BOARD DATE:	  21 May 2014

		DOCKET NUMBER:  AR20140003722 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

	a.  a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 
1 September 2008 through 31 August 2009 be removed from the applicant's Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

	b.  the applicant be awarded of the Meritorious Service Medal (MSM).

2.  Counsel states:

	a.  the applicant is currently serving on active duty as a mobilized Reservist for the Army Corps of Engineers.  He has over 33 years of active service, primarily as a member of the New York Army National Guard (NYARNG).  He contends he was forced out of the Active Guard Reserve (AGR) program in 2009 and into the Individual Ready Reserve (IRR) unlawfully as a result of being labeled a whistleblower.   

	b.  he has spent the last 4 years mobilized and has endeavored to rebuild his career, to no avail.  

	c.  he enlisted in the NYARNG in October 1980.  He performed very well and was accepted to Officer Candidate School, receiving his commission as a second lieutenant on 25 June 1987.  His branch of choice was Field Artillery.  In 1993, he was promoted to captain and in 2000, to major.  His was on track and his performance evaluations were top-notch, mostly above center of mass.  In 2001, he changed his name from John Kxxx to Jon Cxxxxxxxxxx.

	d.  until 2002, his life and career had been successful and relatively uneventful.  Unfortunately, in a span of a few weeks, his mother died, his father was hospitalized with a serious heart condition, and his sister underwent chemotherapy for cancer.  At this time he was a full-time AGR officer and was placed on a temporary duty mission supporting Fort Hamilton.  The increased burden caused him to be forced to travel extensively and he was worked to exhaustion.  During this time, he sought assistance from his chain of command and was rebuffed.  He also sought bereavement counseling to deal with the overwhelming family issues.  

	e.  the referred OER he received from this rating period indicates he was borderline insubordinate and did not support his commander's decisions, even though a statement submitted to the Inspector General (IG) from the unit Executive Officer states that he did not notice any acts of insubordination or unprofessionalism and that he felt the applicant was suffering from fatigue brought on by multiple family-related issues.      

	f.  prior to receipt of the referred OER, he had been canvassed and selected to be an IG.  As part of the selection process, the service member's commander must make a recommendation and provide knowledge of any adverse action.  Since the applicant was selected for the IG assignment, it can be assumed that his chain did not mention any of the problems they identified in the referred OER.  This calls into question the credibility of both the report and the raters.

	g.  the Army Special Review Board (ASRB) declined to remove the OER, indicating that although the document was not processed in a timely manner, was sent back for administrative and substantive errors, and the corrected OER had not been forwarded for placement in the AMHRR, the presumption of administrative regularity had not been overcome.  

	h.  despite the referred OER, the applicant was subsequently promoted to lieutenant colonel/O-5.  He had already made the decision to leave his Field Artillery branch and take an assignment as an IG and he felt that the referred OER was in part retaliation for leaving the branch and to ensure that he would not receive another promotion.

3.  Counsel further states:

	a.  he deployed with the NYARNG to Iraq in 2004.  He performed well as an IG and received very good evaluations from the deployment, but he also identified a number of problems with the unit's processes and procedures.  During the 2006/2007 timeframe, he was diagnosed with a pulmonary embolism and was prescribed a blood thinner.  He was required to undergo a Medical Evaluation Board, and subsequently a Physical Evaluation Board found him fit for duty.  Upon returning to full duty, he was assigned as the Deputy Director at Camp Smith.

	b.  he believes he was labeled as a whistleblower because of an issue concerning a major using government funds for personal trips and to support his mistress.  He contends he did not blow the whistle on the major, but was assumed to have because he was a former IG.  Not long after this incident, he was asked by the widow of an officer killed in Iraq to write a statement to a Senator concerning his knowledge of the officer and observations of the command climate.  The statement pointed out numerous problems, including a lack of leadership and favoritism on the part of Major General T.  Major General T was, at that time, under consideration for the position of Director, Army National Guard, a position that was ultimately offered to someone else.  The issue with the officer killed in Iraq was elevated to a Senate investigation and the applicant was asked to be prepared to testify.  Although he did not testify, a short time later a very minor incident with a civilian employee under the applicant's supervision was blown completely out of proportion and he was told by the Director, Camp Smith that his career was over.

	c.  he reprimanded a civilian employee who was in charge of billeting after numerous officers complained about the service and cleanliness of the rooms.  The employee made a complaint after the applicant counseled her and made arrangements for outside personnel to come in to assist her team.  Although his supervisor was aware of the situation and condoned the applicant's action, he was still told that he could no longer continue in the position of Deputy Director and had all of his duties reassigned.  For three months, the applicant sat in his office and did busy work until finally he elected to transfer into the IRR in an attempt to salvage his career.  Several months later, one month after the major general retired, the applicant received his OER for this period of time.  He contends that Brigadier General M was not in his rating chain and should not have rated him, that they had no contact and he did not even know who Brigadier General M was until 6 or 7 months after his transfer into the IRR.  He was not given an end of tour award and was verbally told on the phone that if he questioned the OER it would be rescinded and he would receive one that was more adverse.
	d.  the OER the applicant received from Brigadier General M and the fact that he did not receive an award has greatly impacted his military career.  Since leaving the NYARNG, he has been continuously mobilized and has done very well.  He contends his duty performance at Camp Smith was exemplary, but he was labeled a troublemaker for speaking out against Major General T.  The OER and lack of award have kept him from getting promoted to colonel/O-6, restricted his positions in the Reserve Component and his selection for Senior Service School.  He has served his country in an outstanding manner for 29 years.  He believes that the OER he received from his tour at Camp Smith is unjust and he deserved to receive, at a minimum, an end-of-tour MSM.  
              
	e.  the OER rating is inconsistent and not justified by the applicant's duty performance.  Evaluations should be prepared in a timely manner and cover incidents that occurred during the rating period.  It is not appropriate to wait for an investigation to be completed and commanders are allowed to go back and amend reports in the wake of verified derogatory information.  This OER was prepared almost 7 months after the completion of the rating period during a time when the applicant had not received any negative counseling statements or disciplinary action.  In fact, there are no negative counseling statements or disciplinary actions in his record and certainly not for this rating period.

	f.  this is completely inconsistent with his history of performance in the military and previous performance in this unit.  A service member must also be notified of his rating chain and be aware of his rater and senior rater.  In this instance, the senior rater comments are inconsistent with the comments of the rater.  The rater indicates "outstanding performance" and "must promote" while the senior rater marks him as "fully qualified" instead of "best qualified."  The language from the senior rater is lackluster, labeling him a "steady" performer.  A minor incident with a subordinate who had received numerous complaints from billeting customers should not have warranted a performance evaluation written to thwart any chance at upward mobility.  The last sentence on the senior rater narrative states that "LTC [applicant's last name] should again be considered for promotion with his peers."  Since he had not been passed over and had thus never not been considered for promotion with his peers, this sentence makes no sense and is a misstatement and a mischaracterization of his promotion history and potential. 

	g.  Brigadier General M did not possess the requisite criteria in order to qualify to rate the applicant.  He had not observed his duty performance, had not been his superior for the minimum period of time and the applicant was never notified that Brigadier General M was in his rating chain.  The NYARNG in Courtlandt Manor, NY can hardly claim military exigencies.  He did not receive the OER until 7 months after his departure and it was grossly late.  This is not the treatment any officer should receive from his chain of command and it indicates a complete lack of interest on the part of NYARNG in doing the right thing for this officer.

	h.  in order for the Army to be successful in promoting the best and the brightest, the performance evaluation system must be an accurate reflection of the officer's duty performance and ability to serve the Army at the next higher level of responsibility.  Individuals who point out injustice, wrongdoing, impropriety, favoritism and abuse of the system are not disloyal.  They are critically necessary and should be commended for their courage.  If a General Officer is forced to retire because he fostered a climate of favoritism and inefficiency, then that is a benefit to the Armed Forces, Soldiers, and civilians.  The applicant stood up and did the right thing and the NYARNG reacted by forcing him out and marginalizing his efforts.  The OER written for the period 
1 September 2008 to 31 August 2009 is not an accurate reflection of the applicant's performance during the rating period.  It is unjust and inaccurate and must be removed in the interest of justice and equity.

	i.  the applicant should have received an end-of-tour award when he left active duty.  Awards are not mandated, but are discretionary and approved for exemplary performance.  However, awards are also expectations in today's military.  Members of promotion boards look at the awards individuals have received throughout their career and assigned a particular value to the award.  Obviously, medals received for performance in a combat environment are highly valued.  Also valued are awards for duty performance during an entire tour of duty.  The performance evaluation he received for the 2007/2008 period that he was the Deputy Director at Camp Smith is very good with his senior rater noting his performance as "outstanding."  Again, there was no misconduct or investigation into misconduct during this rating period.  He reprimanded a civilian employee who had demonstrated a history of poor performance reflecting very badly on Camp Smith.  

	j.  he was rumored to have blown the whistle on travel fraud, which he did not.  The only other incident during the rating period that could have had an adverse impact was his statement critical of Major General T.  However, statements requested and made to members of the U.S. Senate are protected communications and are prohibited by law from having an adverse effect on an officer's career.  This is the prohibition against reprisal.  As subtle as they may have tried to make it, it is obvious that he did not receive an adverse OER and did not get denied an end-of-tour award because of anything he said to the billeting manager.  The encounter simply did not rise to that level.  That only leaves reprisal as the only possible reason for the treatment he has received.

	k.  again, the applicant spent time as an IG and saw the types of injustices that take place in the military.  He felt strongly that the command climate in Iraq contributed to the death of an officer and he wanted to assist the officer's widow in obtaining justice.  He should not have to pay for this with the demise of his military career.  He contends that his record justifies the receipt of the MSM for his tour at Camp Smith and that it was commonplace for officers of his rank and position to receive this award as an end-of-tour award.  He inquired of the NYARNG whether he has even been considered for an award and was told that no DA Form 638 (Recommendation for Award) was submitted on his behalf by his chain of command.  Since his senior rater at the time, Brigadier General M, is now Major General, The Adjutant General for the State of New York, it is unlikely that organization will reconsider their decision.               

4.  Counsel provides 10 exhibits outlined on the last page of her brief.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the NYARNG on 6 October 1980.  He was commissioned as a second lieutenant on 25 June 1987.  He entered active duty on 30 September 1998 in an AGR status.  

2.  He received a referred OER covering the period 2 May 2002 through 
31 March 2003.  In 2006, he appealed the OER to the ASRB.  In March 2008, the ASRB denied his appeal to remove the referred OER from his AMHRR.  

3.  He was promoted to lieutenant colonel on 20 August 2004.  

4.  On 14 October 2004, he was released from active duty (REFRAD) for completion of his period of AGR duty.  His DD Form 214 for the period ending 
14 October 2004 shows, among other awards, the MSM as an authorized award.

5.  He was ordered to active duty on 15 October 2004 in support of Operation Iraqi Freedom.  He served in Kuwait/Iraq from 27 March 2005 to 20 October 2005.  He was REFRAD on 17 December 2005. 

6.  He entered active duty in an AGR status on 18 December 2005.  

7.  The contested OER is a 12-month OER covering the period 1 September 2008 through 31 August 2009 for duties as the Branch Chief for Camp Smith Training Site, Cortlandt Manor, NY.

8.  The applicant was rated "Outstanding Performance, Must Promote" by his rater.  
9.  He was rated "Fully Qualified" by his senior rater in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade).  In Part VIIc (Comment on Performance/Potential), his senior rater stated, "LTC [applicant's last name] has been a steady performer.  He has been fully engaged in many of the improvements at Camp Smith over the past year.  His work with outside agencies like West Point Post Exchange has supported Soldier moral [sic] and welfare issues at Camp Smith.  He understands the Post Director's intent and lead [sic] an effort to improve Range Control operations.  He demonstrated his ability to coordinate staff activities and developed and published a new Post Operations Policy.  He has voluntarily sought out another deployment and his tactical and technical expertise will serve the Army well in this endeavor.  LTC [applicant's last name] should again be considered for promotion with his peers." 

10.  He was REFRAD on 7 November 2009 for completion of his period of AGR duty.    

11.  On 7 November 2009, he was honorably discharged from the NYARNG and transferred to the USAR Control Group (IRR). 

12.  On 16 April 2010, the applicant signed the contested OER.

13.  There are no orders for a second award of the MSM in the available records.

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

15.  Army Regulation 623-3 (Evaluation Reporting System) 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.


16.  The regulation states the rated Soldier's signature verifies that administrative data, including social security number, counseling dates, Army Physical Fitness Test, and height and weight entries, on the evaluation report are correct and confirms that the rated Soldier has seen the completed evaluation report.

17.  Army Regulation 623-3, paragraph 2-14b(2), of this regulation states senior raters and reviewing officials will use all reasonable means to become familiar with a rated Soldier's performance.  When practical, use personal contact, records and reports, and the information provided on the rated Soldier's support form

18.  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 perso11nnel actions.  The regulation states OERs are required for filing in iPERMS. 

19.  Army Regulation 600-8-22 (Military Awards) states the MSM is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service.  After 16 January 1969, but prior to 11 September 2001, the MSM was authorized to be awarded only for meritorious service or achievement while serving in a non-combat area.  

20.  Title 10, U.S. Code, section 1130, provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  Upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award of or upgrading of a decoration.  Based upon such review, the Secretary shall determine the merits of approving the award.

21.  The request, along with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to:  Commander, U.S. Army Human Resources Command, ATTN:  AHRC-PDP-A, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The unit must be clearly identified, along with the period of assignment and the recommended award.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Supporting evidence is best provided by commanders, leaders, and fellow Soldiers who had personal knowledge of the facts relative to the request.  The burden and costs for researching and assembling supporting documentation rest with the applicant.

DISCUSSION AND CONCLUSIONS:

1.  Counsel requests removal of the contested OER from the applicant's AMHRR on the basis the OER is inconsistent and not justified by the applicant's duty performance.  In order to justify deletion 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.  Counsel alleges the applicant was a victim of reprisal.  However, there is no evidence of record and counsel provides no evidence which shows the applicant was a victim of reprisal.  There is no evidence he filed a whistleblower complaint. 

3.  The OER is properly filed in the applicant's AMHRR in accordance with the governing regulation.

4.  Essentially, counsel has failed to show by clear and convincing evidence that the OER contained an inaccurate assessment by the applicant's 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 false, misleading, and incorrect, his application must be supported by substantive evidence.

6.  Counsel contends the senior rater did not possess the requisite criteria in order to qualify to rate the applicant because he had not observed the applicant's duty performance.  The governing regulation does not require that a senior rater have personal contact in order to be a senior rater.  Further, the applicant signed the OER, verifying his rating officials were correct.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of substantive error or factual inaccuracy.  Counsel has not met this threshold of proof with the type of evidence she submitted.  There was no evidence to disprove that the ratings and comments were the considered opinion and objective judgment of the rating officials when the OER was prepared.  As a result, there is an insufficient basis for granting the applicant's request to remove the OER from his AMHRR.



7.  The applicant contends he should have received the MSM as an end of tour award when he left active duty in 2009.  While the available evidence is insufficient for awarding the applicant the MSM, this in no way affects his right to pursue his claim for the MSM by submitting a request through his Member of Congress under the provisions of Title 10, U.S. Code, section 1130.  He can be recommended for the award by someone outside his chain of command.

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.



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