AR20160000571

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160000571

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

___x____ ___x____ ____x____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160000571

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

IN THE CASE OF:

BOARD DATE: 29 March 2016

DOCKET NUMBER: AR20160000571

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 DA Form 67-9 (Officer Evaluation Report) for the rating period 5 December 2010 through 28 October 2011 (hereafter referred to as the contested OER) from his official military personnel file (OMPF).

2. The applicant states:

a. The contested OER was derogatory in nature, and contained inconsistencies, and there was a lack of due process. The report did not reflect his performance. The numerous administrative errors in processing the OER were directly related and not merely coincidental.

b. The evidence shows his rater failed to provide an objective and substantive evaluation based on his actual performance during the rated period.

c. He did not receive written counseling or negative performance counseling from his rater and received a Bronze Star Medal for his performance during the rated period.

3. The applicant provides:

* six DA Forms 67-9
* DA Form 4037 (Officer Record Brief)
* four letters of support
* DA Form 638 (Recommendation for Award)
* memorandum, subject: Academic Evaluation Report Appeal (20101205-20111028), dated 1 December 2015
* memorandum, subject: Evaluation Report Appeal 5 December 2010 through 28 October 2011 [Applicant], dated 25 November 2015
* memorandum, subject: Request for Commanders Inquiry, dated 24 January 2012
* memorandum, subject: Rated Officer Comments to Referrer (sic) Officer Evaluation Report, dated 23 January 2012

CONSIDERATION OF EVIDENCE:

1. The applicant was appointed a Reserve Commissioned Officer on 27 May 1995. He is currently serving on active duty in the rank major.

2. The contested OER is a referred change-of-rater OER covering the period 5 December 2010 through 28 October 2011, during which the applicant was serving as a Battalion Operations Officer. The OER shows his rater was Lieutenant Colonel (LTC) R, the Battalion Commander, and his senior rater was the Colonel (COL) B, the brigade commander. LTC R digitally signed the OER on 18 October 2011, and the senior rater digitally signed the OER on 23 February 2011.

a. PartVa (Performance and Potential Evaluation (Rater) – Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an “X” in the “Satisfactory Performance, Promote,” block and entered the following comments:

[Applicant] has demonstrated the potential for outstanding performance as a Battalion Operations Officer. [Applicant] lacks initiative, drive, and the will to excel but he can meet directives with oversight and proper motivation. [Applicant] has demonstrated an ability to make candid, well-reasoned decisions and solve problems. [Applicant] gained and maintained the trust and confidence of our Company Commanders and his Afghan counterparts which has enabled our Combined Forces to create irreversible gains within our key terrain district. [Applicant] has effectively mentored his staff company grade officers on leadership, training, and planning operations, ensuring the continued success of our future leaders. [Applicant] has continued to lead the way in partnering with our Afghanistan counterparts and developing their Operations Officer ability to integrate analysis into daily operations: the results have been Afghan planned, resourced, and executed operations with Coalition embedded partnership. [Applicant] has outstanding problem solving skills and can develop feasible solutions to difficult problems.

b. In Part Vc (Comment on Potential for Promotion), the rater entered the comment: “Consider for promotion to LTC with peers and continue to place him in assignments that will enable him to develop his full potential.”

c. In PartVIIa (Senior Rater – Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade), the senior rater placed an “X” in the “Fully Qualified” block and a second “X” in the “Yes” block to indicate he senior rated 46officers of this grade (at the time) and that a DAForm67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.

d. In PartVIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant “Center of Mass.”

e. In Part VIIc (Comments on Performance/Potential), the senior rater entered the following comments:

[Applicant] has performed to standard as a Task Force Operations Officer. [Applicant] has an ability to plan, delegate, and synchronize operations which have enabled gains within Southern Logar and increased the Kabul Security Zone. [Applicant] has demonstrated an ability to coordinate with external agencies and our Afghanistan Partners which have provided continued opportunities to develop Afghanistan Security Force capability and capacity. I assigned [Applicant] as the operations officer in order to continue to develop his ability to perform to the high standards we set for our officers. Consider for promotion with peers to LTC.

3. On 23 January 2012, he submitted a response wherein he stated:

a. The OER was inconsistent with the remainder of the report. He never received written counseling from his rater nor was he counseled for poor performance.

b. He had received a Bronze Star Medal for his service during the rated period of the contested OER and he believed that the raters comment should be removed.

4. On 24 January 2012, he requested a Commanders Inquiry (CI) into the negative raters comments on the contested OER; however, the results of the CI are not available for review.

5. On 25 November 2105, he requested to appeal the contested OER through the Army Human Resources Command (HRC) Appeals Section; however, he was directed to appeal to the ABCMR because his request was not received within the 3-year period from the “THRU” date of the contested OER.

6 . He provides three supporting statements.

a. Brigadier General C stated while serving as the applicants brigade commander he inquired with the applicants former brigade commander about the status of the CI pertaining to the applicant. The former brigade commander was unaware of the CI and directed the initiation of a CI.

(1) It was his opinion that the CI was severely limited in its scope and execution because the investigation was not initiated in a timely manner and was conducted well after the chain of command involved had departed the unit.

(2) It was a privilege and honor to have served with the applicant. His duty performance was singularly outstanding during two company command tours. The contested OER was not representative of the applicants performance or potential during any period in which they served together.

(3) The applicants quiet professionalism, innate leadership ability, infectious positive attitude, tireless work ethic, and exceptional intelligence were the hallmarks of his unlimited potential for service to the Army. He would be honored to service with him again in peacetime or combat.

b. LTC P states during the period December 2010 through October 2011, he served as the brigade S3.

(1) He worked directly with the applicant. His job performance was commendable. As the Operations Officer he planned several battalion level operations that were innovative and effective. He routinely displayed initiative by coordinating with and through brigade staff for assets and intelligence to the improve the battalions area of operations and enhanced their missions success.

(2) When the applicant was assigned the mission as the Division Main Effort during a certain operation he flawlessly planed a partnered operation while successfully managing ongoing operations. The remarks made on his contested OER did not reflect his performance. He was never embraced by the battalion commander because he did not earn a Ranger Tab, among other reasons. He was not treated fairly due to personality conflicts.

(3) The applicant was extremely talented and deserved to be promoted. He relished the time he worked him and would appreciate the opportunity to serve with him again.

c. Captain (CPT) P stated he was the assistant battalion S3 during the period 15 August 2010 through 15 November 2011.

(1) He worked closely with the applicant to plan numerous operations in support of Operation Enduring Freedom. He observed his work initiative and would characterize it as excellent. He was a productive officer who worked tirelessly to ensure subordinate units were well resourced with internal and external support.

(2) He was responsible for coordinating assets for the battalion and he involved himself in the process. He personally involved himself in discussions with the brigade and division. He took tremendous initiative serving as the battalion S3.

d. CPT J stated he served as the Battalion Chaplain from 23 October 2010 through 15 October 2011.

(1) He and the applicant did physical training together. They had multiple visits within the battalion area. He was not aware of the rating chains expectations for the applicant. It was apparent that the working relationship between the applicant and the command had been strained for some time. He was under unnecessary stress created by the command and he sought guidance to meet the intent of leadership.

(2) The applicant did not lack initiative in his duties. The leadership created a working environment which contributed to a strained working relationship. The battalion commander made unprofessional and inappropriate comments which indicated his displeasure with the applicant. Comments were made in front of peers and in a public meeting. He had a limited but adequate view of the applicants performance. The applicant was a capable and competent leader who could lead Soldiers and should be given the opportunity to do so.

REFERENCES:

1. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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. The burden of proof rests with the appellant.

a. Paragraph 1-4 states OERs are prepared by the rating officials designated in the published rating scheme. Rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner. Pooling, or elevating the rating chain beyond the senior raters ability to have adequate knowledge of each Soldiers performance and potential, in order to provide an elevated assessment protection for a specific group, runs counter to the intent of the ERS.

b. Paragraph 3-36 states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Requests for modifications to evaluation reports already posted to a Soldiers OMPF require use of the Evaluation Report Redress Program.

2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION:

1. By regulation, to support removal 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

2. The applicant received a change of rater OER that covered 11 months of rated time from 5 December 2010 through 28 October 2011 for his duties as Battalion Operations Officer. His dissatisfaction with the rating does not negate the OER or make it an invalid OER. Likewise, his belief that the contested OER does not reflect a true picture of his performance is insufficient to question the rating officials’ assessment of his performance and potential during the rating period. He has not presented evidence of a material error, inaccuracy, or injustice in the contested NCOER.

3. He contends his request for a CI was not completed until 18 months after his request; however, the results of the CI are available for review.

4. He appealed this OER to HRC; however, his appeal was returned without action. He was directed to appeal to the ABCMR because his request was not received within the 3-year period from the “THRU” date of the contested OER.

5. He references a BSM he received for his performance during the rated period; however, his rater indicated that he could excel and meet directives with oversight and proper motivation.

6. The statements of support were carefully considered. While the statements provided a favorable view of his performance, none had the responsibility for rating his performance nor were they privy to his raters/senior raters expectations. Also, it appears CG was not in a position to directly observe his performance during the period in question.

7. The contested OER appears to be correct and to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question. There is no evidence and he has not provided any evidence to show his rater and/or senior rater did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner. More importantly, he has not shown the rating officials’ evaluations represented anything other than their objective judgment and considered opinions at the time they prepared the contested OER or that they exercised faulty judgment in evaluating him as they did.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160000571

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160000571

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2