IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160006209 BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ____x___ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 15 December 2016 DOCKET NUMBER: AR20160006209 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: 15 December 2016 DOCKET NUMBER: AR20160006209 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, the removal of the following documents from his Official Military Personnel File (OMPF): * one DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 12 October 2011 through 14 June 2012 * one DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 15 June 2013 through 14 June 2014 * one DA Form 67-10-1 covering the rating period 15 June 2014 through 26 November 2014 2. Additionally, the applicant requests a personal appearance before the Board. 3. The applicant states: a. Upon his arrival at this first duty station, Fort Stewart, GA, he began experiencing a hostile work environment. Specifically, his Battalion Commander, Lieutenant Colonel (LTC) N.S., made disparaging comments toward him in front of his superiors, peers, and subordinates on a daily basis between October 2011 and July 2012. b. After attempting to resolve the matter with his Company Commander and other superior officers within the command, he filed a congressional Inquiry to look into the matter. The results of the inquiry came back as unsubstantiated due to a lack of evidence. He believes he was unable to obtain evidence or sworn statements from fellow Soldiers due to their fear of reprisal. c. Approximately 30 days after the congressional inquiry, he received an OER from LTC N.S., who was his senior rater. He is appealing this OER, with the through date of 14 June 2012, based on substantive inaccuracy. d. Shortly thereafter, he was reassigned to an adjacent battalion. After completing three years of developmental jobs and a deployment to Afghanistan, he was passed over for promotion to captain (CPT). Based on the recommendation of his branch manager, he sought legal advice and submitted an appeal packet. e. On 19 September 2014, his Company Commander (CPT J.A.), initiated a Commander's Inquiry on his behalf for his OER with the ending period 14 June 2012. As grounds for the inquiry, he cited a lack of objectivity on the part of the senior rater due to the congressional inquiry filed against the senior rater approximately one month before the OER was generated. f. The appeal packet never left the battalion. He utilized the open door policy and his Battalion Commander (Major (MAJ) R.G.) informed him he was outside the timeline to submit an appeal. The applicant told MAJ R.G. that the Judge Advocate General told him he was within the appeal timeline and that he had no authority to withhold submitting the request to the Brigade Commander. g. During this time, he also received two OERs (15 June 2013 through 14 June 2014 and 15 June 2104 through 26 November 2014), which he is also appealing. These OERs contain "Center of Mass" ratings but his senior rater never observed his work. h. Following his discharge from an in-patient facility, he asked his Brigade Commander if he had seen his appeal packet and the congressional inquiry to his allegations of a hostile work environment; the Brigade Commander told him he had not. 4. The applicant provides: a. The three OERs in question: for the rating periods 12 October 2011 through 14 June 2012, 15 June 2013 through 14 June 2014, and 15 June 2014 through 26 November 2014. b. A memorandum from the Commander, 4-3 Special Troops Battalion, 4th Brigade, 3rd Infantry Division, to Commander, 4th Brigade, 3rd Infantry Division, subject: Request to Initiate Commander's Inquiry into OER for (Applicant), evaluation period 12 October 2011 thru 14 June 2012, dated 19 September 2014, with two enclosures (letters of support). c. A letter from LTC (Retired) M.D.Mc. addressed to "Board President - Army Active Guard Reserve (AGR) Program," dated 16 October 2014, recommending the applicant be selected for entry into the AGR Program. 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 Regular Army commissioned officer on 15 May 2011 in the rank/grade of second lieutenant/O-1. He entered active duty on 12 June 2011 for the purpose of attending the Quartermaster Officer Basic Course. He completed the Quartermaster Officer Basic Course on 29 September 2011 and was assigned to Fort Stewart, GA. 3. The first contested OER he received was in the month of July 2012; this is a "Change of Rater" report covering 8 months of rated time from 12 October 2011 through 14 June 2012. This report was based on his duty performance as a Fuel and Water Platoon Leader while assigned to Company A, 703rd Brigade Support Battalion (BSB), 3rd Infantry Division (ID), Fort Stewart, GA. a. His rater was CPT K.P, the Company Commander, and his senior rater was LTC N.S., the Battalion Commander. b. The Army Values of honor, integrity, courage, loyalty, respect, selfless-service, and duty were all evaluated to have been positive. A "Yes" answer was given in the appropriate space on the OER for each of these values. c. Each of the three leader attributes was rated positively and a "Yes" answer was given in the appropriate spaces on the OER. Each of the three leader skills was rated to have been positive. The nine leader actions of leadership the applicant performed were likewise all evaluated to have been positive. A "Yes" answer was given in the appropriate spaces for each leadership action on the OER. d. In Part V (Performance and Potential Evaluation) the rater marked the block indicating "Outstanding Performance, Must Promote" and entered positive comments in Part Vb (Comment on Specific Aspects of the Performance…). e. The rater entered the following comment in Part Vc: "Unlimited potential; continue to assign to positions with greater responsibility." f. 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 10 officers in the applicant's grade. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the OER shows the applicant was rated in the "Center of Mass" block. g. In Part VIIc (Comment on Performance/Potential) the senior rater entered the following comments: [Applicant] accomplished several specified tasks during this rating period. He is an officer that has potential to become an effective platoon leader with continued mentorship and guidance. Continue to place him in developmental positons as he refines the ability to lead Soldiers. Consider selection to the Officer Advanced Course upon successful completion of Platoon Leader and other developmental positons. 4. The rater and senior rater authenticated the OER, with their digital signatures in the appropriate places on 18 and 27 July 2012, respectively. The applicant authenticated the form with his signature by pen on 27 July 2012. The report was processed by HQDA on or about 6 August 2012. 5. The applicant, through CPT J.A., his current commander not his rater on the contested OER, submitted a request on 19 September 2014 to the Commander, 4th Brigade, 3rd ID, for a Commander's Inquiry into the contested OER on the basis of substantive error; in particular, the lack of objectivity or fairness by the senior rater. The request cites the senior rater's lack of objectivity, which he states was the direct result of a congressional inquiry initiated by the applicant against the senior rater on or about July 2012. The requested inquiry was submitted over 2 years after being submitted and processed by HQDA. 6. There is no evidence in the applicant's record that shows or suggests a Commander's Inquiry was initiated. Additionally, the applicant's record is void of documentation that indicates he petitioned the Officer Special Review Board (OSRB), through the U.S. Army Human Resources Command (HRC), for removal of the contested OER within the 3-year statute of limitations. 7. The second contested OER he received was in the month of November 2014; this is an "Annual" report covering 12 months of rated time from 15 June 2013 through 14 June 2014. This report was based on the applicant's duty performance as a Platoon Leader, while assigned to Headquarters and Headquarters Company, 4-3 Special Troops Battalion (STB), 4th Infantry Brigade Combat Team (BCT), 3rd ID, Fort Stewart, GA. a. His rater was CPT J.A., the Company Commander, and his senior rater was MAJ R.G., the Battalion Commander. b. In Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), the rater marked the block indicating "Proficient" and made positive comments in the remaining sections. c. Part VIa (Potential Compared with Offices Senior Rated in Same Grade) of this OER shows the senior rater rated the applicant as "Highly Qualified." The senior rater indicated that at the time he served as senior rater to 13 officers in the applicant's grade. d. In Part VIc (Comments on Potential) the senior rater entered the following comments: [Applicant] is in the top half of lieutenants I currently rate, and has excellent potential in positions of increased responsibility. A proven performer, he will do well wherever the Army places him. Promote him now, and send to the Captain's Career Course immediately. 8. The OER shows the rater and senior rater authenticated the form with their digital signature in the appropriate places on 24 November 2014. The applicant authenticated the form with his digital signature on 16 December 2014. The report was processed by HQDA on or about 11 February 2015. 9. The third contested OER he received was in the month of March 2015; this is a "Change of Rater" report covering 6 months of rated time from 15 June 2014 through 26 November 2014. His report was based on his duty performance again as a Platoon Leader while assigned to the same unit as the previous OER. a. His rater was CPT J.A., the Company Commander, and his senior rater was MAJ R.G., the Battalion Commander. b. In Part IV (Performance Evaluation - Professionalism, Competencies, and Attributes) the rater marked the block indicating "Excels" and made positive comments in the remaining blocks. c. The senior rater in Part VIa (Potential Compared with Offices Senior Rated in Same Grade) of the OER shows the applicant was rated in the "Highly Qualified" block. The senior rater indicated that at the time, he served as senior rater to 19 officers in the applicant's grade. d. In Part Vic (Comments on Potential) the senior rater entered the following comments: Excellent performer with a keen intellect. Excellent potential for service in positions of increased responsibility. Promote to CPT now, and send to the logistics Captain's Career Course immediately. 10. The OER shows the rater and senior rater authenticated the form with their digital signature in the appropriate places on 18 March and 14 April 2015 respectively. The applicant authenticated the form with his digital signature on 5 May 2015. The report was processed by HQDA on or about 16 May 2015. 11. His record is void of documentation that indicates he submitted a request for a Commander's Inquiry or petitioned the OSRB, through HRC, for removal of the two contested OERs with through dates in 2014. 12. The applicant submitted the two letters as attachments with the 19 September 2014 memorandum in which he requested a Commander's Inquiry. These two letters opined some unwarranted remarks and behavior toward the applicant by his Battalion Commander, LTC N.S. 13. The applicant also submitted a letter from LTC (Retired) M.D.Mc. addressed to "Board President - Army Active Guard Reserve (AGR) Program," dated 16 October 2014 recommending the applicant be selected for entry into the AGR Program. 14. On 17 August 2016, an informal Physical Evaluation Board (PEB) proceedings was convened at Fort Sam Houston, Texas. The PEB found the applicant physically unfit based on diagnoses of post-traumatic stress disorder (PTSD) with major depressive disorder and recommended a 70% disability rating and that he be placed on the temporary disability retired list (TDRL). 15. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 17 November 2016 by reason of disability, temporary (enhanced). He completed 5 years, 5 months, and 6 days of net active service in the rank of 1LT. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder 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 and DA Form 67-10-1 are filed in the performance folder of the Soldier's OMPF. 2. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 3. Army Regulation 623-3 (Evaluation Reporting System), 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. Each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. 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. In Part VIIb of the OER, the senior rater will make an assessment of the rated officer's potential in comparison with all officers of the same grade. This assessment should be based on officers the senior rater has senior rated or has currently in his/her senior rater population. This potential is evaluated in terms of the majority of officers in the population. If the potential assessment is consistent with the majority of officers in that grade, the senior rater will "X" the CENTER OF MASS box. If the rated officer's potential exceeds that of the majority of officer's in the senior rater's population, the senior rater will "X" the ABOVE CENTER OF MASS/CENTER OF MASS box. (The intent is for the senior rater to use this box to identify their upper third in each grade). However, in order to maintain a credible profile, the senior rater must have less than 50 percent of the ratings of a grade in the top box. f. The rated Soldier's authentication in Part II (Authentication) of the OER verifies the information in Part I (Administrative Data). It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rater. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances. The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. g. 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. h. 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. i. To ensure the availability of pertinent date and timely completion of an inquiry conducted after the evaluation in question has been accepted at HQDA for inclusion in the rated Soldier's OMPF, the inquiry will be conducted by either the Commander or commandant at the time the evaluation was rendered who is still in the command positon, or by a subsequent Commander or commandant in the position. The results of the inquiry will be forwarded to HQDA not later than 120 days after the signature date of the senior rater (OER) or reviewer (NCOER) or authenticating official (AER). DISCUSSION: 1. The applicant's request to have his three contested OERs removed from his OMPF was carefully considered. 2. His request is based on perceived substantive error. However, in order to justify removal of a report, the applicant must produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity should not be applied to the contested OER and (2) action is warranted to correct a material error, inaccuracy, or injustice. 3. He bases his contention for the first contested OER with a through date of 14 June 2012 on his senior rater's lack of objectivity or fairness as a result of a congressional inquiry he initiated against the senior rater. He also suggests that he experienced a hostile work environment from the onset of his arrival at his duty station. However, aside from his expressed dissatisfaction with the rating, he has failed to provide clear and convincing evidence to support this contention. 4. The other two contested OERs, one with a through date of 14 June 2014 and one with a through date of 26 November 2014, are based on his displeasure with being rated as a "Center of Mass" officer. 5. There is no evidence and he has not provided any evidence to show his 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 judgement and considered opinions at the time they prepared the contested OERs or that they exercised faulty judgement in evaluating him as they did. 6. The third-party statements of support were carefully considered. While the statements provided a favorable view of his performance and some perceived ill-feelings toward the applicant from his chain of command, none had the responsibility for rating his performance nor were they cognizant of his rater's/senior rater's expectations. 7. His contested OERs appear to be correct and to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the periods in question. They contain no unproven derogative or prohibited narratives/comments that would require removal or change based on regulatory guidance. 8. 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. 9. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006209 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006209 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2