BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160013990 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 BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160013990 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. BOARD DATE: 29 August 2017 DOCKET NUMBER: AR20160013990 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 (OER)), covering the rating period 19 April 2013 through 30 September 2013 from her official military personnel file (OMFP). 2. The applicant states she received the contested OER from her rater and senior rater for a 6-month rating period, which she claims is not justified and incorrectly reflects her leadership capabilities. She refers to the comments on the contested OER: a. Part IV (Performance Evaluation – Professionalism), b (Leader Attributes / Skills / Actions) the rater placed an "X" in the "No" block for "Emotional – displays self-control, calm under pressure." b. Part IVd (Officer Development) the rater placed an "X" in the "Yes" block; however she states no quarterly counseling’s were conducted, no DA Form 67-9-1a (Development Support Form) was provided by the company commander, and no initial counseling occurred at the beginning of this rating period. c. Part V (Performance and Potential Evaluation), the applicant states "a. Emotion and performance correlation, b. Subjective evaluation, c. Satisfactory performance overall, completed 60 support missions and other trainings, d. No substantiating records or facts." d. Part VII (Senior Rater), she states her senior rater's "Do Not Promote" annotation should be change to "Fully Qualified." Further, she suggests her written evaluation include the following: "Performance during this rating period did not show a need for further development, completed all missions that were required, responsibilities were not difficult to balance because she completed everything that was required." She asserts her rater and senior rate falsely characterized her performance and leader attributes. Nowhere in her military career has she lost emotional control in professional or public company settings. Both the company commander (rater) and battalion commander (senior rater) stated that she should not be promoted; however during that rating period under that chain of command she was promoted from second lieutenant (2LT) to first lieutenant (1LT). e. There are no substantiating records proving that counselling was conducted by her rater on a quarterly basis (as required by regulation) and the comments provided in the performance section are subjective, not objective statements. f. She was coerced into signing the contested OER by her chain of command even though she did not agree with the overall evaluation. The contested OER should be removed from her record because it does not accurately reflect her leadership and professional capabilities as an officer. 3. The applicant further states that during the 6-month rating period she was treated differently from the other officers in the company and was provided an unjust evaluation. She provides memorandums from lieutenants and platoon sergeants in the same company commenting on her rater's unequal treatment of her. She did not file an equal opportunity complaint because she was unaware of that option at that time. She provides copies of her other OERs and academic evaluations which accurately reflect the type of officer she is. She is concerned that the contested OER will adversely impact her ability to get promoted to captain in May 2017. She is requesting removal of the contested OER from her military record. Her personnel officer in the Alaska Army National Guard (AKARNG) directed her to go through this process to have the contested OER removed from her record. For the past year and a half she has been in a captain's position and has received support from her current chain of command for promotion. Her current supervisor agrees that the contested OER is unjust and has included a memorandum for the Board’s review concerning her current performance. 4. The applicant provides: * DA Form 67-9 for the rated period 16 December 2011 through 18 April 2013 * DA Form 1059 (Service School Academic Evaluation Report (AER)) dated 21 May 2012 * contested DA Form 67-9 * National Guard Bureau (NGB) Form 78 (Recommendation for Promotion to 1LT/CW2), dated in April and May 2013 * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) OER for the rated period 1 October 2013 to 30 September 2014 * DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) OER for the rated period 19 March 2015 to 18 March 2016 * National Guard Bureau (NGB) Form 78 (Recommendation for Promotion to 1LT/CW2, dated in April and May 2013 * 10 January 2014 memorandum in support of the applicant’s request to remove the contested OER from a distribution platoon leader * 12 January 2014 memorandum in support of the applicant’s request to remove the contested OER from a platoon sergeant * 12 January 2014 rebuttal memorandum appealing the contested OER signed by the applicant * AER, dated 1 August 2014, for the Logistics Captains Career Course * 13 June 2016 memorandum in support of the applicant’s request from a major in the AKARNG CONSIDERATION OF EVIDENCE: 1. At the time of her application, the applicant was serving in the ARNG in a troop program unit as a 1LT, in pay grade O2. 2. An AER dated 21 May 2012, reports the applicant completed the Quartermaster Basic Officer Leader Course B. She achieved course standards. Item 14 (Comments), completed by the rater, shows the applicant: consistently demonstrated oral communication skills characteristic [of] officers senior in rank, demonstrated superior physical fitness [standards] by scoring 323 on the [Army Physical Fitness Test (APFT)], an enthusiastic and concerned young officer with tremendous insight, initiative and confidence; demonstrated outstanding leadership skills as the S6/Communications Officer; devoted several off duty hours to class website; superior leadership ability was evident throughout the entire course; ready for platoon leader duties now; this officer has unlimited further potential 3. A review of the applicant’s OER for the period ending on 18 April 2013, just prior to the contested OER, shows she was a 2LT performing duty as a distribution platoon leader. She was rated as outstanding, best qualified, and promote ahead of her peers. Her rater was the company commander. Her senior rater was the battalion commander who stated: [the applicant] performed well…and I rate her as a solid center of mass officer with potential for increased responsibility…has proven to be a trusted officer and accomplished multiple missions assigned to her. Her care of fellow officers and Soldiers is evident in the time she spends building their resilience…ensuring their personal readiness… 4. The contested OER is a 6-month referred report and the reason for submission was change-of-rater. The administrative data shows the applicant was promoted to 1LT on 16 June 2013. Her status is shown as an "M-day" officer meaning she was performing duties with her ARNG troop program unit. Her principal duty was platoon leader in a forward support company within an infantry battalion. Her rater, also shown as the company commander, had changed, but she had the same senior rater (battalion commander). a. In Part IVa (Performance Evaluation – Professionalism), the rater placed an "X" in all the character "Yes" blocks. b. In Part IVb (Leader Attributes / Skills/ Actions), the rater placed an "X" in the "No" block for "Emotions" meaning she did not display self-control and was not calm under pressure. c. In Part IVd (Officer Development), the rater placed an "X" in the "Yes" block and indicated developmental tasks and quarterly counseling were conducted as required. d. Part Va (Performance and Potential Evaluation) shows "Unsatisfactory Performance, Do Not Promote.” Comments in Part Vb include: On at least 5 occasions, in public company settings, she failed to maintain very basic standards of decorum and military bearing with emotional stress appearing to be the cause. Observed triggers included being faced with responsibility for mission failure, constructive criticism, and corrective input, including from her commander, peers, or subordinates. Additionally, [the applicant] showed difficulty acting on commander’s intent in the absence of specified tasks as well as delineating implied and essential tasks; her performance demonstrated and she verbally confirmed a need for all tasks to be specified. e. In Part Vc (Comments on Potential for Promotion), the rater stated, "In overall performance, I believe the concerns noted above currently outweigh [the applicant's] strengths with respect to her taking higher responsibility at a higher level. She may mature into an officer better suited for promotion given more time in grade.” f. In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in "Unsatisfactorily Performance, Do Not Promote," in Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) her senior rater indicated "Below Center of Mass-Retain," and in Part VIIc, her senior rater stated she was in the bottom third of all lieutenants he senior rated. Her "performance during this rating period showed a need for further development at her current grade." She had received favorable ratings in other positions. The senior rater "attribute[d] much of the change in her rating this period to her being held accountable for leadership responsibilities that were difficult to balance at times." The senior rater recommended further assignment as a 1LT with regular counseling to track her performance and strengthen her resiliency. With mentoring and professional development, the senior rater assessed her as being able to provide further value and service. He concluded by stating a DA Form 67-9-1 (OER Support Form) was not received g. The rater, senior rater, and the applicant all signed the contested OER in in December 2013, February 2014, and March 2014, respectively. The OER is a referred report and the applicant indicated she would submit comments. The contested OER is filed in the applicant's official military personnel file (OMPF). 5. The applicant provided three memoranda rebutting the contents of the contested OER. a. On 12 January 2014, the applicant, by rebuttal memorandum, discussed her opinions and belief that the contested OER was not a fair assessment of her service during that period. She contends it contains incorrect statements and did not accurately describe her performance of duty. Her rater said he counseled her five times and in public settings. She recalls she was counseled only once by the commander and when she asked for a copy of the counseling, he refused to give it to her. She believed she was fully capable and successful during her time as a platoon leader. However, a personality conflict existed between the applicant and her commander. She was not treated the same as the other leaders in the organization. She submitted an inspector general (IG) complaint and had a three-way meeting between the battalion commander, her immediate commander, and herself. She thought it best for her to be reassigned to another organization. There was little follow-up regarding this meeting. She believed the battalion commander just agreed with the company commander because he did not know her or see her duty performance directly. As a result, she feels the contested OER was rendered as a punishment. (The applicant did not provide the results of her IG complaint with her application.) b. On 10 January 2014, a former platoon leader stated he observed the applicant’s positive attitude and ability to adapt to a rapidly changing command environment. She eagerly took on responsibility and learned about other leadership positions within the unit in addition to her own position. The platoon leader stated his knowledge was limited because of his transfer in 2013. c. On 2 January 2014, a former platoon sergeant discussed the strained relationship between the applicant and the new commander who arrived in April 2013. He pointed out that the new company commander made drastic changes to the organization and was very demanding of the applicant, without providing her initial counseling or proper communication. The platoon sergeant further stated the commander seemed to be quick to break the applicant down, pointing out faults or weaknesses in her leadership decisions or mission outcomes. Even when the applicant successfully coordinated and completed missions, the commander only gave her negative feedback, not positive reinforcement. He attests the applicant has strong leadership skills and easily learns. He transferred to another State for civilian employment. 8. An AER, dated 1August 2014, reports the applicant completed the Logistics Captains Career Course. She was rated as superior in her research ability and satisfactory in all remaining areas of evaluation. 9. A review of the applicant’s OERs rendered subsequent to the contested OER shows she was assigned to a different unit where she performed as a maintenance platoon leader from 1 October 2013 to 30 September 2014. Her senior rater stated she was in the top third of all 1LTs that he rated and recommended she be promoted to captain ahead of her peers. He stated she was definitely a future company commander. She completed the Logistics Captains Career Course during this rated period. 10. A review of the applicant’s OER for the period 19 March 2015 to 18 March 2016 shows she had been reassigned and performed duty as a brigade logistics plans officer. She was described as an outstanding junior officer with tremendous energy and attention to detail. She was recommended for promotion to captain at the first opportunity and assignment into positions of greater responsibility. 11. A Memorandum for Record, dated 13 June 2016, written by the applicant’s current rater, provides comments for a change of rater OER for a 3-month period ending on 14 June 2016. The rater requested that his comments be added to her next annual OER. He explained that she received a short rating period due to her volunteering for an overseas combat mobilization. He stated she is a dynamic leader in the organization with a vibrant attitude and demeanor. She readily accepts responsibility for her people and equipment especially during recent cold weather training. He strongly recommends she be promoted ahead of her peers. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states letters of reprimand and DA Forms 67-9 with DA Forms 67-9-1and DA Form 67-10-1 will be filed in the performance section of the OMPF. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for completing evaluation reports and associated support forms that the basis for the Army's Evaluation Reporting System. a. A Soldier is evaluated on his or her performance and potential. Duty performance is judged by how well a Soldier performs assigned tasks and how well each meets Army professional values. Evaluation reports capture rating officials' single time-and-place assessments. b. The Evaluation Reporting System is to provide information to Headquarters, Department of the Army (HQDA) for use in making personnel management decisions. c. Referred reports are provided to the rated officer who is responsible for acknowledging the senior rater's referral of the OER, signing the completed OER and providing rebuttal comments. Commanders will ensure the rated officer understands their comments do not constitute an OER appeal or request for a commander's inquiry. d. Army evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army. 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 the governing pamphlet. Potential evaluations will be performance-based assessments of rated Soldiers of the same grade to perform in positions of greater responsibility and/or higher grades. e. Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. f. The primary purpose of a Commander's Inquiry 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, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process which is the primary means of addressing errors and injustices after they have become a matter of permanent record. g. Paragraph 4-11 (Burden of Proof and Type of Evidence) states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the Soldier must produce evidence that establishes clearly and convincingly that the presumption of administrative regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. For a claim of inaccuracy or injustice of a substantive type, evidence will 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 appellant’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 appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a Commander’s or Commandant’s Inquiry may provide support for an appeal request. h. Specific instructions for processing ARNG appeals states the Chief, National Guard Bureau, is responsible for screening and acting on, or forwarding, all appeals submitted by ARNG members for their periods of ARNG service. Documents should include a Commander's Inquiry or Commandant’s Inquiry. Appeals for OERs should be addressed to the Appeals and Analysis Section of the Officer Management Branch at NGB. DISCUSSION: 1. The OER contains a listing of the Army values and the dimensions of the Army's leadership doctrine that define professionalism for the Army officer and apply across all grades, positions, branches, and specialties. They are needed to maintain trust, confidence, and the qualities of leadership and management needed to sustain an effective officer corps. These values and leader attributes/skills/actions are used to emphasize and reinforce professionalism. They are considered in the evaluation of the performance of all officers. 2. The applicant, a lieutenant in an ARNG unit, received a referred OER for a 6-month period. Under her performance evaluation for leader attributes she received a "No" for the emotional attribute. Her rater stated that on at least five occasions the applicant failed to maintain the basic standards of decorum and military bearing. He stated she appeared to be under emotional duress when not provided with specified tasks and when required to delineate specific tasks from the implied tasks at the company level. 3. The applicant’s senior rater concurred with her new rater even though in a previous OER he had said she was "Best Qualified" and recommended she be promoted. During this 6-month period, she was promoted to 1LT. However, the contested OER shows the applicant required further development at her current grade. He stated he did not receive a DA Form 67-9-1 from the applicant for the period covered by the contested OER. (This contradicts the OER itself wherein he indicated he had received a support form. The applicant asserts she never completed a support form with the rater during the contested OER time period.) 4. In the applicant’s rebuttal statement to the contested OER, she indicated her rater had counselled her; however, her rater did not provide her copies of the counseling session(s). She asserts she never received negative counseling as the rater alludes to in his comments. After the treatment she received by her rater, she submitted an IG compliant resulting in her removal from his chain of command. She was reassigned to another unit where she flourished with no derogatory comments noted on her evaluations. 5. The burden of proof rests with the applicant when contesting an OER. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160013990 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160013990 10 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2