IN THE CASE OF: BOARD DATE: 28 April 2016 DOCKET NUMBER: AR20150003561 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: 28 April 2016 DOCKET NUMBER: AR20150003561 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: 28 April 2016 DOCKET NUMBER: AR20150003561 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, in effect, removal of two DA Forms 67-9 (Officer Evaluation Report (OER)), covering the rating periods 13 April 2007 through 12 April 2008 and 13 April 2008 through 7 November 2008, from his Official Military Personnel File (OMPF). 2. The applicant states: * his pattern of performance prior to the evaluations in question earned him first look selection to the Senior Service College (Army War College), which he attended and graduated * he knew once he was away from the toxic leader in question, who was asked to retire and did, he would earn the same evaluations he always had and has * he went from an "above center of mass" rating to a "center of mass" rating while in combat, so nothing he accomplished afterwards would result in his promotion * since this occurred, he graduated from the Army War College and earned four additional "above center of mass" evaluations, including one from now General J.C. and two from Major General C.L. * he remains on active duty in hope this appeal is approved and he is promoted so he may continue his service on active duty 3. The applicant provides: * OERs for the rating periods 13 April 2007 through 12 April 2008 and 13 April 2008 through 7 November 2008 * OER for the rating period 13 June 2010 through 20 May 2011 * Officer Special Review Board (OSRB) Record of Proceedings, dated 5 July 2012 * 26 third-party statements of support COUNSEL’S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the removal of two OERs, covering the rating periods 13 April 2007 through 12 April 2008 and 13 April 2008 through 7 November 2008, from the applicant’s OMPF. 2. Counsel states: a. There are multiple material errors associated with this application that substantially prejudiced the rights of the applicant. The applicant never received a consistent published rating chain. He should have had a change of rater to ensure a proper evaluation by the appropriate individuals. b. The ratings in the contested reports are inconsistent with direct observations of the applicant’s performance by peers and superiors and the rater engaged in a toxic pattern of leadership that resulted in two OERs that lacked objectivity. c. Included as evidence is a recent OER. This appeal involves an additional argument that was not raised at lower level agencies. The Officer Special Review Board (OSRB) decision is also included. The reports are included to demonstrate that throughout his career, he has consistently received superior evaluations. He has 28 years of service with consistent above-average evaluations. This includes his selection to the Commandant’s List at both the Infantry Basic and Advanced Courses, becoming an honored graduate at Ranger school, below the zone promotion to major, first look selection to the U.S. Army Command and General Staff College, first look selection to the Army War College, and his number one rating as the best officer in tough jobs such as company command while deployed, battalion S-3, brigade S-3 while deployed, and division staff (Deputy Chief of Staff) while deployed. d. His first battalion command OER from Colonel (COL) P was excellent and resulted in first look selection to the Senior Service College. Then, immediately following relinquishing command of 30 months, he received a short OER and was identified by his senior rater, Brigadier General M, in the top 10% of all officers he observed. Six months after completing battalion command and after 20 years in the active Army, he attended and graduated the Army War College, where he continued above average performance. e. He recently completed his ninth operational deployment where he deployed to Afghanistan and served as the deputy commanding officer for 4th Brigade Combat Team (BCT), 101st Airborne Division (Air Assault). During this deployment, he was senior rated “above center of mass,” the best deputy commanding officer in the Coalition Joint Task Force and in the top 10 of 205 lieutenant colonels (LTC) rated by Major General (MG) C, the 101st Airborne Division and Regional Command-East Commander. f. He took command of 1st Battalion, 71st Cavalry Regiment, 1st BCT, 10th Mountain Division for 30 months beginning in September 2009. He received a total of three evaluations during that command. The first evaluation resulted in an above center of mass rating. The second two evaluations are the subject of this appeal. The drop in rating was without warning, counseling, or subsequent explanation. As discussed below, the evaluations also contained internal inconsistencies that suggested his performance was superior despite the lack of enumeration. g. The first OER thru 12 April 2008 was rated by Colonel (COL) P and senior rated by MG H. There are two problems with the degree of observation by the evaluators worth noting. First, the senior rater was stationed in Germany. He had no observation of the applicant for over 5 months at the beginning of the reporting period. The senior rater had observation of him for 14 weeks in Iraq between October 2007 and January 2008. Secondly, during the reporting period, the applicant fell underneath two different chains of command and confusion existed as to his rating chain. In January 2008, he was selected for a position with Special Operations Command and worked directly for COL E and Lieutenant General (LTG) M. h. At the time of the OER, he was stationed at Fort Drum, NY. MG H was the 1st Armored Division Commander in Germany. The rater was COL P. Deficiencies in the contested reports are directly attributable to COL P. i. Relief should be granted as a result of the lack of a proper rating chain, change of rater, and failures to meet minimum requirements under Army Regulation (AR) 623-3 (Evaluation Reporting System). Rating chains are addressed in AR 623-3, Chapter 2. It is fundamental that organizations should publish rating chains. The seniority of a rated officer makes no difference to the need for a published rating chain. To the contrary, it’s even more important that commanders be clear as to who their rater is. This clarity helps govern unit priorities, communication, and expectations. j. As a result of failures to change his rater, last minute changes to the rating chain, and the appointment of an officer without adequate personal observations, an evaluation report was authored that is inconsistent with the opinions of multiple senior officers and enlisted members. Altogether, the attached letters of recommendation represents a wealth of Army experience. The result of the OER is that the applicant suffered substantial prejudice in receiving an OER from a conflicted commander with no meaningful observation of his performance or potential. To the extent that he provided an evaluation, that assessment has no basis in fact or reasoned opinion. The multitude of letters and past OERs are offered as support. A few of the letters are discussed below for convenience. k. As a threshold matter, AR 623-3, paragraph 1-8 sets the standards for the evaluation reporting system. The system was intended to combine elements of counseling, assessment, documentation, and integration with other personnel functions to provide a meaningful way to develop leaders and make personnel decisions. The manner in which the contested OER occurred has none of those foundations and serves none of those purposes. The applicant spent the majority of the rating period working for COL E and LTG M. COL P consistently made statements suggesting resentment for the applicant’s working in a special operations environment. l. AR 623-3, paragraph 1-9 is clear that the report is intended to be an independent assessment of how well a Soldier meets duty requirements. Because COL P was not directly supervising the applicant, his assessment is hardly independent. m. Attached with this request are 26 letters of recommendation. Excerpts of key points are included for convenience. With emphasis on the general officer letters first, LTG M, who provided an exceptional letter for the applicant. n. Lastly, a brief discussion and caveat about the history of toxic leadership from the rater might be helpful. This discussion is not gratuitous. It is offered only to help the personnel decision-makers weigh the evidence from the OER against the witness statements. They only want to note that in this case COL P was later the subject of an investigation into toxic leadership. This is only offered to assist in weighing the witness statements and evidence. o. Given the fundamental errors in how the rater and senior rater were assigned, the lack of a proper change of rater, the lack of an informed assessment, and the multitude of letters with positive assessments of the applicant's performance, this OER should be removed from his OMPF. 3. Counsel provides no additional evidence. CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer on 25 May 1988 and he entered active duty on 19 October 1989. He was promoted to the rank/grade of LTC/O-5 on 1 July 2005. 2. The first contested OER is an "Annual" OER covering the period 13 April 2007 through 12 April 2008, while he was serving as commander of a cavalry reconnaissance squadron. The rater was COL P, the intermediate rater was Brigadier General T, and the senior rater was MG H. a. The Army values of honor, integrity, courage, loyalty, respect, selfless-service, and duty were all evaluated to have been positive. A "Yes" answer was given in the appropriate space on the OER for each of these values. b. Each of the three leader attributes were rated positively and a "Yes" answer was given in the appropriate space on the OER. Each of the three leader skills were rated to have been positive. The nine leader actions of leadership the applicant performed were likewise all evaluated to have been positive. A "Yes" answer was given in the appropriate space for each leadership action on the OER. c. In part V (Performance and Potential Evaluation) of the OER the rater marked in the block indicating "Outstanding Performance, Must Promote" and entered the following comments in Part Vb: [Applicant] continues to excel as a battalion commander during combat operations in support of OIF [Operation Iraqi Freedom]. [Applicant] is a physically and mentally tough officer who consistently exceeds all established standards. His Task Force assumed an area of operations that was an economy of force mission for our predecessors. [Applicant] quickly partnered with Iraqi Security Forces and successfully reduced enemy activity by over 70% in just less than three months. Capitalizing on the security progress throughout the district, he simultaneously began to mentor and organize the local and district councils. His personal effort to improve governance is without equal, he was able to facilitate effective communication and cooperation from local councils to the provincial government, thereby enhancing responsiveness to their constituents. Based upon his squadron's performance and their successes in the Tuz region, I selected his Task Force for an alternate mission in support of the Special Operations Command. This new mission set required additional in country training and coordination with multiple land owning units throughout the Iraq Theater of Operations. His Task Force now conducts Air Assaults focused on defeating Al Qaeda leadership throughout Iraq. [Applicant] is able to work multiple complex actions and obtain positive results. d. The rater entered the following comment in Part Vc: "Select for promotion to COL and Senior Service College at the earliest opportunity. [Applicant] has unlimited potential and should be groomed for positions of increased responsibility." e. 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 "best qualified." The senior rater indicated that at the time, he served as senior rater to 52 officers in the applicant's grade. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the OER shows the applicant was rated in the "center of mass" block. f. The senior rater entered the following comments in Part VIIc: Outstanding performance! [Applicant] is a smart, effective, mentally tough, and tactically adept professional who knows how to fight! Placed in the toughest of areas -- first as a battlespace owner in Kirkuk Province, and then as the Task Force linked to Special Operations Command for all northern Iraq-- he excelled at every mission. His Soldiers executed every mission with aplomb and their actions were a direct reflection of how they were prepared for task accomplishment. Must select this officer for Senior Service College and promote to COL. Huge potential for command at the COL level. 3. The OER was signed by the rater on 18 May 2008, the senior rater on 26 May 2008, and the applicant on 7 June 2008. The OER was filed in the applicant's OMPF on 18 June 2008. 4. The second contested OER is a "Senior Rater Option" report covering the period 13 April through 7 November 2008 while he was serving as commander of a joint air assault squadron task force including 750 persons from the Army, Navy, and Air Force attached to Special Operations Command. a. The applicant's performance evaluation for professionalism again indicates he met all of the Army's values and he was again rated as "outstanding performance, must promote." The rater enter the following comments in Part Vb: Phenomenal performance by [applicant] during this abbreviated rating period. [Applicant] and Task Force Ghost have developed a tremendous reputation among senior leaders across Iraq while conducting focused air and ground assault operations in support of Special Operations Command Task Force 16. During the past seven months, they have conducted over 80 Task Force or company operations resulting in numerous enemy KIAs or WIAs, the delivery of over 32,000 pounds of precision munitions, capture of 150 detainees and destruction of 100 caches/25 houseborne improvised explosive devices. [Applicant] is an organized, practical and confident commander. Of note, was his personal effort in the synchronization and team building of his young staff ensuring mission accomplishment while taking care of Soldiers. [Applicant's] standards, expectations, and results are of the highest caliber. He maximized participation in leader development and recognition of deserving Soldiers across his battalion. His efforts to improve quality of life for his Soldiers is without equal as he transitioned Soldiers from living in tents to containerized housing units. Focus on After Action Reviews and quality debriefs resulted in sustainment retraining as required. b. 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 "best qualified." The senior rater indicated that at the time, he served as senior rater to 52 officers in the applicant's grade. In part VIIb of the OER the senior rater selected the "center of mass" block. c. In part VIIc of the OER, the senior rater entered the following comments: Continued masterful performance while executing a new mission; unlimited potential for future service in command or staff billets. [Applicant] faced one of the toughest operational tasking and he performed flawlessly during a period of extremely high operational tempo. Every mission he conducted in support of Task Force 16 was well-planned and well-executed as he led his Soldiers and trained his staff on new and complex tasks. A courageous and dedicated leader, must promote to COL, and then select for brigade-level command. 5. The OER was signed by the applicant on 7 November 2008 and it was filed in his OMPF on 12 December 2008. 6. It appears the comments made by the rater and senior rater on both OERs were highly complimentary of the applicant's performance of duty and his potential; therefore, the reports were not referred to the applicant. There is no evidence indicating that a commander's inquiry was requested or that one was conducted. 7. There is no evidence in the applicant's record that substantiates his contention that he was subjected to a toxic leadership climate during the periods covered by the contested OERs. 8. On 4 November 2011, the applicant appealed his OER covering the period 13 April to 7 November 2008 to the U.S. Army Human Resources Command (HRC). He stated his appeal was based upon the toxic leadership of COL P (the rater), which resulted in a lack of interaction with his senior rater, confusing chains of command, and two evaluation reports that were inconsistent with his performance evaluations before or after command. 9. On 7 November 2011, HRC referred the applicant's appeal to the Army Review Boards Agency. On 5 July 2012, the OSRB determined he failed to provide sufficient evidence that shows the contested report was inaccurate, unjust or otherwise flawed. As a result, by unanimous vote, the OSRB voted to deny the relief requested. 10. The applicant provides his OER for the rating period 13 June 2010 through 20 May 2011 that shows he was given an "above center of mass" rating by his senior rater (MG C) and 25 additional OERs that attest to his excellent past and present duty performance. From the third-party letters of support provided, his counsel selected certain letters and pointed out several positive comments pertaining to the applicant's outstanding performance throughout his military service. REFERENCES: 1. AR 623-3 (Evaluation Reporting System), dated 10 August 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation provides that: a. Evaluation reports are assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. 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 DA Pamphlet 623-3. Consideration will be given to the relative experience of the rated officer, the efforts made by the rated officer, and the results that could be reasonably expected given the time and resources available. Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades. Assessment of potential will apply to all officers, regardless of their opportunity to be selected for higher positions or grades. b. The senior rater is the senior rating official in the military rating chain or as officially designated by the academic institution. Senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards. Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rated Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3. c. Each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. d. 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. e. In Part VIIb of the OER, the senior rater will make an assessment of the rated officer's potential in comparison with all officers of the same grade. This assessment should be based on officers the senior rater has senior rated or has currently in his/her senior rater population. This potential is evaluated in terms of the majority of officers in the population. If the potential assessment is consistent with the majority of officers in that grade, the senior rater will "X" the CENTER OF MASS box. If the rated officer's potential exceeds that of the majority of officer's in the senior rater's population, the senior rater will "X" the ABOVE CENTER OF MASS/CENTER OF MASS box. (The intent is for the senior rater to use this box to identify their upper third in each grade). However, in order to maintain a credible profile, the senior rater must have less than 50 percent of the ratings of a grade in the top box. f. The rated Soldier's authentication in Part II (Authentication) of the OER verifies the information in Part I (Administrative Data). It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army Physical Fitness Test performance and height and weight data entries made by the rater. Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier will be accepted only under the most unusual and compelling circumstances. The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report. Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report. Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier. g. A request that a completed evaluation report filed in a Soldier's Army Military Human Resource Record be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on revision of ratings given. h. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal, unless it is shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. DISCUSSION: 1. The applicant and his counsel contend the applicant's OERs, covering the rating periods 13 April 2007 through 12 April 2008 and 13 April 2008 through 7 November 2008, should be removed from the applicant's OMPF. They based their contention on the rater's supposed toxic leadership and other material errors. 2. The evidence shows the applicant received two OERs as a squadron or battalion commander from the same rater and senior rater. The evaluations given to him by his rater and senior rater can be categorized as "outstanding." These evaluations include ratings such as "outstanding performance, must promote," "best qualified", and "select for brigade-level command." 3. There is no evidence in the applicant's record and he failed to provide evidence that substantiates his contentions that his rater fostered a toxic leadership environment, his rater disliked him, or his senior rater's evaluation of his duty performance was improperly influenced by the rater. 4. Counsel contends the applicant never received a consistent published rating chain; however, the applicant signed the OER, thereby confirming the rating officials named in Part II of the OER were those established as his proper rating chain. In addition, no evidence was provided that shows the rating officials were not part of his rating chain. Therefore, this contention is without merit. 5. Aside from the applicant's dissatisfaction and his disbelief that someone of his caliber should receive "center of mass" ratings, the applicant failed to provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OERs. 6. The contested OERs appears to be correct and to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the period in question. a. There is no evidence and he has not provided any evidence to show his rater and/or senior rater did not comply with the regulatory requirements to evaluate him in a fair and unbiased manner. More importantly, he has not shown 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. b. Further, as provided by the governing regulation, a request that a completed evaluation report filed in a Soldier's record be altered, withdrawn, or replaced with another evaluation report will not be honored if the request is based on revision of ratings given. 7. The third-party letters of support were carefully considered. These letters are highly supportive of the applicant and make a strong argument for his promotion to COL; however, these letters failed to substantiate the applicant's contentions that his rater fostered a toxic leadership environment or that his rater disliked him. 8. Based on the applicable regulations, the contested OERs appear to be correct and fair as constituted and the applicant failed to meet the burden of proof to justify removal of these OERs. Therefore, there is no basis for removal of the contested OERs from his OMPF. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150003561 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150003561 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2