BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130021186 


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 correction of the Relief for Cause (RFC) DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 12 January 2007 through 15 May 2007 (hereafter referred to as the contested OER) that is filed in his Official Military Personnel File (OMPF).

2.  The applicant states his appeal is based on substantive inaccuracy and personal conflict with the rating official.

   a.  He states the rater's comments in Part V (Performance and Potential Evaluation – Rater), block b (Comment on Specific Aspects of the Performance), regarding his duty performance during the rating period are factually incorrect and do not specifically address the reason for the OER.  In addition, in Part IV (Performance Evaluation – Professionalism), item b (Leader Attributes/Skills/ Actions), block b2 (Skills - Competence), box 1 (Conceptional), and block b3 (Actions (Leadership) - Influencing), box 1 (Communicating), the rater placed an "X" in the "NO" boxes.  However, his derogatory comments in Part V, block b, do not justify the two "NO" ratings.  Thus, the rater's rating in Part V, block a (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), indicating "Unsatisfactory Performance, Do Not Promote" is not justified.  Moreover, this resulted in the senior rater commenting in Part VII (Senior Rater), block c (Comment on Performance/Potential), that he was "an average officer" and placing in block a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), an "X" in the "Do Not Promote" box.

   b.  He states that the rating period lasted only four months.  When Lieutenant Colonel (LTC) Shawn E. K-------- assumed the role of his rater, they already had a previous history of differences.  Thus, his rater intended to give him a negative OER.  He received three negative counselings, two of which were within nine days of each other.  However, he has supporting statements that conflict with his rater's comments.  In addition, his previous and subsequent OER's do not indicate any similar negative issues.

   c.  He states the rater demonstrated ethnic bias against him.  Specifically, the rater intentionally wrote comments to draw attention to his African ethnicity and used his ethnicity to disparage him.  The applicant acknowledges he has a noticeable Nigerian accent.  However, he asserts that it has never affected his ability to communicate with anyone as evidenced by the supporting statements he provides and his other OERs.

   d.  He adds that the rater failed to fulfill his duty to provide a DA Form 67-9-1 (OER Support Form) to him at the beginning of the rating period.  As a result, he didn't know that his rater had a problem with his communication and conceptual skills until April 2007 when he was counseled in writing.  In addition, despite knowing the regulatory requirement, the rater failed to conduct a face-to-face counseling discussion with him about his duty description and expectations within 30 days after beginning the rating period.

   e.  He concludes by requesting correction of the contested OER, as follows:

* Part IV, block b2, box 1 – "X" in the "YES" box (delete "X" in "NO" box)
* Part IV, block b3, box 1 – "X" in the "YES" box (delete "X" in "NO" box)
* Part V, block a – "X" in the "Other" box (delete "X" in "Unsatisfactory Performance, Do Not Promote" box)
* Part V, block b – add a statement that the rater failed to conduct appropriate performance counseling
* Part VII, block a - "X" in the "Other" box (delete "X" in "Do Not Promote" box)

3.  The applicant provides copies of the following documents:

* two OERs, including the contested OER
* an OER appeal memorandum
* three supporting statements 
* three DA Forms 4856 (Developmental Counseling Forms)


CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank of second lieutenant on 9 May 1991.

2.  He was ordered to active duty as a member of the Active Guard Reserve (AGR) program on 11 August 2002.  He was promoted to the rank of major (MAJ)/pay grade O-4 on 12 July 2006.

3.  A review of the applicant's OMPF maintained in the Interactive Personnel Electronic Records Management System revealed the contested OER documenting his duty performance as Civil Affairs Planner, Joint Readiness Training Center (JRTC) Operations Group, Special Operational Forces Plans/ Exercise Maneuver Control (EMC) Center, Fort Polk, LA, during the period
12 January 2007 through 15 May 2007.  The contested OER is filed in the performance folder of his OMPF and shows, in pertinent part:

* Part II (Authentication) –

* Rater:  LTC Shawn E. K--------, Chief, Plans/EMC, signed the OER on 7 June 2007
* Senior Rater:  Colonel (COL) Kevin C. O----, Commander, Operations Group, signed the OER on 8 August 2007
* the applicant did not sign the OER

* Part IV –

* block b2, box 1, an "X" in the "NO" box
* block b3, box 1, an "X" in the "NO" box

* Part V –

* block a, an "X" in the "Unsatisfactory Performance, Do Not Promote" box
* block b, in pertinent part:

* "[Applicant] is an average officer who ranks in the bottom third of 15 very gifted officers I currently rate."
* "[Applicant's] knowledge of foreign cultures and languages may be a great benefit for civil affairs units deploying to Africa."
* "Recently promoted to Major, [applicant] still lacks some of the skills needed to be effective as a field grade officer."
* "He had difficulty grasping complex concepts and struggles with oral and written communications."
* "As a result of his marginal performance, I relieved [applicant] from his duties as Civil Affairs Planner."

* block d (Identify Any Unique Professional Skills or Areas of Expertise of Value to the Army That This Officer Possesses):  "Knowledge of Nigerian language and tribal customs.  Speaks French, German, four African languages:  Benin, Hausa, Yoruba, and Igbo.  Would best serve the Army assigned to AFRICOM."

* Part VII –

* block a, an "X" in the "Do Not Promote" box.  It also shows in response to, "A completed DA Form 67-9-1 was received with this report and considered in my evaluation and review," the senior rater placed an "X" in the "YES" box
* block c (Comment on Performance/Potential), in pertinent part:  "Applicant has unique language skills and cultural experiences that can unquestionably contribute to our Army.  [Applicant] has refused to sign this report.  I strongly recommend assignment with civil affairs units deploying to Africa or assignment with the nascent AFRICOM."

* On 25 June 2007, the applicant submitted his referral letter concerning the contested OER and it is filed in his OMPF with the contested OER.  It presents the same issues the applicant addresses in his application to this Board and also shows, in pertinent part, "It is true that I have been attempting to improve my verbal and written skills of the English language, but this fact does not justify a Relief for Cause report."

4.  On 24 September 2007, the applicant appealed the contested OER.  On 
23 July 2008, the applicant was notified that the Army Officer Special Review Board determined that the evidence he submitted did not justify altering or withdrawing the contested OER.   Accordingly, his OER appeal was denied.

5.  On 14 June 2012, the Deputy Chief of Staff, U.S. Army Human Resources Command, notified the applicant that his eligibility for retired pay had been established upon attaining age 60 (20-Year Letter).

6.  He was promoted to the rank of lieutenant colonel (O-5) on 1 May 2013.


7.  In support of his application the applicant provides the following documents:

   a.  A Change of Rater OER documenting his duty performance as Civil Affairs Planner, JRTC Operations Group, Special Operational Forces Plans/EMC Center, Fort Polk, LA, during the period 13 July 2006 through 11 January 2007.  It shows, in pertinent part:

* Part II –

* Rater:  LTC Timothy F. W-----, Chief, Plans/EMC
* Senior Rater:  COL Kevin C. O----, Commander, Operations Group

* Part IV –

* block b2, box 1, an "X" in the "YES" box
* block b3, box 1, an "X" in the "YES" box

* Part V –

* block a, an "X" in the "Outstanding Performance, Must Promote" box
* block d, the entry, "Knowledge of Nigerian language and tribal customs.  Speaks French, German, four African languages:  Benin, Hausa, Yoruba, and Igbo."

* Part VII, block a, an "X" in the "Best Qualified" box.

   b.  A memorandum from Brigadier General Arnold G----- B---, U.S. Army (Retired), subject:  Recommendation for retention of MAJ [Applicant's Name], dated 16 October 2013.  He states that he has known the applicant for more than 2 years and the contested OER does not accurately describe his character.  The evidence indicates that there was something wrong between the applicant and his senior rater (emphasis added).  He states that he believes the incident used for the contested OER was a set-up; the only counseling the applicant received was just before the relief action; the applicant's ethnicity is intimated on the report; and the applicant did not sign the contested OER.  He offers his opinion for the reasons the applicant did not pursue this matter since his appeal of the OER was denied in 2008.

   c.  A Memorandum for Record, dated 6 May 2007, written by LTC Robert
B--------, U.S. Army Reserve, that shows the applicant was scheduled to participate in a Provincial Reconstruction Team (PRT) meeting on 3 May 2007, but he was replaced at the last minute by Captain (CPT) Mark F------.  He states that no explanation was provided and the applicant expressed to him his concern that he was being marginalized by members of the JRTC staff.

   d.  A Statement written by LTC David G. S---, dated 7 May 2007, in which he describes his role as team leader for the White Cell for JRTC Rotation 07-07.  He acknowledges that his plan "fell apart 3 days before departing for JRTC" due to the loss of two personnel.  He states that upon the unit's arrival at JRTC, the applicant received them professionally.  He provides this information "because it appears to have caused a chasm between [the applicant] and others within his team/command."

   e.  A Statement written by LTC Franklin D. C----, undated, in which he describes his observations while performing duty at JRTC from 1 April to 15 April 2007 and 27 April to 10 May 2007.  He states that the applicant was being marginalized by his section and he was not being informed of changes in the schedule.  He adds that civilian support contractor personnel commented that "the military section was having internal problems and regularly changing the times of training [that] had been scheduled."  He also states that the applicant was unexpectedly replaced by CPT Mark F------.  He concluded, "So it appears to me [the applicant's] team is trying to not have to work directly with him."
   
   f.  Three DA Forms 4856 that document that the applicant was counseled: 

    	(1)  on 4 April 2007, by his rater, that his work ethic had improved somewhat over the past month; however, he continued to have difficulty coordinating combat arms (CA) support at JRTC and he still did not have a basic understanding of the scenario;

    	(2)  on 13 April 2007, by MAJ Jeff H------, Chief, Plans and Operations, to discuss past and current performance and outline a plan of action for future performance.  It also shows the organization was still paying the price from lack of proper CA products and input during past rotations and that the applicant needed to continue progress with the integration of PRTs into the rotations, develop a thorough understanding of the scenario, and continue to develop professionally; and

    	(3)  on 14 May 2007, by his rater, notifying him that he was recommending the applicant receive an RFC OER.  The key points of discussion show the details of the counseling that included the topics of repeated counseling of the applicant concerning the need to improve in the areas of competence, work ethic, and ability to work with others; positive rather than negative results from work effort; effective personnel management of CA assets; inadequate work products; his lack of verbal counselling of noncommissioned officers and inability to write Noncommissioned Officer Evaluation Reports (NCOERs); and his integrity and loyalty.

    	(4)  The applicant did not provide page 2 of the DA Forms 4856 that were prepared by his rater.

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army's Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential.  It shows in:

   a.  Chapter 2 (The Rating Chain), paragraph 2-15, the senior rater or reviewing official will ensure the evaluation reports that the senior rater and subordinates write are complete, provide a realistic evaluation of the rated Soldier, and are submitted to Headquarters, Department of the Army (HQDA) in a timely manner.

   b.  Chapter 3 (Army Evaluation Principles), paragraph 3-26 (Referred evaluation reports), provides that an OER with any negative or derogatory comments in Part V, blocks b or c; Part VI; or Part VII, block c, will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to HQDA.

	c.  Chapter 4 (Evaluation Report Redress Program):

    	(1)  section II (Commander's or Commandant's Inquiry), paragraph 4-3 (Applicability), that commanders or commandants are required to look into alleged errors, injustices, and illegalities in evaluation reports;

    	(2)  section III (Evaluation Appeals):
   
    	(a)  paragraph 4-7 (Policies), that an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  An appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered;

    	(b)  paragraph 4-8 (Timeliness), 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.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the DA Form 67-9 for the period 
12 January 2007 through 15 May 2007 should be altered to delete the negative/ derogatory information and by adding a statement that the rater failed to conduct appropriate performance counselling because the rater failed to provide initial counseling, he demonstrated ethnic bias against him and intentionally wrote comments to draw attention to his African ethnicity, and used the applicant's ethnicity to disparage him.

2.  The applicant's contentions were carefully considered.

3.  The evidence of record shows the applicant was counselled on at least three occasions during the 4-month rating period that is under review.

   a.  In his OER referral letter, the applicant stated, in pertinent part, "It is true that I have been attempting to improve my verbal and written skills of the English language…."  This comment offers his tacit acknowledgement of the validity of the counseling by his rater and, more importantly, the comment by the rater on the OER that the applicant struggles with oral and written communications. 

   b.  The applicant's senior rater indicated that he received an OER Support Form with the contested OER from the rater and considered it in his evaluation and review.  Thus, it is reasonable to conclude the senior rater did not find any counseling deficiencies that would preclude the rater (or the senior rater) from rendering the RFC OER.  

   c.  It is noted that a copy of the OER Support Form for this rating period was not provided by the applicant.  Thus, the available evidence does not support the applicant's contention that a statement that the rater failed to conduct appropriate performance counseling should be added to Part V, block b of the OER.

4.  The rater's comment that the applicant's "knowledge of foreign cultures and languages may be a great benefit for civil affairs units deploying to Africa" is clearly a positive statement.

   a.  The two sentences, "Knowledge of Nigerian language and tribal customs.  Speaks French, German, four African languages:  Benin, Hausa, Yoruba, and Igbo." are the same two sentences another rater entered on the applicant's previous OER that the applicant provides in support of his application to this Board and apparently was not a cause for concern because there is no indication the applicant appealed that OER.
   
   b.  The rater for the contested OER also entered, "Would best serve the Army assigned to AFRICOM."  Again, this is a positive statement and identifies a unique area of expertise of value to the Army that the applicant possesses.

   c.  In addition, the senior rater offered comments similar to those of the rater concerning the applicant's unique language skills, cultural experiences, and recommendation for future assignments.  However, the applicant does not dispute these comments in his application to this Board.

   d.  Thus, the available evidence does not support the applicant's contention that the rater demonstrated ethnic bias against him, intentionally wrote comments to draw attention to his African ethnicity, and used his ethnicity to disparage him.

5.  The evidence of record shows the applicant refused to sign the OER, which he was entitled to do.  The evidence of record also shows the contested OER was referred to the applicant for comment as a referred report.  Thus, the applicant was afforded due process regarding the contested OER.

6.  The rater, in pertinent part, made the following comments regarding the applicant's duty performance:

* "Recently promoted to Major, [applicant] still lacks some of the skills needed to be effective as a field grade officer."
* "He had difficulty grasping complex concepts and struggles with oral and written communications."
* "As a result of his marginal performance, I relieved [applicant] from his duties as Civil Affairs Planner."

   a.  Thus, the evidence of record refutes the applicant's contention that the rater's comments do not specifically address the reason for the RFC OER.

   b.  It is noted that the applicant does not contest the basis or validity of the RFC OER.

7.  In view of all of the foregoing, it is concluded that the applicant failed to submit evidence of a compelling nature to show that the DA Form 67-9 filed in the performance section of his OMPF is untrue, in error, or unjust.  Thus, the DA Form 67-9 is deemed to be an accurate assessment of the applicant's duty performance during the period under review.  Therefore, there is no basis for altering or removing the contested OER.
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)                                         AR20130021186



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ABCMR Record of Proceedings (cont)                                         AR20130021186



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