BOARD DATE:	 8 January 2015 

		DOCKET NUMBER:  AR20140017945 


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, in effect, that his Officer Evaluation Report (OER) for the period ending 18 February 2011 (hereafter called the contested OER) be removed from his Official Military Personnel File (OMPF).  He also requests that, if the contested OER is removed, he be granted reconsideration for promotion to colonel (COL)/O-6 and reconsideration for Senior Service College (SSC) attendance.

2.  He states:

	a.  The contested OER is erroneous and is not authentic.  COL (Retired) EW did not write or sign the report.  Further, COL EW was unqualified as his rater because he had insufficient time as his direct supervisor and was not his brigade commander on 18 February or 2 May 2011.  He believes he is a victim of fraud.  Significant and compelling information that was unknown or unverified when the OER was prepared became available in March 2014.  The OER has serious irregularities or errors in administrative data, contravenes the intent of Army Regulation 623-3 (Evaluation Reporting System), and was not prepared by the proper rating officials.

	b.  He is a two-time non-select for promotion to COL based on this erroneous OER.  As such, his records will be reviewed by an upcoming separation board.  He does not have an approved retirement or separation date.

	c.  COL EW has provided a statement confirming that he has never evaluated him.  COL EW states he did not sign the contested OER.  In his supporting statement, COL EW also stated that on 2 May 2011 (the date of his signature on the OER) he was in Atlanta, GA, interviewing with Coca-Cola and had no common access card (CAC) access.  Therefore, his electronic signature is erroneous.

	d.  Part IV (Performance Evaluation - Professionalism (Rater)) of the contested OER was not completed by COL EW.  The supporting statement COL EW submitted contradicts entries on the OER.

	e.  COL EW was unqualified to rate him because he was his rater for only 88 calendar days, which is less than the 90 days required by Army Regulation 623-3, paragraph 2-5a.  COL EW was not his brigade commander on the "thru" date of the contested OER, nor was he the brigade commander on 2 May 2011, the date of his electronic signature.

	f.  The U.S. Army Human Resources Command has rejected his appeal based on timeliness.

3.  He provides documents identified in a list of enclosures.

CONSIDERATION OF EVIDENCE:

1.  On 9 August 1992, the applicant took the oath of office as a Regular Army officer.  Effective 1 May 2009, he was promoted to lieutenant colonel (LTC)/O-5, and he is currently serving in that grade.

2.  The contested OER is a referred change-of-rater OER covering the period 7 November 2010 through 18 February 2011, during which the applicant was serving in Iraq with principal duty as a Provincial Policy Transition Team Chief.  The OER shows his rater was COL EW, the brigade commander, and his senior rater was the division commander.  COL EW digitally signed the OER on 2 May 2011, and the senior rater digitally signed the OER on 10 July 2011. 

	a.  In Part IVa (Army Values), the rater marked the "no" box for "Respect" and "Duty."

	b.  In Part IVb (Leader Attributes/Skills/Actions), the rater marked the "no" box for "Interpersonal," "Motivating," and "Building."

	c.  In Part V (Performance and Potential Evaluation), his rater marked the box for "Unsatisfactory Performance, Do Not Promote."  The rater entered the following comments:

[The applicant] is technically and tactically competent though his performance as a leader during this rating period was lacking due to fostering a work environment not conducive to team building, respect for others and professional development of subordinates.  [The applicant], on several occasions and in front of others, berated and belittled his subordinates, and threatened to take action against them.  [The applicant's] actions were not in keeping with certain Army values and not reflective of the attributes expected of Army leaders.  Despite these leadership shortcomings, [the applicant's] influence as the Provincial Police Team Chief will have a lasting effect on Kirkuk and specifically the Iraqi Police long after the transition to the Government of Iraq.  During this rating period, [the applicant] was responsible for Iraqi interagency mentoring during three emergency readiness exercises and 16 Iraqi police clearance operations.  He enabled a common operational picture by stimulating Iraqi command information processes to inform key leader decision making.  His actions quickly earned the trust of senior Iraqi police and civilian leaders across two, ethnically diverse provinces.

	d.  In Part VII, his senior rater marked the box for "Do Not Promote" and entered the following comments:

Although [the applicant] had challenges during this rating period, he contributed significantly to the Advise and Assist mission to the Kirkuk Provincial Police.  [The applicant's] efforts and mentorship facilitated the Iraqi Police capability to more effectively secure the city of Kirkuk.  Despite [the applicant's] leadership challenges, he possesses potential for further service in the Army.  The rated officer refused to sign.

3.  In a self-authored memorandum for the senior rater, dated 16 June 2011, the applicant requested reconsideration of the contested OER.  He stated the basis for his request was administrative and substantive error.

	a.  He stated, in part, that COL EW was unqualified as the rating official.  The Commander, 1st Infantry Division, removed him from command effective 18 February 2011.  Therefore, COL EW was not permitted to evaluate subordinates in accordance with Army Regulation 623-3, paragraph 2-20.  By regulation COL EW should not have been in his rating chain.

	b.  Regarding the "no" box checks in part Iva, he stated the rating official's character assessment referred to performance or events outside the rating period, which was prohibited by Army Regulation 623-3, paragraph 3-20.  An Army Regulation 15-6 investigation had been initiated on 10 February 2011, and the rating period ended on 18 February 2011.  The investigating officer completed the findings and recommendations on 24 February 2011, and to date the investigation had not been adjudicated.

	c.  Regarding the negative comments in Part V, he stated an incomplete, factually inaccurate investigation had informed the rater's negative comments. One of COL EW's comments about him threatening his subordinates was a paraphrase from an investigation summary.  No one stated in their sworn statements that he had personally threatened them.

	d.  Regarding the negative comments in Part VII, he stated the senior rater had made prohibited comments.  Army Regulation 623-3, paragraph 3-23, restricts reference to an incomplete investigation not adjudicated during the rating period.  He indicated two comments ("Although [the applicant] had challenges during this rating period" and "Despite [the applicant's] leadership challenges") referred to the incomplete investigation.  He stated his first opportunity to respond to allegations was 26 May 2011, and he was absolved by the investigation appointing authority and fiscal law officials.

4.  The memorandum is filed with the contested OER in the performance portion of his OMPF.

5.  The investigation referenced in his memorandum to his senior rater is not available for review, and his OMPF is void of documentation showing he has ever been the subject of disciplinary action.

6.  A review of his records shows he has received eight OERs as a LTC.  With the exception of the contested OER, his raters have consistently rated his performance and potential for promotion as "Outstanding Performance, Must Promote."  His senior raters have consistently rated his promotion potential as "Best Qualified."  Five of these OERs show his potential compared with other officers senior rated in the same grade as "Above Center of Mass."

7.  He provides the following:

	a.  A letter, dated 29 March 2014, from COL EW showing COL EW supports removal of the contested OER from the applicant's OMPF.  COL EW states:

		(1)  He commanded the 1st Brigade, 1st Advise and Assist Task Force (AATF), 1st Infantry Division, from May 2010 to February 2011.  His task force transfer of authority was 7 November 2010, and he departed Iraq permanently on 2 February 2011.  He was the applicant's direct supervisor for 88 days.  Per Army Regulation 623-3, he had insufficient time to rate the applicant.  He had no idea that an OER submitted and signed by him existed until it was brought to his attention in the last 30 days.

		(2)  He has never written an OER on the applicant.  He did not sign the contested OER.  He cannot explain how the OER was signed by him on 2 May 2011.  He can provide witnesses and will provide testimony to support this contention.  He was interviewing for a job with Coca-Cola in Atlanta, GA, and did not have access to a CAC reader.  In May 2011, he was not the applicant's commander or in his direct chain of responsibility.  He had left Iraq and relinquished command to his replacement in March 2011.  The OER is without a doubt wrong and must be removed before properly reviewing the applicant's ability to continue service.

		(3)  He had limited time to observe the applicant, but he can say emphatically that he did not observe or hear of any behavior such as belittling, berating, micromanaging, or threatening to take negative actions against his subordinates.  He only observed professional leadership from October 2010 through February 2011.  The applicant earned and maintained his trust through their near continuous interaction.  He personally observed the applicant treat every member of the brigade and coalition partners with dignity and respect.  Division leadership also trusted him.

	b.  Printouts of Defense Video and Imagery Distribution System webpages that include – 

* video taken on 7 November 2010 in Kirkuk, Iraq, of the transfer of authority ceremony from 1st AATF, 1st Armored Division, to 1st AATF, 1st Infantry Division
* video taken on 28 March 2011 in Kirkuk, Iraq, of a 1st Brigade, 1st Infantry Division, change of command ceremony presided over by the applicant's senior rater 

	c.  A memorandum for record, subject:  Assumption of Command, dated 3 February 2011, showing LTC BS assumed command of Headquarters, 1st AATF, 1st Infantry Division, Kirkuk, Iraq, effective 2 February 2011.

	d.  A memorandum, subject:  Letter of Endorsement for [Applicant], dated 18 March 2014, showing then-COL (now Brigadier General) GB offers his strongest endorsement of the applicant.  He states the applicant is a phenomenal leader who has clearly demonstrated all the potential for increased responsibility and promotion.

8.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  The version of the regulation in effect at the time stated in:

	a.  Paragraph 2-5, an officer's rater will normally be the immediate supervisor for a minimum period of 90 consecutive days.

	b.  Paragraph 2-12f, the rater will assess the performance of the rated Soldier, using all reasonable means, to include personal contact, records and reports.

	c.  Paragraph 2-20 –

		(1)  When a rating official is officially relieved or determined to be incapacitated, they will not be permitted to evaluate their subordinates.

		(2)  When the rater is removed from the rating chain, it will be determined whether the minimum requirements for an evaluation report have been met.  If the minimum requirements have not been met, the period is nonrated and a new rater is designated.

	d.  Paragraph 3-19 – 

		(1)  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s OMPF.

		(2)  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  If previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report.

9.  Chapter 4 of Army Regulation 623-3, currently in effect, defines the Evaluation Redress Program.  It states:

	a.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	b.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  An appeal must be submitted within 3 years of the "thru" date of the evaluation.

	c.  The burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity will not be applied to the report under consideration 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, not merely proof of the possibility of administrative error or factual inaccuracy.

10.  Army Regulation 600-8-29 (Officer Promotions) states a Special Selection Board (SSB) may be convened under Title 10, U.S. Code, section 268 (10 USC 628) to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:
	(a)  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required).
	(b)  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or 
	(c)  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

11.  Department of the Army Pamphlet 600-3 (Commissioned Officer Professional Development and Career Management) outlines officer development and career management programs for each of the Army’s career branches and functional areas.  It states the annual SSC selection board reviews the files of LTCs after their 16th year of service.  There are no provisions for reconsideration if an LTC is not selected by the SSC selection board in any given year.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record supports the applicant's request that the contested OER be removed from his OMPF.

2.  The evidence shows that COL EW had not been the applicant's rater for the requisite 90-day period when LTC BS assumed command of Headquarters, 1st AATF, effective 2 February 2011.  This being the case, an OER should not have been prepared, and the time covered by the contested OER should have been recorded as nonrated.

3.  The evidence shows the applicant was investigated for unspecified reasons.  The available evidence is insufficient to determine if the negative statements on the contested OER were based on verified information.  However, the absence of any other derogatory information in the applicant's OMPF tends to support his statement that he was absolved of any wrongdoing.  While absolution would not necessarily mean the negative statements on the contested OER are untrue, those statements are an anomaly in his otherwise excellent record of service.

4.  In view of the foregoing, it would be appropriate to remove the contested OER from his OMPF and file in its place an appropriate document indicating the period in question was nonrated.

5.  The presence of the contested OER in his file when he was considered for promotion to COL was a material error.  He should be reconsidered for promotion to COL by an SSB under the criteria applicable to any promotion boards that viewed the contested OER.

6.  There are no provisions for reconsideration by an SSC selection board.  Unfortunately, there is no effective relief with regard to this portion of his application.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X_____  ___X_____  __X__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing from his OMPF his OER for the period ending 18 February 2011; 

	b.  adding to his OMPF an appropriate document indicating the period 7 November 2010 through 18 February 2011 was nonrated;

	c.  submitting his records to an SSB for promotion reconsideration under the criteria applicable to any promotion boards that viewed the contested OER;

	d.  If before the SSB process is completed and he is removed from the active duty list:

		(1)  Correct his records by continuing the SSB process;

		(1)  If selected for promotion by the SSB, further correct his records by voiding his removal from the active duty list, showing he met all the eligibility criteria for promotion selection effective the approved date of the promotion selection board, promoting him in due course in accordance with Army Regulation 600-8-29 to COL with the appropriate date of rank, and paying him any associated back pay and allowances; and

	e.  If not selected for promotion, notifying him accordingly.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to reconsideration for SSC attendance.



      ________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)                                         AR20140017945





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ABCMR Record of Proceedings (cont)                                         AR20140017945



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