BOARD DATE: 28 February 2017 DOCKET NUMBER: AR20160017630 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: 28 February 2017 DOCKET NUMBER: AR20160017630 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20160013143, dated 29 September 2016. _____________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: 28 February 2017 DOCKET NUMBER: AR20160017630 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 reconsideration of his previous request to remove a referred officer evaluation report (OER) covering the rated period 1 October 2011 through 30 September 2012, from his official military personnel file (OMPF). Hereinafter, the OER in question will be referred to as the "contested OER." 2. The applicant states his Flight Evaluation Board (FEB) proves a probable error or injustice occurred when the contested OER was processed prior to the FEB results. The FEB findings exonerated him of all allegations and charges his chain of command made against him at the time of the incident. 3. The applicant provides the following new evidence: * DA Form 7122-R (Crew Member Training Record), dated from 6 June 2012 to 9 January 2013 * Memorandum, subject: Referral to FEB, dated 28 November 2012 * Memorandum, subject: Notification of FEB, undated * DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers), dated 9 January 2013 * Findings and Recommendations Worksheet (FEB) * Memorandum for Record, dated 11 January 2013 * Email transmission, dated 1 February 2013 * Three character references, dated 2-4 January 2013 CONSIDERATION OF EVIDENCE: 1. Incorporated herein by reference are military records, which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160013143 on 29 September 2016. 2. The applicant provides new evidence, which warrants consideration by the Board. 3. The applicant was appointed as a Reserve warrant officer of the Army on 2 January 2002. He is currently serving in the rank/grade of CW4/W-4. 4. The applicant provided a DA Form 7122-R, dated 6 June 2012 through 9 January 2013, which contains the following pertinent entries and comments: Date Aircraft Event Duty Remark 8 Jul 12 AH-64D (Apache) Nonmedical Suspension Instructor Pilot (IP) Rated Crewmember (RCM) suspended from all flight duties pending commander's investigation 29 Jul 12 AH-64D Nonmedical Suspension Terminated Pilot (PI) Nonmedical suspension terminated. RCM's authorized duties changed to PI, dual seat, all modes – Air Mission Commander duties suspended 10 Sep 12 AH-64D Written Exam Readiness Level 3 (RL3) PI RMC was unsatisfactory during the Battalion written exam, recommend RL3 for retraining – Approved 10 Sep 12 AH-64D Retraining Complete/RL1 PI Retraining complete, recommend RL1, all modes – Approved 20 Sep 12 AH-64D Pilot in Command (PC) Evaluation PC Recommend PC, dual seat, all modes 17 Oct 12 AH-64D Nonmedical Suspension PC RCM suspended from all flight duties pending investigation of incident occurring during Hellfire Missile Engagement 6 Nov 12 AH-64D Investigation Complete N/A Investigation complete, recommend FEB 5. The applicant's record does not contain and he has not provided the specific charges or allegations his chain of command made or the results of the investigation, which resulted in an FEB. However, he did provide the following information: a. He provided a memorandum issued by his commander, subject: Referral to FEB [CW4 Applicant…], dated 28 November 2012, wherein his commander states he reviewed the proposed flight FEB pertaining to the applicant and decided to refer the applicant to an FEB to determine whether to terminate the applicant's aviation service and/or aeronautical rating. The commander based this action upon the results of an investigation. He directly states: …the Air Crew Training Program Commander who indicated a historical failure in general discipline while operating the aircraft. [The applicant] has repeatedly failed to maintain the highest professional standards indicative of a Master Aviator. Furthermore, over a period of two years, [the applicant] has displayed undesirable habits and questionable traits of character while operating the aircraft. The commander advised the applicant that an administrative law attorney would be detailed to serve as the FEB legal advisor. A trial counsel would be detailed to service as the board recorder. b. He provided a DA Form 1574 showing the FEB concluded on 9 January 2013. The Board made the following findings and recommendation: (1) The Board found, though they "question his judgement on numerous occasions," they did not feel that his actions as presented in the evidence provided warranted termination of his aviation service. The Board strongly considered the testimony of all the personnel present along with the character statements and video evidence to come to their finding. In doing so, the Board felt the severity of the applicant's errors were greatly amplified by personality conflicts between him and several officers in his organization. For this reason, the Board "advised him to change his behavior" as he continues his aviation service. (2) The Board recommended the applicant be restored to aviation service and the orders suspending him from flying be rescinded. c. Following the FEB, the applicant's counsel prepared a memorandum for record dated 11 January 2013, wherein he requested "any mention of the FEB be removed from [the applicant's] personnel and flight records." 6. The applicant received the contested OER on 31 January 2013. The report is a referred "Annual" OER covering the period 1 October 2011 through 30 September 2012 and addresses his duty performance as a Battalion Tactical Operations (TACOPS) Officer. The contested OER shows in: a. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), a check mark to indicate the applicant's OER was receiving a referred report. In that same block, the applicant placed a checkmark in the "No" block, indicating he did not wish to make any comments. b. Part IV (Performance Evaluation – Professionalism), sub-section b.3.2 (Influencing – Decision-Making), a checkmark in the "NO" block, indicating the applicant's rater felt his performance was deficient in this rated area. c. Part V (Performance and Potential Evaluation (Rater)), sub-section a. (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the "Satisfactory Performance, Promote" block. d. Part V, sub-section b. (Comment on Specific Aspects of the Performance…), the rater included the following narrative: [Applicant] built the Battalion's TACOPS program from scratch after the unit's BRAC move from Fort Hood to Fort Bliss. [The applicant] was the first TACOPS Officer in the Brigade to establish a standard [Aviation Mission Planning System] load for the Battalion and Companies, enabling us to rapidly execute Local Area Orientations (LAO), MTFs and RL progressions. [The applicant] skills as a TACOPS Officer were instrumental in the planning and execution of several major exercises including the first Attack Helicopter Aerial Gunnery on Fort Bliss, Division's Iron Focus exercise, Operation Raider Strike, Havelina Thunder, and Operation Neptune, the Battalion's overwater training rotation. [The applicant] also coordinated for the DOD Center for Countermeasures team from White Sands NM to participate in our overwater training, which enabled the Battalion to develop and test engagement TTPs against threat [air defense artillery] systems we will likely encounter on our deployment. However, during this rating period [the applicant] committed several errors in judgment both as a PIC and IP as well as acts of indiscipline as a Senior Aviator. The rated officer has completed or initiated [Multi-Source Assessment and Feedback]/360 as required by AR 350-1. (emphasis added) e. Part V, sub-section c. (Comment on Potential for Promotion), the rater included the following comment: "[Applicant] is a technical expert and has the potential for future service at current grade." 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 at the time he served as senior rater to 24 officers in the applicant's grade. g. The senior rater entered the following comments in Part VIIc (Comment on Performance/Potential): [The applicant] is one of the finest TACOPS Officers I have served with in over 23 years of Service. [The applicant] re-built 4th Battalion's TACOPS program from scratch after redeployment from Afghanistan and a BRAC move from Fort Hood to Fort Bliss. [The applicant] is extremely proactive and exemplifies the team player attributes expected of an Army Officer. [The Applicant] mis-stepped with a few decisions and actions but recovered gracefully. [The applicant] has the potential for future service and needs to ensure he adheres to established standards in the cockpit. (emphasis added) h. The contested OER was signed by the rater on 25 January 2013 and the senior rater on 29 January 2013. The OER was filed in the performance folder of the applicant's OMPF on 21 February 2013. 7. The applicant's OER for the rated period 1 October 2012 through 20 March 2013 shows his duty title as Brigade instructor pilot indicating the FEB's recommendations were approved. Additionally, the applicant had the same senior rater he had during the period covered by the contested OER but a different rater. 8. There is no evidence to show he submitted an appeal to the U.S. Army Human Resources Command within 3 years of the through date of the contested OER. 9. The applicant provided three character references from two colonels and one major general, each dated in 2013. (It appears these letters were used by the applicant in support of the FEB.) The authors of these character references all attest that the applicant's technical abilities as a pilot, instructor pilot, and tactical operations specialist are superlative. They also praise him for his calm demeanor, leadership, and decision-making abilities, especially during combat operations. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-2 defines the role of the rating officials. Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest, fair evaluations of the Soldiers under their supervision. On one hand, they must give full credit to the rated individual for their achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. b. Paragraph 3-19 stipulates, in pertinent part, that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, Department of the Army (HQDA). Any verified derogatory information may be entered on an evaluation. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information. c. Paragraph 3-26 (Referred evaluation reports) provides, in pertinent part, that any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to HQDA. d. Paragraph 3-28 provides that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. e. Paragraph 4-7 provides that evaluation reports accepted for inclusion in the official record of an officer 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. 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 that the contested OER should be removed from his OMPF because his FEB proves an error or injustice occurred when his chain of command processed the contested OER prior to the FEB results. The applicant also contends that the FEB findings exonerated him of all allegations and charges his chain of command made against him. 2. The applicant's records do not contain and he has not provided the specific allegations or the informal commander’s investigation, which led to the FEB. What is known through his Crewmember Training Records is an incident occurred on or about 17 October 2012 during a Hellfire missile engagement that led to his senior commander suspending of the applicant's flying privileges. It appears this flight training incident led to the FEB. The FEB did specifically state that they "questioned his judgement on numerous occasions" and "advised him to change his behavior as he continues is aviation service." 3. The FEB did not deny that the applicant made errors, it simply found that the severity of the applicant's errors were greatly amplified by personality conflicts between himself and several officers in his organization; this is why the FEB recommended he change his behavior. The FEB recommended his return to aviation status and his senior commander concurred. 4. The contested OER does not mention the investigation or the FEB. a. His rater checked the "NO" block mark for (Influencing – Decision-Making). b. His rater stated the applicant "committed several errors in judgment both as a PIC and IP as well as acts of indiscipline as a Senior Aviator." c. His senior rater commented that the "[Applicant] mis-stepped with a few decisions and actions but recovered gracefully" and that the applicant "needs to ensure he adheres to established standards in the cockpit." 5. In addition, the evidence does not show 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. Contrary to the applicant's contentions, the findings of the FEB do show that the applicant made errors in judgment and needed to change his behavior. 6. As stated in the previous record of proceedings, 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 to be based upon observations, records, and verified reports. To justify deletion of an OER, the applicant must produce clear and convincing evidence that overcomes the aforementioned presumptions and provides a strong and compelling basis for removing the report. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017630 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017630 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2