IN THE CASE OF:	   

		BOARD DATE:	  26 February 2015

		DOCKET NUMBER:  AR20140014583 


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 that his referred Officer Evaluation Report (OER) for the period ending 8 July 2013 be removed from his Official Military Personnel File (OMPF).  

2.  The applicant states:
 
* his removal from the Promotion Selection List was illegal and constitutes an injustice against him and the U.S. Army
* before his Inspector General (IG) complaint against his former rater and senior rater he received several awards
* in August 2013 he received a referred OER, and it was intended to cause severe harm and irreparable damage to his military career
* his rater and senior rater disregarded his verbal and written request for a Commander’s Inquiry (CI)  
* First Sergeant (1SG) M____ noted the errors and injustices pertaining to his OER
* the actions taken were strictly personal and not professional
* following his CI, the Commanding General (CG) criticized the rater and senior rater for failing him 
* the CG noted that the leadership failed to provide clear and concise tangible guidance
* the CG agreed that he should appeal the OER
* on 12 September 2013, the U.S. Army Human Resources Command (AHRC) revoked his promotion orders  
* in May 2014, the Secretary of the Army removed him from the promotion list due to the OER
* his raters intentionally omitted accomplishments during the rating period and the failure of the rater and senior rater to submit an OER Support Form to AHRC was intended to circumvent the system
* the adverse action began after he reported several violations 
* during the rating period he was selected to provide medical threat briefings during unit missions
* although an OER Support Form was never used during his rating period, it was falsely annotated on the referred OER for filing
* it is incumbent upon a rater to use the developmental counseling form as a corrective action and at times reinforcement for a positive situation or event
* the developmental counseling process is not a punitive action
* the derogatory information was a direct result of his communication with the IG office and a complaint against the command under the Health  Insurance Portability and Accountability Act (HIPAA)
* he disagreed with comments from his senior rater concerning his referred OER

 3.  The applicant provides:

* four OERs
* Memorandum for Record (MFR)
* emails
* Memorandum, subject:  Report of CI on OER for [Applicant]
* orders
* Memorandum, subject:  Delay of Promotion and Referral to a Promotion Review Board
* Memorandum, subject:  Promotion Review Board Results (PRB RP1402-04)
* Memorandum, subject:  Promotion Review Board RP1402, Fiscal Year 2013, Army Reserve, Medical Service Corps (MS), Active Guard Reserve, Promotion Selection List
* DA Form 638 (Recommendation for Award)
* MFR, subject:  Letter for [Applicant] (AMEDD) FY13 Promotion Review Board
* MFR, subject:  [Applicant], 773rd Civil Support Team
* DA Form 4856 (Developmental Counseling Form)
* two DA Forms 67-9-1 (OER Support Form)
* two letters to applicant from the IG
* two letters of support
* Officer Special Review Board (OSRB) Record of Proceedings for Docket Number AR20130017915

CONSIDERATION OF EVIDENCE:

1.  After having had prior enlisted service in the United States Air Force, on         7 December 2001, the applicant was appointed as a Reserve commissioned officer.  Effective 11 April 2007, he was promoted to captain (CPT)/O-3, and he is currently serving in that grade.

2.  A DA Form 4856, dated 10 July 2012, shows he was counseled on the requirements of his duty position as the Medical Operations Officer. 

3.  During the month of August 2013, he received the referred OER, which covered rated time from 9 July 2012 through 8 July 2013.

	a.  Part IVa (Army Values) shows the rater placed an "X" in the "Yes" block for all areas.

	b.  Part IVb (Leader Attributes/Skills/Actions) shows the rater placed an "X" in the "NO" blocks for "Conceptual, Technical, Tactical, Communicating,      Decision-Making, Planning, Executing, and Learning."  In all other areas the rater placed an "X" in the “YES” block.

	c.  Part Va (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) shows the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block.  The rater entered the following comments in Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion):

The Medical Operations Officer position requires cognitive ability, attention to detail, and a dedication for learning and performing all task and duties to the required minimum standard.  As the Medical Operations Officer, [Applicant] was responsible for tracking the Medical Section Budget, Training Calendar, and producing a Medical Treat Brief on potential CBRN threats all tasks within his duty position and AOC [area of concentration].  [Applicant] had not taken full advantage of the resources provided nor taken the time to prepare and perform assigned duties.  [Applicant’s] failure to communicate his needs or work status has resulted in failure to meet tasked suspense's [sic] which have adversely affected the Medical Section and resulted in the lack of quality products despite guidance and direction.  [Applicant] on multiple occasions broadcasted incomplete and/or unacceptable products to multiple people in and out of the unit without the approval from the [Officer-In-Charge] or Commander.  [Applicant’s] inability to produce quality work has decreased his credibility among peers and has a negative effect on the function of the Medical Section.  [Applicant] did excel at maintaining the medical equipment maintenance records.  [Applicant] has completed over 100 hours of volunteer work. 
	
	d.  Part Vc (Comment on Potential for Promotion) shows the comment "Do not promote."	

	e.  Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) shows the senior rater placed an "X" in the "Do Not Promote" block. 

	f.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade) shows "Below Center of Mass, Do Not Retain."  The senior rater listed three future assignments for which the applicant was best suited and entered the following comments in Part VIIc (Comment on Performance/Potential):

 [Applicant] has struggled to complete essential tasks within his AOC during this rating period.  He has not met suspenses assigned to him.  His inability to multi-task in a high [operations tempo] environment has caused his tasks to fall onto someone else to complete.  He is not prepared or organized when briefing senior leaders and fails to communicate with the commander.  [Applicant] has failed to keep up with his professional schooling and has made no progress in completing [Intermediate Level Education].  He excels when given tasks that do not require detailed analysis, such as [liaison officer] duties during the unit’s deployment to the Republic of Georgia; Environmental Officer and medical supply where he has managed equipment in excess of $1.5 million.  [Applicant] gives of his personal time as he has volunteered over 70 hours in support of the Wounded Warrior Program.  RATED OFFICER REFUSED TO SIGN REPORT. 

4.  Since the OER contained negative information, it was referred to him for comments.  An MFR, subject:  [Applicant] Failure to Respond, dated 19 August 2013, states that he failed to respond or provide any comments in regards to his OER.  It also states that he refused to sign the OER.  

5.  The contested OER is filed in the performance section of his OMPF.

6.  On 27 February 2014, the OSRB denied his request to remove the contested OER from his OMPF.
7.  In a memorandum, subject:  Report of CI on OER for [Applicant], dated           22 April 2014, the CG stated:

     a.  He appointed an Assistant Inquiry Officer to conduct a CI into alleged injustices pertaining to the applicant’s referred OER.  

     b.  His inquiry focused on whether the rating chain intentionally omitted accomplishments and failed to provide productive counseling, whether a hostile work environment affected his OER, and whether the OER otherwise complied  with the requirements of Army Regulation 623-3 (Evaluation Reporting System).

     c.  According to the CI and his observations, the rating chain did not intentionally omit accomplishments, nor did a hostile work environment adversely affect the applicant.  The rating chain did, however, fail to effectively mentor him.

     d.  While it was clear that the rating chain was frustrated with his performance, it gave him only minimal guidance for any taskings, and the resulting counselings were too vague to allow for an open discussion of the standards, expectations, and deficiencies.

     e.  In its frustration to enumerate displeasure with his performance, the rating chain over-emphasized his performance deficiencies and failed to address each "NO" rating in Part IV.

     f.  When the rating chain sent the completed OER to AHRC for filing, it circumvented the command’s OER processing and review process.  

     g.  It would be a disservice to the Army to allow these failures on the part of the rating chain to adversely affect the applicant without affording him the proper administrative process.  He recommended that he appeal his OER.

8.  On 9 May 2014, the Secretary of the Army directed the removal of the applicant's name from the FY 2013 Major, Army Reserve, Medical Service Corps, Active Guard Reserve Promotion Selection List under the provisions of Title 10, U.S. Code, Section 14310; Executive Order 13358; Secretary of Defense delegation to the Secretary of the Army dated 20 March 2008; and Army Regulation 135-155, paragraph 3-18.

9.  He provides letters of support attesting to his character and email documents relating to his daily duty performance. 

10.  He provides copies of subsequent OERs which show his rated overall performance was proficient and when compared with officers senior rated in same grade, he was rated as being qualified or most qualified.  

11.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-9 states Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework, and responsibilities identified on the evaluation forms, counseling forms, and as explained in Department of the Army Pamphlet 623-3 (Evaluation Reporting System).

	b.  Paragraph 3-36 states that if referral is required, the senior rater will place an "X" in the appropriate box in Part IId of the completed report (for example, when the senior rater has signed and dated the 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.  The rated Soldier may comment if he or she believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier's referral comments.  

   c.  Paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	d.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

	e.  Paragraphs 6-3 and 6-4 state 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.  Alleged errors, injustices, or illegalities may be brought to the commander’s attention by the rated Soldier.  However, in these after-the-fact 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. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request that the contested OER be removed from his OMPF.

2.  He contends that a CI report supports his claim that the OER should be removed.  However, the CI report focused on whether the rating chain intentionally omitted accomplishments and failed to provide productive counseling, whether a hostile work environment affected his OER, and whether the OER otherwise complied with the requirements of the governing regulation.  Those allegations were unfounded.

3.  The CG found that the command did not effectively mentor him and that the command circumvented the commander’s OER processing and review process.  However, the report does not indicate nor does he provide evidence indicating that the rating officials did not comply with regulatory requirement of evaluating him in an unbiased manner. 

4.  The CG recommended that he appeal the OER.  He appealed the OER and that appeal was denied by the OSRB on 27 February 2014.

5.  He received better evaluations subsequent to the contested OER.  However, this merely shows he was able to repair any shortcomings identified in the contested OER and does not indicate that the contested OER is in error.  

6.  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.  The applicant did not satisfy this requirement.  Therefore, he is not entitled to amendment or removal of the contested OER from his records. 




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)                                         AR20140014583





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ABCMR Record of Proceedings (cont)                                         AR20140014583



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