DOCKET NUMBER:  AR20140009959 


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 reconsideration of his previous request for correction of his DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 25 August 2008 through 24 August 2009 (hereafter referred to as the contested OER) as follows:

* Part III(a) (Duty Description – Principle Duty Title), amend Principle Duty Title from "Program Integrator (PI), DCMA (Defense Contract Management Agency) Canada London" to "Command, DCMA Canada London"
* Part IV (Performance Evaluation – Professionalism (Rater)), redact Part IV in its entirety
* Part V (Performance and Potential Evaluation (Rater)), redact Part V in its entirety and
* In the alternative, he requests removal of the contested OER from his official military personnel file (OMPF)

2.  The applicant states:

   a.  On 10 June 2013, he received a notice from the Army Board of Corrections for Military Records (ABCMR) that his application had been denied.  He submits the following argument that was not considered by the ABCMR in his initial application.



   b.  He requested that the duty title for his position be changed from "PI, DCMA Canada, London" to "Director, DCMA Ontario."
   
   c.  In the Record of Proceedings for his case (Docket No. AR20120015993), the Board found that his duty title should have been Director, DCMA Ontario.  "The DCMA Table of Distribution and Allowances (TDA), effective 2 October 2009, shows [his] former duty title changed from "CDR Ontario" to "Director, DCMA Ontario."  As promulgated in ALARACT message 159/2006, Army officials directed the changing of duty position titles prior to [his] tenure with DCMA."

   d.  He has attached an Official Theater Telephone Listings showing that the "PI" was his subordinate, Mr. Shane Jxxxs.  Second, he has attached a business card showing his title was "commanding officer."  Third, he has attached a Recall List showing that Shane Jxxxs was the PI.  It also shows that his duty position was "commander," although it erroneously refers to it as "acting commander."  He requests that according to the Board's findings from his initial application, his title be changed from "PI" to "Director, DCMA Ontario."

   e.  The Performance Evaluation in Part IV is inaccurate when it states that he did not demonstrate respect, interpersonal skills and the ability to motivate and build.  Addressing the qualities of respect and interpersonal skills, he did not change his leadership style during this evaluation period in any degree from his previous assignments, yet his evaluation from 20070809 characterizes that style as "a unique . . . blend of direct compassionate force coupled with excellent interpersonal skills" that "served to be the right attributes for the workforce."  Similarly, his Battalion Commander described him in the evaluation from 19911230 as "totally selfless, a pillar of strength" with "unequaled personal demeanor" qualities that allow him to "gain the trust, respect and confidence of all with whom he interacts."

   f.  The evaluation goes on to state that he failed to build his team by spending time and resources to improve them or to foster ethical climates.  He has been leading and building Army teams since 1984 during peace and war.  However, that claim is belied by the fact that he motivated his team to meet its Scorecard Metrics that DCMA set up to monitor progress of the mission, etc.  He fostered an ethical climate of integrity because the civilian workforce produced outstanding results, as highlighted in the Scorecard.  He also motivated them to participate in a charity 5 kilometer walk/run for multiple sclerosis research.  He built an ethical climate by raising $270 to combat the spread of a devastating disease, as just one example.  


   g.  For these reasons, he respectfully requests that the Performance Evaluation be redacted from the evaluation.  The Potential and Performance Evaluation report in Part V is inaccurate when it characterizes his leadership as "overbearing and bullying" and maintains that he yells, belittles, derides, abuses, threatens and makes negative, disrespectful comments about the employees.  At no point did he engage in such outrageous behavior.  As stated above, his previous raters commended him on his leadership style and he did not vary that style to any degree when he assumed command of DCMA, Canada (London). Additionally, he submits that if he had treated his subordinates in such a way, he would not have qualified for the Legion of Merit, which he received on 21 October 2011.  He requests that the Potential and Performance Evaluation report in Part V be redacted.

   h.  As a final point, he submits that he could not have degenerated into the person that the evaluation describes in so little time.  He was deployed in Iraq and Kuwait for just over 5 months, and he commanded DCMA Canada (London) for only 3 months.  This period of time is even shorter when one takes into account that during this rating period he was on temporary duty (TDY) for 117 days.  He recognizes that the fact that he excelled in other assignments does not necessarily show that he would excel at this assignment.  But if the evaluation is to be believed, he suddenly and inexplicably transformed from a leader with "excellent interpersonal skills" that inspired respect and confidence into one that bully who terrorized his subordinates.  It simply staggers belief that he would undergo such a transformation in so little time.  For these reasons, he requests that the principal duty title be changed from "Program Integrator, DCMA Canada location" to "Director, DCMA Canada London" and change the Army Values section; specifically the Respect block from "No" to "Yes."  He requests the Board to remove/redact the OER.

   i.  He has added a few more OERs, one news article from his tour in Germany and a copy of an achievement certificate from college for the Board's review to ensure they understand that he has served in some tough assignments; had great mentors/coaches and has worked hard his entire Army career.  Lastly, he stopped the retirement process to join the DCMA leadership team and to have these extreme unprofessional acts by the DCMA rating chain happen before the Colonel promotion board was professionally and personally ruinous.

3.  The applicant provides copies of the following:

* old evidence (previous appeal package):

* 1984 Who's Who Among Students in American Universities and Colleges certificate
* eleven awards certificates
* ten OERs covering the periods between January 1987 to May 1993, May 2002 to April 2003, and May 2007 to August 2009 (includes the contested OER)
* 2008 Officer Record Brief (ORB)
* several emails with officials at U.S. Army Human Resources Command (HRC) and DCMA
* several emails concerning his orders for assignment to DCMA 
* e-MILPO slotting summary
* DCMA Americas (Canada) Theatre Organization Structure wiring diagram
* Photographs (color and black and white) depicting a ceremony
* an extract from "Communicator – News for DCMA Professions"
* seven DD Forms 1610 (Request and Authorization for TDY Travel of DOD Personnel)
* seven DD Forms 1351-2 (Travel Voucher or Subvoucher)
* several emails concerning his command initiatives and DCMA command brief
* DCMA Canada scorecard
* an extract of a news article with photograph depicting himself and 3 civilian employees who participated in a multiple sclerosis fundraiser
* several emails concerning the contested OER, his senior rater's (SR) command goals and objectives
* previous ABCMR Record of Proceedings

* new evidence:

* DCMA Americas Theater Telephone Listings
* his business card
* DCMA Canada (London) Recall List

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120015993 on 4 June 2013.

2.  The applicant provided copies of the DCMA Americas Theater Telephone Listings, his business card, and the DMA Canada (London) Recall List.  This is new evidence that will be considered by the Board.
3.  The applicant's military records show he was appointed in the U.S. Army Reserve (USAR), as a second lieutenant, on 13 June 1982.  He entered active duty on 13 June 1982.  He served in a variety of command and staff assignments, in position of increased responsibility, in stateside, overseas, and combat locations.  He was promoted to lieutenant colonel (LTC) on 7 October 2000.

4.  He provided copies of the following:

   a.  1984 Who's Who Among Students in American Universities and Colleges certificate.

   b.  Eleven certificates, dated between 1986 to 2011, awarding him the Army Commendation Medal (5th Award), Meritorious Service Medal (3rd Award), North Atlantic Treaty Organization Medal, Bronze Star Medal, and Legion of Merit.

   c.  Ten OERs covering the periods between January 1987 to May 1993, May 2002 to April 2003, and May 2007 to August 2008 which show he received ratings of "Always Exceeded Requirements," "Promote Ahead of Contemporaries," "Outstanding Performance, Must Promote," and "Best Qualified."

   d.  ORB, dated 1 October 2008.
   
   e.  Several emails with officials at HRC and DCMA. 

   f.  Several emails concerning his orders for assignment to DCMA. 

   g.  E-MILPO slotting summary.

   h.  DCMA Americas (Canada) Theatre Organization Structure wiring diagram which shows he is listed as the DCMA Canada (London) CDR.

   i.  Photographs depicting a ceremony.

   j.  An extract from "Communicator – News for DCMA Professions."

   k.  Seven DD Forms 1610 and seven DD Forms 1351-2 which document several TDY periods he performed while assigned to DCMA Canada (London).

   l.  Several emails concerning his command initiatives and DCMA command brief.
   
   m.  DCMA Canada scorecard.
   
   n.  An extract of a news article with photograph depicting himself and three civilian employees who participated in a multiple sclerosis fundraiser.

5.  On or about 22 May 2008, he was notified of his impending reassignment to DCMA Canada (London).

6.  On 15 July 2008, in an email discussion regarding his possible attendance at an upcoming commander's conference related to his assignment to DCMA, he was advised by a DCMA staff member that this position was not a Commander's position but rather a Director's position.  In his reply, he acknowledged receipt of that information and requested guidance on how to have the position title changed back to "Commander."

7.  On 16 July 2008, he received further guidance from DCMA officials regarding the approved policy changes and pending changes to DCMA authorization documents; specifically, regarding changes to the duty titles of former "Commander" positions.  A member of the Army Service Support Team, Military Personnel Operations, DCMA, advised him as follows:

The duty title for your position is "Director."  All DCMC 51 [Army Acquisition Corps] billets previously identified as "Commander" was [sic] changed by Lieutenant General Yxxxxxx about 2 years ago.  While the current TDA reflects "Commander," the change was submitted to the U.S. Army Forces Management Support Agency and should be updated by Fiscal Year 2009.

8.  On or about 1 September 2008, he was reassigned to DCMA Canada (London) in the duty title of CDR (Commander) Ontario.

9.  The DCMA's TDA, effective 1 October 2008, shows his position was coded with the duty title "CDR Ontario."

10.  On 24 August 2009, he received the contested OER (Annual report) for his duty performance as the Program Integrator, DCMA Canada (London).  On 11 June 2010, it was filed on his OMPF.  The OER shows in:

   a.  Part II(d) (Authentication) – (This is a referred report, do you wish to make comments?) contains a checkmark in the block, indicating the SR identified the report as a referred report.  However, there is no checkmark in either the "Yes" or "No" block indicating the rated officer did not disclose whether or not he would make comments related to the referred report.  He also did not sign this report.
   b.  Part IV (Performance Evaluation – Professionalism) the rater placed an "X" in the "No" block for "Respect."
   
   c.  Part IVb (Leader Attributes/Skills/Actions) the rater placed an "X" in the "No" blocks for "Interpersonal," "Building," and "Motivating."

   d.  Part Va (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

[Applicant's] performance was unacceptable in two CMOs (Contract Management Office) in separate theaters.  He deployed to Iraq as Deputy to the CMO Commander immediately upon reporting to my command.  Five months into a 12-month deployment, he was redeployed.  Feedback from his Army O-6 Commander noted he exhibited poor leadership behavior and had four grievances files against him due to an overbearing and bullying style of leadership, which created a hostile environment and resulted in personnel requesting redeployment due to fear of his personality.  [Applicant] was moved to other duties and replaced as Deputy.  Upon redeployment, [Applicant] was counseled on command climate expectations; however, after only 2 weeks a complaint was received regarding his behavior causing me to counsel him again.  Two months later, a key employee unexpectedly resigned, prompting complaints from 100% of both the remaining and recently departed staff, alleging a hostile and intimidating work environment.  They stated [the applicant] yells, belittles, derides, is abusive, threatens termination, and makes negative, disrespectful comments to them about other staff members and about them personally.  [The applicant] denied the allegations stating he treats everyone with dignity and respect.  I lost confidence in his ability to perform his assigned duties and reassigned him.  I do not recommend that [the applicant] be promoted to the grade of O-4.

   e.  Part VI (Intermediate Rater) the intermediate rater entered the comment, "I have placed [the Applicant] in two leadership positions within my Division and he had almost identical performance issues in each position.  Despite two separate operational Commands, two separate CMO Commanders; Army and Navy O-6s, two different theaters, there was one common them of performance deficiency.  [The applicant's] mission includes supporting critical major acquisition programs supporting warfighters in Iraq and Afghanistan; however, employee transfers and resignations due to his negative command culture have placed the support of these programs in jeopardy.

   f.  Part VII (SR), the SR placed an "X" in the "Do Not Promote" block and entered the following comments:

As expressed by his staff, the command climate [the Applicant] has instituted is in direct conflict with my promulgated commitment to provide a work environment free of insulting, degrading or offensive treatment, and harassment in any form.  As a leader and supervisor, he had an obligation to ensure an environment of mutual respect, dignity and fairness.  Although placed in positions of trust and significant responsibility, [the Applicant] did not meet his obligation.  As such, I have lost confidence in [the Applicant's] ability to lead in my Agency.  The rated officer refused to sign.

   g.  Part VIIb, the SR accessed him as "Below Center of Mass, Do Not Retain" in comparison to 46 officers in the same grade.  The SR lists the following three future assignments for which the applicant was best suited:  Program Management Officer, Contracting Officer, and PI.

11.  The OER was signed by the rater on 25 August 2009, the intermediate rater on 28 August 2009, and SR on 28 September 2009.

12.  He also provided copies of the following:

   a.  Several emails concerning the contested OER, his SR command goals and objectives.

   b.  DCMA Americas Theater Telephone Listings, dated 23 March 2009, which lists a female individual as the Acting CDR, DCMA Canada (London).

   c.  Business card which lists his title as "Commanding Officer, DCMA Canada (London).

   d.  DCMA Canada (London) Recall List which lists the applicant as the Acting CDR, DCMA Canada (London).

13.  He was honorably retired in the grade of LTC on 31 December 2011.  He was credited with completing 28 years of active service.
  
14.  Army Regulation 623-3 prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System.  The regulation states in:

   a.  Paragraph 4-4 that alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report.  An appeal will be supported by substantiated evidence.

   b.  Paragraph 4–8 that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible.  Substantive appeals will be submitted within 3 years of an OER "THRU" date. 

   c.  Paragraph 4-11 that the burden of proof rests with the appellant accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice.

15.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF Management Program and its composition.  The regulation states once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

DISCUSSION AND CONCLUSIONS:

1.  With regard to correction of the contested OER:

   a.  The applicant contends, in effect, that based on his previous ratings and award of the Legion of Merit the contested OER is untrue.  However, the contested OER shows his performance was perceived as unacceptable in two separate theaters.  He was twice counseled regarding his behavior and was subsequently reassigned.  The previously and newly-submitted evidence does not refute the ratings contained in the contested OER.  It appears this OER represents a fair analysis of his demonstrated performance during the period in question.  Regrettably, he has not shown otherwise.

   b.  It is noted his award of the Legion of Merit covered the last 10 years of his career and included the period he served in the DCMA.  Notwithstanding its award at the time of his retirement, it does not negate performance during that 10-year period that was evaluated by observing actions, demonstrated behavior, and results from the point of view of his raters on the Army Values and leadership framework.  During his tenure at the DCMA it appears his raters determined that he failed one or more of the Army values.  
   
   c.  The contested OER was a referred OER.  There is no evidence he used due diligence in appealing the contested OER through the administrative appeals process in accordance with regulatory guidance, which was his right to do if he believed it was unfair.  

   d.  There is also no evidence of record and insufficient evidence was provided to show this OER contains material error or is inaccurate.  There is no evidence and none was provided showing the OER was not processed in accordance with applicable laws and regulations.  

   e.  In accordance with regulatory guidance there must be compelling evidence to support the deletion or amendment of a report or the removal of a properly-completed, facially-valid OER from a Soldier’s records.  Absent evidence meeting this regulatory standard there is an insufficient evidentiary basis to support his request.  

2.  With regard to his contention that the contested OER is incorrect because it shows his principal duty title was that of "PI, DCMA Canada (London)":

   a.  He contends, in effect, he was the commanding officer as an Official Theater Telephone Listing showed his subordinate was the PI and his business card showed his title was "commanding officer."

   b.  However, the evidence clearly shows he was advised of approved changes and pending changes to DCMA authorization documents; specifically, regarding changes to the duty titles of former "Commander" positions changing to "Director."  He acknowledged those changes.  Therefore, apparently he was aware or should have been aware of the approved and pending duty titles changes.

   c.  There is no evidence and he did not provide sufficient evidence showing the duty title shown on the contested OER is erroneous, or unjust, or adversely contributed to the ratings he received.  Without evidence to the contrary, it appears his duty title is correctly listed on this OER.  

   d.  Therefore, there is insufficient evidence to support 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 to amend the decision of the ABCMR set forth in Docket Number AR20120015993, dated 4 June 2013.



      _______ _  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)                                         AR20140009959



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ABCMR Record of Proceedings (cont)                                         AR20140009959



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