IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140005096 


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, in effect, requests his DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 15 July 2009 through 14 July 2010 (hereafter referred to as the contested OER) be removed from his record. 

2.  The applicant defers to counsel. 

3.  The applicant provides numerous personnel records from his Official Military Personnel File (OMPF).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the contested OER from the applicant's record.

2.  Counsel states:

   a.  The contested OER is not only unsubstantiated and irrelevant, but it was filed in retaliation for the applicant's reporting a senior officer's indecent relationship with an enlisted member.  Removal of the contested OER is necessary to correct a material error, inaccuracy, and injustice in the applicant's otherwise exemplary military record.

   b.  The applicant enrolled in Officer Candidate School on 5 June 2002 and graduated as one of the top candidates in the class on 29 June 2003.  He completed the Engineer Officer Basic Course and was hired as an Active Guard Reserve (AGR) S1 approximately October 2004.  
   c.  From 2004 through 2009, the applicant's OERs were consistently stellar as he tackled positions such as Executive Officer and Battalion S4.  In 2005, his performance was rated as "Outstanding" having "demonstrated potential for positions of increased authority and responsibility."  In 2006, he was again recommended for promotion and described as "a hard charging young officer who is eager to execute tasks and a leader who expects results."  In 2007, his senior rater described the applicant's "contributions and influence to the battalion as undisputable."  From 2006 through 2008, the applicant's "unlimited potential" for positions of greater responsibility continued to be a point of commendation.
   
   d.  In 2009, the applicant's senior rater changed to lieutenant colonel (LTC) MC.  In his first year of rating the applicant, LTC MC described him as "a driven individual capable of accomplishing anything he puts his mind to."  In addition, "[the applicant] is physically and mentally tough; he possesses tools necessary to succeed."
   
   e.  In or around December 2009, several of the Soldiers from the applicant's unit came to him with allegations that LTC MC was fraternizing and living with an enlisted Soldier.  LTC MC's relationship with the enlisted member affected the good order and morale of the unit.  There was a perception that the command was not accountable, and could do whatever they wanted.  The Soldiers who approached the applicant wanted him to act on the allegations.
   
   f.  The applicant informally brought the issue up to his immediate commander, Major (MAJ) RN, at Christmas 2009.  MAJ RN confirmed that he was aware of the situation with LTC MC and his "girlfriend."  The applicant informed MAJ RN that Soldiers in the unit were aware of the relationship and that it was having a negative effect on morale.
   
   g.  A few weeks after raising the fraternization issue to MAJ RN, the applicant was counseled for poor duty performance.  For the first time in his career he was stripped of his duties and sent home for 2 weeks.  The counseling session was conducted by MAJ RN and MAJ B, but the decision to strip the applicant of his duties came from LTC MC.  The applicant felt the counseling session was unwarranted and may have been in retaliation for reporting LTC MC's fraternization with an enlisted Soldier.
   
   h.  In early May 2010, the applicant confronted LTC MC regarding the inappropriate relationship.  During a counseling session the applicant informed LTC MC that he was concerned about raising the issue and was specifically concerned about the disclosure affecting his career.  Unprompted, LTC MC stated "don't worry about your OER."  The following day, the applicant documented the event in an email to himself.
   i.  For several months the applicant struggled with the issue of whether to bring the issue to the attention of the Inspector General (IG).  After much deliberation, he decided to make a complaint to the IG, feeling that he had been retaliated against.  The IG investigated the alleged misconduct of LTC MC and ultimately determined the allegation was substantiated.  The IG subsequently closed the case and decided not to take further action pertaining to the allegations.  In the meantime, the applicant received two referred OERs from his senior rater, LTC MC.
   
   j.  In or around September 2010, the applicant still had not received his OER which was almost 60 days after the rating period.  The applicant informed his chain of command that he contacted the IG's office about not receiving the OER.  The applicant received the OER for 2010 at the end of September.  Noticeably, there was a subtle change in the comments of LTC MC and the evaluation of the applicant's attributes, skills, and performance.  While the overall rating during the performance period was "satisfactory,"  the applicant received a "No" entry for "Physical," "Emotional," "Conceptual," and "Decision-Making" categories under Part IV (Performance Evaluation) of his OER.  The comments pertaining to these ratings vaguely refer to "situations" where the applicant has "lost control" or had "trust issues" with the command.
   
   k.  Shortly after receiving his 2010 OER, the applicant was referred to a command-directed mental health evaluation for no apparent reason.  The applicant was never provided a notification of why he was being referred for a psychiatric evaluation, in clear violation of regulations.  Unsurprisingly, the mental health evaluation returned without abnormal findings.
   
   l.  Between September 2010 and July 2011, the applicant noticed an increasingly hostile work environment, most notably from LTC MC and MAJ RN.  In September 2010, the applicant requested a Commander's Inquiry (CI) into the propriety of the recent OER.  
   
   m.  The increasingly hostile environment culminated in November 2010 when the applicant received a Memorandum of Reprimand (MOR) for purportedly making negative comments about his commanding officer, MAJ RN.  The incidents that gave rise to the MOR occurred in May 2010.  It was important that the command waited 6 months to reprimand the applicant for behavior that was disruptive 6 months prior.  It is no coincidence that this MOR was issued after the applicant submitted a CI and IG requests.  The applicant appealed the MOR, but his appeal was denied and the MOR was placed in his OMPF.
   
   
   n.  On 29 June 2011, the applicant was given notification of an involuntary release from the AGR program under National Guard Regulation 600-5 (The AGR Program, Title 32, Full-Time National Guard Duty), chapter 6.  Instead of submitting a rebuttal, the applicant elected to submit a request for voluntary release from the AGR program in lieu of involuntary separation.  The request was accepted and the applicant left the AGR program and became a drilling guardsman.
   
   o.  In or around September 2011, the applicant received his 2011 OER, this time with notice that it was a referred report.  The applicant's received a rating of "Unsatisfactory Performance - Do Not Promote."  LTC MC further recommended the applicant not be promoted and stated, "[the applicant] continued to unsuccessfully challenge and undermine the Command, ultimately marginalizing his effectiveness as a leader."
   
   p.  The applicant submitted a second CI request regarding LTC MC's substantiated misconduct.  On 12 December 2011, Colonel (COL) AS recommended the OER be redone and that LTC MC be replaced with another senior rater.  On 21 December 2011, Brigadier General (BG) RP concluded LTC MC should not have been designated as the senior rater for the evaluation and that the OER should be returned and a new senior rater designated.  
   
   q.  Since the applicant's transfer to a new rating chain, his performance has returned to the "Outstanding" level of performance he maintained prior to his assignment to LTC MC's rating chain.  In the applicant's 2012 OER, the senior rater specifically noted that the applicant's "attention to detail and innovativeness has greatly contributed to accomplishment of the command intent, [the applicant] demonstrated his potential to serve successfully as a MAJ and should be promoted now."  The applicant has continued to find ways to better himself as an officer and on 15 November 2012, he was approved for selection to a field grade officer position.  Subsequently, he completed his intermediate level education with a passing score of "A," and he was recently considered for promotion to MAJ and is currently awaiting that determination.
   
   r.  In the Board's denial of the applicant’s 2010 OER appeal, the Board found evidence that LTC MC "lacked objectivity and fairness in his rating of [the applicant]."  Meanwhile, the Board denied the applicant’s request because the   CI and the IG report were filed after the conclusion of the rating period.  This conclusion ignores the fact that the applicant verbally raised the issues through the chain of command prior to receiving his performance evaluation.
   
   
   s.  The applicant confronted LTC MC in early May 2010 regarding the inappropriate relationship and the applicant’s concerns about reprisal.  The applicant trusted his command to do the right thing; however, the command did exactly the opposite and issued him a referred OER.  The comments from MAJ RN and LTC MC regarding “trust issues” with the command actually prove the applicant’s claim of retaliation.  If the applicant had "trust issues" with the command, he certainly would have been counseled regarding those issues prior to receiving his OER.  The only explanation for the lack of counseling is that the applicant did not have performance issues during the rating period, but instead, MAJ RN and LTC MC were retaliating against the applicant for his previous disclosure.

   t.  On or about 28 February 2013, the applicant filed an appeal to remove the 2010 and 2011 OERs from his OMPF.  On 11 September 2013, the Army Review Board issued two decisions wherein they granted the applicant partial relief.  The Board ordered the removal of the applicant’s 2011 OER; however, they denied his request to remove the 2010 OER.
   
   u.  When you consider the inconsistencies in the rating itself, along with the IG’s finding of substantiated misconduct against LTC MC, a strong inference of retaliatory animus may be inferred.  There is no question the IG investigation revealed LTC MC's misconduct.  There is no question the second CI revealed that LTC MC "was improperly designated or unqualified based on substantiated findings of misconduct."  Finally, there is no question that LTC MC should have been removed from the applicant’s chain after the first substantiated finding of misconduct.  The only remaining question is whether LTC MC retaliated against the applicant after the applicant verbally reported LTC MC’s misconduct to MAJ RN and then later to LTC MC.  Considering the command’s failure to remove LTC MC after the first substantiated finding of misconduct, it is not surprising that the command failed to take any protective steps after the applicant first reported LTC MC’s misconduct.
   
   v.  Looking at all of the facts and circumstances surrounding the contested OER, it is clear that LTC MC's negative comments were made for no other reason than to retaliate against the applicant.  The applicant successfully completed numerous courses and exercises during the rating period.  Particularly relevant to the applicant's contested OER are the comments from his CAX course instructor, LTC MU.  Contrary to LTC MC's comments that the applicant does not trust the command, LTC MU reflects that the applicant "works especially well with his peers."  Clearly the only individual the applicant has a problem working with is LTC MC.
   
   w.  Finally, it is worth noting that during the entire evaluation period the command did not properly counsel the applicant regarding his performance.  As reflected in the contested OER, developmental tasks were never recorded and quarterly follow-ups were never conducted.  The applicant was the only officer who was treated as such and the command's failure to follow basic counseling requirements further evinces the discriminatory animus the applicant faced after reporting LTC MC’s misconduct.
   
   x.  The contested OER the applicant received after disclosing the fraternization of LTC MC should be removed in its entirety.  The substantiated findings of misconduct clearly demonstrate LTC MC's bias and prejudice towards the applicant.  The applicant has consistently performed at the highest level as evidenced by his OERs prior to reporting to LTC MC and since being removed from LTC MC's rating chain.  Contrary to LTC MC's assertions, the applicant's performance during the dates in question has always been successful, as evidenced by the numerous course assessments, training certificates, and service school training reports. 

3.  Counsel provides assorted personnel documents from the applicant's OMPF and a legal brief.

CONSIDERATION OF EVIDENCE:

1.  Records show the applicant is currently serving as a member of the Maryland Army National Guard in the rank/grade of MAJ/O-4.

2.  Records show the contested OER was an annual report that covered               12 months of rated time while the applicant was serving as the survey team leader for a Joint-Staffed Civil Support Team (Weapons of Mass Destruction) within the State of New York during the period of the contested report.  The contested OER was a referred report and the applicant submitted rebuttal comments.

3.  In Part IV (Performance Evaluation - Professionalism) of the contested OER, the rater, gave "No" responses to the following questions in the areas identified:

* b1 (Attributes) item 2 (Physical) and item 3 (Emotional); b2 (Skills)              item 1 (Conceptual)
* b3 (Influencing) item 2 (Decision-Making) 

4.  In Part V (Performance and Potential) of the contested report, the rater placed an "X" in block two (Satisfactory Performance - Promote).

5.  In Part Vb (Comment on Specific Aspects of the Performance) the rater stated, "[the applicant] started off this rating period in need of professional development; he has shown progress in improving in several areas.  With respect to his ability to supervise the Survey Section during a response or stand-by mission, [the applicant] is progressing steadily and can perform those duties without question; he does need additional assistance in the area of maintenance and calibration of the Survey Section equipment and has recently started improving in this area as well.  The "No" entries in Part IV.b., for Physical, Conceptual, Emotional and Decision-Making, result from several situations this period where [the applicant] has not thought through his decisions or actions clearly and has lost control.  Our developmental counseling sessions have focused on this and if the last 2 months are an indicator of the future, these areas will be marked "Yes" for the next rating period.  [The applicant] has also taken steps outside work to assist in developing his ability to handle stressful situations and assist in developing a better decision-making process for himself.  As the unit's anti-terrorism/force protection and physical security officer, [the applicant] has performed superbly as well as with the accountability of all of his sections equipment."

6.  In Part Vc (Comment on Potential and Promotion) the rater stated "[the applicant] possesses the intellect and drive to be successful in whatever he chooses.  He needs to continue to develop his knowledge of his section's TTPs and his assigned equipment.  With additional mentoring in several areas [the applicant] could become an outstanding STL or potentially serve in positions with much greater responsibility."

7.  In Part VI (Intermediate Rater) the intermediate rater stated "Strongly agree with the rater.  [The applicant] possesses the cognitive ability to be successful in whatever he chooses.  I have questioned his decision making on several occasions during this rating period including an instance where he disregarded a direct order I gave him.  It has become clear that [the applicant] has a trust issue with the unit leadership and will not be able to reach his full potential until he overcomes this.  As the Physical Security Officer, [the applicant's] program received an outstanding score of 98 percent during NGB SEAT [Standardization Evaluation and Assessment Team inspection].  He has recently been assigned the additional duty of Property Book Officer and has accepted this responsibility enthusiastically."

8.  In Part VII (Senior Rater), the senior rater placed an "X" in block 2 (Fully Qualified) in Part VIIa (Promotion Potential).

9.  In Part VIIc (Comment on Performance/Potential) the senior rater stated, "Concur with rater and intermediate raters.  [The applicant's] performance this rating period has been inconsistent at best.  [The applicant] is capable of performing at a much higher level; however, in order for this to happen he needs to overcome his lack of trust for anyone who has authority over him.  He has proven that he has the ability to excel by scoring 98% rating during the NGB SEAT inspection and averaging over 280 on his APFT's this rating period.  [The applicant] requires additional experience, mentoring, and personal development along with displaying consistent performance over a complete rating period prior to consideration for positions of greater responsibility." 

10.  The subject OER was subsequently processed by the U.S. Army Human Resources Command.  

11.  On 28 September 2010, the applicant requested a CI be initiated on the contested report.

12.  On 28 February 2013, the applicant appealed the contested OER to the Army Special Review Board.  On 29 August 2013, the Army Special Review Board determined that based on the available evidence, counsel or the applicant had not provided clear and convincing evidence which showed the ratings on the contested OER were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Additionally, there was no evidence in the available records and the applicant did not provide evidence showing the contested OER was inaccurate, unjust, or otherwise flawed.  Therefore, removal of the contested OER was not recommended.  

13.  The applicant and his counsel provide:

   a.  Several OERs preceding the contested report in which he was rated in various positions of responsibility where primarily his performance was rated as satisfactory and his promotion potential evaluated as fully qualified.

   b.  A copy of the applicant's DA Form 1559 (IG Action Request), dated                17 September 2010, as well as several pages of electronic mail and notes pertaining to his view of LTC MC's alleged adultery with an enlisted service member.
   
   c.  An MOR, dated 28 September 2010, in which the applicant requested a CI on the contested report.
   
   d.  A letter, dated 20 January 2011, from the Command IG which states a thorough inquiry determined the alleged misconduct of LTC MC was substantiated and the case was considered closed.
   e.  An OER immediately following the contested report for the period 15 July 2010 to 30 June 2011, in which his performance was rated as unsatisfactory and he was not recommended for promotion.  This report was subsequently removed on 11 September 2013 by the Army Special Review Board.
   
   f.  A memorandum, dated 12 December 2011, containing the results of the   CI requested by the applicant for his OER for the period 15 July 2010 to 30 June 2011.  The CI found that LTC MC as senior rater had a substantiated finding of misconduct determined against him by the IG after a complaint was initiated by the applicant.  Subsequently, the Director, Joint Staff, Headquarters, New York Army National Guard recommended the OER be returned and a new senior rater designated.
   
   g.  OERs, awards, commendations, and course completions detailing the applicant's positive service and contributions following the contested OER.

14.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes the DA Form 67-9.  

   a.  Paragraph 2 governs the purpose and development of rating chain qualifications and special evaluation requirements.  It states the senior rater will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period.  This counseling will include, as a minimum, the rated Soldier's duty description and the performance objectives to attain.  

   (1)  The rated Soldier will participate in counseling, assessments and a final evaluation.  Assessment will be conducted with the rating chain throughout and at the end of the rating period.  Rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

   (2)  The rater will verify the initial face-to-face counseling by initialing on the working copy of the DA Form 67-9-1 (OER Support Form) and will forward a copy to the senior rater for approval and validation (for officers).  Rated officers in the rank of CPT, lieutenant, chief warrant officer two, or warrant officer one will use both a DA Form 67-9-1a (OER Developmental Support Form) and DA Form 67-9-1 in preparing support-form objectives with the rater.  


   b.  Paragraph 3-4 describes the support form communication process.  Paragraph 3-4f states, in relevant part, the DA Form 67-9-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate.  The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain.  The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer, if applicable and then back to the rated individual.  Paragraph 3-4g stipulates that although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not 
constitute the sole grounds for appeal of an evaluation report.

   c.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  

   d.  Paragraph 3-34 states, in relevant part, that any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, Department of the Army (HQDA). 

   e.  Paragraph 3-36a states, in relevant part, the senior rater will place an “X” in the appropriate box in Part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an “X” in the appropriate box in Part IId.  

   f.  Paragraph 3-39 states, in pertinent part, 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.

   g.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

   h.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

   i.  Paragraph 6-13 prescribes policies for appeals based on substantive inaccuracy.  Paragraph 6-13b(2) stipulates, in pertinent part, a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal the contested OER from his records has been carefully examined; however, the evidence of record does not support the applicant's request.

2.  The applicant and his counsel provide substantial evidence to show the applicant's duty performance and potential prior to and immediately after the contested report was wholly positive.  However, an OER is a measure an officer's performance and potential during a period of time.  The applicant and his counsel provided insufficient evidence to show the applicant's rater and senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner.  


3.  Although the applicant and his counsel contend that during the entire evaluation period the command did not properly counsel the applicant regarding his performance, developmental tasks were never recorded, and quarterly follow-ups were never conducted, he provides insufficient evidence to overcome the presumption of regularity in this matter.  Further, in accordance with Army regulations, failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report.  

4.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.

5.  Careful consideration was given to the supporting documentation provided with his application.  Evidence shows the applicant initiated a CI and IG report after the ending period of the contested OER.  The applicant and his counsel appear to contend that the subsequent finding of misconduct by his senior rater which rendered the OER immediately following the contested OER as non-rated should also apply to the contested OER; however, there remains insufficient evidence and the applicant has not provided sufficient evidence to show that the ratings and comments listed on the contested report are inaccurate and unjust and/or not consistent with his demonstrated performance of duty during the rating period.  It appears the comments listed simply represent the considered opinions and objective judgment of the rating officials.  

6.  In the absence of clear and convincing evidence overcoming the presumption that the contested OER is administratively correct and factually accurate, there is no basis for granting 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)                                         AR20140005096



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ABCMR Record of Proceedings (cont)                                         AR20140005096



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