IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140008284 


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 the Officer Evaluation Report (OER) for the rating period 5 May 2012 through 12 October 2012 from his Official Military Personnel File (OMPF).

2.  The applicant states the senior rater's evaluation is inaccurate as a result of the racial prejudice and discrimination perpetrated by his rater.

3.  The applicant provides:

* self-authored statement
* OER appeal to U.S. Army Human Resources Command (HRC)
* HRC response to OER appeal
* two equal opportunity complaints, with supporting documents
* redacted copy of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation
* email with supporting documents
* five memoranda for record with supporting documents
* Department of the Army Inspector General (DAIG) report
* printout of an article from the website "www.army.mil"
* four Memoranda for Record (MFR) with no attachments

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, he was appointed as a second lieutenant in the U.S. Army Reserve (USAR) on 24 May 1989.  He served in a variety of assignments in his area of concentration 12B (General Engineer), including two overseas deployments for training (El Salvador and Honduras respectively), and a tour in Korea.  He commanded units on three occasions, twice as a company commander and once as a battalion commander.  He is currently serving as an Active Guard Reserve (AGR) officer in the rank/grade of lieutenant colonel.  

2.  His records show, during his term of service, he has been awarded or authorized:

* 3 awards of the Meritorious Service Medal
* 6 awards of the Army Commendation Medal
* an Army Achievement Medal
* Army Reserve Components Achievement Medal
* two awards of the National Defense Service Medal
* Global War on Terrorism Service Medal
* Korea Defense Service Medal
* Armed Forces Reserve Medal
* Army Service Ribbon
* Army Reserve Component Overseas Training Ribbon
* Army Superior Unit Award

3.  On or about 8 August 2011, he was assigned as the Deputy Defense Coordinating Officer (DDCO), Defense Coordinating Element (DCE), Region VII, USAR North (USARNORTH).  His first rating in this position, covering the period 8 June 2011 through 4 May 2012, was a favorable report.  Part I (Administrative Data), block h (Reason for Submission) shows "Change of Rater."  This report was required because the rater was retiring.  

4.  This OER shows he was rated for 9 months and assigned the Code "I" for the non-rated time.  His rater was the Defense Coordinating Officer (DCO), DCE, Region VII, and his senior rater was the Deputy Commanding General (DCG), USARNORTH.

	a.  Part V (Performance and Potential Evaluation), block a (Evaluate the Rated Officer's Performance during the Rated Period and His/Her Potential for Promotion) shows a check for "Outstanding Performance, Must Promote."

	b.  Part Vb (Comment on Specific Aspects of Performance, Refer to Part III, DA Form 67-9 and Part IVa, and Part Vb, DA Form 67-9-1), included comments which essentially cited the applicant's capacity for work, ability to develop and implement systems, and success in accomplishing critical missions as being outstanding.  For the first time, DCE has all required personnel as a result of the applicant's knowledge of USAR personnel systems and key influencers.
	c.  Part VII (Senior Rater), block a (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows a check in the block for "Best Qualified."

	d. Part VII b (Potential Compared with Officers Senior Rated in Same Grade) shows a center of mass rating. 

	e.  Part VII c (Comment on Performance/Potential) included comments such as "superb performance...top 25 percent" and "was able to fully resource his team in a time of declining resources."

5.  On 10 May 2012, the interim DCO provided the applicant a DA Form 4856 (Developmental Counseling Form) wherein he essentially stated:

* this was an initial [written] counseling and a follow-up to verbal counseling regarding the applicant's dismissive attitude
* on 7 May 2012, the applicant seemed dismissive of his (the interim DCO's) request for an initial guidance meeting
* the applicant displayed a dismissive attitude with both the interim and the outgoing DCO
* he failed to attend the initial meeting, citing other work priorities
* he addressed a senior reserve officer, Colonel (COL) Bxxxx, as "Mister" instead of his rank of colonel, and when confronted he asked to see this officer's military orders
* he was late to the counseling session
* the applicant was instructed to provide an OER support form and prepare a memorandum outlining his understanding of the guidance provided

6.  The applicant disagreed with the content of the counseling statement contending it was untrue and inaccurate.  He stated he believed the counseling was racially motivated, was revengeful, and threatening in nature.  He further maintained the issues between himself and the interim DCO stemmed from the fact he was an AGR officer while the interim DCO was a U.S. Army Troop Program Unit (TPU) officer.

7.  On 14 May 2012, the applicant filed an informal Equal Opportunity (EO)/Inspector General (IG) complaint against the interim DCO.  Although the record is void of any reported outcome, the applicant provided an email from the Command IG's office which stated the Command IG, COL Jxxxxxx, had spoken to the applicant's DCG regarding his case.

8.  In a self-authored MFR, the applicant wrote, on 24 May 2012, he overheard a conversation between the former DCO and one of the noncommissioned officers (NCO) on their team.  In the conversation, the NCO is alleged to have discussed information he was providing to the IG regarding the applicant.  The NCO was asked by the former DCO the race of the person from the IG's office; the answer was "black."  The former DCO then commented that the applicant was bad for the team and either the interim or new DCO would get rid of him.

9.  On 29 May 2012, the former DCO (rater for the OER cited above) gave the applicant a DA Form 4856 wherein he was counseled on strengths and opportunities for improvement.  Strengths included a high capacity for quality work and dedication.  The opportunities for improvement included:

* the need for greater self-awareness, specifically not becoming defensive when receiving criticism
* not responding with a condescending attitude when a teammate offers an opinion different from the applicant's
* the applicant was cautioned that his personality and inter-personal style had negatively affected the organization during the rated period; he was advised that directive leadership was not appropriate when leading able and willing team members
* the former DCO said he would remain available to the applicant as a resource and mentor if desired

10.  The applicant's response, sent via email, was to state he was confused by this counseling statement as he had already received a "final performance counseling" for his OER.  He stated he felt the counseling statement was one-sided and did not portray him as a whole person.

11.  On 29 May 2012, the interim DCO wrote a follow-up memorandum to the applicant essentially stating:

* no improvement had been observed in the applicant's dismissive, negative, and insubordinate manner
* the applicant had done nothing to facilitate the interim DCO's familiarization with the organization
* the applicant's response had been to only answer direct inquiries while standing at the position of attention
* the applicant remained publically dismissive in group meetings
* the applicant showed himself incapable of understanding the role his behavior played in creating his situation, and was unwilling to make any changes
* no response from the applicant as to this counseling is available

12.  On or about 18 July 2012, the rater of the contested OER arrived and assumed duties as DCO.  Following his arrival, a series of consequential events occurred:

	a.  On 10 August 2012, a senior NCO team member sent an email to his peers and his first sergeant describing the problems he was having with the applicant's leadership style; this was later brought to the applicant's attention.  

	b.  In a continuation of a response to a counseling received on 10 September 2012, recorded on a DA Form 4856, the applicant describes a conversation between him and the new DCO, occurring on or about 23 August 2012, which began with a discussion of the senior NCO's email, and went on to general review of the applicant's leadership style, as described by the two previous DCO's and informal interviews of team members done by the new DCO.  In essence, a picture emerged of the applicant having an abrasive manner and toxic leadership style.  The applicant's reaction was:

* the outgoing DCO, now retired, had indicated he wanted to be the applicant's friend; he rejected this offer and the negative comments made about him stemmed from this rejection
* both the interim DCO and COL Bxxxx (whom the applicant earlier had called Mister Bxxxx) had issues with him because the Joint and Special Troops Support Command (JSTSC) valued his opinion over theirs
* his efforts to enforce Army policy created resentment in the team
* as an example, on his arrival, he changed policy by requiring Reserve actions to come through him; he was resented for this change but the benefit was it allowed him to keep the former DCO informed of pending Reserve actions
* he cited examples where he believed Department of the Army (DA) civilian members of the team had inappropriately requested additional office supplies as well as possibly committing time and attendance fraud; his actions saved the government money, but caused resentment
* in another example of team members resenting him for enforcing Army policy, his operations officer had come to him suggesting he recognize an NCO for displaying initiative by creating a checklist; the checklist already existed, however, having been published in a JSTSC pamphlet, and the NCO was instructed to make better use of his time by staying in his lane
* he had discussions with both subordinates and his former boss regarding Army values, talking specifically about loyalty, duty and personal courage; when there was the potential for, or actual wrongdoing it was loyalty to country that caused him to correct his team members, and this took personal courage
* he cited additional examples where he felt members of his team had acted incorrectly
* he asked the DCO to provide examples which described his leadership style; three examples were given
* the applicant said there were problems in the team, as shown by an [EO] complaint filed by a former operations NCO; the complaint was substantiated but no real change occurred afterward
* the applicant questioned remarks made by the DCO (who apparently is from Boston and spoke with a distinctive Boston accent), where he (the DCO) had joked about telling the Texas Governor he was from East Texas, suggesting Boston was a very eastern part of Texas; the applicant stated he did not get this type of humor [he later identifies this remark as one that is racially-coded and an indication to him the DCO shared the allegedly racist views of many of the whites in East Texas]
* he told the DCO he just wanted a fair chance but felt the odds were against him

13.  On 10 September 2012, the DCO counseled the applicant using a DA Form 4856.  In this counseling he stated:

* he still had concerns about the applicant's leadership style; he was not operating in the manner expected of a deputy in an organization made up of senior personnel
* two instances were cited where the applicant asked the DCO leading questions within earshot of subordinates in a manner which undermined team cohesion
* additional issues were identified with the applicant's behavior where he was unnecessarily including the DCO on routine emails, had inappropriately directed a DA civilian team member to retract an email he had sent, and shown himself unable to handle minor issues
* he was observing the same concerns already raised by the former DCO and interim DCO and the applicant's behavior was negatively affecting the team
* he was seeing the applicant's tendency to believe others were incorrect and operating outside Army regulations while he (the applicant) was always correct

14.  The applicant's response to this counseling was to state his disagreement with the counseling.  He addressed each issue raised and concluded the views were factually wrong and expressed racial bias.
15.  On 12 September 2012, the DCO signed a memorandum addressed to the applicant which summarized the counseling on 10 September 2012 and addressed "continued snide comments" being made by the applicant in front of subordinates.  The DCO wrote the applicant's stated unwillingness to adjust his leadership style was forcing him to seek ways to minimize the disruption caused by the applicant.  He suggested the applicant voluntarily request a transfer, otherwise he would pursue an involuntary move and, potentially, a relief for cause.

16.  On 13 September 2012, the applicant filed a DA Form 7279 (EO Complaint Form) against the DCO.  On 14 September 2012, an investigating officer (IO) was appointed under the provisions of Army Regulation 15-6 for the purpose of investigating the applicant's complaint.  On 27 September 2012, the IO provided the results of his investigation stating the preponderance of evidence did not support a finding of racial discrimination.  On 9 October 2012, the appointing authority approved the investigative results.

17.  On 12 October 2012, the applicant was presented a Relief for Cause Memorandum by the DCO.  On 15 October 2012, the applicant submitted a DA Form 1559 (IG Action Request) to investigate his complaint of reprisal under the Military Whistleblower Protection Act based on alleged retaliation for his EO complaint.

18.  On 19 October 2012, the applicant appealed the result of the Army Regulation 15-6 investigation regarding his EO complaint to the Commander, USARNORTH.  The Commander, USARNORTH appointed an IO, and on 20 November 2012 the IO completed his report.  He found the allegations made by the applicant were not substantiated.  The report was approved by the appointing authority on 26 November 2012.

19.  On 9 December 2012, the applicant received the contested Relief for Cause OER, covering the rating period 5 May 2012 through 12 October 2012 for duties as Deputy Defense Coordinating Officer while assigned to DCE, Region VII, USARNORTH.

20.  This OER shows he was rated for 3 months and assigned the Code "Q" for the non-rated time.  His rater was the DCO, DCE, Region VII, and his senior rater was the DCG, USARNORTH.  The OER shows the following entries:

	a.  Part II (Authentication), block d (This is a referred report) is checked.

	b.  Part IV (Performance Evaluation - Professionalism), item a (Army Values), block 5 (Respect) is checked "NO."
	c.  Part Va shows a check for "Unsatisfactory Performance, Do Not Promote."  Comments in block b essentially state:

* applicant was relieved as Deputy for his unwillingness and refusal to adapt his leadership style and for three insubordinate comments made to rater in front of subordinates
* applicant is technically proficient but has a poor leadership style and his admitted refusal to change undermines his effectiveness
* the lack of interpersonal skills and abrasive style of leadership stifled initiative and created a fear of retribution on the part of his teammates
* the applicant's ineffective leadership style severely harmed morale

	d.  Part Vc states the applicant should not be promoted, his toxic leadership style is incompatible with Army values, and he should be separated from active duty.

	e.  Part VIIa shows a check in the block for "Do Not Promote," Part VIIb shows a below center of mass rating, and Part VIIc contains comments which essentially state:

* concur with rater
* applicant possesses capabilities and potential to serve with excellence, but is unable to accept and adhere to the leadership and authority of his rater
* his open and unapologetic insubordination to his supervisor in the presence of others is emblematic of his shortcomings
* applicant is recommended to be retained in his current grade

21.  On 7 December 2012, the applicant responded to the referred OER and addressed the senior rater by essentially stating:

* he has never been disrespectful, nor had any issues adjusting his leadership style to support his leadership; there is no basis for this report
* the rater checked the "NO" in Part IVa(5); this is the first time his Army Values were identified as a concern by his rater, and was not addressed in the one counseling he received
* he only worked for his rater for about 85 days and received very limited guidance
* none of the 20 OERs he received over the course of his career showed any concerns about his Army Values
* he has never been counseled by the rater for being disrespectful
* the rater never provided definitive guidance as to expectations, only saying to continue as he had done under the previous DCO
* his only counseling was on 12 September 2012, and he provided his rebuttal on 12 September 2012; while disagreeing with the counseling, he agreed to comply
* under his leadership, his team accomplished many achievements and he demonstrated his interpersonal skills through coaching, motivating, and empowering others on the team
* he completed his Multi-Source Assessment and Feedback (MSAF) 360 evaluation [anonymous peer/subordinate/leadership feedback for leader development]; the lowest rating was 85.7 percent under leadership and the highest was 98.5 percent for competency in developing leaders
* he received a positive evaluation from the senior rater for the last period where the senior rater ranked him in the top 25 percent
* throughout USARNORTH he was referred to as the best DDCO, and in less than 3 months of his rater's arrival he was now receiving an OER that painted a very negative picture
* the OER was not justified

22.  On 28 January 2013, the DAIG responded to the applicant's 15 October 2012 request for an investigation under the Military Whistleblower Protection Act.  The report stated the allegation did not require further investigation and there was documented evidence which supported the applicant's relief for cause.  The applicant was advised to submit redress through Army Regulation 623-3 (Evaluation Reporting System).

23.  On 7 April 2013, the applicant appealed the contested OER with HRC.  On 28 October 2013, the Army Special Review Board within HRC denied his appeal.

24.  The applicant provides a self-authored statement which essentially states:

	a.  The contested OER contains substantive inaccuracies and is based on racial prejudice, acts of discrimination, and reprisal by the rater as sanctioned by the senior rater.

	b.  The documentation he has submitted is intended to amplify three points:

* the organization has a history of racial prejudice and discrimination against African Americans and the command failed to take appropriate action when informed of his concerns
* the IOs conspired with the subject [rater] to justify his acts of racial prejudice, discrimination, and reprisal thus making their investigations biased
* the OER was an unjust evaluation and was retaliation for the applicant's submission of two EO complaints against the interim DCO and the current DCO (his rater) respectively

	c.  There have been three African Americans, including the applicant, assigned to his unit and all have experienced unfair treatment.  

	d.  He had previously raised concerns about the racial climate in his organization to his rater, the former DCO, but these concerns were dismissed.  

	e.  He addressed several irregularities and what he describes as intentionally misconstrued facts to the Commander USARNORTH; the USARNORTH IG told him someone would be in touch and nothing happened.

	f.  The Commander USARNORTH did appoint an IO under the provisions of Army Regulation 15-6, but it was obvious the intent was only to fulfill regulatory requirements and to distort facts [rather than to identify what was really happening].  

	g.  The IO [appointed by the Commander USARNORTH] admitted the applicant was treated unfairly, and justified his mistreatment based on the applicant's alleged inflexibility and toxic leadership style.  The IO's finding that all members interviewed within the applicant's organization viewed the applicant as dismissive, abrasive and counterproductive is not true.  Additionally, he erred in his finding that the rater's use of the term "East Texas" was not racial coding.  Most racially coded words, when viewed out of context, do not appear to be racist.

	h.  He filed an IG complaint on 15 October “2015” and he requests the Board pay particular attention to the dates within this document, as well as the dates on all other documents submitted.  Had the DAIG elected to conduct an investigation the evidence uncovered would have strongly supported his Whistleblower Protection complaint.  According to Department of Defense Directive 7050.06 (Military Whistleblower Protection) and Army Regulation 
600-20 (Army Command Policy), threats or derogatory statements to others about the participant are a form of retaliation.  

	i.  The rating period under the former DCO, rater on his first OER in the position of DDCO, ended on 4 May 2012.  As of that date he never received a negative counseling from the rater, nor were any concerns raised about his leadership style.  It was only after the rating period, on 30 May 2012, that he received notice of the rater's concerns in a DA Form 4856.  This came the day after he received counseling from the interim DCO.  
	j.  The Board should note neither he nor the rater signed the two counseling statements allegedly given to him (items 10 and 11 of enclosure 10) for the OER ending on 4 May 2012.  Additionally, the dates on the counseling statements do not match the dates of counseling as shown the the DA Form 67-9-1 (Officer Evaluation Report Support Form) (item 6 of enclosure 1).

	k.  He feels it is critical the Board give special attention to the dates on the DA Forms 4856 received from the former DCO, the interim DCO, and the DCO (rater on the contested report).  As the documents are reviewed by the Board, he believes it will become apparent they were created in an attempt to bolster what the applicant feels is an intellectual lynching.

	l.  He is truly troubled that, as late as 2012, he has been the subject of racial prejudice and reprisal from a superior officer, and that his leadership has refused to properly investigate what happened to him.  He is even more distraught by how the investigations that were conducted supported the perpetrator and victimized him.

	m.  He had hoped to be able to present his case before a "show cause" board, but, because he was under a nontransferable flag, he was denied that opportunity.  His best hope now is that the Board will recognize the contested OER as unjust and grant him relief.

25.  He provides a DA Form 7279 submitted by an NCO within his organization dating from 2009.  The complaint essentially states:

* the submitter addresses concerns about comments made by a DA civilian in his organization toward himself and other minorities, to include females
* he brought his concerns to the DDCO at the time who took no action
* the submitter's direct supervisor described the organization as dysfunctional, which contributed to perceptions of racial bias
* members of the organization, to include the DCO, DDCO, and the DA civilian were counseled and a Formal EO Complaint Reprisal Prevention Plan was put in place

26.  He provides two MFR's signed by an NCO in his organization and two redacted statements.  

	a.  One MFR recounts a time when the DCO (rater on the contested OER) said, "SFC Bxxx, don't quit your day job" and walked off laughing.  

	b.  The other MFR essentially describes how the NCO was asked about the applicant's leadership style by the DCO.  He responded he initially did not understand the applicant's reasons, but came to realize the applicant was looking at the "300 meter target" while others only saw the "50 meter target."  He told the DCO the applicant followed regulations and others may get mad because they have been doing things wrong for a long time.

	c.  Included as well are two redacted statements which appear to have been a part of investigations into complaints made by the applicant.  

* the first answers questions about perceived inequities (the respondent stating he/she did not receive an award while others did) and poor communication within the organization
* the applicant is described as being treated differently because the applicant corrected members of the team and they resented this
* the second statement says the respondent feels the applicant is treated differently in terms of not being included on key emails, though this may not be due to his race
* he/she never saw the applicant treated unjustly or unlawfully based upon race, color, gender, or origin
* concerns are expressed about comments made and instructions given by a previous IO to reword his/her statement (i.e., changing words like "racist" to "unfair treatment")
* he/she liked working in the organization and working for the applicant

27.  He provides an MFR which recounts an incident where members of the team, including the applicant, the DCO and the team's operations officer were standing together while participating in an exercise.  

* the Executive Officer (XO) for an aviation task force came to ask a question about decontaminating aircraft as part of the exercise, and the applicant provided an answer based upon his past experience with this particular exercise
* the DCO then told the XO to check across the street, ignoring and apparently dismissing what the applicant had just said
* the XO, a white lieutenant colonel from Kentucky, then asked the DCO what part of the South he was from, humorously referring to his Boston accent, to which the DCO said, "I'm from East Texas"  
* the applicant interpreted this to mean the DCO was indirectly communicating he shared the racist views of many whites who are from East Texas
* the applicant left the conversation feeling threatened, that he was not accepted because of his skin color, and wondering what might happen next

28.  He provides 14 news articles and a printout from a forum, all of which describe racially coded insults, racism, and racial incidents in Texas, to include the dragging death of an African American man in East Texas.

29.  He provides an MFR which addresses his reaction to some of the points made by the DCO in the counseling received on 10 September 2012.  He describes what he contends are examples of when he, as an African American Deputy, tells non-African American team members "No," the backlash is for him to be called a toxic leader.  Additionally, he expresses concern about the DCO's instructions to not include him (the DCO) on what are described as "routine emails."  The applicant maintains the emails he was sending were not routine.  He attaches 23 emails sent by non-African American team members which he contends are clearly routine, but have been carbon-copied to the DCO, with no repercussions for the senders.

30.  He provides a news article, titled, "Army North's defense coordinating element shifts into high gear for Vibrant Response 13" from the www.army.mil website.  The article describes the Vibrant Response 13 exercise and the role of the applicant's team.

31.  He provides two MFRs that described an event which apparently occurred at a regional conference in April 2012.  Both MFRs confirm the applicant made comments that were appropriate and not disrespectful.

32.  He provides an MFR with 16 attachments wherein he provides supporting documentation of the suppression of his authority and how he was bypassed by the DCO on matters in which he should have participated.

33.  He provides an MFR wherein he recalls a conversation between him and the DCO, the essence of which was he (the applicant) would not be requesting a transfer, and the DCO made it clear he (the applicant) would not be leaving on his (the applicant's) terms.

34.  He provides an MFR in which he states an NCO on his team told him he felt pressured by the IO to change his statement.  The applicant assured him no one could make him change his statement, and he instructed the NCO to record this event in an MFR.  The applicant then saw other members of the team carrying what appeared to be statements, all going to the IO's location.  He inferred they too were being pressured to change their statements.



35.  Army Regulation 623-3, in effect at the time, establishes the policies and procedures and serves as the authority for preparation of the OER.  

	a.  It states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army 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, counseling forms.  Consideration will be given to the relative experience of the rated officer, the efforts made by the rated officer, and the results that could be reasonably expected given the time and resources available.  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. Assessment of potential will apply to all officers regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for Headquarters, Department of the Army (HQDA).

	b.  An OER will be referred to the rated officer for acknowledgement and for the opportunity to comment by the senior rater when:

* there is a "NO" in Part IV, blocks a through b 
* Part V contains a check in the block titled unsatisfactory performance, do not promote
* Part VII contains a check in the block titled do not promote
* there is a promotion potential evaluation of below center of mass - retain, and/or
* the report is a "Relief for Cause"

	c.  An additional review of a "Relief for Cause" OER is required following referral to the rated officer.  If the relief is directed by the rater, the senior rater will perform the review.  Reviewers of Relief for Cause OERs will:

* ensure the narrative portions of the OER are correct
* verify any derogatory information is accurately reflected
* ensure the report was prepared as prescribed by the regulation
* ensure the report was returned to the rated officer for comment
* review the relieved Soldier's referral comments, if provided

	d.  A "Relief for Cause" OER is required when an officer is relieved for cause regardless of the rating period involved.  It is defined as an early release from a specific duty directed by superior authority based upon a decision the officer has failed in his or her performance of duty.  The report must specifically indicate who directed the relief and will clearly explain the reason for relief.  The minimum time requirements for rating officials do not apply.

	e.  An OER accepted by HQDA and included in the official record of an officer is presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation.  Each report must stand alone.  Requests that an accepted OER be altered, withdrawn, or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

	f.  Army Regulation 623-3 also provides that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER, the applicant must produce evidence that clearly and convincingly overcomes the aforementioned presumptions and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

36.  Army Regulation 600-20 provides guidance on command implementation of the Army's EO policy.  It states the Army will provide EO and fair treatment for military personnel and Family members without regard to race, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior.  It defines discrimination as any action that unlawfully or unjustly results in unequal treatment of persons or groups based on race, color, gender, national origin, or religion.  Prejudice is defined as a negative feeling or dislike based upon faulty or inflexible generalization (that is, prejudging a person or group without knowledge or facts).

37.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  




DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the OER covering the period 5 May 2012 through 12 October 2012 was carefully considered.

2.  Army Regulation 623-3 states an OER accepted by HQDA, and included in the official record of an officer is presumed to be administratively correct.  To justify deletion or amendment of an OER, the applicant must produce evidence that clearly and convincingly overcomes the aforementioned presumptions and that action to correct an apparent material error or inaccuracy is warranted.  The burden of proof in an appeal of an OER rests with the applicant.

3.  The applicant contends his rater was racially biased and that he unjustly influenced the senior rater to write inaccurate comments on the contested OER.  He bases this conclusion on the following:

	a.  The organization of which he was a part had a history of racial discrimination as evidenced by:

* an EO complaint submitted by an African American NCO in 2009, and
* a comment made to another African American NCO by the DCO about not quitting his day job

	b.  The counseling statements which served as part of the basis for his contested Relief for Cause OER was written by the former DCO after the rating period and the other by the interim DCO were motivated by racial bias and had no basis in fact.

	c.  The rater was racist, as demonstrated, in part, by his allegedly humorous remark that he was from East Texas (he actually was from Boston, MA).  The applicant viewed this comment as being a racially coded reference to the location where an African American man was brutally murdered.  Additionally, the DA Form 4856 counseling statement along with the memorandum, dated 12 September 2012, reflect a racial bias in their content.

	d.  Based upon the influence of the rater, the senior rater, who had written a favorable report just 5 months earlier, wrote factually inaccurate comments about the applicant in the contested OER.

4.  Additionally, he maintains the IOs appointed by his chain of command sought only to fulfill regulatory requirements when investigating his allegation of racial discrimination, and conspired with the rater to cover up the discrimination and victimize the applicant.
5.  The ABCMR can only base its findings on the evidence presented and/or that which is available in the record.  Additionally, the OER is presumed to be administratively and factually correct.  The applicant carries the burden to present sufficient evidence to support his contentions.  While, arguably, bias and racial insensitivity may have existed within the applicant's organization, the evidence provided does not sufficiently support his contention that the contested OER was either factually incorrect or based on racial discrimination.

	a.  The applicant received notice his leadership style required change.  In regard to the written communications given to the applicant as to his behavior and/or duty performance prior to being given the contested OER, there is no clear and compelling evidence to support a finding of racial bias.  

	b.  In each instance, rather than make any apparent effort to adjust his leadership style, the applicant's response was to dispute the accuracy of how his leadership style was portrayed and to assert the basis of any critique was racism.

	c.  The evidence provided by the applicant, intended to show the contested OER as being part of a larger picture of racial bias and discriminatory practices within the organization, was insufficient to support this claim.  For example, while confirming the applicant appeared to be treated differently, one of the redacted statements shows a response of "No" to the question of whether the applicant was unlawfully or unjustly treated based upon race, color, gender, or origin.  Additionally, this respondent states he/she "loves" the work environment in the organization.

	d.  Two investigations initiated by his chain of command under the provisions of Army Regulation 15-6 and based upon the applicant's EO complaint found no evidence of unlawful discrimination.  They did, however, find evidence the applicant's leadership style had a negative impact on his team.  The applicant provides no compelling evidence of collusion between either of the IO for these two investigations and his rater and/or senior rater as part of an effort to victimize him and cover-up discriminatory practices.

6.  Based upon the foregoing, there is insufficient basis upon which 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)                                         AR20140008284



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ABCMR Record of Proceedings (cont)                                         AR20140008284



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