BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160015697 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ ____x____ ____x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160015697 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. BOARD DATE: 21 November 2017 DOCKET NUMBER: AR20160015697 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 his Officer Evaluation Report (OER) for the period 8 April 2013 through 6 September 2013 (hereafter referred to as the contested OER) be removed from his official military personnel file (OMPF). Additionally, he requests referral to a Special Selection Board (SSB). 2. He states the contested OER is substantively inaccurate and unjust. He adds he received sterling performance evaluations as the Chief of the Office of Security Cooperation-Morocco with duty at the U.S. Embassy in Rabat, Morocco. In August 2013, his rater directed him to undertake an illegal order and change the rating for several officers he (the applicant) rated. The applicant refused and reported the matter to his senior rater (SR). He states one month after making the protected disclosure to his SR, he suffered from a retaliatory adverse personnel action. He adds the contested OER was significantly downgraded by both the rater and SR from "definitely" promote ahead of peers to "consider for promotion," and from "Above Center Mass (ACOM)" to "Center of Mass (COM)." He defers to counsel for additional statements. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the contested OER for the period 8 April 2013 through 6 September 2013 be removed from the applicant's OMPF and he be granted an SSB. 2. Counsel reiterates the information contained in the applicant's statement. Additionally, he states: * one month after the applicant made his protected disclosure to his SR regarding his rater's misconduct, the applicant began suffering from a retaliatory adverse personnel action * he received the contested OER in which both the rater and SR downgraded their comments and ratings * the applicant was in the zone for promotion consideration to O-6 and has been twice non-selected as a consequence of the retaliatory action * on 3 September 2016, the applicant filed an appeal to U.S. Army Human Resources Command (HRC); however, it was incorrectly rejected * the applicant's records and attachments verify his accomplished career and his stellar performance at the U.S. Embassy Morocco * the applicant was rated as "Outstanding Performance Must Promote," "Best Qualified," and "ACOM" by his rater and SR on his previous OERs for the periods 2012 and 2013 * on 4 August 2013, the applicant sent his rater a draft OER and a support form * on 11 August 2013, the applicant made an official complaint to his SR about an illegal order received from his rater * on 23 September 2013, the applicant was sent a copy of the contested report which significantly downgraded the "draft" report * on 27 December 2013, the applicant filed an official request for assistance to the U.S. Africa Command (AFRICOM) Inspector General (IG) office regarding an illegal order and reprisal * on 15 January 2014, the applicant requested a Commander's Inquiry (CI) * on 11 February 2014, the investigating officer found no evidence of unfairness or a lack of objectivity by the rating officials * on 28 May 2014, he filed a Department of Defense (DoD) Whistleblower Reprisal complaint with the DoD IG * DoD IG refused his claim based on jurisdictional grounds and exceeding the 60 day filing deadline * on 21 April 2015, the Fiscal Year (FY) 2015 Colonel (COL) Operation Support (OS) Promotion Selection Board convened and the applicant was not selected * on 7 September 2016, HRC rejected his OER appeal as untimely filed 3. Counsel provides: * OERs for the periods 8 April 2011 through 7 April 2012 and 8 April 2012 through 7 April 2013 * Kingdom of Morocco Certificate, dated 31 July 2013 * Recommendation for the Defense Meritorious Service Medal with certificate, citation, and orders, dated 21 May 2013, 17 July 2013, and 25 July 2013, respectively * Contested Report with a "Draft" Report * DA Form 67-9-1 (Officer Evaluation Report Support Form) * Emails * Memorandum, subject: Inquiry Report on an OER for [Applicant), Rating Period: 20130408 - 20130906, dated 11 February 2014 * IG Letter, dated 19 August 2014 * Memorandum, subject: OER (20130408-20130906), dated 7 September 2016 * FedEx Tracking Sheet * 17 supporting statements * 2016 U.S. Federal Holidays Sheet * Title 10, U.S. Code, section 1034 CONSIDERATION OF EVIDENCE: 1. The applicant is currently a lieutenant colonel (LTC) assigned to the U.S. Central Command, MacDill Air Force Base, Tampa, FL. 2. The applicant's record shows he received a change of rater (code "03") 5-month OER while serving in the rank of LTC for the period 8 April 2013 through 6 September 2013 as the Chief, Office of Security Cooperation - Morocco, Headquarters, U.S. Africa Command/J5, Unit 29951. He was rated by the Senior Defense Official (SDO)/Defense Attaché (DATT), a COL, and senior rated by the Director, J5, a major general (MG). The OER was electronically signed by the rater on 16 September 2013 and the SR on 29 January 2014. a. In Part V - Performance and Potential Evaluation, the rater assessed the applicant's performance as "Outstanding Performance, Must Promote" with supporting comments. The rater stated, "Absolutely has potential for promotion to Colonel." b. In Part VII - SR, he assessed the applicant's promotion potential to the next higher grade as "Best Qualified" and in comparison with other officers he senior rated in the same grade he was assessed as "COM." He received appropriate comments supporting his rating such as "[The applicant] is in the top tier of lieutenant colonels I senior rate… absolutely consider for Senior Service College and promotion to Colonel." This section contains the statement, "The Rated officer refuse to sign." Additionally, it shows the SR senior rated 30 officers in the applicant's grade. c. HRC Integrated Web Services shows the contested OER was added to the applicant's OMPF on 24February 2014. 3. The applicant provides a "Draft" report of the contested OER. The significant difference in the "Draft" report versus the processed report is the "Draft" report is listed as a permanent change of station (code "04") report. In general, the narrative comments of the rater and SR were toned down. The "Draft" report shows the rater wrote "Continued superlative performance by an outstanding leader…" while the official version stated, "Excellent performance from a seasoned FAO…” The "Draft" reports shows the SR wrote, “[The applicant] is number 1 of 27 lieutenant colonels I senior rate." While the official version stated, "[The applicant] is in the top tier of lieutenant colonels I senior rate." In Part VII, in comparison with other officers the senior rater rated in the same grade he assessed the applicant as "ACOM" with supporting comments to include "A must select for resident Senior Service School and early promotion to Colonel, [applicant] will be an outstanding SDO/DATT." Additionally, it shows the SR senior rated 27 officers in the applicant's grade. No signatures are contained on this report. 4. The applicant provides two previous annual (code "02") OERs: one for a 7-month rating period from 8 April 2011 through 7 April 2012 and the other for a 10-month rating period from 8 April 2012 through 7 April 2013. Both reports show he was rated in the same position and the same unit as the contested report. It also shows he was assessed as "Outstanding Performance, Must Promote," "Best Qualified," and "ACOM" by his raters and SR with supporting bullet comments. The OERs show the SR was the same on both reports as well as the contested report. The OERs show the applicant's SR senior rated 27 and 28, respectively, officers in his grade at the time the reports were rendered. 5. A copy of the applicant's official request for IG assistance is not available for review. However, in an email, dated 14 January 2014, the AFRICOM Assistant IG responded to the applicant's request for assistance. He stated he completed a review on the information and request for IG assistance. He added the IG has certain activities that are prohibited when another form of redress exists; therefore, he referred the applicant to the redress system in Army Regulation (AR) 623-3 (Evaluation Reporting System). Additionally, he states: a. While it is commendable that the applicant received awards and letters from the sitting Chief of Mission and a Moroccan State award, unfortunately it does not bear any relevance. Even if the applicant disagreed with the rater's request to change the ratings of other subordinates, it does not appear that retaliatory action was taken against the applicant. He lists the requirements for Military Whistleblower Protection as: * Protected communication * Responsible management official knowledge of the protected communication * Adverse action threatened or taken against an individual as a result of protected communication * Facts that support the action would or would not have occurred had the protected communication not been made b. The assistant IG stated he had other officers who have served as SRs review the applicant's previous OERs and the contested report. It is their opinion that the contested OER was not adverse. He said the contested report may not have said what the applicant wanted it to say, but in no way in the judgment of the IG does it represent an adverse action. An adverse action would be required to justify whistleblower protection. 6. A memorandum, subject: Inquiry Report on an OER for [Applicant], dated 11 February 2014, states in accordance with AR 623-3 an inquiry was conducted to look into alleged errors, injustices, or legalities pertaining to the contested OER. The inquiry specifically focused on administrative errors, failure to follow procedures outlined in AR 623-3, and all allegations of inaccuracy in the rater and SR portions. The memorandum states, in pertinent part: a. The applicant had a discussion with the rater and SR and this was his third evaluation in the rated position and his second evaluation with the same rating chain. In the applicant's request for a CI, he referenced unfavorable peer/subordinate feedback. Although there is no derogatory information in the evaluation regarding unfavorable feedback from peers or contemporaries, the applicant provided numerous statements from peers and contemporaries to attest to his performance. Based on his discussion with the rater and SR, the investigating officer (IO) concludes that the rating official had the necessary information available to make an unbiased and accurate assessment on the applicant. b. The applicant's allegations of inaccuracy are based on the premise that the evaluation is derogatory in nature due to verbiage used in the written portion and the SR's "COM" evaluation. Both rater and SR portions are mutually complementary. He quotes AR 623-3 as stating, "Rating officials will evaluate a rated individual and their opinions constitute the organization's view of that Soldier." Based on information available, the assessment of the rater and the SR are both based on their respective opinions and are not constructed as derogatory. c. The applicant did highlight that his previous evaluations were "ACOM" and he perceived the contested evaluation was an attempt to prevent his promotion to COL. Although the rater's and SR's assessment may not be considered as strong as in the past, it is not inaccurate or false. Previous evaluations and the use or omission of certain adjectives are not the focus of this inquiry nor should a "COM" evaluation be construed as derogatory. d. The IO found that the rating officials were properly designated and qualified; there is no proof that the written portion of the OER is inaccurate or unjust; and there is no unfairness or a lack of objectivity by the rating officials. He recommended the administrative errors be corrected and the evaluation report be processed as written and filed in the applicant's OMPF. 7. On 7 September 2016, HRC returned without action the applicant's request for an appeal of the contested OER. The representative stated that based on the through date of the contested OER, he must submit his application to the Army Board for Correction of Military Records (ABCMR). 8. The applicant provides 17 supporting statements attesting to his outstanding leadership skills, communication skills, and performance of duty. 9. During the processing of this case, an advisory opinion was requested from the Chief, Evaluations, Selections and Promotion Division, HRC, on 12 April 2017, who stated they were not in a position to furnish a comprehensive advisory opinion. The representative stated in the CI the IO found "that there is no proof that the written portion of the OER is inaccurate or untrue; and there is no evidence of unfairness or a lack of objectivity by rating officials." Without further evidence and/or a separate independent investigation, they found no reason to dispute the results. The representative offered that if the contested report remains in the applicant's record, he is not eligible for a SSB. 10. On 18 April 2017, an advisory opinion was obtained from the Chief, Officer Promotions Special Actions, HRC. The representative stated based on a review of their records and the information provided, the applicant's request for an SSB does not have merit. The representative stated the advisory opinion from the Evaluations Branch denied his request to have the contested OER removed from his records. 11. On 31 May 2017, the applicant's counsel responded to the advisory opinions. He states on 15 January 2014, the applicant requested a CI to challenge the proposed negative contested OER. On 11 February 2014, the IO, without interviewing peers or investigating the reprisal claim, determined there was no evidence of unfairness or a lack of objectivity by rating officials. He offers the IO did not interview third parties nor did he investigate the facts and circumstances of the rater's illegal order or the facts and circumstances relative to the claim of a retaliatory personnel action. He states the 11 February 2014 OER Inquiry Report was fundamentally flawed. The advisory opinions are incorrect and they should be rejected in whole. REFERENCES: 1. Army Regulation 623-3, in effect at the time, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-9 states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army’s leadership framework, and responsibilities identified on evaluation report forms and counseling forms. b. Paragraph 3-9 states in Part VII, block b, the SR will make an assessment of the rated officer's potential compared to all officers of the same rank. This assessment should be based on officers the SR has previously senior rated and those in his or her current SR population. If the potential assessment is consistent with the majority of officers in that grade, the senior rater will "X" the "COM" box. If the rated officer's potential exceeds that of the majority of officers in the SR's population for that rank, the SR will "X" either the "ACOM" or "COM" box. c. Paragraph 3-26 states officer evaluation reports with the following entries are referred, or adverse, evaluation reports. Such reports will be referred to the rated officer by the SR for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army: * "NO" in part IV, blocks a through b * A "FAIL" for the Army Physical Fitness Test in part IV, block c * "NO" entry for the height and weight * A performance and/or potential evaluation of "Unsatisfactory Performance/Do Not Promote" in part V, block a * A performance and potential evaluation of "Other," in part V, block a, where the required explanation has derogatory information * A potential evaluation of "Do Not Promote" in part VII, block a * A promotion potential evaluation of "Other" in part VII, block a where the required explanation has derogatory information * A promotion potential evaluation of "Below (BCOM) -Retain" or "BCOM-Do Not Retain" in part VII, block b * Any negative or derogatory comments in parts V, block b; V, block c; VI; or VII, block c * A "Relief for Cause" report d. Paragraph 4-1 states each report stands on its own without reference to facts or events occurring prior or subsequent to the rating period. e. Paragraph 4-7 states that evaluation reports accepted for inclusion in the official record of a rated Soldier's OMPF is 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. f. Paragraph 4-11 states the burden of proof rests with the applicant. 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 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. 2. AR 600-8-29 (Officer Promotions) provides the Army's policies and procedures on officer promotions. Chapter 7 provides guidance on SSBs. It states SSBs may be convened (discretionary) to consider or reconsider commissioned or warrant officers for promotion when Department of the Army discovers that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered an officer acted contrary to law or made a material error; or the board that considered the officer did not have before it some material information. Reconsideration will normally not be granted when, in pertinent part, one of the following occurs: a. An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or OMPF. The ORB is a summary document of information generally available elsewhere in the officer’s record. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. b. Letters of appreciation, commendation, or other commendatory data for awards below the Silver Star are missing from the officer's OMPF. DISCUSSION: 1. The applicant and his counsel argue, in effect, that the ABCMR should remove the contested OER and grant the applicant an SSB because the OER is substantively inaccurate and was unjustly rendered in retaliation for him refusing an illegal order. 2. He provides a "Draft" of the contested report that shows he was assessed as "ACOM" with the comment of "A must select for resident Senior Service School and early promotion to Colonel. Since a draft report is merely a working copy of the OER until the OER becomes final and a part of his OMPF, the fact that the draft report differs from the contested report is not justification on its own for removing the contested report. 3. The applicant and his counsel both maintain the contested report is adverse. However, in accordance with the regulation as cited above, for an OER to be considered adverse, it must contain one or more of the entries listed in AR 623-3, paragraph 3-26. Additionally, the regulation requires all adverse OERs to be referred. Therefore, the fact that he was rated "COM" instead of "ACOM" does not make the report adverse in accordance with the cited regulation. If the rated officer's potential exceeds that of the majority of officers in the SR's population for that rank, the SR will "X" either the ACOM or COM box. 4. The fact that his two previous OERs by the same SR show he was rated "ACOM" is not in itself a basis upon which to conclude he was retaliated against for refusing an illegal order. Each report stands alone and is an independent assessment of how well he met duty requirements and adhered to the professional standards of the officer corps within the period covered by the report. 5. There is no evidence showing the contested evaluation was rendered in retaliation and is not consistent with his performance of duty during the rating period. 6. In the event the Board recommends making a correction to his record that equates to a material change in records that were reviewed by a promotion board, there would be a basis for referring his record to an SSB. Absent such a change, there does not appear to be a basis for referring his record to an SSB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160015697 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160015697 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2