IN THE CASE OF:	 

		BOARD DATE:	   23 July 2014

		DOCKET NUMBER:  AR20140001307


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 DA Form 67-9 (Officer Evaluation Report (OER)), for the rating period 1 July 2007 through 31 May 2008, from his official military personnel file (OMPF).  Hereafter, the OER in question is referred to as the "contested OER."

2.  The applicant states the contested OER has numerous administrative and substantive errors that justify its removal from his record.

3.  In a separate memorandum to the Army Board for Correction of Military Records (ABCMR), dated 10 December 2013 (subject: Appeal of OER dated      1 July 2007 through 31 May 2008 for Major (MAJ) [Applicant], XXX-XX-1453), the applicant provides the following statements:

   a. He is requesting removal of the contested OER to correct an injustice committed by his rater and senior rater.  He further requests that the contested OER be replaced by a statement indicating he had 11 months of non-rated time. 

   b. He requests consideration of his application, which is past the 3-year statute of limitations, due to the erroneous counsel he received from a military attorney who advised him that it would be fruitless to apply to the ABCMR to correct an OER which he contended was unjust.  He recently discussed his case with the 40th Infantry Division (now Joint Task Force (JTF) – Guantanamo (GTMO)) Inspector General (IG), who opined that if he provided justification for exceeding the 3-year statute of limitations the ABCMR may review the merits of his untimely application.  He further contends that his late application is justified due to his recent involuntary separation from the AGR program, due to his twice non-selection for promotion to lieutenant colonel (LTC), which most likely was due entirely, or in large part, to the contested OER.

   c. His request for removal of the contested OER is based on both administrative and substantive inaccuracies.  

		(1)  The administrative errors include:

			(a)  In Part IV (Performance Evaluation – Professionalism (Rater)), sub-section b. (Leader Attributes – Skills – Actions), it states the rater should first mark "yes" or "no" for each block, and then choose a total of six attributes, skills, and actions that best describe the rated officer.  On the contested OER, the rater marked six blocks with a "no" and then marked those same six blocks as those that "best describe the rated officer."  This is nonsensical and clearly an administrative error on the part of the rater.

			(b)  His iPERMS (integrated Personnel Electronic Record Management System) OMPF contains the contested OER and the documents that constitute his rebuttal; however, those documents contain a duplicate of the front of a draft copy of the contested OER, when in fact, that duplicate copy should have been a DA Form 4187 his rater signed on 7 September 2007.  

		(2)  The substantive errors, bias, and prejudicial comments include:

			(a)  The contested OER is not an accurate portrayal of his performance as the 40th Infantry Brigade Combat Team (IBCT) Brigade S-4, nor is it a reflection of his caliber as an Army officer.  After a total of 18 OERs received throughout his career, the contested OER is the only one he received that is not outstanding.

			(b)  In the contested OER, his rater stated that he was counseled in writing due to his sub-standard performance.  He also stated that "...MAJ [Applicant] led the Sustainment Cell during April and June CPXs (command post exercise) to great success."  These statements are contradictory.  Additionally, he did not receive a verbal or written counseling, initial or otherwise, until           10 January “2007,” more than six months after assuming duties as the Brigade S-4.  Therefore, his rater did not inform him of his performance expectations until more than six months into his eleven-month assignment.

			(c)  His rater stated that he was "denied the recommendation required to attend resident ILE (intermediate-level education)"; nevertheless, he received his rater's approval to attend ILE, as shown on the provided DA Form 4187 (Personnel Action), dated 30 August 2007.  On 14 July 2008, he received an 
e-mail from the Chief, Training Branch, G-3 informing him that he was the highest on the ILE order of merit list (OML) who had not yet been offered a resident course.  He was then offered a seat in the resident ILE Course.
 
			(d)  His senior rater publicly presented him with one of his brigade coins on 4 June 2008, only 4 days after his rating period ended.  This coin was presented for "excellence (of performance)," which directly contradicts the senior rater comments he provided in Part VII (Senior Rater) of the contested OER.  In those comments, his senior rater evaluated his promotion potential to the next higher grade as "Do Not Promote" and stated in the narrative text, "MAJ [Applicant's] performance does not merit advancement or further schooling until marked improvement in his supervisory abilities and logistical planning skills is demonstrated."  This same senior rater also subsequently gave him an outstanding review of his performance when he was the Assistant Chief of Staff, G4, in his OER for the period 9 August 2010 through 04 May 2011.

			(e)  In his experience, and during his tenure as the Brigade S-4, the rater created a hostile work environment for all who worked for him and he led his officers with fear, intimidation, and highly–toxic leadership.  He would often berate and belittle officers, often in the presence of others.  He is certain that if the Multi-Source Assessment and Feedback (MSAF 360) was in use before the contested OER was written, his rater would have been exposed (by his subordinates, peers, and superiors alike) for his toxic leadership and would likely have been removed from his position.

4.  The applicant provides:

* the contested OER
* a digitally-signed Letter of Referral, signed by his rater
* a digitally-signed Supplemental Review, signed by the applicant, including as attachments:

* his "session closing" comments, dated 25 April 2008
* his memorandum for record (MFR), dated 4 September 2008
* a DA Form 4187, dated 30 August 2007
* an extract of a National Guard Bureau (NGB) memorandum, subject: Officer ILE Courses
* an email from LTC Axxxxx E. Gxxxxx, dated 14 July 2008
* a draft OER prepared by the applicant



* a memorandum from a fellow Officer, dated 9 December 2013, subject: Observations of LTC Kxxxx Lxxxxxx
* a memorandum from a fellow Officer, dated 9 December 2013, subject: Observations of both MAJ [Applicant] and LTC Kxxxx Lxxxxxx
* an MFR from a fellow Officer, dated 8 December 2013, subject: Appeal of OER dated 1 July 2007 through 31 May 2008 for MAJ [Applicant]
* his DA Form 4037 (Officer Record Brief), dated 24 December 2013
* Orders 280-310, issued by the Office of the Adjutant General, State of California (California Army National Guard (CAARNG)) on 7 October 2013
* Orders BL-310-0002, issued by the U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bliss, TX on               6 November 2013
* his OER for the period 9 August 2010 through 4 May 2011

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.  On 15 May 1994, the applicant was appointed as a Reserve commissioned officer of the Army, in the rank/grade of second lieutenant/O-1. 

3.  He served in various assignment of increased responsibility, in the Regular Army, U.S. Army Reserve, and Army National Guard.

4.  On 1 July 2004, he entered the Active Guard Reserve Program in the CAARNG.  

5.  On 30 March 2005, he was promoted to the rank/grade of MAJ/O-4.

6.  On 17 August 2008, he received the contested OER, based on his duty performance as the Brigade S-4 (Logistics), while assigned to 40th IBCT, Joint Force Headquarters, CAARNG.

   a. His rater was LTC Lxxxxxx, the executive officer, and his senior rater was Colonel (COL) Gxxxx, the deputy commander.

   b. Part I (Administrative Data), sub-section i. (Period Covered), shows the report covered 11 months of rated time, commencing on 1 July 2007 and terminating on 31 May 2008.

   c. In Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, thereby acknowledging the applicant's understanding that he was receiving a referred report.  In that same block, a checkmark was placed in the "Yes" block, indicating the applicant made comments and the comments were attached as an enclosure.

   d. In Part IV, sub-section b.1 (Attributes - Mental), sub-section b.2 (Skills – Technical and Skills – Tactical), and subsection b.3 (Actions – Planning, Actions – Executing, and Actions – Learning), a checkmark was placed in each of the respective "No" blocks, indicating that in the rater's judgment the applicant was deficient in those rated areas. 

   e. In Part V (Performance and Potential Evaluation (Rater), sub-section a. (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the "Unsatisfactory Performance, Do Not Promote" block.

   f. In Part V, sub-section b. (Comment on Specific Aspects of the Performance…), the rater included the following narrative:

MAJ [Applicant] met with great difficulty during this rating period.  MAJ [Applicant] has struggled transitioning from a TDA [Table of Distribution and Allowances] unit to a MTOE [Modified Table of Organization and Equipment] unit and in particular an infantry brigade.  MAJ [Applicant] was counseled in writing to his and his section's sub-standard performance.  He was provided specific guidance to help in his personal and professional development but he failed to complete many tasks.  MAJ [Applicant] has improved some aspects of the management of his section and of particular note his tracking of IDT logistical requirements. He often does not take the time to determine implied tasks or evaluate 2nd and 3rd order effects to decisions.  MAJ [Applicant] was denied the recommendation required to attend resident ILE, which resulted in a marginal improvement overall but still falling short of meeting the expectations of his position and rank. The success of the logistics operations in the brigade were [sic] due in large part to superior execution at the battalion and lower echelons than from MAJ [Applicant's] leadership, technical expertise, or his tactical knowledge.  Once motivated, MAJ [Applicant] led the Sustainment Cell during the April and June CPXs [Command Post Exercise] to great success.  MAJ [Applicant] has completed CAX [Combined Arms Exercise].  MAJ [Applicant] requires additional mentoring and counseling to bring his knowledge and performance to a level where he could be considered for positions of greater responsibility.

   g. In Part V, sub-section c. (Comment on Potential for Promotion), the rater included the following comment: "I do not recommend promotion now."

   h. In Part VII (Senior Rater), sub-section a. (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the "Do Not Promote" block.

   i. In Part VII, sub-section c. (Comment on Performance/ Potential), the senior rater included the following narrative: 

Concur with the rater's comments.  MAJ [Applicant] must become a logistics planner, rather than a logistics manager, before he can become an effective Brigade S4.  Logistics operations at the brigade level were reactive, rather than proactive throughout the rating period.  MAJ [Applicant's] performance does not merit advancement or further schooling, until marked improvement in his supervisory abilities and logistical planning skills is demonstrated.

j. The applicant digitally signed the contested OER on 17 August 2008.

7.  On 6 May 2009, he completed a Supplement Review of the contested OER; wherein he submitted comments and enclosures in rebuttal of the contested OER.  His enclosures consisted of:

   a. His developmental counseling comments, dated 25 April 2008 and entitled "session closing," in which he notes his accomplishments and takes issue with certain stated deficiencies that were discussed during the session.

   b. His MFR, dated 4 September 2008, subject: Comments for rebuttal of referred OER dated 20080816.  In this MFR, he states:

		(1)  He does not believe this OER is an accurate portrayal of his performance as the 40th IBCT Brigade S-4, nor does he believe this OER is a reflection of his caliber as an Army Officer.

		(2)  His rater mentioned that he "met with great difficulty" and "struggled transitioning from a TDA unit to an MTOE [unit]".  He did struggle at first but he can explain why that was the case:

* when he was hired, his prior experience was limited to 4 years of active duty, served as an Air Defense Artillery Officer, followed by  5 years in the private sector, followed by 4 years as the San Diego State University (SDSU) Army Reserve Officers’ Training Corps (ROTC) Recruiting Officer and Executive Officer
* he did not benefit from formal schooling or training for his position and he had only a few hours of "battle handover" with his predecessor prior to inheriting the Brigade S-4 position for the largest brigade in the state of California
* he did not receive verbal or written counseling, initial or otherwise, until 10 January 2007, more than 6 months after taking over as the Brigade S-4; so the expectations he reportedly did not meet were never specifically delineated until that time
* his rater mentioned also that he "failed to complete many tasks" on his counseling forms; a more just review would state that he did complete most of the required actions

		(3)  His rater mentioned that he "failed to complete many tasks" on his counseling forms but he thinks a more just review would state that he did complete most of the required actions.

		(4)  His rater stated that he was "denied the recommendation required to attend resident ILE," yet he has a signed DA Form 4187 "recommending approval" for him to attend ILE, an excerpt from the ILE course with all of the prerequisites (each of which he has clearly met) and finally, an e-mail from LTC Axxxxx Gxxxxx that states he was the "highest on the OML that had not been offered a resident course."

		(5)  His rater mentioned that "the success of the logistics operations in the brigade was due in large part to superior execution at the battalion and lower echelons, [rather] than from MAJ [Applicant's] leadership."  This reflects that the logistics operations were a success.  He would add that these successes were due to hard work, dedication and solid teamwork fostered between himself, his brigade S-4 staff, and his battalion S-4 staffs.

		(6)  His rater also mentioned "once motivated, MAJ [Applicant]..."  Anyone who knows him personally or professionally would no doubt attest to the fact that he is one of the most hard-working, self-motivated, goal-oriented, and driven people they know.  Often he is the first in the office and the last to leave.

		(7)  As for not being proactive, he would disagree with this assessment wholeheartedly.  The brigade S-4 was very pro-active; however, there are always last minute changes that we had to react to almost each and every drill, or annual training (AT) or warfighter exercise (WFX).  As he became more experienced in this position, however, he believes he was better able to anticipate and mitigate these changes.  He thinks a more accurate assessment would be how well he/his staff reacted and accomplished the mission when the initial proactive measures were changed.

		(8)  His senior rater awarded him a brigade coin on 4 June 2008, only       4 days after his rating period ended.  As these coins are "presented for excellence."  He is challenged to understand how he concurred with his rater's review of his performance.

		(9)  He knew this year would offer a lot of opportunity for learning and growth.  He knew that a great challenge lay ahead due to his inexperience in the logistics field and that a steep learning curve and lots of on-the-job training would ensue.  He welcomed this great challenge with open arms.  He believes he dug in deep, learned quickly and preformed at or above standard.  All of his previous OERs have been outstanding, and he has been nominated and selected to be the 40th Infantry Division Transportation Officer (DTO), only a few months before the Division mobilizes to Kosovo.

   c. A DA Form 4187, dated 30 August 2007, which shows he requested enrollment and attendance in ILE, and his rater recommended approval of his request.  This form is signed two months after the beginning of the 11-month rating period.

d. An extract of an NGB memorandum, subject: Officer ILE Courses.

   e. An email from LTC Axxxxx Gxxxxx, dated 14 July 2008, which advises him that there are resident ILE seats available, since he was the highest on the ILE OML who had not yet been offered a resident course quota.

   f. A draft OER, prepared by the applicant, which he feels more accurately portrays his performance and potential.

8.  His record is void of documentation that indicates he petitioned the Officer Special Review Board (OSRB), through the U.S. Army Human Resources Command (HRC), for removal of the contested OER within the 3-year statute of limitations.

9.  On 17 October 2013, he was honorably released from active duty; however, on 18 October 2013, he was mobilized and re-entered active duty for deployment in support of Operation Enduring Freedom.

10.  In addition to the Supplemental Review documents discussed above, he provided 3 third-party letters of support, which characterize his rater's supervisory methods as "toxic," unfair, and demeaning to most officers under his supervision. Each of these 3 letters portrays the applicant's work ethic and professionalism as exemplary.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System – which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

   a. Paragraph 1-9 provides that Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance is evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.  Potential evaluations are performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

   b. Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, Department of the Army selection boards, and career managers can make intelligent decisions.

   c. Paragraph 6-11 provides guidance for the burden of proof and type of evidence necessary to support the submission of an OER 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 establishes clearly and convincingly that the presumption of regularity should 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.

12.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B states the DA Form 67-9 is filed in the performance folder of the Soldier's OMPF.

13.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from his OMPF.

2.  He contends his duty performance was outstanding during every other period of rated service, as a means of explaining and possibly reinforcing his contention that the negative comments on the contested OER resulted from a personality conflict with his rater.  He acknowledges he was new to the position, with much to learn; yet, he fails to acknowledge the possibility that, because of this, his duty performance during the rated period was not commensurate with expectations and his rating was reflective of this.  

3.  The evidence shows the contested OER is facially correct, complies with Army Regulation 623-3, and sufficiently addresses his performance and potential during the rated period.

4.  He failed to provide convincing evidence that shows the contested OER is unjust, in whole or in part, that it fails to accurately reflect the honest and valued judgments of his rating officials at the time the report was rendered, or that it fails to accurately portray his performance during the rating period.  Additionally, he failed to submit evidence that definitively shows the contested OER contains material errors or substantive inaccuracies.

5.  The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF.  Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority.  In this case, there is no evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF.

6.  In view of the foregoing, 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)                                         AR20140001307



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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