IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20160016882 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 IN THE CASE OF: BOARD DATE: 7 February 2017 DOCKET NUMBER: AR20160016882 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * removing the contested General Officer Memorandum of Reprimand dated 6 August 2014 and all allied documents from his official military personnel file (OMPF) * removing the DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report) for the rating period ending 27 August 2014 from his OMPF * adding to his OMPF a statement of non-rated time or a statement explaining the gap in his officer evaluation reports for the period 8 March 2014 through 27 August 2014 * removing from his OMPF both the Secretary of the Army's decision to remove him from the Fiscal Year 2014 (FY14) Colonel, Army, Operations Promotion Selection List and the Notification of Referral to the Promotion Review Board (PRB) for reconsideration of his promotion status * reinstating the applicant to the FY14 promotion list and submitting his name on a scroll to the Secretary of Defense * promoting the applicant at an appropriate date on or after the approval date of the FY14 promotion list, with entitlement to back pay and allowances * placing his records before a Special Selection Board to be considered for colonel/O-6 level command and to attend a Senior Service College and any other applicable professional education _____________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 February 2017 DOCKET NUMBER: AR20160016882 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 from his official military personnel file (OMPF): * General Officer Memorandum of Reprimand (GOMOR), dated 6 August 2014 * Field Grade Officer Evaluation Report (OER) for the rating period 8 March 2014 through 27 August 2014 * Promotion Review Board (PRB) results, dated 1 February 2016 2. He also requests: * Reinstatement to the Fiscal Year 2014 (FY14) Colonel (COL) promotion list and promotion to COL effective 28 August 2014 with all pay and allowances * Consideration for selection to Senior Service College (SSC)/Foreign or Naval War College attendance, NATO Defense College attendance, and/or COL/O-6 level command 3. The applicant states the Department of the Army Inspector General (DAIG) substantiated that the unfavorable personnel actions (UPAs) taken by the Commanding General (CG), 25th Infantry Division (ID), were in reprisal for making a protected communication and that he failed to treat him with dignity and respect. The DAIG clarified that UPAs related to the GOMOR and OER were the acts of reprisal. The reprisal resulted in his removal from the promotion list and a flagging action, and this prevented favorable actions to include selection boards, such as SSC and O-6 command. After the UPAs posted to his file, he was further prevented from selection by subsequent boards. The only document added to his file since has been his recent OER through 29 April 2016. He wants to make his service whole again, as if the reprisal had not occurred. 5. The applicant provides: * Contested GOMOR, rebuttal, and filing instruction * Contested OER * PRB memorandum * FY14 promotion list * DAIG letter and email * OER for the rating period 28 August 2014 through 29 April 2016 * Multiple letters of support CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Regular Army commissioned officer and executed an oath of office on 29 May 1993. He completed the infantry officer basic course. 2. He served in a variety of stateside or overseas assignments, including Iraq, Germany, and Hawaii, and he was advanced to lieutenant colonel (LTC) on 1 April 2010. He assumed command of the 1st Battalion, 27th Infantry, 2nd Brigade, 25th ID, on or about 16 March 2012. 3. On 6 August 2014, he was reprimanded by the Major General (MG) CAF, the Commanding General (CG), 25th ID, for failing to create and foster a positive command climate within the battalion. The GOMOR stated: a. An Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation revealed numerous instances where he belittled subordinates, humiliated those whom he felt were not performing to standard, and publicly and privately berated those under his command. Additionally, the evidence revealed several instances where he used racially insensitive language, particularly ·about and toward individuals of Asian descent. His behavior had created a climate described by his subordinates as "unhealthy," "oppressive," and "negative." b. The Army and this command had placed a great deal of trust in his ability to lead, both by his own example and by the environment he created and fostered. The standards of Army leadership required him to promote dignity, respect, and a culture and climate of trust, all while demonstrating character, presence, and intellect. His actions as the battalion commander had fallen far short of what the Army and this command expected of him. There was no excuse for this behavior. 4. He acknowledged receipt and elected to submit matters in his own behalf. With several character reference letters and/or letters of recommendation and support, he provided his rebuttal and stated: * he fully understood as the commander that he was responsible for everything that happened or failed to happen * he took full responsibility for his conduct at all times and contended that he did not believe he was a toxic leader * he asked the imposing GO to give him an opportunity to return to command and re-earn his trust and confidence 5. On 25 August 2014, after reviewing the reprimand and the chain of command's recommendations, the CG directed permanently filing the GOMOR in the applicant's OMPF. 6. Following receipt of this GOMOR, the applicant received the contested OER, a relief for cause OER for the period 8 March 2014 through 27 August 2014 for his duties as the Battalion Commander, 1st Battalion, 27th Infantry. His rater was COL DBW, the Brigade Commander, and his senior rater was MG CAF, the CG, 25th ID. The OER shows in: a. Part IId, an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed next to the answer "No," indicating the rated officer did not desire to attach comments. b. Part IIf(1) (Supplementary Review), the OER required a supplementary review. c. Part IV (Performance Evaluation – Professionalism, Competence, and Attributes), the rater wrote next to section d1 "Character," "[Applicant] is a competent and capable leader. Although his Army values were subject to question, he possesses unlimited acumen and varying [sic] respect. [Applicant] supports SHARP program." d. Part IVd(2) (Provide narrative comments which demonstrate performance regarding field grade competencies and attributed in the rater officer's current duty position), the rater stated: "[Applicant] displayed inept leadership abilities during his tenure as a Battalion Commander contributing to a declining command climate and a substantial decrease in morale resulting in questionable performance and leadership." e. Part IVe (The officer's overall performance is rated as): Unsatisfactory. The rater added the comment "through experience [applicant] has learned from his mistakes of not fostering a positive command climate." f. Part VI (Senior Rater), Part VI(a) (Potential compared with officers senior rated in same grade), "Not Qualified," and in Part IV(c) the comments "I directed [applicant's] relief because I lost confidence in his ability to command following an investigation which revealed that he failed to create and foster a climate of trust, dignity, and respect. While I lost faith and confidence in his ability to command his battalion, I am confident that with the proper development, [applicant] can continue to serve the U.S. Army and contribute in key staff positions. The rated officer refused to sign." 7. The OER was signed by his rater on 17 November 2014 and his senior rater on 5 December 2014. A supplementary review was conducted by General VKB, CG, U.S. Army Pacific, on 17 March 2015. The OER was posted to his records at Headquarters, Department of the Army (HQDA). 8. Meanwhile, on 28 August 2014, the Army officially released the selection board results of the FY14, Colonel, Army Competitive Category, Promotion Selection Board. The applicant was selected for promotion. 9. On 28 January 2016, the Secretary of the Army (SA) directed the immediate removal of the applicant's name from the FY14 COL, Army, Operations Promotion Selection List, under the provisions of Title 10, U.S. Code, section 629(a), Executive Order 12396, and AR 600-8-29 (Officer Promotions), paragraph 8-1b. 10. On 1 February 2016, an official at the Promotions Branch, U.S. Army Human Resources Command (HRC), notified the applicant that his records were referred to a DA Promotion Review Board (PRB) for reconsideration of his promotion status. The SA had directed his removal in accordance with Title 10, U.S. Code, section 629. An officer who had been removed continues to be eligible for consideration for promotion by the next promotion board. However, if not recommended he/she would be considered to have twice failed selection for promotion. 11. On 8 August 2016, the DAIG issued a Report of Investigation (ROI) that stated an investigation began in August 2014 when the applicant forwarded a whistleblower reprisal complaint against his senior rater and GOMOR imposing GO (MG CAF, CG, 25th ID). DAIG found: * Allegation #1, that MG CAF reprised against a subordinate (directing he be given a GOMOR and relief for cause OER after he acted as a witness in a command investigation into COL M's relief/suspension of four majors, and providing a statement that COL M had a toxic command climate) – Substantiated * Allegation #2, that MG CAF failed to treat subordinates with dignity and respect (MG CAF berated him during an office call while attempting to rebut the findings of the AR 15-6) – Substantiated * Allegation #3, that MG CAF failed to flag subordinates in accordance with AR 600-8-2 (MG CAF failed to ensure the applicant was flagged when he directed the AR 15-6 investigation, when he issued him a GOMOR, and when he initiated the relief for cause OER) – Substantiated * Allegation #4, that MG CAF failed to take appropriate action (inquire into and attempt resolution of complaint or accusation against military personnel) – Substantiated * Allegation #5, that MG CAF improperly denied Soldiers entry into the Warrior Transition Unit (WTU) (MG CAF denied entry of 27 out 29 Soldiers into the WTU, engaging in a policy that curtailed Soldiers' entry to reduce the size of the WTU) – Substantiated 12. Following his Hawaii tour, the applicant was reassigned to U.S. Army Mission Command Training Program, Fort Leavenworth, KS. He is currently assigned to that installation. REFERNCES: 1. Title 10, U.S. Code, section 629(a) (removal from a list of officers recommended for promotion) states the President may remove the name of any officer from a list of officers recommended for promotion by a selection board convened under this chapter. 2. Executive Order 12396 delegates certain functions to the Secretary of Defense concerning the appointment, promotion, and retirement of commissioned officers. The authority delegated to the Secretary of Defense by this Order may be re-delegated to the Deputy Secretary of Defense, any of the Assistant Secretaries of Defense, and to any of the Secretaries of the military departments who may further sub-delegate such authority to subordinates who are appointed to their office by the President with the advice and consent of the Senate. 3. AR 600-8-29 prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs: a. Paragraph 7-2 states the SSBs may be convened under Title 10, U.S. Code (USC), section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1) an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required); (2) the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or (3) the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 8-1(a) states before the selection board report is approved by the President or his designee, the name of an officer in a grade above second lieutenant recommended for promotion by a selection board may be removed from the report of the board only by the President. A report of a selection board exists after a promotion board issues a signed board report. The board report becomes a promotion list after approval by the President or his designee. If the Secretary of the Army recommends removal of the name of an officer from a selection board’s report and the recommendation includes information that was not presented to the selection board, the information will be made available to the officer. The officer will be afforded a reasonable opportunity to submit comments on that information to the officials making the recommendation and the officials reviewing the recommendation. c. Paragraph 8-1(b) states the President, or his designee, may remove the name of an officer, in a grade above second lieutenant, from a list of officers recommended for promotion by a selection board (10 USC 629(a)). This authority has been delegated to the SA. PRBs are used to advise the SA in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. In such instances, a PRB may also be conducted when an officer’s name appears on a report of a selection board, although the Secretary’s final decision or recommendation under paragraph 8–8 may not be made until the report is approved by the President or his authorized designee. An officer in a grade above second lieutenant is considered to be on a promotion list when the officer’s name appears on a report of a promotion selection board which has been approved by the President or his authorized designee. 4. AR 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 OERs will be filed in the performance section of the OMPF. 5. AR 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 6. Department of Defense Directive 7050.06 (Military Whistleblower Protection), 23 July 2007, states in paragraph 4 that members of the Armed Forces shall be free from reprisal for making or preparing to make a protected communication (PC). No person may take or threaten to take a UPA, or withhold or threaten to withhold a favorable personnel action, in reprisal for making or preparing to make a PC. No person shall restrict a member of the Armed Forces from making lawful communications to a Member of Congress or an IG. DISCUSSION: 1. The applicant was serving at Schofield Barracks, HI, as the Commander, 1st Battalion, 27th Infantry, 2nd Brigade, 25th ID. An official AR 15-6 investigation revealed numerous instances where he belittled subordinates, humiliated those whom he felt were not performing to standard, and publicly and privately berated those under his command. He also used racially insensitive language, particularly about and toward individuals of Asian descent. 2. As a result of this investigation, he was removed from command, received a GOMOR, and received a referred (derogatory) OER. Additionally, he was selected for promotion to COL by the FY14 promotion selection board. However, in view of the derogatory information in his file, his name was referred to a PRB. PRBs are used to advise the SA in any case in which there is cause to believe that a commissioned on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion. The SA directed his removal from the promotion list. 3. A DAIG investigation was conducted after the applicant complained that the GOMOR imposing GO (also his senior rater on the OER) reprised against him. The DAIG investigation substantiated all five allegations that the GO reprised against him by giving him a GOMOR and relief for cause OER after he acted as a witness in a command investigation into another officer's relief/suspension of four majors, and providing a statement that the other officer had a toxic command climate. 4. The GO's substantiated reprisal against the applicant supports a conclusion that the contested GOMOR and the contested OER should be removed from the applicant's record. 5. As for reinstatement on the promotion list, the PRB was triggered by the GOMOR and referred OER. Had this derogatory information not existed in his file, his record would not have been sent to the PRB and the SA would have had no reason to remove him. The DAIG substantiation of the reprisal effectively negates the PRB and is a basis for his reinstatement on the FY14 promotion list. Additionally, had he remained on that promotion list, he would have been scrolled and promoted with his peers. 6. The Board may also recommend that the applicant's records be placed before a Special Selection Board to consider him for selection to attend a Senior Service College (SSC)/Foreign or Naval War College, NATO Defense College attendance, and/or COL/O-6 level command. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160016882 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160016882 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2