IN THE CASE OF: BOARD DATE: 7 July 2016 DOCKET NUMBER: AR20160009742 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: 7 July 2016 DOCKET NUMBER: AR20160009742 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: 7 July 2016 DOCKET NUMBER: AR20160009742 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests removal of the DA Form 67-9 (Officer Evaluation Report) for the rating period 27 May 2011 through 26 May 2012 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). 2. The applicant states: a. Within the last two and a half years his legal advisor has made several attempts to dialogue with his previous chain of command to amend this OER without positive results. b. The contested OER is filed in his OMPF and is substantively inaccurate and unjust. It is not a reflection of his performance during the rated period and is based on negative personal bias after he requested a compassionate reassignment. The prejudice increased after the compassionate reassignment request was denied and his spouse and he filed separate complaints with their Congressman. 3. The applicant provides a copy of the contested OER and a copy of his OER appeal with numerous enclosures. CONSIDERATION OF EVIDENCE: 1. The applicant is a Regular Army lieutenant colonel (LTC) with a date of rank of 1 September 2010. At the time of this application he was assigned to Fort Sam Houston, Texas. 2. He received the contested OER, an annual report, which covered 12 months of rated time for his duties as a Brigade Team Leader, Western Hemisphere Branch comprised of 12 Soldiers. His rater was Colonel (COL) M______ F. M______, the Brigade Commander, and his senior rater was Brigadier General (BG) C_______ K. K. C____, the Commanding General. The OER shows the following entries: a. In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in all the "Yes" blocks for all values. b. In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributes, skills, and actions. c. In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Outstanding Performance-Must Promote" block and entered comments in Part Vb as follows: Superb performance. [The applicant] is a fine officer and one of the most experienced Foreign Area Officers assigned to the Brigade. He conducted the first Regionally Aligned Forces workshop at the Western Hemisphere Institute for Security Cooperation at Fort Benning, GA. This workshop produced an initial, proposed training plan to address SOUTHCOM Strategy for 2020, focused on regional stability, capacity building, and partnership. [The applicant] is also an excellent communicator. He published the first Regionally Aligned Forces article in Dialogo of the Americas Magazine, one of the largest military magazines in circulation. [He] was also selected to attend the Joint Foreign Area Officer Skill Sustainment Program at the Naval Post Graduate School [in] Brazil where he was able to engage in contemporary regional security affairs and observe joint and interagency operations. [He] has initiated an Army Multi-Source Assessment and Feedback/360 as required by [Army Regulation 350-1 (Army Training and Leader Development)]. d. In Part Vc (Comments on Potential for Promotion) the rater stated, "Unlimited potential for promotion. Promote to Colonel." e. In Part VII (Senior Rater), the senior rater placed an "X" in the "Best Qualified" block and indicated he senior rated 58 officers in that grade at the time. He then entered the following comments: [The applicant] is a talented officer who did a fantastic job training advisors for the Security Force Assistance mission in Afghanistan. His technical expertise was superbly displayed through the development of the initial training support plan for the Regional Aligned Forces (RAF) in SOUTHCOM and NORTHCOM along with publishing the first RAF article in the Dialogo of the Americas Magazine. Because of his commitment to the RAF mission, [the applicant] was hand selected to lead a training workshop on the training support concept for RAF and the 162nd IN BDE mission to the Western Hemisphere Institute for Security Cooperation. Promote [the applicant] with his peers. f. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade (Overprinted by [Department of the Army]) shows "center of mass." 3. The contested OER was signed by his rater on 27 June 2012, by the senior rater on 30 July 2012, and by the applicant on 6 August 2012. 4. On 12 April 2016, he submitted an appeal of the contested OER to the U. S. Army Human Resources Command (HRC) contending the report was substantively inaccurate and unjust. He further indicated the contested report was not a reflection of his performance during the rating period and was based on negative personal bias after he requested a compassionate reassignment. The prejudice increased after the compassionate reassignment request was denied and he and his spouse filed separate complaints with their Congressman. 5. On 15 April 2016, HRC informed the applicant that his appeal was returned without action due to untimeliness. He was referred to Army Regulation 623-3 (Evaluation Reporting System), paragraph 4-8b which states that substantive appeals must be submitted within 3 years of the evaluation "THRU" date. He was advised he could appeal to the Army Board for Correction of Military Records (ABCMR). 6. He provides a copy of his 12 April 2016 OER appeal in which he stated: a. He respectfully requested that the contested OER be removed from his OMPF and an appropriate entry be made to address the lack of evaluation for this rating period. This OER is not a reflection of his outstanding performance during this rating period despite the mention of specific accomplishments in the body of Part V and Part VII. b. The evaluation is based on a negative personal bias after he requested a compassionate reassignment. This prejudice increased after the request for a compassionate reassignment was denied and his spouse and he filed separate complaints with their Congressman. c. At the time of this rating, he was a 25-year career Soldier who commenced his career as an enlisted Soldier on 12 August 1988. He was, and he is, a well-respected subject matter expert as a Foreign Area Officer (FAO). In this capacity, he has supported multiple operations including two mobilizations under Operation Enduring Freedom (OEF) and many leadership and key development assignments. He is also a fundamental contact for countless partner nations and U.S. officials within the Western Hemisphere where he is in charge of promoting strong partnerships, partner nation's capacity building, and being instrumental in the U.S. efforts for regional stability. He has continued to be a key contact for official engagements in the SOUTHCOM AOR. Proof of such reputation is that today he is the Counter Transnational and Organized Crime (CTOC) project manager, the Command's priority effort in the Western Hemisphere. d. Although there were approximately 23 other FAOs at Fort Polk during this time, most of them were pending retirement or assigned other duties outside their branch. Even though the brigade leadership at Fort Polk was not able to properly utilize the strategic assets that FAOs represent during that rating period; his performance was more than outstanding. He personally authored and published strategic communications articles related to the RAF at Fort Polk in three languages in a hemispheric military magazine (TABs G & H). He also singlehandedly developed, coordinated and then facilitated the first RAF workshop for the Western Hemisphere with 48 field grade officers from 12 partner nations and multiple U.S. Government officials and scholars. He was then individually invited to apply and subsequently selected to attend the Joint Sustainment FAO Program Seminar at the Naval Post Graduate School in Brasilia, Brazil (TAB I). e. In addition to his duties as a FAO, he served as the only Certified Master Instructor for four Security Forces Afghanistan Training (SFAT) rotations by providing instruction in the areas of counter-insurgency, negotiations, building rapport and other relevant subjects. The participation in these training events left a significant positive impact for the SFAT teams. These are just few examples of accomplishments occurred during that reporting period. Despite multiple and complex medical issues in his family that demanded over 113 days out of the office on 44 separate official medical temporary duty (TDY) trips. He was able to accomplish these complex and demanding tasks because of my strong work ethics. Even though he was out of the office, he continued to work remotely on the government issued computer and coordinating efforts with his chain of command daily. f. The center of mass evaluation he received was given as retaliation for a Congressional inquiry submitted by his spouse on 25 April 2012 after an application for a compassionate reassignment was denied. On 21 May 2012, they submitted a second Congressional Inquiry regarding this matter. As a direct result of such action; he was immediately transferred to Headquarters, Joint Readiness Training Center (JRTC). At this time his Commanding General told him that this assignment would allow him to address the family medical issues and was in lieu of the compassionate reassignment he had requested. These events directly coincide with the end of the contested OER rating period. g. At the same time he was executing a reassignment from the 162nd Infantry Brigade to the JRTC, he was working up the OER documents and, coincidentally, a Medical Evaluation Board (MEB) was also initiated. Due to the volume of medical appointments at locations ranging from 100 to 400 miles from Fort Polk as well as multiple medical issues, he was medically transferred to the San Antonio Military Medical Center, Joint Base San Antonio, Texas in March 2013. h. As shown in the above arguments and in the substantial evidence of the outstanding work produced, which is provided as enclosures to this document, it is clear that the OER in question is not an objective statement of his performance and potential. As indicated in the return to duty substantiating documents, he continued outstanding duty performance while assigned to the Warrior Transition Battalion (WTB). Moreover; he voluntarily opted for an officer evaluation at U.S. Army South while assigned to the WTB. He clearly performed above the vast majority of his peers despite the multiple medical challenges. It is completely unfair to receive and accept an OER that reflected personal bias for filing a Congressional inquiry with the only purpose of ensuring his family's medical needs were properly addressed. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. a. Paragraph 1-4 states OERs are prepared by the rating officials designated in the published rating scheme. Rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner. Pooling, or elevating the rating chain beyond the senior rater’s ability to have adequate knowledge of each Soldier’s performance and potential, in order to provide an elevated assessment protection for a specific group, runs counter to the intent of the ERS. b. Paragraph 3-36 states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Requests for modifications to evaluation reports already posted to a Soldier’s OMPF require use of the Evaluation Report Redress Program. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. Appendix B states the DA Form 67-9 is filed in the performance section of the OMPF. DISCUSSION: 1. By regulation, to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. This is not the case here. 2. The applicant received an annual OER that covered 12 months of rated time from 27 May 2011 through 26 May 2012 for his duties as Brigade Team Leader, Western Hemisphere Branch. The rating reflects his performance during the rating period as seen and judged by his rating officials. His dissatisfaction with the rating does not negate the OER or make it an invalid OER. Likewise, his belief that the contested OER does not reflect a true picture of his performance is insufficient to impeach the rating officials' assessment of his performance during the rating period. 3. There is no available evidence showing any negative personal bias in the contested OER. The applicant's efforts to receive a compassionate reassignment are not mentioned in the OER. 4. He appealed this OER to HRC nearly 4 years after the through date, but his appeal was deficient. HRC officials explained to him the appeal process and the required documents. Generally, in order to support a successful appeal, evidence should include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials. He elected not to respond to the guidance provided. 5. There is insufficient compelling evidence that shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify its removal. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009742 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009742 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2