BOARD DATE: 10 January 2012 DOCKET NUMBER: AR20110006727 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: a. Correction of Part lVb (Leader Attributes/Skills/Actions) of an officer evaluation report (OER) for the period 20060606 thru 20070409 [hereafter referred to as the contested report] by removing the “X” from the “No” blocks and placing the “X” in the “Yes” blocks for “Communicating” and “Learning.” b. Correction of his Official Military Personnel File (OMPF) by: (1) removing the Commander’s Inquiry (CI) Investigation, dated 10 May 2007; (2) removing the Senior Rater’s response to the CI Investigation, dated 16 May 2007 from his OMPF; and (3) relocating the rated officer’s memorandum, dated 18 April 2007, Subject: Rebuttal Comments of OER for period 20060606 thru 20070409 directly behind the contested report. c. In the alternative, he requests complete removal of the contested report and consideration by a special selection board (SSB) convened under the criteria for the Fiscal Year 2012 (FY12) Major (MAJ), Army Competitive Category (ACC), Selection Board by recreating a proper record and to be granted the same date of rank (DOR) as if selected by the FY12 MAJ ACC, Selection Board. 2. He states after conferring with the Military Intelligence (MI) Branch, Officer Promotions Branch, Evaluations Branch and the Office of the Inspector General (IG) of the Army, he learned that the extra documents are not required to be attached to the OER or filed in his OMPF. He also learned that his rebuttal comments to the OER should be the second document (directly after) the contested report and not the last. 3. He also states that the contested report presents an untrue picture of his professionalism and the FY12 selection board will be presented the same negative information as the FY11 MAJ, ACC, Selection Board. 4. He provides: * The contested report * Various memoranda pertaining to the rebuttal and investigation of the contested report * Various letters of support * Military award documents * Numerous certificates of completion CONSIDERATION OF EVIDENCE: 1. The applicant's records show that after serving 2 years, 10 months, and 21 days in the Regular Army as an enlisted Soldier, he was honorably discharged on 1 August 2000 for entry into the Reserve Officers’ Training Program. On 11 May 2002, he was appointed as a second lieutenant, MI Branch, detailed as an Air Defense Artillery officer. He entered active duty on the same day. 2. His OER for the period 20050810 through 20060605 depicts the applicant’s principal duty title as “Assistant G2 Plans Officer.” This report shows he had the same senior rater (lieutenant colonel (LTC) HHB, Deputy G2) as in the contested report. During the period of this report, his senior rater rated him as follows: a. Part VIIa – Best Qualified. b. Part VIIc – [The applicant] is a talented young officer whose staff actions are models of thoroughness and clarity. Given responsibility for a number of tasks critical to the stand-up of the new command, he executed them with infectious enthusiasm. Whether planning an exercise, developing threat analytical products, or coordinating targeting requirements in support of an Operation Plan, [the applicant] conducts himself with professionalism and confidence. Continue assigning the tough jobs – he will excel. [The applicant] shows strong potential for continued promotion. Send immediately to the Human Intelligence Course, followed by selection to detachment command. 3. During the period of the contested report, he received an Army Achievement Medal for the period 13 August to 3 September 2006 and his duty title is listed as Assistant G2 Plans Officer. 4. On 5 October 2006, the applicant received his initial counseling from his supervisor and rater, LTC RCB. The form outlined his rater's expectations of him as an officer and a member of the G2 staff. His rater also noted in the "Plan of Action" section, the following remarks: a. "I expect officers to be leading from the front. We do not make excuses for our failures and shortcomings. The English language is a challenge for you, and we all know it. There is no need to mention it every time you are given a task. You have been in the Army for more than 4 years and it is time for you to develop a solid plan to improve your reading, writing and briefing abilities. Your success in the Army depends on your ability to adapt in this regard. I will assign you and all officers monthly professional reading requirements. Reading more will help you with writing and speaking the English language. I also would like for you to look at other ways that you can improve your English on your own time (civilian or online classes)." b. "We need to work to restore your stature within this unit. The Commanding General must implicitly trust that you are capable of providing him with the intelligence products and analysis that he needs to make critical decisions." 5. The contested report was a “Change of Duty” report which covered 9 months of rated time during the period 6 June 2006 through 9 April 2007. His principal duty title was G2 Operations Battle Captain. His rater was the Chief, G2 Operations, LTC RCB and his senior rater was the Deputy G2, LTC HHB. The contested report shows the following entries: a. Part lVb shows an “X” was placed in the “No” blocks for section b.3(Actions) for items "1 - Communicating” and "9 - Learning.” b. Part Va (Performance and Potential Evaluation) (Rater) shows an “X” was placed in the “Unsatisfactory Performance Do Not Promote” block. c. Part Vb (Comment on Specific Aspects of the Performance) shows the following comments: (1) [The applicant] has turned in a marginal performance, ranking in the bottom 5 percent of all officers of his grade and experience with whom I have worked in 17 years of service. (2) After a promising effort as the G2 exercise planner for Ulchi Focus Lens (UFL) 06, [the applicant’s] transition to G2 Assistant Operations Officer was tumultuous and incomplete. (3) Despite extensive counseling and mentoring, there was little appreciable improvement in his core battle captain skills and abilities through three major exercises. (4) The applicant was not willing to accept or act on my assessment of his areas needing improvement, nor would he conduct his own substantive, professional self-assessment. (5) Admittedly, oral and written communication continues to be a major shortcoming for [the applicant], yet he made little effort to develop a complementary, self-improvement plan around my recommendations to improve these critical staff officer skills. (6) Most troubling was his resistance to embracing his leadership role within the section. [The applicant] interacted minimally with his Soldiers on a daily basis, lacking even basic awareness of their daily intelligence production requirements. In short, this officer’s failure to lead and lack of professional officer skills have caused me to lose confidence in his ability to be a productive member of this team.” d. Part Vc (Comment on Potential for Promotion) shows the following comment: “Without significant commitment to improvement, [the applicant] lacks any potential for command or to serve as a field grade officer.” e. Part VIla (Senior Rater) (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 Vllc (Comment on Performance/Potential) shows the following comments: “[The applicant] is not a warrior leader. Number five of five in my current rating scheme, he is also among the bottom 10% of officers I have rated or senior rated since 1995. Solid accomplishment during the last rating period and UFL 06 was immediately followed by an ongoing downturn in performance best characterized as devoid of Officership. He ignores guidance and demonstrates a glaring lack of maturity, bearing, and competence, regardless of the situation. Extensive one-on-one mentoring by multiple, senior field grade officers has not developed a captain capable of leading Soldiers in a combat environment. [The applicant] shows no potential for company command or for promotion to MAJ.” 6. On 11 April 2007, the contested report was referred to the applicant for his acknowledgement and on 18 April 2007 he submitted a rebuttal to the contested report and stated the following: a. The contested report covered a 9-month period when in fact he served in another position for three of the nine months yet he was not given a change of duty OER as required by Army Regulation 623-3 (Evaluation Report System), section VI, paragraph 3-43. The contested report should have reflected 6 months. b. Communicating - Even though he has a Spanish accent, people understand him when he communicates with them. He purchased an English writing program to help him improve in that area because he did care and wanted to improve. c. Learning – During the rating period of the contested report he conducted a significant amount of self-improvement and personal development. He read four military-related books and completed a total of eight military courses. d. Rater comments on his transition to G2 Assistant Operations Officer being tumultuous and incomplete lacked merit. All actions from the action plan and/or counseling statement were completed. He even received positive comments from various sections on his briefing. e. He also commented on the rater’s assessment of his resistance to embrace his leadership role within his section. He stated he was always available to his Soldiers and helped them in any way he could. Contrary to his rater’s comments, the G2 praised his interaction with his subordinates and noted the great work he did when responding to ad hoc requirements. 7. On 20 April 2007, his senior rater responded to his rebuttal and noted that he had received his comments and reviewed them carefully. However, he stood by his assessment of the applicant’s performance and potential, and stated he was not going to change the contested report. He also added that the contested report correctly reflected non-rated time (none shown) and that the applicant was not eligible for a 90-day report as stated. 8. In the interim, the applicant submitted a request for a Commander's Inquiry (CI) on the contested report. In addition to what he submitted in his rebuttal to the contested report, he also noted that his rating chain never made a comment that his oral and written communication was a problem prior to the contested report. He never received a positive comment on any of counselings from his rater and there was a definite contradiction in the senior rater's portion between the contested report and his previous OER. 9. The investigating officer (IO) collected several sworn statements in regard to the contested report. The applicant and his rater also provided sworn statements which show the following: a. The applicant stated that he was a Plans Officer in the G2 from 10 August 2005 to 4 September 2007 and did not become the Operations Officer until 4 September 2007. LTC RCB became his rater on the same date; however, he took leave for two weeks and really did not start working for him until the third week in September. b. The applicant also stated he received his initial counseling from LTC RCB on 5 October 2007 and that two comments he made to him during the session seemed very odd. The first comment was about his English and the other comment was about his status in the unit. He had just started working for him and he was offended by his comment on his English. He had never used English as an excuse for not completing his work. He also added he should have received a Change of Duty report per the regulation. c. His rater stated that he officially became the applicant's rater upon his arrival to the unit on 7 July 2006 and remained his rater until he departed the unit on 9 April 2007. Prior to 12 September 2006, he had little interaction with the applicant because of a major exercise the applicant was on. The applicant questioned his statement about restoring his status in the unit and added that it was his opinion that there was no problem with his credibility and he believed the rater's assessment was incorrect. The rater stated he based his assessment on the senior rater's assessment as well as the assessment of other staff officers in the command who observed his performance during multiple exercises. d. The rater also stated that he wrote the applicant a poor performance OER based on an honest assessment of his performance during the period in question. He was particularly disturbed by the fact that the applicant wanted out of the G2 and the 94th Army Air and Missile Defense Command (AAMDC), and basically quit on his mission, his Soldiers, him and himself. Although it was stated that the applicant did not properly prepare his written request for reassignment and he would need to wait until the rater returned to submit his request and, upon his return, he learned that the applicant contacted his branch manager directly and requested reassignment without his approval. e. The rater also noted on the applicant's 2 March 2007 counseling that he still had time to improve. He showed poor performance of duty on several occasions and poor leadership. Despite his repeated inquiries during counseling, the applicant refused to engage in conversation with him on what he could do to help him or what he specifically disagreed with in his comments. He gave him a "No" in Learning and Communicating because despite extensive counseling and mentoring, there was little appreciable improvement in his core battle captain skills and abilities through three major exercises. f. The rater stated the applicant also refused to work on self-improvement and he clearly lacked the ability to write and speak the English language. He never expected the applicant would improve by great leaps and bounds, but he expected an honest effort with a good plan that involved formal classes or online training by the end of the rating period. g. The rater stated he also found it difficult to understand the applicant during casual conversation and found the need to listen to him carefully to fully understand all his words. He also used his casual conversations with the applicant to help him make better word choice or English pronunciation. Having grown up in a bilingual household himself and having relatives with thick accents, he was accustomed to this practice so it was less difficult for him than it may have been for others. 10. On 10 May 2007, the investigation from the CI was concluded on the contested report and the following allegations and responses are shown below: a. Allegation: The applicant should have received a separate OER for the first three months due to change in principal duty position. Findings: Because the rater became the rater effective July 2006, this does not meet eligibility requirements for a 90-day report as outlined in Army Regulation 623-3(Evaluation Reporting System). A Change of Duty OER is mandatory when the rated officer has a change of principal duty. This does not supersede the basic rule of completing at least 90 calendar days in the same position under the same rater. Therefore, the applicant was not authorized another OER. b. Allegation: The "NO" for Communicating (Part IV. b3) was not justified. Findings: Individuals in the G2 section, as well as those who have worked with the applicant on various exercises, all acknowledged that he had a strong accent when speaking English. During casual conversation, the applicant was understandable but at times of stress or certain periods during briefs, he would confuse his word usage. He was formally counseled by superiors regarding his communications skills and it was recommended that he enroll in English as a second language (ESL) to enhance his English writing, communication, speaking, and comprehension skill level. There was no evidence the applicant enrolled in ESL classes but he did enroll in military courses he believed met the spirit of the guidance he received. c. Allegation: The "NO" for Learning (Part IV b3) was not justified. Findings: During the interviews, nobody outside of his rating chain believed that the applicant had a learning disability or trouble learning. The applicant did seek self-improvement by completing 10 military courses after receiving counseling. d. Allegation: The rater and senior rater's opinions on the contested report were not justified. Findings: All of the documented counseling sessions went into detail of issues the applicant needed improvement on. His rater stated numerous times he was there to help the applicant and at the time, the contested report was not written, so he had time to improve. Both his rater and senior rater assessed that the applicant felt he could not overcome his deficiencies and quit trying. The applicant’s lack of action to overcome the challenges outlined in counseling and his attitude caused him to receive a poor performance OER. e. Allegation: There is a contradiction in opinion by his senior rater for two consecutive rating periods. Findings: The OER for the period 20060606 through 20070409 reflected a new rating period with a new evaluation of performance. On the OER for the period 20050810 through 20060605, which shows his senior rater as LTC HHB, it was the senior rater's opinion that the applicant seemed to be improving and did not warrant a poor OER. He believed that the applicant would continue to improve and that he received the proper counseling and guidance that would facilitate his improvement. When this did not occur the contested report was generated based on his performance during the rating period in question. 11. The CI concluded that the contested report was written in compliance with Army Regulations, specifically Department of the Army Pamphlet 623-3 (Evaluation Reporting System) and Army Regulation 623-3. Findings: There was not sufficient evidence to overturn Part IV b3, Communication and it was recommended that Part IV b3, “Learning” be reassessed. There was not sufficient evidence to counter the rater or senior rater's opinion of the applicant’s performance and no evidence of there being a contradiction in opinion with LTC HHB as the senior rater during two different rating periods. 12. The rater and senior rater were provided a copy of the CI and on 16 May 2007, both the rater and senior rater elected not to change the contested report. 13. An investigation under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) was conducted on 30 May 2007 pertaining to the contested report. The findings were a direct replica of the CI findings. Both the CI and the Army Regulation 15-6 investigation were both signed by Colonel (COL) KLB, Chief of Staff, 94th Army Air and Missile Defense Command (AAMDC). 14. The applicant submitted several letters of support from officers outside of his official rating chain who had firsthand knowledge of his duty performance during the period of the contested report. a. COL JMW, Assistant Chief of Staff, G6 stated that during the period August 2005 through 20 June 2007 she had the opportunity to observe the applicant’s performance on a daily basis as well as during major exercises. On each occasion, his briefing skills improved as well as his grasp of the English language. He had spoken with her a few times about his strained relationship with his supervisor/rater and asked what he could do to improve his job performance. She told him to speak with his supervisor and ask what he could do. He told COL JMW that his senior rater personally worked with him to help him improve. COL JMW said the applicant is an excellent officer and she did not believe that he deserved such a harsh rating. He was branch transferred from the Air Defense Artillery Branch to Military Intelligence, with the assignment during the contested report period being his first assignment in the MI Branch. b. COL KLB, Chief of Staff, 94th AAMDC stated that he had observed and worked with the applicant during several Warfighting Exercises. As briefer for the G2, Intelligence Staff section, the applicant’s briefings were clear and understandable. Although he has a heavy Latin accent, he has worked hard to improve his articulation and translation. His professional knowledge, technical proficiency and drive enable him to effectively communicate and accomplish assigned tasks. c. COL CVM, G3, Chief of Operations, 94th AAMDC stated that in his position he served with the applicant not only on a daily professional basis but also during numerous Warfighting exercises. During each of these exercises, the applicant performed superbly as one of his key intelligence officers. Although he does have a pronounced accent, his briefings were always professional and conveyed the proper intelligence assessment to the commander and his key staff. In his two years of serving with the applicant, he always appeared professional, hard working and dedicated to all critical missions. He believed the applicant has the potential to serve the Army in positions of increased responsibility at the next higher grade. d. COL LM, G3, Chief, Plans and Exercises/Current Operations, 94th AAMDC stated that he had observed and worked with the applicant during several major exercises over a two-year period. Although the applicant had a heavy Latin accent, all briefings were presented in a professional manner and the appropriate recommendations were provided to the staff and the Commanding General for decision making. Based on the applicant’s superb performance, he received an impact achievement award for his contributions. He has worked hard to improve his articulation and has always asked for constructive criticism during his pre-briefs and after the briefings. His potential to serve in the next higher grade is excellent. e. LTC CEM stated that during the period 18 to 31 March 2006 he served as chief of operations during a major exercise and the applicant worked as his G2 Battle Captain. The applicant performed his duties in an outstanding manner and his briefings were organized, accurate and timely. He provided all pertinent information needed in order to make accurate, and timely decisions. His analysis of enemy actions was precise and he had a good grasp of threat doctrine. The applicant relayed that knowledge well to other staff members and subordinates. f. COL (Chaplain) VPT stated that the applicant had visited his office on several occasions for pastoral counseling. During the course of those conversations he was able to understand the applicant. While English was his second language, he was able to communicate his thoughts and concerns clearly. 15. The applicant submitted 10 certificates of completion for various training courses. These documents show that between 15 June 2006 and 23 January 2007, he completed the following: * Unified Action Armed Forces Course * Doctrine Networked Education and Training Operational Art Course * Joint Intelligence Preparation of the Battle Space Course * Planning Joint Operations Course * Joint Targeting Staff Course * Joint Doctrine for Countering Air and Missile Threats Course * Joint Doctrine for Operations in Nuclear, Biological, and Chemical Environment Course * Composite Risk Management Basic Course * Supervisor Safety Course * Homeland Security Course 16. A review the applicant's OMPF also shows that the contested report is filed in the Performance section of the OMPF. The contested report contains the following attachments which are filed in the order described below: * Contested report * OER referral memorandum * Senior rater rebuttal response to rated officer's rebuttal comments * CI memorandum * Senior rater rebuttal response to CI findings * Rated officer's rebuttal comments to contested report 17. The applicant appealed the contested report to the Army Special Review Board (ASRB). On 20 August 2009, the ASRB denied the applicant’s appeal as the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, error, or injustice. This document is also filed in the Performance section of his OMPF. 18. A review of his OMPF shows all OERs preceding and subsequent to the contested report consistently contain the following ratings and comments: a. Part IV (Performance Evaluation – Professionalism (Rater)) – all “Xs” were placed in the “Yes” blocks. b. Part Va – All “Xs” were placed in the “Outstanding Performance, Must Promote” block. c. Part VIIa – All “Xs” were placed in the “Best Qualified” block. d. All rater and senior rater comments contain descriptions such as: (1) Epitome of an officer (2) A stellar performance (3) Great performance (4) Will make an excellent company commander (5) He will continue to excel at positions of greater responsibility (6) Is one of the top four company grade officers I currently rate (7) Because of his dedication and commitment to excellence, he was recognized by the commanding generals of three Army installations (8) A skilled coach and teacher (9) A gifted intelligence officer, an adept manager of Soldiers and an officer who can multi task. 19. According to the U.S. Army Human Resources Command website, the following pertains to the MAJ, ACC, Selection Board schedules: a. FY10 MAJ, ACC, Selection Board convened and the results were released on 25 March 2010. His records indicate he was considered Below-the-Zone for promotion to MAJ and was not selected. b. FY11 MAJ, ACC, Selection Board convened on 27 October 2010 and recessed on 19 November 2010. The results were released on 31 March 2011 and indicate he was in the Promotion Zone for consideration to MAJ and was not selected. c. FY12 MAJ, ACC, Selection Board convened on 18 October 2011 and recessed on 10 November 2011. It is believed that based on the established dates of rank for the two previous boards, he was considered for promotion in the Above-the-Zone category. 20. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It is linked to Army Regulation 600-8 (Military Personnel Management) and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. 21. Chapter 7 of the same regulation prescribes the rules for conducting an SSB. It states an SSB may be convened under Title 10, U.S. Code, Section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: a. Mandatory when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; b. An SSB is discretionary when the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or c. An SSB is discretionary when the board that considered an officer from in or above the promotion zone did not have before it some material information. 22. An SSB will consider the record of the officer as it should have been considered by the original board. The record will be compared with a sampling of those officers of the same competitive category who were recommended and not recommended for promotion by the original selection board. 23. Army Regulation 623-3, in effect at the time, prescribed the procedures for completing evaluation reports that support the Evaluation Reporting System. Paragraph 3-24 describes prohibited comments. It states the use of inappropriate or arbitrary remarks or comments that draw attention to differences relating to race, color, religion, gender, age or national origin are prohibited. Subjective evaluation will not reflect a rating official’s personal bias or prejudice. No remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except in the case of Relief for Cause reports and entering the most recent Army Physical Fitness Test score. 24. Paragraph 3-36 of Army Regulation 623-3 describes the referral process. It states that once a report is referred, the rated Soldier may comment if they believe that 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. Extraneous or voluminous material, material already contained in the Soldier’s file and enclosures or attachments are not normally in the rated Soldier’s best interest; and they, therefore, will be avoided. Any enclosures or attachments to rebuttal comments will be withdrawn and returned to the rated Soldier when the OER is forwarded to for filing in his/her OMPF. 25. Section VII covers the basic rules for mandatory reports. It states a. A Change-of-Duty report is mandatory when the rated officer has a change of principal duty, even though the rater remains the same and is required if the rated officer has completed at least 90 calendar days in the same position under the rater during the same rating period. No report is submitted when organizational changes merely alter the rated officer’s principal duty title but do not change the type of work performed (for example, Personnel Management Staff Officer to Assistant G1). A report will be submitted when organizational changes result in a change of rater. b. A Relief for Cause report is required when an officer or warrant officer is relieved for cause regardless of the rating period involved. Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty. In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV. 26. Army Regulation 623-3, paragraph 6-4 prescribes the purpose of a CI. It states 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. However, the commander may determine that the provisions of Army Regulation 15-6 apply in specific instances. 27. Chapter 6 also states that the results of the CI which are forwarded to HQDA will include the findings, conclusions, and recommendations in a format that could be filed with the evaluation in the rated individual’s OMPF for clarification purposes and will include the commander’s signature, will stand alone without reference to other documentation, and will be limited to one page. Sufficient documentation, such as reports and statements, will be attached to justify the conclusions. If the commander finds no fault with the evaluation, then the CI is filed locally and a copy given to the rated individual. There is no requirement to send the CI forward to HQDA. 28. Department of the Army Pamphlet 623-3, chapter 6 describes the procedures for filing an appeal. It states the appellant should begin the process by specifically identifying those entries or comments to be challenged, the perceived inaccuracy in each entry or comment, the evidence necessary to prove the alleged inaccuracy, and determine where and how to obtain such evidence. 29. Paragraph 6-2 of the same regulation states third-party statements form the basis of most substantive appeals: "Third parties" are persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed. Statements from individuals who establish they were on hand during the contested rating period and who served in positions from which they could observe the appellant's performance and their interactions with rating officials, are both useful and supportive. 30. Army Regulation 600-100 (Army Leadership) establishes the Army’s policy for leadership. It defines key terms associated with leadership, assigning responsibilities for management of leadership policy, and clarifying responsibilities and definitions among the Army leadership policy proponent. Paragraph 1-6 defines the four “Core Leader Competencies” for effective Army leadership. Two key competencies directly related to the applicant’s case are described below: a. Communicates - Leaders communicate by expressing ideas and actively listening to others. Effective leaders understand the nature and power of communication and practice effective communication techniques so they can better relate to others and translate goals into actions. Communication is essential to all other leadership competencies. b. Prepares self - Leaders are prepared to execute their leadership responsibilities fully. They are aware of their limitations and strengths and seek to develop and improve their knowledge. Only through preparation for missions and other challenges, awareness of self and situations, and the practice of lifelong learning and development can individuals fulfill the responsibilities of leadership. 31. Paragraph 1-8 (Leader Development) of Army Regulation 600-100 states that leader development is achieved through lifelong synthesis of the knowledge, skills, and experiences gained through institutional training and education, organizational training, operational experience, and self-development. The three domains of leader development are described below: a. Institutional training and education is the Army's school system used to provide leaders with the education (how to think) and training (how to do) needed to perform duty position requirements. b. Operational assignments translate theory into practice by placing leaders in positions to apply the knowledge and skills they acquired during institutional training and education. Repetitive performance of duty position requirements - coupled with self-awareness, assessment, and feedback - refines leader skills, broadens knowledge, and shapes attitudes and subsequent behavior. c. Self-development is a continuous process that takes place during institutional training and education, and during operational assignments; it should stretch and broaden the individual beyond the job or training. 32. Field Manual 6-22 (Army Leadership), chapter 7 states that although communication is usually viewed as a process of providing information, communication as a competency must ensure that there is more than the simple transmission of information. Effective communication: * needs to achieve a new understanding * must create new or better awareness * is sharing critical information in a clear fashion in order to reach a shared understanding of issues and solutions * is conveying thoughts, presenting recommendations, bridging cultural sensitivities and reaching consensus DISCUSSION AND CONCLUSIONS: 1. The contested report has the appearance of an unfair, unjust, and subjective appraisal of the applicant’s demonstrated performance and potential during the period in question. The evidence of record confirms there were inconsistencies in rendering and processing the contested report. 2. Army Regulation 623-3, in effect at the time, stated that a subjective evaluation will not reflect a rating official’s personal bias or prejudice. While personal bias or prejudice cannot be proven on the part of the rating officials, the findings from the CI and comments in the letters of support all imply the “No” remarks he received in Part IV, B3 for Communicating and Learning were due to his heavy Latin accent and his failure to enroll in ESL courses. 3. Remarks made on performance or incidents occurring before or after the rating period are also prohibited. Both the rater and senior rater made comments on his accomplishments in the rating period prior to the contested report. 4. The applicant provided several letters of support and all of these letters are from officials who had firsthand knowledge of his performance at the time the contested report was rendered. Department of the Army Pamphlet 623-3 states, although this is not a requirement, it does add more weight to the applicant's allegations. All letters confirm that the applicant’s briefings were articulate, well prepared, and provided the necessary information to make command decisions. All acknowledged that although he had a heavy Latin accent, he could be understood. One letter in particular stated that he was an outstanding officer and did not deserve the harsh rating received in the contested report. 5. Army Regulation 600-100 defines the Core Leader Competencies as it pertains to effective Army Leadership. "Communicates" and "Prepares Self" are two key competencies directly related to the applicant’s rating during the period of the contested report. It appears that through personal admission on the part of the applicant, which was confirmed in the findings of the CI and also stated in several of the letters of support, the applicant sought constructive criticism on a regular basis. 6. It appears he followed the guidance given to him by his rater during the initial counseling session in which he was instructed to take civilian or online courses in English. Although he did not enroll in ESL, he purchased an English writing program to help him improve his communication skills. He completed 10 military courses during the period in question to help refine his leadership skills. 7. Despite the applicant's efforts to make the alleged needed improvements, his rater still noted in his sworn statement and in the contested report, the applicant failed to make any efforts toward improvement. 8. The applicant appealed the contested report to the ASRB and his request for removal was denied as there were no errors or injustices found at the time. 9. While each report stands alone, the senior rater’s evaluations in the Change of Rater report for the period 20050810 through 20060605 and in the contested report are polar opposite. His senior rater admitted during the CI, that he believed that the applicant was making improvements and did not warrant a change of duty report. He personally dedicated his time to help him, but when the outcome was not as expected and the applicant failed to make improvements, the contested report was rendered. 10. Army Regulation 623-3 states that a Change of Duty report is mandatory 90 days after a rated officer has been assigned a new duty position. It appears that his principal duty title changed from Assistant G2 Plans Officer to G2 Operations Battle Captain after 3 September 2006, as shown in his achievement award and in his sworn statement. 11. A review of all other OERs in his OMPF show the contested report was an anomaly in comparison to his usually stellar evaluations. All OERs showed he always performed his duties in an outstanding manner; he had the potential to continue to serve the Army; and he had the potential for promotion and increased responsibility. No report showed he had difficulties in communicating and learning due to his heavy Latin accent. 12. The applicable regulation established that if the adjudication authority is convinced that the applicant is correct in some of his/her assertions, then the clear and convincing regulatory burden of proof for a successful appeal has been met. Given the numerous questions as to the validity of the comments used to support the negative ratings from both the rater and senior rater in the contested report, it is concluded that it would be appropriate and serve the interest of justice and equity to remove the entire contested report for the period 20060606 through 20070409 and all attachments from the applicant’s record. It would also be appropriate to remove the findings of the ASRB from his OMPF. 13. The evidence of record also shows that the applicant was considered for promotion to MAJ by the FY10 and FY11 selection boards but was not selected. He should have been considered for promotion to MAJ in the Above the Zone category during the FY12 MAJ selection board. It is believed that the contested report may have affected the decision to select or non-select him for promotion. 14. Further, given the removal of the report in question from his record, in the interest of justice and equity, if he was not selected for promotion to MAJ by the FY12 selection board, it would be appropriate to also grant him relief in the form of promotion consideration to MAJ by an SSB under the 2011 promotion criteria. BOARD VOTE: ___x_____ __x______ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. removing the contested OER covering the rated period 20060606 through 20070409 with attachments and the results of the ASRB from his records and declaring the period of the report as non-rated time; b. if not selected for promotion to MAJ by the 2012 selection board, submitting the applicant’s records to a duly constituted SSB for consideration for promotion to MAJ under the 2011 MAJ promotion selection board criteria; c. if selected for promotion by the SSB, his records be further corrected by promoting him to MAJ based on his assigned promotion sequence number with the appropriate date of rank, and with all due back pay and allowances, or by assigning him the appropriate promotion sequence number for future promotion purposes; and d. if not selected, appropriately notifying the applicant. _______ _ 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) AR20110006727 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110006727 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1