IN THE CASE OF: BOARD DATE: 12 July 2016 DOCKET NUMBER: AR20160009606 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: 12 July 2016 DOCKET NUMBER: AR20160009606 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: 12 July 2016 / DOCKET NUMBER: AR20160009606 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 of the DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 21 February 2007 through 20 February 2008 (hereafter referred to as the contested OER) from his official military personnel file (OMPF). 2. The applicant states this unjust OER was discovered in 2008 but the OER was masked until January 2015 when Army Directive 2015-07 was implemented to unmask Army OERs. Before January 2015, he understood that this injustice was masked and would not affect his career. Now that it is unmasked, the inaccurate and misleading information negatively affects his career in the military by reducing his opportunity to compete at promotion boards. He adds that the OER is unjust because (1) his rater was unfairly biased against him and made untrue comments; (2) his senior rater made unbalanced and inflammatory comments not supported by any facts or explanation; and (3) his rater failed to provide a subsequent OER for the remaining 5 months that he spent under his supervision at the unit. a. His rater, Major (MAJ) GJP, was previously assigned as his Officer Basic Course (OBC) instructor/class advisor from 12 September 2005 through 16 December 2005 as shown on his DA Form 1059 (Service School Academic Evaluation Report). MAJ GJP, who was a captain (CPT) at the time, was highly criticized by his students, other students, and staff at OBC for his failure to report, failure to communicate expectations, poor technical training, and lack of mentoring and leadership. There was generally a high level of hostility between the class and CPT GJP throughout the course and CPT GJP's supervisor was made aware of the class grievances. Later the applicant was assigned to 5th Special Forces Group (Airborne) (SFG (A)) on 21 February 2007 under MAJ GJP's supervision and immediately began to experience a hostile work environment as a result of a pre-existing bias against him as his former student. b. A clear example of MAJ GJP’s bias against him can be seen in his OER comments that he created a personnel "strength management" "excel spreadsheet" only "with [MAJ GJP's] guidance and direction." This statement is untrue. The excel spreadsheet MAJ GJP referenced was the very same product the applicant created at his pervious assignment as a personnel strength manager. This is reflected in the OER for the rating period 17 December 2005 to 1 July 2006 in which his rater cites the same strength management spreadsheet tracker. The rater stated, "He has also, without being told, updated the Brigade's [military occupational specialty (MOS)] Inventory and the Officer Rollup Tracking Chart to reflect the new Fiscal Year 2007 [Modified Table of Organization and Equipment (MTOE)]. Because of these actions, the Brigade S-1 staff is currently operating under a strength management tracking system that is more accurate than any time prior to [the applicant's] arrival." MAJ GJP's OER comments in the contested OER are unjust, untrue and resulted in MAJ GJP undermining his work to take credit for himself ?illegitimately claiming to have provided the ?guidance and direction? needed to create the personnel tracking tool.? MAJ GJP's disparaging comments that his performance was just "satisfactory" are a result of his bias against the applicant as well as the significant restrictions he placed on the applicant?s ability to achieve something more than "satisfactory." MAJ GJP treated the applicant with contempt in the presence of his peers and superiors. He constantly talked down to him in a disrespectful manner and tone, he did not define the applicant?s duties and responsibilities as "Assistant S-1," nor was he given opportunities to prove his value and excel in the unit. c. His senior rater, Lieutenant Colonel (LTC) AAS, also made inflammatory comments, such as he was "not suited for command, especially in a combat environment" and "requires additional mentoring and development." These comments are highly prejudicial and are not supported by facts. The senior rater?s comments are unjust considering that he did not deploy during the rating period and had no way to observe the applicant?s actual combat performance. The applicant surmises that his senior rater made this derogatory statement based on hearsay from his biased rater. This comment is not even consistent with his rater or senior rater's own evaluation that his performance was "satisfactory." Comments concerning an implied liability in a "combat environment" should especially be supported by fact and consistency considering the devastating impact that they have on promotion potential. Any board member would be immediately hesitant to support the advancement of an officer who is an apparent liability in a combat environment. His senior rater comments are biased and not supported by fact and create an injustice in this case. d. His rater failed to provide a subsequent OER for the period 21 February 2008 through 14 July 2008, a 5 month period. The effect of having the derogatory contested OER followed by a period with no evaluation creates an incomplete and misleading record. The applicant surmises that promotion board members take the OERs at face value and they may draw an unfair conclusion that this entire period, both rated and unrated, can be characterized as derogatory. Therefore, the applicant surmises that the biased and unsupported derogatory comments in his OERs are given too much weight. To remove the contested OER would still leave a promotion board to draw inferences but the inference would not be tainted by unfair and unsupported comments. e. The Group Commander, Colonel (COL) CEC, was in a superior role over his rater and senior rater and could provide a more neutral and unbiased opinion of his performance. In October 2007 (8 months into the rating period), COL CEC wrote a letter of recommendation that strongly recommended him (the applicant) for a competitive Army program. He described him as an "excellent young officer" who "excels" and can be "counted on to seamlessly perform duties of Group Adjutant." COL CEC wrote that the applicant had the "self-assured demeanor and focus of a seasoned officer and has gained the confidence of the command." COL CEC's assessment of him contrasts with his rater and senior rater's comments. This letter shows that his contested OER does not accurately reflect his performance over the entire rated period and highlights the bias of his rating chain. During his deployment, he was actually accepted into the competitive program (Legal Education Program) that COL CEC recommended him for, further creating tension and hostility between him and his rating chain. f. Part IV(d) (Officer Development) requires a "mandatory yes or no entry" but his is marked "NA" on the contested OER. A record of developmental tasks and quarterly follow up counseling was not conducted by his rater. He was not regularly apprised of his performance and the expectations of his rater and so could not gauge his rater's evaluation of him over time. g. The contested OER is an outlier in his file but is the only one that covers a period of deployment. The applicant surmises that this OER carries great weight at promotion boards and does not accurately reflect his potential due to the biased and unfounded comments contained therein. This injustice could be the reason he does not get a promotion and could result in an unnecessary separation due to non-selection for promotion. While removing the contested OER cures one injustice it does not go too far. As mentioned, he did not get a subsequent OER nor did he receive any award recognition for his contributions to the unit. He is only asking for this OER to be removed in the interest of fairness so that a promotion board does not consider unreliable, unfounded, and biased information. h. The contested OER is over 3 years old and was not previously disputed because it has been masked in the restricted portion of his file. Army Directive 2015-07 published in January 2015, changed the standard and directed the unmasking of all OERs. He contends the contested OER should be removed from his file in the interest of justice. The Board would not know that his rater was biased, that his senior rater was uniformed and influenced, and that this derogatory OER is not reflective of his performance during his tenure at 5th SFG (A). 3. The applicant provides: * Orders 162-130 * DA Form 31 (Request and Authority for Leave) * Officer Record Brief * Letter of Recommendation from COL CEC * DA Form 1059 * Contested OER * OER for the rating period 17 December 2005 through 1 July 2006 CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a Reserve commissioned officer of the Army and entered active duty on 18 August 2005. He attended and completed the Adjutant General (AG) OBC from 12 September to 16 December 2005. His DA Form 1059 shows he achieved course standards. The preparing officer was CPT GJP, the Class Advisor. He stated, in pertinent part, that the applicant performed extremely well and is an intelligent, dedicated, competent officer earning the respect of his peers. He exhibited the highest standards of professionalism and academically he maintained a grade point average of 93.52 percent. He is a superb briefer and writer who can quickly organize information into a clear and concise presentation. He demonstrated his abilities during tactical field training exercises. He concludes by stating the applicant would succeed and that he has unlimited potential in the Army. 2. The applicant served in Korea from February 2006 to February 2007. He was promoted to first lieutenant (1LT) on 18 February 2007. He was assigned to Headquarters and Headquarters Company, 5th SFG (A), Fort Campbell, KY, in February 2007. 3. During February 2008, he received the contested OER for his duties as Group Assistant S-1/Strength Manager. His rater was MAJ GJP, the Group S-1, and his senior rater was LTC AAS, the Group Executive Officer. The OER shows in: a. Part II(d) (Authentication), no blocks are marked to indicate it is a referred report. b. Part IVa (Army Values), the rater placed an "X" in the "Yes" block for all values. c. Part IVb (Leader Attributes/Skills/Actions), the rater did not place an "X" in any of the "No" blocks for any of the attributes, skills, or actions. d. Part IVd, the rater marked the "NA" block to the question "Were developmental tasks recorded on DA Form 67-9-1a [Development Support Form] and quarterly follow-up counseling conducted?" This block requires a mandatory entry for 1LTs and CPTs. e. Part Va (Performance and Potential Evaluation (Rater) – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance, Promote," block and entered the following comments: [The applicant] performed in a satisfactory manner during this rating period. With guidance and direction, he has produced an excel spreadsheet laydown that includes all of the officers and warrant officers of the 5th Special Forces Group. This spreadsheet is used as the primary strength management tool for the Group and has been beneficial in maintaining more accurate strength management numbers and tracking current and projected assignments. In addition to serving as the Group Strength Manager, while deployed, he served as the Combined Joint Special Operations Task Force – Arabian Peninsula (CJSOTF-AP) Protocol Officer. In this capacity, he successfully coordinated and planned for 26 Distinguished Visitor trips to CJSOTF-AP with minimum guidance and oversight. He also played a key role in coordinating the Commander's visits to his subordinate units located throughout Iraq. [The applicant] has the potential to succeed in the Army provided he applies himself. He has improved in his current position and demonstrated that he has the capability. e. Part Vc (Comments on Potential for Promotion), the entry "[The applicant] has already been selected for promotion to CPT. If he applies himself, he will be successful at that rank. He should attend the Captains Career Course with his peers." f. Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Qualified" block and a second "X" in the "Yes" block to indicate a DA Form 67-9-1 (OER Support Form) was received with this report and considered in his evaluation and review. g. Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater rated the applicant "No Box Check." h. Part VIIc (Comments on Performance/Potential), the Senior Rater entered the following comments: [The applicant's] performance during this rating period has been satisfactory. With supervision, he established a strength management tool for the Group that is used to better manage projected gains and losses. While deployed for Operation Iraqi Freedom, he served as the Combined Joint Special Operations Task Force – Arabian Peninsula Protocol Officer, coordinating the travel and itinerary details for 26 Distinguished Visitors. Already selected for promotion to CPT, send to the Captains Career Course with peers. [The applicant] requires additional mentoring and development and is not suited for command, especially in a combat environment. 8. His rater and senior rater signed the contested OER on 22 April 2008 and 30 April 2008 respectively. He signed it on 1 May 2008. It was processed by the U.S. Army Human Resources Command (HRC) on 9 May 2008. 9. The applicant was promoted to CPT on 1 October 2008. He attended the Judge Advocate General Corps (JAGC) Officer Basic Course from November 2011 to February 2012. He executed an oath of office as a Regular Army officer on 28 June 2013 in the JAGC. 10. He is currently serving with Headquarters, 8th Theater Sustainment Command, Fort Shafter, HI, as an operational law attorney. 11. There is no indication that the applicant requested a Commander's Inquiry or appealed the contested OER to HRC within the time frame allowed in Army Regulation (AR) 623-3 (Evaluation Reporting System). 12. The applicant provides a letter of recommendation, dated 3 October 2007, signed on behalf of COL CEC, Commander, 5th SFG (A). He recommended the applicant for selection for the Funded Legal Education Program. He opined that: a. The applicant possesses the characteristics, maturity, and attributes required to handle the immediate challenges and responsibilities judge advocates face in today's JAGC. The applicant joined 5th SFG (A) in March 2007 after a tour in Korea with the Heavy Brigade Combat Team, 2nd Infantry Division, where he contributed greatly to the unit's successful implementation of the Personnel Services Delivery Redesign, the brigade centric transformation of the S-1 functions. He continues to excel in the capacity of a strength manager and can always be counted on without reservation to seamlessly perform duties of Group Adjutant in his absence. He will be a valuable addition to the Combined and Joint Special Operations Task Force Headquarters – Arabian Peninsula during the impending deployment of 5th SFG (A) to Iraq. He is confident the applicant would thrive during this demanding assignment and perform his duties in the J1 with distinction. b. After his deployment, he will be a well-rounded officer with real world experience in both conventional and unconventional military units. This background will be invaluable to JAGC and legal force multiplier in the current Global War on Terrorism. He has the self-assured demeanor and focus of a seasoned officer, and he has gained confidence of this command. He supports his desire to serve the Army in the JAGC and has no doubt that he will be a great asset. REFERENCES: 1. AR 623-3 (10 August 2007) prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-9 states evaluation reports are assessments on 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 Pam 623-3 (Evaluation Reporting System). 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. Paragraph 1-20 (Commander's Inquiry), when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. The results of the Commander’s Inquiry may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. c. Paragraph 2-5 (Rules for designating a rater), on the DA Form 67-9, a rater will be an officer of the United States or allied armed forces or an employee of a U.S. Government agency (including nonappropriated fund rating officials). The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days. On the DA Form 1059, a rater will be the military or civilian course advisor designated by the commandant or dean of the civilian academic institution that supervises and/or monitors the student’s performance and compliance with academic standards. The rater will be senior to the rated Soldier by grade or date of rank. d. Paragraph 2-10 (Role of the rated individual), the rated individual is the subject of the evaluation and has considerable responsibility in the evaluation process. The rated Soldier will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain. The rated Soldier will also participate in counseling, assessments, and a final evaluation; discuss the duty description and performance objectives; and assess (with rater) the validity of the objectives throughout the rating period. e. Paragraphs 3-20a and b state 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. f. Paragraph 3-34 states any report with negative comments in Parts V(b), V(c), VI, or VII(c) will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to HQDA. g. Paragraph 3-39 states evaluation reports accepted by HQDA 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. h. Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report. The appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 2. DA Pamphlet 623-3 provides procedures for completing the OER. a. Paragraph 2-2, the primary purpose of the DA Form 67-9-1a (Development Support Form) is to assist in the rapid, equal, and fair transition and professional development of Army officers. The concept is to drive development and integrate it with performance. As with the support form, the rater directs the process with active participation from the rated officer. The form is used to build a developmental plan based on tasks that target the major performance objectives listed on the OER support form. The requirement is to record at least one developmental task in each doctrinal behavior/skill listed on the form. Although the form emphasizes development, it also drives the officer’s efforts toward mission accomplishment. The rater will provide LTs and CPTs with the initial issue of support forms (rater’s and senior rater’s most recent DA Form 67–9–1 and a copy of the Developmental Support Form). The CPT/LT drafts the initial duty description and major performance objectives and becomes familiar with the Army values and doctrinal leadership attributes/skills/actions (on the DA Form 67–9–1a). b. Table 2-4 (Performance evaluation), action is required for Part IVd (Development Support Form). If the rated officer rates any CPTs/LTs, the rater places an "X" either in the "yes" or "no" box to indicate compliance with the requirements of the Development Support Form. The Development Support Form rater’s responsibilities are described in paragraph 2–2. If the rated officer does not evaluate any CPTs/LTs, the rater places an "X" in the "NA" box. For evaluation reports on raters of CPTs/LTs, comments are mandatory for a "No" entry in Part Vb. 2. AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) governs the composition of the OMPF. This regulation is updated periodically by Army Personnel Records Division (APRD), HRC, which updates the list of Authorized Documents for filing in the AMHRR quarterly. The new list of Authorized Documents will supersede the list in Table B-1, Appendix B of AR 600-8-104. The regulation states 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. The APRD updated list of authorized documents shows the DA Form 67-9 is filed in the performance folder of the OMPF. 3. Army Directive 2015-07 (Unmasking of Army Officer Evaluation Reports), dated 27 January 2015. Per this directive, effective immediately HRC would stop masking OERs and will move previously masked OERs to the performance section of the official AMHRR file for all Army components. DISCUSSION: 1. The applicant contends the DA Form 67-9 for the rating period 21 February 2007 through 20 February 2008 should be removed from the performance folder of his OMPF. 2. The available evidence shows the applicant was assigned as Group Assistant S-1/Strength Manager of the 5th SFG (A). During February 2008, he received the contested OER. His rater was MAJ GJP, the Group S-1, and his Senior Rater was LTC AAS, the Group Executive Officer. 3. The applicant raises the issue that his rater served as his Class Advisor in OBC. The fact that the same officer was his rater in OBC and on the contested OER does not invalidate the OER. His AER shows he performed extremely well and his rater stated he was ?an intelligent, dedicated, competent officer… exhibited the highest standards of professionalism…maintained a grade point average of 93.52 percent…superb briefer and writer… demonstrated his abilities during tactical field training exercises.? 4. The applicant brings up issues related to bias and inflammatory comments by his rater and senior rater but does not provide the documentary evidence to support such position. There are no corroborating third party statements from officials who were present at the time and observed his day-to-day interaction with his rating officials. 5. The letter of recommendation provided by COL CEC is noted. However, this letter was provided strictly to support the applicant's entry into a funded education program. It is not a description of the applicant's daily duties. Despite his favorable recommendation of the applicant, COL CEC was neither his rating official nor privy to the guidance and expectations provided by the rating officials to the applicant regarding his day-to-day performance. 6. With respect to the counseling, the applicant had a considerable amount of responsibility to ensure the counseling occurred according to regulatory guidance. The lack of counseling does not invalidate a report. Additionally, the entry in Part IVd is properly marked. The regulation in effect at the time stated "If the rated officer does not evaluate any CPTs/LTs, the rater places an "X" in the "NA" box." There is no evidence the applicant who was the rated officer rated any subordinate LTs. 7. The contested OER is not a referred report. Both the rater and senior rater inserted favorable comments, he was recommended for schooling, and he had already been selected for promotion to captain. His contention that the contested report may serve as the basis for his non-selection for further promotion is speculative, and it does not invalidate the contested OER. The Army directive changing policy to unmask all formerly masked OERs is not relevant here. Army leadership selects the best qualified officers for promotion. By unmasking all OERs, the Army provided its leaders with the ability to assess all rated periods in determining who is best qualified for promotion. 8. There is no evidence and the applicant has not provided sufficiently compelling evidence that shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential or that his rater and/or senior rater did not comply with the regulatory requirements of evaluating him in a fair and unbiased manner. 9. The applicant did not provide clear and convincing evidence to overcome the presumption of regularity which would justify the removal of the contested OER. Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of the contested OER. 10. In order to justify deletion or amendment of an evaluation 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 or that action is warranted to correct a material error, inaccuracy, or injustice. After a comprehensive review of the evidence in his official record, his contentions and arguments, and the evidence submitted in support of his application, the applicant failed to show, by clear and convincing evidence, that his OER contained a material error, inaccuracy, or injustice. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160009606 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160009606 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2