IN THE CASE OF:	  

		BOARD DATE:	    5 February 2015

		DOCKET NUMBER:  AR20140019089 


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 earlier request for correction of four Officer Evaluation Reports (OERs) he received during the period                  2 December 2007 through 12 May 2010 and reconsideration by a special selection board (SSB) for promotion to the rank of colonel (COL).

2.  The applicant states he has new evidence and arguments which could not have been submitted with his initial application.  Additionally, he contends the Board erred in its initial findings.  He now asks that the four OERs be corrected to show above center of mass (ACOM) ratings vice the center of mass (COM) ratings currently shown, and to submit his corrected file to an SSB.

3.  The applicant provides:

* 2 self-authored statements
* 17 letters/memoranda of support
* a Freedom of Information Act (FOIA) request
* 5 news articles
* 1 email
* 1 transcript of an oral statement
* general order (GO) showing the award of a Meritorious Unit Commendation




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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130015970, on 12 November 2013.

2.  The applicant provides new arguments as well as new statements from senior officers.  The arguments and statements constitute new evidence and as such warrant consideration by the Board. 

3.  The applicant was commissioned as a Regular Army Engineer Corps second lieutenant upon graduation from the U.S. Military Academy at West Point, NY, on 31 May 1990.  He continued to serve through a variety of assignments and was promoted to the rank of lieutenant colonel on 1 January 2007.

4.  The applicant was serving as the Battalion Commander, 9th Engineer Battalion, U.S. Army Europe, when he received the four OERs.  

	a.  The first contested OER covered the rating period 2 December 2007 through 23 November 2008.  His rater was COL JAS and his Senior Rater (SR) was Lieutenant General (LTG) KWH.  His rater rated him as "Outstanding Performance, Must Promote."  The SR rated him as "Best Qualified" and placed him in the "COM" of his SR profile.

	b.  The second contested OER covered the rating period 24 November 2008 through 20 May 2009.  His rater was COL JAS and his SR was Major General (MG) MLO.  His rater rated him as "Outstanding Performance, Must Promote."  The SR rated him as "Best Qualified" and placed him in the "COM" of his SR profile.

	c.  The third contested OER covered the rating period 21 May 2009 through 1 November 2009.  His rater was COL JAS and his SR was MG RCN.  His rater rated him as "Outstanding Performance, Must Promote."  The SR rated him as "Best Qualified" and placed him in the "COM" of his SR profile.

	d.  The fourth contested OER covered the rating period 2 November 2009 through 12 May 2010.  His rater was COL JAS and his SR was Brigadier General (BG) MER.  His rater rated him as "Outstanding Performance, Must Promote."  The SR rated him as "Best Qualified" and placed him in the "COM" of his SR profile.

5.  A review of his Official Military Personnel File (OMPF) shows the six immediate OERs before his first contested OER as a battalion commander were ACOM reports (two as a lieutenant colonel and four as a major) and he received two COM reports and two ACOM reports since receiving his last OER as a battalion commander.

6.  In his first self-authored statement, the applicant contends:

* his rater's judgment was fundamentally flawed based upon the rater’s ongoing misconduct with a member of the applicant's command
* his rater directly, covertly, and systematically retaliated against the applicant following a conversation where the applicant drew his rater's attention to rumors of alleged misconduct by the rater
* retaliatory actions by the rater, in the form of mediocre command OERs, ended the applicant's military career

7.  Continuing in his first self-authored statement, the applicant states:

* SRs for three of the four OERs essentially recommend reconsideration of the applicant's request based upon the charges of which the applicant's rater was convicted
* retrospectively, each of the three SRs contend the new information regarding the rater's misconduct would have caused them to adjust their rating of the applicant had they known at the time
* the unacceptable level of his rater's misconduct, as validated by the court-martial conviction and action by the Secretary of the Army, is such that the rater's administrative decisions, to include the applicant's four OERs, must now be considered suspect
* the rater admitted in court that he had failed in his responsibility to ensure "officers were protected and promoted" without specifying to whom he referred

8.  The applicant further essentially contends in his first self-authored statement:

	a.  There is clear and convincing evidence of retaliation based upon the three components identified in the U.S. Supreme Court decision McDonnell Douglas Corp. v Green (1973) wherein is provided a descriptive framework for defining retaliation:

* there must be a reason for retaliation; in this case the reason was, essentially, the rater felt threatened when rumors of his misconduct were brought to his attention by the applicant
* damage must have been suffered; the applicant's career was ended by the mischaracterization of his duty performance while a battalion commander
* the causal nature of the retaliatory act must be clear; the fact the rater took no action to recommend an ACOM to the SR for the OER covering the period 2 November 2009 through 12 May 2010 after specifically calling the Engineer Branch Manager to ask the impact of a 4th COM, then stating he would be recommending an ACOM, makes it clear this OER was part of a long-term covert retaliation

	b.  The ABCMR erred in its initial findings:

* that he was contesting OERs four years after the fact; he maintains he did not recognize retaliation had taken place until allegations against the rater became public in 2012
* that statements from rating officials do not serve as a basis for appeals; his appeal was based upon a recognition of retaliation rather than on statements later made by rating officials
* that the rating given by the SR was ultimately his decision, despite evidence of a phone conversation between the former Engineer Branch Chief and the rater; while each SR did make his own decision, the dominant factor for each was the rater's flawed assessment of the applicant
* that, because the rated period for the first OER was before the applicant spoke with the rater about rumors of misconduct, it suggested the rater could not have retaliated; this OER, however, was not finalized until after the conversation had taken place and therefore could have been affected
* that the fact a rater was charged with violations did not necessarily imply his professional actions were unjust or in error; however, now that the rater has been convicted there is direct evidence of his unprofessional conduct

	c.  Additionally, the rater expressed regret for his poor decisions and made admissions generally indicative of a cover-up and reprisal for those who would expose his misconduct.

	d.  Multiple senior Army leaders have offered their strong support for the applicant:

* one senior Army leader articulated the criticality of the rater's recommendation in shaping the block check for rated officers and states he believes the rater demonstrated reprisal in a way that is difficult to prove
* another Senior Army leader expressed concern that an ever-changing battlespace, along with short length of deployment cycles and offset transitions between higher and lower headquarters, caused an increased dependence by the SR on the rater's assessments of rated officers, thus enabling the rater to retaliate
* a Senior Army leader for whom the applicant worked after leaving battalion command essentially states he would rank him 3 out of 37 former battalion commanders whom he rates and should be promoted immediately; he only gave him a COM because of the applicant's reduced chance to be promoted to COL

9.  The applicant's second self-authored statement essentially recounts the events surrounding each of the four evaluations being contested.

10.  The statement from the SR of his first contested report covering the period 2 December 2007 through 23 November 2008 essentially states he stands by his decision to give the applicant a COM rating.  He remembers the applicant as a strong leader who cared for his Soldiers.  He relied on reports in writing in his evaluation because he was in Germany while the applicant was deployed in Iraq.  It is possible he was negatively influenced by the rater.  Knowing now what he does, he feels the report should be questioned.

11.  The statement from the SR of his second contested report covering the period 24 November 2008 through 20 May 2009 essentially restates what he wrote in his earlier letter submitted with the original application.  The new information he notes is the fact the applicant's rater has been convicted in a general court-martial for serious offenses while serving as brigade commander.  A copy of his statement submitted with the original application is also included.

12.  The applicant did not provide a statement from the SR for the third contested report because he stated he was not able to make contact with him.

13.  The statement from the SR of his fourth contested report covering the period 2 November 2009 through 12 May 2010 essentially states he was able to interact with the applicant during the rated period and found him to be an exceptional leader.  He relied on the rater when preparing his evaluation report and the rater never told him about the previous COM reports received by the applicant.  The rater also did not advocate an ACOM for the applicant.  He feels now in retrospect this was a misrepresentation, and an ACOM rating would have been the proper characterization of the applicant's performance.  He feels he should have dug further into the details in this case.
14.  A statement from a senior Army leader essentially states his unquestioned support of the applicant.  He has been the SR for numerous officers and he feels the applicant clearly has exceptional potential.  In his view, the rater retaliated against the applicant, but did it in a way that is difficult to prove.

15.  A statement from a senior Army leader essentially states:

* he has known the applicant since 2009 and personally selected him for the Engineer Regiment's toughest assignments
* he maintains the OERs in question do not reflect the leader he knows the applicant to be, and are not consistent with the reputation established by the applicant
* he expresses concern about the current state of the evaluation system in an environment of short deployment cycles, a modular force design and offset transitions between higher and lower headquarters; in this environment SRs have little or no contact with rated officers, resulting in a greater reliance on input from raters
* the ratings in question were given careless consideration, as evidenced by being extremely late, no apparent counseling, and no interface with SRs; all of which showed the rater did not make leader development a priority
* additionally, the rater's known leadership style sheds doubt on the credibility of his evaluation of the applicant (no details are given as to the rater's known leadership style)

16.  The applicant further provides:

* an FOIA request for text messages, emails, writings, sworn testimony, transcripts, records and documents used as evidence in or resulting from the rater's court-martial
* four news articles which essentially address the trial of the rater and evidence brought up during trial
* extract from the record of trial for the rater wherein the rater's statement to the military judge is transcribed
* an email and news article that describes the punishment received by the rater as a result of his court-martial
* GO Number 2013-82, dated 1 November 2013 listing Headquarters and Headquarters Company, 9th Engineer Battalion as the recipient of a Meritorious Unit Commendation for the period 2 December 2008 to 14 November 2009

17.  The applicant includes a statement from the former Engineer Branch Manager detailing a phone conversation the branch manager had with the rater in the Spring of 2010 (just prior to the closing date for the OER for the period 2 November 2009 through 12 May 2010).  In that conversation, the rater stated he called to gauge the impact of a COM OER on the applicant's promotion potential.  He said the applicant was performing well and would make a fine COL.  The branch manager says he made it clear the applicant needed an exclusive ACOM OER before leaving battalion command, and that a promotion board would see a 4th COM OER as a failure in command.  Despite what the applicant contends in his self-authored statement, the branch manager does not mention if the rater gave any indication he would recommend him for an ACOM rating.

18.  The applicant has submitted statements from several individuals who were in positions to evaluate his performance during the periods in question.  The Command Sergeant Major of the Brigade had the highest praise for the applicant’s performance.  The Brigade Executive Officer and Deputy Commander from January 2008 - March 2009 stated the applicant’s performance was exemplary and among the best within the brigade.  Another officer who served as a fellow battalion commander in the same brigade and as brigade S-3 stated the applicant’s performance as a commander was inspirational and set the standard across the entire brigade combat team.  The officer who succeeded the applicant in command likewise detailed the applicant’s accomplishment in command.  The remaining third-party statements serve to praise the applicant's leadership abilities and his qualities as an officer and a Soldier.  Their observations of the applicant before and after the periods in question reflect a top-notch officer for whom four consecutive COM OERs seemed to be implausible and inconsistent with his overall performance.

19.  The applicant did not appeal the contested reports to the Officer Special Review Board because he did not discover he was the victim of reprisal until after the three years to appeal to that board had passed.  He learned the truth about his former rater’s misconduct when the Army announced it was prosecuting his former rater for the very acts that he had warned the rater about years earlier.

20.  The former brigade commander who was the applicant's rater during the contested period was promoted to general officer and subsequently convicted in general court-martial for misconduct involving a Soldier within the applicant's former command.

21.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, establishes the policies and procedures and serves as the authority for preparation of the OER.  It provides that an OER accepted by Headquarters, Department of the Army, 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.

22.  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.

23.  Paragraph 6-11 of Army Regulation 623-3 provides that in evaluating the whole Soldier, rating officials may consider the fact that a rated individual is in a zone of consideration for promotion, command, or school selection.  Accordingly, a subsequent statement from a rating official that he or she rendered an inaccurate rating in order to preserve ratings for other officers in a zone of consideration will not be a basis for appeal.

24.  Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  Chapter 7 provides for SSBs.  SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. 

	a.  Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following:

		(1)  An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required).

		(2)  The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary) 

		(3)  The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).  

	b.  A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board.

	c.  Department of the Army Selection Board members are not allowed to divulge information related to the selection or non-selection of members considered by the board.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration has three contentions:

* the rater's judgment was fundamentally flawed based upon his ongoing misconduct; the extent of this flaw in judgment is so egregious it should be extended to all administrative decisions made by the rater, to include the four OERs in question
* the rater pursued a long-term, covert, and systematic pattern of retaliation, as evidenced by the four mediocre OERs
* the SRs for at least three of the four OERs state, had they known what they know now, would have adjusted their evaluation of the applicant

2.  An accepted OER will be altered, withdrawn, or replaced 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.  It is clear the rater exercised very poor judgment when he perpetrated his misconduct during the period when the OERs in question were completed.  The rater additionally admitted during his court-martial that he was remiss in not properly caring for the Soldiers for whom he was responsible while in command.  The rater has not, however, expressly admitted that he covertly retaliated against the applicant as a result of the applicant’s expressing his concerns about the appearance of the rater’s inappropriate relationship with a female officer in the applicant’s command.  In the absence of such direct evidence, the Board must evaluate the available evidence in its totality to determine whether the contested ratings were improper.  The applicant can meet his burden of presenting clear and convincing evidence through circumstantial evidence.

3.  However, given the nature of our OER system wherein a rated officer can have his career progression damaged by a series of seemingly good OERs, the undue influence raters can have on SR evaluations, and the peculiar facts of this case, it is entirely plausible the applicant suffered from the retaliation he alleges.  In an effort to support his argument, he offers:
	a.  The fact he received four COM OERs with different SRs and the same rater.

	b.  Prior to the completion of his fourth OER, the rater made an atypical call to the Engineer Branch Manager asking about the impact on the applicant's career of a fourth COM.  According to the branch manager, the rater stated the applicant was doing well and would make a fine colonel.  The implication of the call is that the rater wanted to ensure what the effect of a COM report would be on the officer.  Based on this conversation the rater was obviously aware another COM would kill the applicant’s chances for promotion.  By not advocating for an ACOM, the rater was able to harm the officer’s promotion potential.

	c.  The SR for the fourth OER acknowledges the rater never made him aware of the last 3 COM OERs; he also states the rater did not advocate for the applicant to receive an ACOM rating and failed to mention one of the applicant's companies had won a prestigious Engineer award.

		(1)  That SR states the rater misrepresented the applicant’s performance.

		(2)  He regrets not having dug further into the situation.  It is apparent the SR met with the applicant and found him to be an exceptional leader who was in contention for an ACOM rating; he also states he knew the rater was well satisfied with the applicant's performance.

4.  The applicant contends three of his four SRs state, had they known then what they know now, they would have rated him differently.  However, the SR for the first OER states he stands by his rating.  He stated it would have not been unusual or abnormal for a first-time battalion commander to receive a COM rating.  However, given the geographical separation (SR in Germany and rated officer and rater in Iraq) he would have relied heavily upon the rater’s assessment, and it is possible he was influenced by the rater’s assessment and recommendation in this case.  Although he stands by his decision to give the applicant a COM, knowing what has transpired, he believes the report should be questioned.  The SR for the second OER states his SR comments are accurate and he stands by his assessment that the applicant should be promoted to Colonel.  However, the SR block check was driven by the rater’s ranking of his battalion commanders.  He believes the rater’s assessment of the applicant upon which he relied as the SR should be questioned, and he strongly supports the applicant’s OER appeal.  The SR for the fourth OER stated that upon his personal observations of the applicant, he was certainly in contention for an ACOM.  However, because the rater did not tell him about the applicant’s high amount of short-term COM OERs and did not advocate an ACOM for him, in reliance upon the rater’s assessment, he gave him a COM OER.  He is convinced the rater misrepresented the applicant’s performance, and the applicant should have received an ACOM for the period in question.  He asks the Board to very strongly consider correcting the record to reflect that.

5.  Although the SR for the first contested OER (20071202 – 20081123) encourages the Board to question the OER, he states it would not have been unusual to give a COM OER for a first rating for a battalion commander.  Given the lack of evidence the rater improperly influenced this OER correction of this OER does not appear to be warranted.  The Board has not received the recommendation of the SR on the third OER (20090521 – 20091101); therefore, it cannot conclude the SR was misled by the rater’s comments, or lack thereof, to the SR.  Therefore, correction of this OER is not warranted.

6.  However, the SRs for the second (20081124 – 20090520) and fourth (20091102 – 20100512) OERs were adamant that their COM ratings were driven by the recommendations of the rater, and they believe they were intentionally misled by the rater’s assessments.  Given the SRs’ requests to correct the SR block ratings based upon their belief they were misled by the rater’s assessments of the applicant’s performance; the independent assessments of the applicant’s performance before, during, and after the rating periods in question; and the subsequent discrediting of the rater as a result of his conviction and reduction in grade in retirement and his potential motivation to retaliate against the applicant, the evidence supports the conclusion that the applicant has suffered an injustice and is entitled to correction of those SR blocks to reflect ACOMs.  Additionally, as a result of these corrections, the applicant is entitled to have SSBs conducted after the corrections are made.

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 partial amendment of the ABCMR’s decision in Docket Number AR20130015970, dated 12 November 2013.  As a result, the Board recommends that all Department of the Army records be corrected by:
     a.  amending the second (20081124 -20090520) and fourth (20091102 – 20100512) contested OERs to reflect the senior raters’ blocks were ACOMs,

	b.  Submitting his records to an SSB for consideration for promotion to colonel under the applicable criteria.
	
     c.  If before the SSB process is completed he is removed from the active duty list:

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

      (2)  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/Senate confirmation, promoting him in due course in accordance with Army Regulation 600-8-29 to colonel with the appropriate date of rank, and paying to him any associated back pay and allowances.

	d.  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 correction the first and third contested OERs.



      _______ _   _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)                                         AR20140019089



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ABCMR Record of Proceedings (cont)                                         AR20140019089



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