IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150016311 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: 19 April 2016 DOCKET NUMBER: AR20150016311 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. removing from his record the OER for the period ending 31 May 2011 and all allied documents and b. adding to his record a statement of non-rated time for the period 1 June 2010 through 31 May 2011. _____________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. Enclosure 1 IN THE CASE OF: BOARD DATE: 19 April 2016 DOCKET NUMBER: AR20150016311 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/masking of all derogatory information of the DA Form 67-9 (Officer Evaluation Report (OER)), for the rating period 1 June 2010 through 31 May 2011 (hereafter referred to as the contested OER, contained in: * Part II (Authentication), section d (This is a referred report, do you wish to comment?) * Part V (Performance and Potential Evaluation (Rater)) * Replace in Parts II and V comments stating the rater wasn't authorized to rate the Soldier * Removal of the rebuttal portion of this OER 2. In the alternative, he request removal of the contested OER, in its entirety, from his official military personnel file (OMPF) and replacing it with an official document stating the dates of the rating, location, position held, duties performed, and the potential for promotion as outlined by his senior rater (SR). 3. The applicant states: a. He received an unfavorable OER in reprisal for a protected communication in violation of Department of Defense Directive (DODD) Number 7050.06. He submitted a DOD whistleblower complaint, and an investigation substantiated his complaint. A DOD whistleblower investigation found that "the unfavorable evaluation was not appropriate given his performance, conduct, and/or behavior and it was clearly administered in response to the protected communication." b. The derogatory OER tarnishes his military record and potentially could prevent him from being promoted to lieutenant colonel (LTC) either below the zone (2016) or in the zone (2017). The OER did not comply with Army Regulation 623-3 (Evaluation Reporting System) under prohibited "narrative gimmicks" and unproven derogatory information. The rater was removed from his position and redeployed from theater, which was justification to remove the rater from the rating chain based on Army Regulation 623-3, paragraph 2-20. If the derogatory information remains on his OER it could bring into question his performance or potential for future advancement. c. If it is forbidden by regulation or procedure to perform the masking or comment that the rater was disallowed from rating as requested, he requests the OER be completely removed from his OMPF. d. He did not receive the whistleblower findings, dated 4 December 2014, until mid-December 2014, which was more than 3 years after initiating the complaint with the Department of the Army Inspector General's (DAIG) office. The report was sent to his previous address which delayed receipt. e. The length of the investigation also made it impossible for him to request an appeal with the U.S. Army Human Resources Command (HRC) because appeals must be submitted within 3 years of the date of the evaluation. Since receiving the whistleblower findings he has sought assistance and advice from his unit's IG and the Staff Judge Advocate. He also attempted to appeal the contested OER with HRC; but he learned his only recourse was to appeal to the Army Board for Correction of Military Records (ABCMR). 4. The applicant provides a copy of the contested OER. CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant was appointed in the U.S. Army Reserve, Quartermaster Corps, on 14 December 2001, with prior enlisted service. 3. He received a "Change of Rater" OER for the rating period from 1 February 2010 through 31 May 2010 for his duties as a Commander, Headquarters and Headquarters Company (HHC), 77th Sustainment Brigade (STB), in which he received ratings of "Outstanding Performance, Must Promote" and "Best Qualified." 4. He served in Iraq from 10 March through 22 November 2011. 5. His record contains and he provided a copy of the contested OER he received for his duties as the HHC Commander, 77th STB. His rater was LTC RDR, the Battalion Commander, and his SR was Colonel (COL) SJF, the Brigade Commander. The report was signed by the rater on 26 June 2011, the SR on 8 July 2011, and the applicant on 10 July 2011. The OER shows in: a. Part IId – the rater checked the blocks to indicate this was a referred OER and the applicant wished to comment. b. Part IV (Performance Evaluation – Professionalism) – the rater placed an "X" in the "Yes" blocks for all values. c. Part Va – the rater placed an "X" in the "Satisfactory Performance, Promote" block and entered the following comments: [The applicant's] performance has been good. [The applicant's] planning and leadership ensured 303 Soldiers were trained, validated, and deployed safely to Iraq in support of Operation New Dawn. He ensured that the unit's equipment was requisitioned, transported, and secured during pre-mobilization and onward to Joint Base Balad, Iraq. During pre-mobilization training, [the applicant] participated in the unit's annual training at Fort McCoy, WI, for the Combined Support Training Exercise. [The applicant] participated in various pre-mobilization training at the Regional Training Center at Fort Dix, NJ, and also the Mobilization Station at Fort Bliss, TX. [The applicant's] understanding of training and mobilization requirements were essential to the success of the Headquarters while at the Mobilization Station at Fort Bliss, TX. [The applicant] implemented platoons into the Headquarters to properly track and manage requirements for the Brigade [Headquarters] and the STB's 33 sections. His planning and organizational skills ensured that the Brigade [Headquarters] was prepared and ready for all assigned missions and training requirements. [The applicant's] efforts were tireless and essential in preparing the Brigade [Headquarters] for deployment to Iraq in support of the unit's draw down mission in theater. [The applicant] needs to learn how to adapt to new leadership in his Chain of Command. d. Part Vc. – the rater commented, "Unlimited potential for positions of increased responsibility. [The applicant] is a good leader, planner, and trainer. Promote with peers." e. Part VIIa (SR) - an "X" was placed in the "Best Qualified" block and the SR entered the following comments: Outstanding performance by [the applicant] as the HHC, 77th [STB] Commander during the most critically important time in its current history. His efforts ensured the 77th [STB] was prepared and postured for deployment to Iraq in support of Operation New Dawn. [The applicant] ensured the 77th [STB] was manned, equipped, medically fit, trained, and validated to conduct operations in support of the responsible draw down in Iraq. [The applicant's] leadership guided the 77th [STB] through three weeks at annual training, ten days at the Mobilization Station, and onward through Kuwait, and to Joint Base Balad, Iraq. He met or exceeded every pre-Mob[ilization], mobilization, or deployment tasks given to him. Send this officer to [Intermediate Level Education] in residence and absolutely promote below the zone to [major]. A future Battalion Commander! h. Part VIIb – the SR did not rate the applicant in comparison with any other officers. In Part VIId, the SR commented the applicant would best serve as a Battalion Executive Officer, Battalion Support Operations Officer, Observer Controller Trainer in FS/90A. 6. The applicant’s records also contains a memorandum, subject: Rebuttal Comments for Evaluation, dated 27 October 2011, in which he states: a. His rater made inaccurate and biased comments in the evaluation in question. In order to show cause for the rater's bias and inaccurate comments, the rater's background tenure must be shown. The rater was investigated during that rating period and found to have created a hostile working environment for all assigned to the unit. He was subsequently disciplined by the brigade commander for his actions and sent to Equal Opportunity training as corrective action. b. Based on his relationship with the rater as his subordinate and also the HHC Commander, he was in a difficult situation during that rating period because the rater demonstrated activities that were at times illegal, immoral, and unethical. He did not condone the rater's actions that were against Army regulations and against the Army Values. c. The rater's toxic leadership was destructive to the organization and to him as his subordinate. He attempted to dissuade the rater many times from making decisions that were against Army regulations and out of line with the Army Values. Upon mobilization the rater was removed from theater about 100 days after the unit's arrival in Iraq. The rater was subsequently removed from his orders for his demonstrated activities while in command. d. The rater was currently under investigation by the 310th Expeditionary Sustainment Command for multiple items of interest with the overarching focus of the investigation being his toxic leadership. The rater signed his evaluation a few days before he was removed from theater. He feels the rater's comments, assessment of his performance, and his comments on his promotion potential in the evaluation were his final attempt at reprisal against him and were inaccurate and vindictive. e. The rater's comments on the first and last line of the narrative were inaccurate and were deliberately meant to injure him professionally. He followed all of his received orders which were legal, moral, and ethical. He never received a negative counseling statement. At times he was brought into vicarious situations because the rater would give illegal orders that he would respectfully attempt to dissuade the rater from making. The rater was not receptive to any dissenting views, even when his decisions were at odds with Army regulations or the Army Values. Because the rater's decisions and demonstrated actions were illegal, immoral, and unethical, the rater was removed from theater and is still currently under investigation. f. The rater understated his performance and potential for promotion by describing his performance and potential as "good" instead of using a stronger description such as outstanding or superior. His past performance was clearly demonstrated in his previous evaluations and showed that he strived for perfection. (1) His Commander's Inquiry was accepted in September 2011. Currently the results of that inquiry have not been determined; and (2) his request for a DOD IG inquiry into whistleblower reprisal against him for this evaluation was accepted on 4 October 2011. 7. He received a Change of Duty OER for the period from 1 June through 30 November 2011 for his duties as the HHC Commander, 77th STB, in which he received ratings of "Outstanding Performance, Must Promote" and "Best Qualified." 8. He was promoted to major in December 2011. 9. The DAIG Report of Investigation shows that on 7 September 2011, the applicant filed a whistleblower complaint that his battalion commander gave him ratings on his OER that constituted a downward trend and was not supported by counseling. The Army Regulation 15-6 (Boards, Commissions, and Committees Procedures for Investigating Officers and Boards of Officers) investigation found the applicant's rater violated numerous Army regulations which included Army Regulation 623-3. The investigation found the rater's behavior was so egregious it recommended relief from command. The investigation provided sufficient evidence to show the rater's leadership style was inconsistent with Army Values. The investigation concluded the applicant's unfavorable evaluation was not appropriate given the applicant's performance, conduct, and/or behavior and was clearly administered in response to the protected communication. REFERENCES: 1. Army Regulation 623-3 prescribes the policies for completing the OER and associated documents that are the basis for the Army's Evaluating Reporting System. The regulation states in: a. Paragraphs 4-4 and 4-8 – Alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander's or commandant’s attention by the rated Soldier or anyone authorized access to the report. An appeal will be supported by substantiated evidence. Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. Substantive appeals will be submitted within 3 years of an OER “THRU” date. b. Paragraph 4-11 – The burden of proof rests with the appellant accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that action is warranted to correct a material error, inaccuracy, or injustice. c. Paragraph 4-13(2) – Correcting minor administrative errors or deleting one official's rating does not invalidate the evaluation. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF Management Program and its composition. The regulation states once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from the file or moved to another part of the file unless directed by the proper authorities listed in the regulation. 3. Army Regulation 20-1 (IG Activities and Procedures) prescribes policy and mandated procedures concerning the mission and duties of The IG of the Army. It specifies that Title 10, U.S. Code, section 1034 extends authority to IGs within the Military Departments to grant whistleblower protection for reprisal allegations presented directly to them by service members. This law, implemented by DODD 7050.6, requires service IGs to investigate allegations of individuals taking, or threatening to take, unfavorable personnel actions or withholding, or threatening to withhold, favorable personnel action as reprisal against a member of the Armed Forces for making or preparing a protected communication. 4. Title 10, U.S. Code, section 1034, provides that when an applicant suffers a prohibited action (i.e., reprisal), the military correction board may review the matter. The board shall: a. Review the report of the IG, may request the IG gather additional evidence, may receive oral argument, examine and cross-examine witnesses, take depositions, and, if appropriate, conduct an evidentiary hearing (in other words, it may also consider a Military Whistleblower Protection Act claim even without the existence of a formal IG determination or, when one exists, conduct further investigation.) b. When an applicant has suffered reprisal under Title 10, U.S. Code, section 1034, and DODD 7050.6, the ABCMR may recommend to the Secretary of the Army that disciplinary or administrative action be taken against any Army official who committed an act of reprisal against the applicant. The facts must involve reprisals under the Military Whistleblower Protection Act, confirmed by the DOD IG under Title 10, U.S. Code, section 1034, and DODD 7050.6. DISCUSSION: 1. The applicant contends his rater understated his performance in reprisal for a protected communication. The IG determined the protected communication and investigation results influenced derogatory comments on the contested OER by his rater. It was concluded the unfavorable evaluation was not appropriate given the applicant's performance, conduct, and/or behavior and was clearly administered in response to a protected communication. 2. The contested OER is a referred OER and contains derogatory comments that were found to be retaliatory. There is sufficient evidence to support removal of the OER instead of masking the derogatory information referred by the OER's rater. Notwithstanding the rater's removal from the theater, there is no evidence he was not in the applicant's rating chain during the period covered by this OER. In this case, the complete removal of the OER and all allied documents would be in the best interest of the applicant. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150016311 Enclosure 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20150016311 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2