IN THE CASE OF: BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20170012140 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 September 2017 DOCKET NUMBER: AR20170012140 BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was 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: a. Adding to his Official Military Personnel File (OMPF) the DA Form 67-10-2 (Field Grade Plate (O4 – O5; CW3 – CW5) Officer Evaluation Report) identified as Headquarters, Department of the Army # 79539 and covering the period 4 February 2012 through 15 July 2014. b. Removing from his OMPF the statement of nonrated time dated 18 July 2017 and covering the period 4 February 2012 through 21 July 2014. ____________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 September 2017 DOCKET NUMBER: AR20170012140 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: a. his DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report (OER)), identified as Headquarters, Department of the Army (HQDA) number (#) 79539 and covering the period 4 February 2012 through 15 July 2014, be added to his Official Military Personnel File (OMPF); b. the nonrated statement (memorandum for record), dated 18 July 2017 and covering the period 4 February 2012 through 21 July 2014, be removed from his OMPF; and c. permission to personally appear at a hearing before the Board. 2. The applicant states: a. On 6 August 2016, the Office of the Department of the Army Inspector General (DAIG) substantiated that Lieutenant Colonel (LTC) B______'s relief was an act of reprisal by Major General (MG) F____ and should not have occurred. (At the time, LTC B______ was serving as the applicant's rater.) b. The DAIG report questioned the validity of the command climate survey, the commander’s inquiry (CI) and the Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigative report, which were used to punish LTC B______ and the applicant. The DAIG report also concludes that MG F____ treated the applicant with disrespect during their meeting by using profanity, engaging in loud outbursts, and preventing him from rebutting the findings of the AR 15-6 report. c. The Officer Special Review Board (OSRB) determined by unanimous vote that his OER should be removed, concluding he had provided clear and convincing evidence that the ratings and comments in the OER were in error or were not the considered opinions and objective judgements of the rating official, and there was evidence that the contested report was inaccurate, unjust or otherwise flawed. d. It is clear that his first OER (identified as HQDA # 79539) presented an unbiased perspective and the objective judgment of his performance and potential by both his rater and senior rater. Had it not been for the actions taken by MG F____ and Colonel (COL) M_____, actions that were proven to have been wrongful, his first OER would be in his record. 3. In a separate, three-page statement dated 24 July 2017, the applicant states: a. He received an OER on 7 July 2014 for serving 12 months as the executive officer (XO) for 1st Battalion, 27th Infantry Regiment, 2nd Infantry Brigade Combat Team (IBCT), 25th Infantry Division (ID). His battalion commander and rater was LTC C______ B______ and his brigade commander and senior rater was COL T_____ M_____. He was counseled and signed the OER on 8 July 2014. b. After his brigade commander, COL M_____, relieved 4 majors (MAJ) during a rotation at the National Training Center, a CI was conducted into the brigade, followed by an AR 15-6 investigation into the command climate of the 1st Battalion, 27th Infantry Regiment. Subsequently, MG F____ wrongfully relieved LTC B______ of command. LTC B______ was then unjustly removed as his rater and his 8 July 2014 OER was incorrectly retracted by the command. He was not suspended, flagged, or notified of any investigation until after the 8 July 2014 OER was signed by all parties. c. On 8 August 2016, the DAIG substantiated that LTC B______'s relief was an act of reprisal by MG F____ and should not have occurred. Specifically, the DAIG substantiated claims that MG F____ reprised against LTC B______, failed to properly flag and treat subordinates with respect (of which he was one), and failed to take appropriate actions. The report questioned the validity of the command climate survey, the CI, and the AR 15-6 investigative report, which were used to punish both LTC B______ and the applicant. It explicitly questioned the bias introduced by the data, the timing of the investigations and the investigating officer (IO)'s methods. It concluded that MG F____ did not have an accurate understanding of the findings of either the CI or the AR 15-6 investigation, which he used to punish both LTC B______ and the applicant. Further, MG F____ failed to take appropriate action to investigate the brigade and instead focused on LTC B______'s battalion despite the greater evidence that suggested a problem at the brigade level. The report also concluded that MG F____ treated the applicant with disrespect during their 27 August 2014 meeting by using profanity, engaging in loud outbursts, and preventing him from rebutting the AR 15-6 investigative report. d. The actions taken against the applicant were directly tied to the wrongful actions taken against LTC B______. The Army took steps to correct this action for LTC B______. A separate ABCMR Board corrected LTC B______'s record by removing his General Officer Memorandum of Reprimand (GOMOR) from his OMPF, among other actions. e. He appealed to the OSRB to remove his 20120204 - 20140721 OER, which was the downgraded version, due to substantive inaccuracy. He further requested that his original OER (first version) be added to his records to replace the removed version. He contended that his first OER presented an unbiased picture of his performance and potential prior to a flawed and biased investigation. The submitted OER was created after evidence of questionable validity led to the unjust relief of LTC B______ and his removal from his rating chain. Additionally, he attributed the delay in filing his initial OER (first version), as well as subsequent versions, to be the result of bias and self-protection on the part of COL M_____. f. The OSRB determined by unanimous vote that his OER should be removed because he had provided clear and convincing evidence that the ratings and comments in the OER were in error or were not the considered opinions and objective judgements of the rating official, and there was evidence that the contested report was inaccurate, unjust or otherwise flawed. The OSRB affirmed that LTC B______ was unjustly removed as his rater. It also affirmed that the evidence indicated the submitted OER did not properly reflect his performance and potential as reflected in numerous letters of support submitted to the board. Six of those letters of support directly affirmed the comments contained in the first OER, which was signed by both LTC B______ and COL M_____. However, the OSRB noted that it is not within their purview to replace the OER. Thus, he is submitting his appeal to the ABCMR for further correction. g. It is clear that his first OER (HQDA # 79539) presented the unbiased perspective and objective judgment of his performance and potential by both his rater and senior rater. Had it not been for the actions taken by MG F____ and COL M_____, actions that were proven to have been wrongful, his first OER would be in his record. Additionally, the removal of his inaccurate OER, without replacing it with the initial OER, creates a critical gap within his file during a key development period and critical position in his career. In fact, this gap creates more harm than good, which is clearly not the intention of the OSRB. He requests his OER (HQDA # 79539) be included in his OMPF and the memorandum annotating the period as non-rated time be removed from his OMPF. 4. The applicant provides: * OER, identified as HQDA # 79539 and covering the period 4 February 2012 through 15 July 2014 (hereinafter referred to as the requested OER) * OER, identified as HQDA # 122330 and covering the period 4 February 2012 through 21 July 2014 (hereinafter referred to as the contested OER) * third-party character statement from MAJ AJL, dated 11 August 2014 * third-party character statement from MAJ WK, dated 12 August 2014 * third-party character statement from MAJ RMF, dated 13 May 2015 * third-party character statement from MAJ JPK, dated 5 October 2015 * third-party character statement from LTC CKB, dated 6 November 2015 * third-party character statement from MAJ MAF, dated 23 May 2016 * a letter addressed to LTC CKB from the Chief, Investigations Division, Office of the DAIG, dated 21 September 2016, with redacted U.S. Army IG Agency Report of Investigation, dated 8 August 2016 * OSRB Record of Proceedings in Docket Number AR20150018358, dated 8 June 2017 CONSIDERATION OF EVIDENCE: 1. Following prior enlisted service in the Virginia Army National Guard, the applicant entered active duty in the Regular Army on 15 May 2002 and was appointed as a Reserve commissioned officer of the Army on 1 June 2002. He remained on active duty in the Regular Army, through positions of increased responsibility, and was promoted to MAJ on 1 February 2011. 2. The applicant was assigned, on or about 15 July 2013, as the Battalion XO, 1st Battalion, 27th Infantry Regiment, 2nd IBCT, 25th ID. 3. The applicant provides the requested OER, a Change of Rater report covering 12 months of rated time between 4 February 2012 and 15 July 2014, wherein he was rated as the Battalion XO; his rater was LTC B______ and his senior rater was COL M_____. This report was digitally signed by all rating officials on 8 July 2015. It was received by the U.S. Army Human Resources Command (HRC) as evidenced by the HQDA #79539 affixed to the top-left corner of the report. It is not filed in the applicant's OMPF. 4. LTC B______, the applicant's rater, was relieved by the Commanding General (CG), 25th ID, on 25 August 2014. Immediately following his relief, LTC B______ filed a whistleblower reprisal complaint against the CG, 25th ID. 5. The U.S. Army Pacific (USARPAC) IG forwarded an IG Action Request to the DAIG on 28 August 2014, requesting they consider the allegations of reprisal made by LTC B______. 6. The applicant received the contested OER, a Change of Rater report covering 13 months of rated time between 4 February 2012 and 21 July 2014, wherein he was rated as the Battalion XO; his rater and senior rater was COL M_____. This report was digitally signed by the rater/senior rater on 7 September 2014; the provided copy does not contain the applicant's signature. It was received by as evidenced by the HQDA #122330 affixed to the top-left corner of the report. It was filed in the performance folder of the applicant's OMPF; however, subsequent to a decision by the OSRB, it was removed and is no longer filed in the applicant's OMPF. 7. The U.S. Army IG Agency Report of Investigation, dated 8 August 2016, substantiated each of the five separate allegations made by LTC B______ against MG F____, the CG of the 25th ID. Most notably, the Report of Investigation found that LTC B______ was wrongly relieved as an act of reprisal. a. LTC B______ appealed to the ABCMR for relief; specifically, for the removal from his OMPF of all unfavorable and derogatory documents tied to his relief of command during his tenure as the Commander, 1st Battalion, 27th Infantry Regiment, 2nd IBCT, 25th ID. He further requested reinstatement on the COL promotion list and consideration for selection to senior level schooling and COL/O-6 level command. b. The Board granted full relief, concluding, among other things, that LTC B______ had been improperly relieved. 8. The applicant appealed to the OSRB, contending that, in effect, had his rater not been improperly relieved, he would have only received the first, more favorable OER, identified as the requested OER. He requested that the OSRB remove the contested OER and replace it with the requested OER; however, since the replacement of an OER is not within the purview of the OSRB, the board considered only the removal of the contested OER. 9. In Docket Number AR20150018358, on 8 June 2017, the OSRB granted relief. Specifically, it directed the removal of the contested OER from the applicant's OMPF, and directed that in its place a nonrated statement be inserted to explain the absence of a rating for the period covered by the contested OER. 10. The contested OER was removed from the applicant's OMPF and on 18 July 2017, the nonrated statement (memorandum for record) covering the period 4 February 2012 through 21 July 2014 was inserted in its place. REFERENCES: 1. Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. This regulation provides that: a. ABCMR members will review all applications that are properly brought before them to determine the existence of an error or injustice, and direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. b. The ABCMR is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. 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. This regulation provides that the performance section of the OMPF 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. OERs are filed in the performance section of the OMPF. 3. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and tasks for the Army’s Evaluation Reporting System. This regulation provides that 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. DISCUSSION: 1. The applicant's request for correction of his OMPF, by adding the requested OER and removing the nonrated statement dated 18 July 2017, and for permission to personally appear at a hearing before the Board, was carefully considered. 2. The evidence of record confirms the applicant received the requested OER, with LTC B______ and COL M_____ serving as his rater and senior rater, respectively. This report was digitally signed by all rating officials on 8 July 2015 and was received by HRC as a correct, valid OER, as evidenced by the HQDA #79539 affixed to the top-left corner of the report. 3. However, subsequent to LTC B______'s relief from command on 25 August 2014, the applicant's chain of command determined his OER should be rewritten and withdrew the requested OER from further processing at HRC. Consequently, it was not filed in the applicant's OMPF. 4. The applicant received the contested OER with COL M_____ serving as both his rater and senior rater. COL M_____, as the applicant's senior rater, would not have judged the legitimacy of LTC B______'s relief at the time; regulation and his command duties required that he act as both the rater and senior rater for the purpose of completing the applicant's OER. 5. The contested report was digitally signed by the rater/senior rater on 7 September 2014; the provided copy does not contain the applicant's signature. The report was received by HRC as evidenced by the HQDA #122330 affixed to the top-left corner of the report and was filed in the performance folder of the applicant's OMPF. In spite of the absence of the applicant's digital signature, it does not appear to have been completed in error. 6. The applicant's battalion commander, LTC B______, filed a whistleblower reprisal complaint against the CG, 25th ID. The DAIG investigated the allegations and, as noted in U.S. Army IG Agency Report of Investigation, dated 8 August 2016, substantiated each of the five separate allegations made by LTC B______ against MG F____, the CG of the 25th ID. Most notably, the Report of Investigation found that LTC B______ was wrongly relieved as an act of reprisal. 7. The applicant appealed to the OSRB, contending that had his rater not been improperly relieved, he would have only received the first, more favorable OER, identified as the requested OER. The OSRB found merit in his contention. In Docket Number AR20150018358, on 8 June 2017, the OSRB directed the removal of the contested OER from the applicant's OMPF, and directed that in its place, a nonrated statement be inserted to explain the absence of a rating for the period covered by the contested OER. 8. The contested OER was removed from the applicant's OMPF and on 18 July 2017, the nonrated statement (memorandum for record) covering the period 4 February 2012 through 21 July 2014 was inserted in its place. 9. The OSRB decision inadvertently made the applicant worse off, insofar as it removed a correct, non-negative OER and replaced it with a nonrated statement that contained no narrative assessment of the applicant's performance during the rating period. The contested OER was not inaccurate; while not as favorably written as the requested OER, it nonetheless contained a narrative assessment of the applicant's performance. 10. There is no evidence of error or inaccuracy in the requested OER that would have been cause for HRC to reject the document. The evidence shows, in effect, that if the applicant's rater had not been relieved of command, an action which was found to have been an act of reprisal, the replacement OER (later removed under the OSRB's authority) would not have been completed or filed in his record, nor would he have in his record a statement of nonrated time. The evidence indicates an injustice occurred when the requested OER was replaced and did not become the OER of record for the period in question. 11. 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 are sufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1