energetically led his company; however, his unsuitable comments made in front of subordinates were a detriment to the good order and discipline of the unit.  To his credit, he learned from his transgression and effectively continued to lead his company.  [Applicant's first name] skillfully managed and executed the challenging mission of conducting Fort Leonard Wood's law enforcement and access control while experiencing tremendous personnel shortages.  He developed and executed a rotating training regime that provided certified military policemen to promote law and order.  Promote to Major when eligible.  [Applicant's first name] possesses the potential to serve in positions of increased responsibility.  



5.  The contested OER was referred to the applicant for acknowledgement.  He submitted the following comments on 1 February 2013: 

	a.  while assigned as the company commander of the 512th Military Police Company, he assumed command of a unit with significant discipline problems.  During meetings with officers, senior noncommissioned officers, and Soldiers he would make some comments that were considered inappropriate as well as use nicknames.  It was never to degrade the Soldier or be detrimental to the good order and discipline of the unit, rather it was to lighten up the situation.  Once it was brought to his attention that some of his comments were considered unprofessional and inappropriate, he immediately made the necessary adjustments and continued to lead the unit successfully.

	b.  during his tenure the company commander, they created some outstanding team building programs like the TITAN Superior Fitness Award and 
the TITAN Pentathlon.  These programs were designed to build discipline, morale, esprit de corps and foster a positive command climate.  The unit also earned the coveted "Dauntless Discipline Patch."  This patch is awarded to a unit that does not have a drug or alcohol incident in a 90-day consecutive period.

	c.  as a captain in the Army, he is held to a higher standard.  He realizes that his actions during periods of his command placed his leadership abilities in question.  He now has a better thought process and thinks more clearly before speaking.  he also now considers the second and third order effects of his words, because he knows Soldiers of a lower rank will more than likely not say anything because of fear of retaliation.  He would only ask that he be given the opportunity to prove himself from this point forward. 

6.  His subsequent DA Form 67-9 shows he was rated "OUTSTANDING PERFORMANCE, MUST PROMOTE" by his rater and he was rated "BEST QUALIFIED" by his senior rater.   

7.  On 24 April 2013, the applicant petitioned the Officer Special Review Board (OSRB) to remove the contested OER from his AMHRR.  On 10 October 2013, the OSRB denied his request and determined the overall merits of his case did not warrant the requested relief. 

8.  A review of the applicant's AMHRR on the interactive Personnel Electronic Records Management System revealed a copy of the contested OER.

9.  Army Regulation 623-3 states an evaluation report accepted by Headquarters, Department of the Army, 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.  Requests that an evaluation report in a Soldier's AMHRR be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity will not be applied to the report under consideration; and

	b.  action is warranted to correct a material error, inaccuracy, or injustice.

10.  Paragraph 3-16 of Army Regulation 623-3 states rating officials' evaluation of a rated Soldier will be limited to the dates included in the rating period of an evaluation report.  Each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period. A report will not refer to performance or incidents occurring before or after the period covered or during
periods of nonrated time.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the
date of its discovery, a confession, or finding of guilt, or the completion of an investigation. 

11.  Paragraph 3-19 of Army Regulation 623-3 states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the
rating chain’s reference to verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report.

12.  Army Regulation 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It states the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.  The regulation states OERs are required for filing in iPERMS. 
DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the contested OER on the basis of substantive inaccuracy.  In order to justify amendment of a report, the burden of proof rests with the applicant to produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity should not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

2.  Although he contends the "NO" rating for respect on the contested OER references an incident that occurred prior to the rating period, the governing regulation states any verified derogatory information may be entered on an OER when discovered.  The information was discovered during the September 2012 commander’s inquiry, within the rating period.  Evidence shows he received a GOMOR for fostering a hostile command climate and using inappropriate, discriminatory and abusive language to his subordinates.        

3.  His contention the grounds for substance inaccuracy is also supported by the faulty conclusions of an incomplete and erroneous commander's inquiry was noted.  However, there is no evidence of record and he provided no evidence to support this contention.  The investigating officer found:

* that a hostile command climate existed
* the applicant had used inappropriate language and nicknames some of which could be construed as racist when addressing Soldiers
* procedures needed to be reviewed for confiscation of property during health and welfare inspections
* there was the perception of preferential treatment between a first sergeant and specialist

4.  Essentially, the applicant failed to show by clear and convincing evidence that the investigating officer’s findings were inaccurate or that the OER contained an inaccurate assessment by his rater or senior rater.

5.  An OER accepted for filing in the AMHRR is presumed to represent the considered opinion and objective judgment of the rating officials when it was prepared.  Although he contends the OER is inaccurate, his application must be supported by substantive evidence.

6.  He also contends the "NO" rating for building on his OER is not accurate.  However, there is no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the raters when the OER was prepared.  As a result, there is an insufficient basis to grant 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)                                         AR20130020985





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ABCMR Record of Proceedings (cont)                                         AR20130020985



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