BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150008474 BOARD VOTE: __x______ ___x_____ ___x_____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150008474 BOARD DETERMINATION/RECOMMENDATION: 1. Notwithstanding the staff DISCUSSION in Enclosure 2, the Board determined the evidence presented was sufficient to warrant a recommendation for relief. a. The evidence indicates the contested Officer Evaluation Report (OER) was not, in fact, referred to the applicant to his detriment. Because it was not referred, the applicant was deprived of the opportunity to rebut the negative information in the OER. Further, a delay in processing the OER and a deployment made his ability to appeal more difficult. b. The evidence also indicates the OER may have been in retaliation for a report of an ethical violation. 2. In view of the foregoing, and in the interest of equity and to preserve his potential for promotion, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the contested OER from his record and replacing it with a statement of non-rated time. ___________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. BOARD DATE: 19 May 2016 DOCKET NUMBER: AR20150008474 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 a referred officer evaluation report (OER), covering the rating period 1 August 2010 through 25 January 2011, from his official military personnel file (OMPF). Hereafter, the OER in question will be referred to as the "contested OER." 2. The applicant states: a. During his time as platoon leader of the distribution company, he provided daily reports on the status of the Heavy Expanded Mobility Tactical Trucks (HEMTT) to the support operations (SPO) section. The fuel had to pass aviation standards to be utilized and when it did not, the trucks were considered down or not mission capable. These trucks also had various maintenance issues, so it had to be distinguished whether the HEMMT was down for maintenance or fuel quality issues. b. After speaking with some personnel from the SPO section, he realized that many of their vehicles that were down for maintenance were not reflected on the "026" report. He brought this up to his company commander but he stated that the maintenance platoon resets its down-time and it does not get reflected on the "026" report. He reported the issue to the battalion commander. c. The issue was fixed but the company commander knew he had gone above his head and had reported him. That was the second time he had gone over his head to the battalion commander. The company commander set his sights on him because he went over his head multiple times. d. In Part V (Performance and Potential Evaluation (Rater)) of the contested OER, the company commander stated that the applicant failed to report to several company formations and one brigade formation. The several company formations he referred to were two separate formations. His platoon sergeant was excellent at informing him of sudden company events and formations but one time he was unable to inform him and because the company commander did not communicate with him, he was not there. The other company formation he is referring to was a morning physical training (PT) formation. He arrived 15 minutes early to speak with him before he broke off to do separate PT because he was on profile due to eye surgery. e. He did this exact procedure the previous 3 days, but this time the commander asked him why he was not in full winter PT uniform. He told him he had it in his car and could put it on and stand in the formation although that was different from the previous 3 days. He stated it was too late and told him to go work out. The commander later counseled him for being out of uniform and missing a formation. f. In Part V of the OER, the most erroneous of the allegations is that he disobeyed a lawful and direct order by the company commander to report for duty. The XVIII Airborne Corps determines the holiday schedule for subordinate units. For fiscal year 2011, the memorandum stated that everyone was to work from 9:00 AM to 12:00 PM and the only personnel authorized to work past 12:00 PM were the staff duty personnel. There was no clause or blanket statement authorizing commanders to have Soldiers work past 12:00 PM at their discretion. The company commander told him to stand-by in the lobby after 12:00 PM, which he originally did. Then at approximately 2:00 PM, he made the decision to leave. Although he will now agree he should have just stayed, it was not a lawful order to have him stay past the 12:00 PM holiday schedule. The memorandum was signed by a colonel or a brigadier general from a higher headquarters and it was specific enough to not allow subordinate commanders the flexibility to extend that time. He was unable to find a copy of the memorandum. g. Current fiscal year holiday schedules do afford commanders some flexibility in extending Soldiers past 12:00 PM. The fact that current holiday schedules specifically allow commanders to keep some personnel past 12:00 PM is validation that the authority to do so was taken away from them in the past and during the time frame this occurred. h. The final piece is that the derogatory information on the OER is unproven. As stated in Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 3-23 (Unproven derogatory information), "No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier." Paragraph 3-23d states, "Any verified derogatory information may be entered on an evaluation." There was never an investigation to prove or demonstrate he missed the formations or that he disobeyed a lawful order. He provided multiple rebuttals and requested a commander's inquiry but his request only resulted in a minor improvement to the OER, but no investigation. It would be a gross injustice to allow the OER to remain in his file when no action was taken to verify the derogatory information. i. He can demonstrate that the senior rater believed his performance was fine during this time by an email he received from the senior rater around the time he received the referred OER. The senior rater stated that his OER was no longer a referred OER and to keep driving on. When he reviewed the OER, he noticed it still had some negative comments. He told the senior rater that the negative comments would make it "referred." The senior rater stated he could not make the company commander change his portion. j. At that point, he requested an investigation via email to the brigade commander. He was told to get on the brigade commander's calendar and go see him. One day, before he was to meet with the brigade commander, he received two telephone calls, one from his new rater, Major (MAJ) A, and then one from Lieutenant Colonel (LTC) D stating they were going to give him an evaluation for his work over the past 4-5 months since the thru date of the referred OER. They both advised him that seeing the brigade commander would only hurt him further and that he would have two or three good evaluations before the board so the referred OER would not hurt him. MAJ A told him he was going to cancel the meeting on his behalf. k. The leadership at the time convinced him the referred OER would never hurt him because he would have three strong OERs before he was to be considered for promotion to captain (CPT). He was also unable to challenge the referred OER until it was accepted by the U.S. Army Human Resources Command (HRC). It took over a year after the thru date of the evaluation and weeks before the CPT's promotion board before it was accepted by HRC. He was in Afghanistan at the time and he did not have adequate time or opportunity to challenge the OER prior to the promotion board seeing it. He placed the mission and his responsibilities in Afghanistan above this injustice and since his leadership said he would still be promoted, he did not think he needed to worry about it. l. The CPT's promotion board convened but he was not selected for promotion. He thought his career was over and he felt there was no power out there to assist him in this matter. He continually performed to the best of his abilities and he was promoted to CPT the second time around or above the zone. After the promotion to CPT, the referred OER was placed on his restricted file. He thought this was finally over and could not hurt him any further, but now the restricted file is essentially going away and all lieutenants' OERs will no longer be restricted. If he deserved the referred OER, he would not have submitted this request. He will prove his worth to the military despite it, but the referred OER was and is an injustice. 3. The applicant provides the contested OER, evaluation report appeal to HRC, dated 27 March 2015, and HRC's response to his appeal, two third-party statements of support, and an email from his senior rater, dated 4 May 2011. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed as a second lieutenant in the Regular Army on 4 December 2008. He was promoted to first lieutenant (1LT) with a date of rank of 4 June 2010. 3. The contested OER is a referred "Change of Rater" OER covering the rating period 1 August 2010 through 25 January 2011, while he was serving as distribution platoon leader in a forward support company assigned to the 3rd Battalion, 82nd Aviation Regiment. The rater was his company commander, CPT B, and the senior rater was his battalion commander, LTC D. a. The Army values of honor, integrity, courage, loyalty, respect, selfless-service, and duty were all evaluated to have been positive. b. Each of the three leader attributes were rated positively and each of the three leader skills were rated to have been positive. The nine leader actions of leadership the applicant performed were likewise all evaluated to have been positive. c. In part V (Performance and Potential Evaluation) of the OER the rater marked in the block indicating "Satisfactory Performance, Promote" and entered the following comments in Part Vb: [Applicant's] performance during the six months as the distribution platoon leader was a struggle. He is in the bottom 1/3 of lieutenants in my company. On several occasions his lack of discipline was illustrated through his failure to report to several company formations and a brigade formation. Additionally, he displayed poor military bearing by his willful disobedience to a lawful/direct order by his company commander where he was directed to report for duty. [Applicant] has shown compassion, care, and genuine concern for the well-being of his troopers but it has been overshadowed by his lack of leadership, discipline, and military bearing. [Applicant] has the potential to succeed but needs further development at current grade. Continue to mentor and send to the Captains Career Course when available. d. The rater entered the following comment in Part Vc (Comments on potential for promotion): [Applicant] has struggled with his daily duties as a junior leader and needs further development at current grade; promote with peers if ready." e. The senior rater in Part VIIa of the OER evaluated the applicant's promotion potential to the next higher grade and gave him a rating of "fully qualified." The senior rater indicated that at the time, he served as senior rater to 12 officers in the applicant's grade. f. The senior rater entered the following comments in Part VIIc: [Applicant] is an intelligent young officer. His performance during this rating period has shown a need for more mentorship. He currently ranks in the bottom third of all lieutenants in the Task Force. He has the potential to succeed but needs further development at current grade. Continue to mentor and send to the Captains Career Course when available. 4. The contested OER was signed by the rater and the senior rater on 10 June 2011 and by the applicant on 13 June 2011. The OER was filed in the performance folder of the applicant's OMPF on 16 February 2012. 5. There is no evidence that indicates a Commander's Inquiry was requested or conducted. 6. He was promoted to CPT with a date of rank of 23 July 2013. 7. He provides: a. An email from his senior rater (LTC D) during the period of the contested OER, addressed to him, in which his senior rater stated the following: [Applicant], I have attached the updated OER. We have made adjustments and it is no longer a referred report. Keep driving on. b. A third-party party statement of support from CPT Z stating the following: (1) He worked in the section of the 122nd Aviation Support Battalion, 82 Combat Aviation Brigade from July 2010 to February 2012, approximately three months after the brigade redeployed from Afghanistan. Within the SPO, they were required to hold daily meetings to discuss logistical support for the brigade. (2) For months after July 2010, two issues dominated the SPO's daily logistics meeting, lack of 10K forklift to support the brigade and the non-mission capable status of the brigade's HEMTTI fuelers. The SPO maintenance warrant officer along with the "Class Ill (B)" and other officers assigned to the SPO held lengthy conversations about the aforementioned issues. During one of the meetings, it was established that the most significant reason for the HEMTT's fuelers inability to provide aviation grade fuel was the result of open hatches which allowed water and other elements to mix with the fuel when the trucks were managed by civilians in the "Left Behind Equipment" program during the brigade's deployment. (3) During that timeframe, the applicant served as the distribution platoon leader for the Echo Forward Support Company, 3-82nd General Support Aviation Battalion. All of the distribution platoons at this time were under heavy pressure to have their HEMTT fuel trucks fully mission capable to support fueling operations for the aviation brigade. The SPO section had an important task of tracking all HEMTT fuel trucks on a daily basis until all companies were fully mission capable. The maintenance officer and the Class Ill noncommissioned officer (NCO) spoke daily and shared their reports with each other. (4) They noticed a big discrepancy from the 026 report for the applicant's company and his report he had to send to the Class Ill NCO. The 026 report would only show one HEMTT fuel truck down for maintenance, but the applicant's report would show at least six. After multiple conversations with his maintenance technician, the Class Ill (B) NCO, the applicant, and the forward support company's motor pool leadership, they determined the motor pool was not reporting all of their equipment as deadline on the 026 report. (5) He informed them this needed to be fixed or else it would go higher. The applicant was advised to tell his company commander, but afterwards the 026 report was still way different than the applicant's daily report. After a few more conversations, it became clear the company commander was covering for his motor pool so they could have a stronger 026. This time he advised the applicant to inform his battalion commander. The applicant told him that he did and shortly after that, the 026 report and the applicant's daily report were much more in accord. (6) He has come to known the applicant and he is a great officer. His performance has consistently been in line with and above his peers. He recommends the Board correct his evaluation from this time period as he is an officer he would gladly fight beside. c. A second third-party statement of support from Sergeant First Class H stating the following: (1) The applicant was his platoon leader in the distribution company at the time he was a 1LT and he was serving as his platoon sergeant. He was an effective leader and he was always willing to back his platoon. To his knowledge, he had never served as a distribution platoon leader. He was eager to learn about the platoon. He read or familiarized himself with all the pertinent field manuals and regulations covering their operations. He often observed as Soldiers did their job and would ask questions to him about tasks in an attempt to make the tasks more efficient. He learned quickly and that made it easy to teach him operations. (2) The applicant's working relationship with the commander at the time, CPT B, was noticeably strained. When he says strained he means there was very little guidance and mentoring taking place. Most things the applicant learned was from their first sergeant (1SG) and himself. There were two other officers in the unit and their relationship with the commander was the complete opposite. The other lieutenants and the commander were often seen together and could approach the commander with questions or concerns without hostility or belittlement; the applicant could not. (3) He can think of two incidents that possibly led to this strain. The first being the applicant requesting 10 days permissive temporary duty (TDY) to move his family to Fort Bragg, NC. The company commander denied it and the applicant went to the battalion commander and it was approved. The other was when the battalion motor officer was not honest about the reason for their vehicles being down. They were reported as being down for fuel related deadlines and mechanical faults. In actuality, the fuel deadlines were caused by the mechanical deadlines and not faults. That situation prompted the applicant to speak with the battalion commander and the report was immediately fixed to reflect more accurate information. (4) After this second incident, the applicant was no longer involved in the officers afternoon huddles and information was not being pushed to him such as formation times, duty locations, and personnel requirements. The lack of information caused the applicant to miss a formation. Once the applicant explained to him that the commander had not informed him about the change in formation and that the commander wanted to counsel him, he ensured any information he received from the 1SG would be shared with him. (5) He is aware of the referred OER the applicant received and he does not understand how the applicant's OER and his NCO Evaluation Report could not reflect the same work performance. Every success the platoon had the applicant was right there leading from the front. The applicant was there early with him and stayed late with him. His research solved a problem that was causing all of the brigade's distribution platoons to be down. He worked hard and was always willing to help in any way he could. He was and still is an Army asset and should be retained and kept on pace with his peer group. 8. By memorandum dated 27 March 2015, the applicant appealed the contested OER to HRC. He stated the following: a. The basis of his appeal is substantive inaccuracy. This rating period falls under Army Regulation 623-3, dated 10 August 2007. Part Vb provides unproven derogatory information. It states he missed several formations and disobeyed a direct lawful order. The company commander's order conflicted with a policy letter from a colonel from their higher headquarters. He also did not miss several formations. b. Although he requested an investigation, none was conducted and therefore none of the derogatory information is verified. This is a violation of Army Regulation 623-3. Ultimately, the company commander gave him the referred OER because he reported him to the battalion commander for condoning of falsifying the 026 report. c. He requests the removal of the entire report. This evaluation [appeal] exceeds the 3-year time limit by approximately a few months since when it was accepted. He could not appeal the OER until it was accepted and it was not accepted until about a year after the thru date and a few weeks before his promotion board. His chain of command advised him that the OER should not hurt me because he received strong evaluations after it. He trusted their advice but he was not promoted the first time and he thought that his career was over. He was promoted the second time around and he was ready to put this OER in the past since it was now in his restricted file and he thought it will never hurt me again. With the unmasking of the lieutenant OERs, and the subsequent "OSB", the OER will cause separation from the Army. 9. By memorandum dated 25 April 2015, HRC informed the applicant that his OER appeal was returned without action because his appeal was not received within three years of thru date as required by Army Regulation 623-3. He was informed he could apply to this Board to resolve any issues he may have with the contested OER. REFERENCES: 1. Army Regulation 623-3, dated 10 August 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation provides that: a. Evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3. Consideration will be given to the relative experience of the rated officer, the efforts made by the rated officer, and the results that could be reasonably expected given the time and resources available. Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades. b. The senior rater is the senior rating official in the military rating chain or as officially designated by the academic institution. Senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards. Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3. c. Any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters Department of the Army. d. 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. e. A request that a completed evaluation report filed in a Soldier's Army Military Human Resource Record be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on revision of ratings given. f. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF. The regulation provides 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 that the OER is filed in the performance section of the OMPF. DISCUSSION: 1. The applicant contends the contested OER should be removed from his OMPF. He bases his contention on factual inaccuracies pertaining to his rater's and senior rater's comments. He also appears to suggest that the negative comments in the contested OER were the result of retaliation from his company commander and his company commander disliked him. However, aside from his expressed dissatisfaction with the contents of the contested OER, he has failed to provide clear and convincing evidence to support these contentions. 2. 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. In addition, 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. 3. An OER that has been included in the official record of an officer is presumed to be administratively correct, contain no material errors or inaccuracies, and is based upon observations, records, and verified reports. To justify deletion of an OER, the applicant must produce clear and convincing evidence which overcomes the aforementioned assumptions and provides a strong and compelling basis for removing the report. There is no such evidence in the applicant's record. 4. The two third-party 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 cognizant of his rater's/senior rater's expectations. 5. 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. Therefore, there is no basis for removal of the contested OER from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150008474 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150008474 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2