BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140004866 


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 removal of the DA Form 67-9 (Officer Evaluation Report (OER)) for the period 8 November 2009 through 7 November 2010 (hereafter referred to as the contested OER) from the applicant's Official Military Personnel File (OMPF).  He also states the applicant requests a hearing before the Board.

2.  Counsel states the numerous errors in the OER process and the animus against the applicant by the rater and the senior rater (SR) defeat the presumption of regularity and raise a material injustice suitable for Board action.

3.  Counsel submits an 11-page appeal wherein he contends:

	a.  Both the rater and SR evaluations were the product of their personal animus toward the applicant and his family and not based upon an objective analysis of his performance of duty rendering the OER both inaccurate and unjust.

	b.  The raters' evaluations were based upon personal animus, and are not an actual reflection of the applicant's character traits and performance of duty.

	c.  The Officer Special Review Board (OSRB) erred in evaluating the original appeal when the OSRB used the timing of the appeal and the gathering of evidence to rebut the allegation of the command's "toxic environment."  Further, the OSRB dismissed the statements provided by others and the recommendation for a climate survey as insufficient evidence to conclude there was such an environment.

	d.  The rating chain failed to input nonrated codes into Part I block K (Nonrated codes).

	e.  The period of the contested OER is incorrect.  It should reflect a reporting period from "21 December 2010 through 11 November 2011" (The analyst notes that the dates reflect a typographical error based on the evidence submitted by the applicant and the entry should read "21 December 2009 through 11 November 2010", with a nonrated period of approximately 39 days.  The Previous OER has a through date of 7 November 2009.)

	f.  The rater failed to abide by Army Regulation 623-3 (Personnel Evaluation-Evaluation Reporting System), paragraph 3-7a, performance counseling requirements.

	g.  The rater and SR made inaccurate and unsubstantiated comments.  The senior rater's intimidation and humiliation dominated the command climate and negatively influenced the rater's ability to accurately and dispassionately evaluate the applicant's performance of duty.

4.  Counsel submits exhibits in support of the appeal which include:

* the contested OER
* the applicant's affidavit
* five addendums
* an Alaska Staff Assistance Visit Briefing
* a Memorandum of Instruction (MOI), dated 21 February 2010
* a draft/copy of the contested OER without signatures
* his Evaluation Report Appeal, dated 29 April 2013
* the OSRB Record of Proceedings, dated 16 January 2014
* numerous letters of support and character references
* five DA Forms 3349 (Physical Profile) 
* four DA Forms 31 (Request and Authority for Leave)

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently an Active/Guard Reserve major serving on active duty.

2.  On 11 November 2010, while serving as the Operations Officer with 3rd Mobilization Support Group (MSG), Joint Base Elmendorf, Fort Richardson, AK, the applicant received an annual OER for the period 8 November 2009 through 
7 November 2010.  Part IId (This is a referred report, do you wish to make comments?) shows the OER was submitted without comments from the applicant.

3.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a lieutenant colonel, evaluated the applicant as indicated:

	a.  Part IVa (Army Values) - checked the "No" block in response to the statements listed under Integrity, Selfless-Service, and Duty indicating the applicant lacked these Army Values.

	b.  Part IVb (Leader Attributes/Skills/Actions) - checked the "No" block in response to the statements listed under the categories Physical, Emotional, and Developing indicating the applicant lacked these attributes, skills, and actions.

4.  Part IVc (APFT (Army Physical Fitness Test)) shows the applicant had a temporary medical profile on the date of the most recent APFT.

5.  In Part V (Performance and Potential Evaluation-Rater), the rater placed an "X" in the block "Unsatisfactory Performance, Do Not Promote" and provided comments in Part Vb (Comments) that included the following:

* the applicant lacked integrity
* he misled the chain of command on several issues pertaining to unit reports, submissions to higher headquarters, and his own availability and intent to complete mandatory APFT requirements
* he was counseled several times during the rating period in regard to substandard duty performance and disregard for directives and guidance from the chain of command
* his actions demonstrated on numerous occasions that he was more interested in promoting his own agenda
* the applicant did not complete a record APFT during the rating period, despite being directed and lacking adequate profile or medical documentation to alert the chain of command of his ability to perform this basic Soldier duty
* he displayed a lack of self control and composure by raising his voice to a Battalion Commander in the presence of staff
* his assistance during the Alaska Consolidated Soldier Readiness Processing (SRP) for 230 Soldiers, produced a well-received Alaska-centric brief for the Assistant Secretary of the Army
* his overall duty performance might improve given more seasoning and personal growth

6.  In Part VIIa (Promotion Potential) the SR, a colonel, placed an "X" in the block "Do Not Promote."  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the SR rated the applicant "Below Center of Mass, Retain."  The SR's supporting comments included:

* the applicant was unable to perform expected duties requisite to a Field Grade Officer, he performed at a lieutenant level doing additional duties
* his integrity issues coupled with a temper, compromised his position and credibility
* he displayed an inability to prioritize key tasks, take required action, and appropriately respond
* his products lacked accuracy, completeness, and timeliness for submission
* his competency and attention to detail were indicative of his submitted support form
* he was directed to take an APFT multiple times, while not on profile, and failed to comply
* in September 2010, he presented two conflicting profiles which did not obviate this Army requirement nor did it cover the entire rating period
* the applicant had limited potential
* do not retain

7.  The record is void of evidence showing the applicant submitted rebuttal comments or requested a Commander's Inquiry (CI) to address any administrative errors or inaccuracies with the overall assessment of his performance.

8.  On 29 April 2013, he appealed the contested OER to the OSRB and the OSRB determined the overall merits of the case did not warrant the removal of the report from his OMPF.

9.  The applicant submits a statement in support of his appeal to the Army Board for Correction of Military Records (ABCMR) wherein he requested the ABCMR consider previous statements and evidence contained as part of his OSRB appeal as part of his current appeal.  The following information was provided for the ABCMR's review:

	a.  He acknowledges that his OSRB appeal, while within the regulatory time, was years after the referred/contested OER.  He contends that this delay was due to having been reassigned twice, having to consult with two different Judge Advocate General attorneys, and gathering information from witnesses.  In addition, it was emotionally difficult to recount the humiliating and degrading treatment inflicted by his SR during his tenure at the 3rd MSG, which only exacerbated his medical issues, causing further delay.

	b.  He did not provide a statement or appeal the contested report because he believed his SR had no interest in hearing what he had to say, a decision he regrets.  He did inform the SR that he would appeal later because he was departing Alaska and was focused on moving his family to his new duty station.  He did dispute the "period covered" in that it did not include nonrated periods for hospitalization, leave and his original assignment to another organization.  His rater refused to make any changes stating that the support form was "too late."  Although he did not ask for a CI he did file an informal Equal Opportunity (EO) complaint in order to correct the issues that would have been part of a CI.  He was told that his SR was defensive and angry about his complaint and given the results of the EO inquiry, which identified problems but brought no solution, he did not feel that a CI would be any more effective.

	c.  His rater never provided him with a support form, nor did he ever furnish him with an initial counseling or follow-up face-to face counseling as required by regulation.  He contends that there was an incident between his spouse and his rater and only after he discussed the matter with his rater did he receive a formal counseling in August/September 2010.  The applicant notes that issues that could have been resolved by "on the spot correction" suddenly became performance issues but only after he filed his EO complaint.

	d.  He rebuts allegations that he was counseled repeatedly for substandard performance of duty and that he displayed a lack of self control and composure by raising his voice to the battalion commander.

	e.  He contends that his relationship with his rater turned from professional to personal in January 2010 after they had a dispute over the format of a briefing.  He lists a number of achievements, which included controlling the first Alaskan SRP event, creating senior-level briefings for the Assistant Secretary of Defense for Manpower and Readiness, and tracking the funding of subordinate commands.

	f.  He states that he was forced to work in a toxic command environment and his rating chain was hostile towards him.

	g.  The contested OER does not properly show nonrated periods for leave and hospitalization.  Further, the rating period should reflect the actual dates that he was assigned to the 3rd MSG, 21 December 2009 to 11 November 2010.
10.  Counsel and the applicant submit:

	a.  A memorandum from the Chief, Social Work Services, Community Mental Health and Family Advocacy Program, Fort Richardson, AK.  This military physician opined that the applicant seemed to suffer from anxiety related to an occupational stressor and recommended he be moved to an alternate work location and take time off.

	b.  A Psychological Evaluation, dated 28 September 2011, wherein a psychiatrist reviewed the applicant's medical and personnel records and interviewed the applicant.  He noted that the applicant suffered from an anxiety disorder and had been hospitalized for suicidal ideations in September 2010 and that his condition was directly related to his workplace at that time.  The applicant had since made good progress and his condition was controlled with medication.

	c.  Numerous letters of support which describe the command climate within the 3rd MSG as excessively stressful as a result of the commander's insistence on perfection as it pertained to written or briefed information and the public admonishment of the briefer.  Some of the events referenced included the following:

* on 20 August 2010, the 9th Mission Support Command, Equal Opportunity Office, Staff Assistance Visit, allegations against the SR indicated that subordinates were subjected to a hostile environment by constant intimidation, belittling, and targeting (to the extent of emotional bullying)
* the applicant filed an informal complaint leading to a meeting with the commander and her staff and a final recommendation to the higher headquarters to direct a Command Climate Survey 
* his experience in the command mirrors that of other Soldiers before him and those since he left the unit
* extremely dedicated professional officer
* his SR consistently belittled the applicant in front of his peers and enlisted Soldiers
* previous commander found the applicant possessed excellent character and found the assessment rendered by his successor to be puzzling
* SR rejected the results of a properly conducted weigh-in twice because it was not done during Battle Assembly, calling into question the integrity of several Soldiers responsible for the process
* in May 2011 the negative climate was addressed, little was done to address the negative command climate

	d.  Five temporary physical profiles essentially covering the period 15 May 2010 to 7 December 2010 for a right wrist injury and a left knee strain.

	e.  Four DA Forms 31 showing the following leave periods:

* sick-in-hospital, 19 September 2010 - no end date
* ordinary leave, 27 September to 10 October 2010
* ordinary leave, 12 to 15 October 2010
* ordinary leave, 18 October to 4 November 2010

	f.  Several addendums wherein the applicant contends:

* he was coerced into modifying evaluations that he had written and then forced to accept the contested report
* the SRP Officer-in-Charge exempted all Soldiers supporting the SRP from taking the APFT
* statements from his Soldiers indicating that he mentored them refutes the negative response under "Developing"
* the negative response in regard to "Emotional" is disproved by statements from medical professionals and the chaplain affirming his medical condition was caused by the physical and emotional toll of working in a hostile environment
* the statement that he misled the command is not true as he provided weekly abstract of critical items
* the alleged yelling and loss of composure was him simply voicing his concern after finding out the Unit Status Report was incomplete
* he endured additional harassment about the legitimacy of his medical profile

	g.  Orders AHRC-ARO-0120, issued by the HRC, dated 10 December 2009, which assigned him to the 3rd U.S. Army Reserve Support Group, Fort Richardson, AK, effective 21 December 2009.

11.  A review of his OMPF shows that his previous report covered the period from 28 November 2008 through 7 November 2009.

12.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  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 or 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.  The burden of proof rests with the appellant.

	a.  Paragraph 1-9 states 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 will be 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 and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraph 3-45 states for OERs, an annual evaluation report is mandatory for a rated Solder on completion of 1 calendar year of duty following the Thru date of the last OER in the Soldier's OMPF.

	c.  Paragraph 3-36b states the rated Soldier may comment if the Soldier believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER.  Rating officials may not rebut the rated Soldier's referral comments.  Likewise, the rated Soldier's comments do not constitute a request for a CI.  Such a request will be submitted separately.

13.  Material error in this context is one or more errors of such a nature that in the judgment of the reviewing official (or body) it caused an individual’s non-selection by a promotion board and that had such error(s) been corrected at the time the individual was considered a reasonable chance would have resulted that the individual would have been recommended for promotion.

14.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System) in effect at the time states in Table 2-1 that the beginning date of the rating period may not be the same as that of the “Period Covered” (the “From” date).  Table 2-9 (Codes and reasons for non-rated periods) state to enter the code:

* "I" when the member was in transit between duty stations including leave, permissive temporary duty, and temporary duty
* "P" when the member was a patient (to include convalescent leave)
* "E" for leave in excess of 30 days

15.  Army Regulation 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested OER removed from his OMPF has been carefully considered and determined to lack merit.

2.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant’s contentions and arguments, and the voluminous evidence submitted in support of his application, other than administrative errors, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.

3.  His allegations and arguments of a "hostile work environment" appear to be supported by other witness statements and the informal results of the staff assistance visit and it is unfortunate that his mental and physical well being suffered to the point that he would consider suicide.

4.  The applicant contends that he did not appeal his report or request a CI because he believed his informal EO complaint would serve the same purpose, the events were too painful to recount, he was reassigned, and it took time to gather witness statements and confer with counsel.  This delay was given consideration; however, the evidence presented is insufficient to invalidate the assessment rendered by the rating officials.  His many achievements have been noted but regulatory guidance state that each report is an independent evaluation of a rated Soldier for a specific rating period and essentially "stands alone."  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" and to justify the removal of the contested OER.

5.  In regard to his failure to be counseled by the rater and missing nonrated periods, these inaccuracies are administrative errors that would not alter the content of the OER, and as such, do not warrant correction at this time.

6.  The applicant contends the "From Date" should be 21 December 2009, the date he was assigned to the unit; however, regulatory guidance states the beginning date of the rating period may not be the same as that of the “Period Covered” (the “From” date).  The applicant was assigned to the unit on 
21 December 2009; however, the "From" date is determined by the "Thru" date of his last OER filed in his OMPF which reflects a "Thru" date of 7 November 2009.  As such, the period covered by the report is correctly shown.  The applicant had 37 days of leave of which 7 are considered nonrated periods and he had 
1 (verifiable day) in a patient status.  The failure to record 8 days of nonrated time is a minor error and does not warrant correction of the report.

7.  Although the applicant indicates a desire to appear before the Board, there are sufficient records available for a fair and impartial review in this case without such an appearance.

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)                                         AR20140004866





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ABCMR Record of Proceedings (cont)                                         AR20140004866



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