IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20160017653 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ___x____ ___x____ ___x____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 20 December 2016 DOCKET NUMBER: AR20160017653 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. removing the DA Form 67-10-2 (Field Grade Plate (O4 - O5; CW3 - CW5) Officer Evaluation Report (OER)) for the rating period 5 May 2013 through 17 August 2014 from her official military personnel file (OMPF). b. adding a statement to her OMPF reflecting this period as non-rated time. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to using a DA Form 67-10-2 signed respectively by the rater and senior rater on 6 and 9 August 2014, along with administrative and substantive changes, to replace the OER identified above. ___________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: 20 December 2016 DOCKET NUMBER: AR20160017653 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: * correction of an officer evaluation report (OER) for the rating period 5 May 2013 through 17 August 2014 (hereinafter reflected as the contested OER) * to personally appear before the Board 2. The applicant states, in effect: a. The Department of Defense and Department of the Army Inspectors General (DODIG and DAIG, respectively) substantiated her claim of retaliation for making protected communications under the provisions of Title 10, U.S. Code, section 1034 [the Military Whistleblower Protection Act (MWPA)]. b. The reprisal she suffered came in the form of the contested OER, which, although initially somewhat favorable, was adversely revised each time she made a protected communication (a total of eleven instances). Additionally, her rater lowered her rating from "Proficient" to "Capable," and her senior rater reduced her from, "Highly Qualified" to "Qualified." c. She requests the Board replace the contested OER with a version of the report signed respectively by her rater and senior rater on 6 and 9 August 2014. On that report, she requests the following additional amendments: (1) Part I (Administrative (Rated Officer)) show in: * item j (Period Covered), "THRU" – delete "20140504" and add "20140816;" this ensures she does not have non-rated time and enables additional accomplishments to be included * item k (Rated Months) - delete "7," and add "15" * item l (Non-Rated Codes) - delete "I" [In transit between duty stations, including leave, permissive temporary duty (TDY), and TDY]; based on her having attended all battle assemblies (BA) (2) Part II (Authentication) - reflect both the rater and senior rater signed the report [on an appropriate date]. (3) Part IV (Performance Evaluation - Professionalism, Competencies, and Attributes (Rater)): * item d2 (Comments) – add: * qualified in rigorous CAQC (Civil Affairs Qualification Course) * military occupational specialty [area of concentration] qualification on first attempt * completed Intermediate Level Education (ILE), Phase I * item e (This Officer's Overall Performance is Rated as:) – revise from "Proficient" to "Excels" [choices are "Excels," "Proficient," "Capable," and "Unsatisfactory"] * rater indicated the applicant's performance was exceptional and that she would be getting a "top block" * compared to the two other MAJs being rated, she was more than proficient and had more accomplishments (4) Part VI (Senior Rater): * item a (Potential Compared with Officers Senior Rated in Same Grade) – replace "Qualified" with "Most Qualified" [choices are "Most Qualified," "Highly Qualified," "Qualified," and "Not Qualified"] * item c (Comments on Potential) – add, "Unlimited potential" and replace "Promote to LTC (Lieutenant Colonel) when ready" with "Promote Now!" 3. The applicant provides: * redacted DAIG Report of Investigation * the contested OER (DA Form 67-10-2) * Draft OERs addressing the period 20130505 through 20140504, respectively signed on 6 and 9 August 2014 * 11 signed draft copies of the applicant's OER addressing the period 20130505 through 20140817 * DA Form 1059 (Service School Academic Evaluation Report (AER)) for CAQC, during the rating period 29 June 2014 through 26 July 2014 * Retirement Detail History/attendance at BA and annual trainings (AT) * photocopy of a photograph showing the applicant and other Soldiers * Congressional Correspondence CONSIDERATION OF EVIDENCE: 1. The applicant was appointed as a commissioned officer in the U.S. Army Reserve and executed her oath of office on 9 February 2002. 2. She served continuously in a variety of positions and, in or around May 2013, she was assigned as the Assistant Brigade S-3 for a Troop Program Unit (TPU) at Joint Base Lewis-McChord (JBLM). She was promoted to the rank of major effective 17 June 2013. 3. Between 6 August 2014 and 21 July 2015, the applicant's rater (Lieutenant Colonel (LTC) JDH) and senior rater (Colonel (COL) KSK) prepared and signed twelve draft versions of her OER, and one final (the contested OER). a. The first draft OER was an annual report for the rating period 5 May 2013 through 4 May 2014. The OER reflected ratings of "Proficient" by the rater, and "Highly Qualified" by the senior rater. It did not contain any negative language. b. The next eleven draft iterations showed an adjustment to the through date of 17 August 2014, and indicated the following: (1) The rater signed one of the drafts on 4 November 2014 and the senior rater on 10 November 2014. It was a referred report and contained adverse language. The senior rater downgraded his potential rating. (2) There was one enclosure, which was a memorandum for record (MFR) prepared by the rater wherein he described five instances illustrating the applicant's alleged lack of integrity. [This MFR was included with each subsequent version of the referred OER, and, in or around March 2015, a revised version was prepared based on the results of a commander's inquiry.] The alleged instances essentially indicated: * applicant lied to the rater about what the senior rater told her regarding her non-rated time * applicant made false statements to the brigade higher headquarters during a digital readiness training exercise by giving an incorrect unit location * applicant lied to both the deputy brigade and the brigade headquarters and headquarters company (HHC) commanders in an effort to excuse herself from AT and an exercise [this allegation was later removed based on the results of a commander's inquiry] * applicant lied to her company commander about her transfer from the unit * applicant failed to follow through on a high visibility mission, and fabricated progress reports (3) The rater and senior rater both signed additional iterations of the referred OER between January and April 2015. The same adverse language from the previous versions was included, but performance and potential ratings were downgraded. Also included was the applicant's rebuttal. (4) Between the latter part of April and June 2015, when the final draft was completed, enclosures were removed, adverse comments were deleted, and the report was no longer reflected as a referred report. c. The final version (contested OER) was a change of rater report addressing the rating period 5 May 2013 through 17 August 2014. (1) Part I showed in: * item k, 9 months * item l, non-rated codes "I," "Q" [lack of rater qualification], "S" [student at military or civilian school] (2) Part II listed: * rater – LTC JDH, Brigade S-3 (Plans, Training, and Operations), signed 17 June 2015 * senior rater – COL KSK, Brigade Commander, signed 21 July 2015 (3) Part III (Duty Description) – Assistant Brigade S-3. (4) Part IV shows "Capable" and includes the following comments: [Applicant]'s strength is her ability to analyze, organize, and present information. She has a keen grasp of the Army's MDMP [military decision-making process] and has made significant progress instilling this within her subordinate officers. [Applicant] accomplishes what she sets out to accomplish. Performed as the CHOPs [Chief of Operations] during a DIGEX [Digital Exercise] and was a project officer for a dining in. (5) Part VI reflects "Qualified" and comments: [Applicant] has the potential to excel in any position. Intelligent and energetic, she should do well in higher staff positions. Continue to groom for LTC. Rated officer refused to sign." 4. The following relevant documents were in the applicant's OMPF: a. Two AERs (DA Forms 1059): (1) Report addresses attendance at the CAQC (USAR) during the period 29 June 2014 through 26 July 2014. The applicant achieved course standards and satisfactorily demonstrated all evaluated abilities. Her final overall grade was 87 percent. (2) The applicant attended the U.S. Army Command and General Staff Officer Course at Fort Leavenworth, KS from 11 August 2014 through 26 June 2015. The report shows she exceeded performance standards and was rated superior for all demonstrated abilities evaluated. b. Orders Number 14-230-00001, dated 18 August 2014, issued by Headquarters, 88th Regional Support Command, reassigned the applicant to another TPU organization effective 18 August 2014. 5. Based on the applicant's complaint, the DAIG conducted an investigation under the provisions of the MWPA, and provided its report of investigation (ROI) on 15 April 2016. The report essentially affirmed allegations the rater and senior rater had given the applicant a negative OER (the contested OER) in retaliation for making protected communications. 6. On 26 September 2016, the Secretary of the Army found sufficient basis to conclude a personnel action prohibited by Title 10, U.S. Code, section 1034(b) (the MWPA), had occurred when the applicant's rater and senior rater issued her the contested OER. a. The Secretary of the Army provided the ROI to the Deputy Assistant Secretary of the Army (Review Boards) with instruction to advise the Office of the Army General Counsel of any corrective action taken. b. The ROI was also provided to the applicant's Training Division Commanding General, as well as the Vice Chief of Staff of the Army, for any action deemed appropriate. 7. The applicant provides twelve versions of the contested OER. The first iteration, signed respectively by her rater and senior rater on 6 and 9 August 2014, is the report she requests that the Board use in place of the contested OER, after making the above-cited revisions. a. Part I showed: * item i (Reason for Submission), Annual * item k, 7 months * item l, non-rated codes "I" b. Part II showed: * rater – LTC JDH, Brigade S-3 (Plans, Training, and Operations), signed 17 June 2015 * senior rater – COL KSK, Brigade Commander, signed 21 July 2015 c. Part III (Duty Description) – Assistant Brigade S-3. d. Part IV shows "Proficient" and includes the following comments: [Applicant]'s strongest attribute is her ability to analyze, organize, and present information succinctly. She has a keen grasp of the Army's decision-making process and has made significant progress instilling this methodology within her subordinate officers. [Applicant’s] performance was exceptional during this short rating period. She consistently produces high caliber products, and executes every mission given, proficiently achieving the desired results and outcomes. e. Part VI reflects "Highly Qualified" and comments: [Applicant] is a very talented officer who will excel in any position. An exceptionally energetic officer, she is also detail-oriented. She should be groomed for positions of higher responsibility. Promote to LTC when ready and select for resident ILE. REFERENCES: 1. Army Regulation (AR) 623-3 (Evaluation Reporting System), in effect at the time, established the policies and procedures, and served as the authority for preparation of the OER. a. Army evaluation reports encompassed the means and methods needed to develop people and leaders. Its intent was to identify Soldiers who were the best qualified for promotion and assignment to positions of greater responsibility. Evaluation reports also identified Soldiers who would be kept on active duty, retained in grade, or eliminated from military service. b. Rating officials assessed a Soldier's performance and potential against standards, i.e. attributes and competencies, the organization's mission, and a particular set of duties and responsibilities. (1) The regulation stated the respective rater was to assess the performance of the rated Soldier using all reasonable means, to include personal contact, records, and reports as well as information provided by the rated officer. (2) The report was to represent the considered opinion and objective judgment of the rating official at the time of preparation. c. Section III (Evaluation Appeals), paragraph 4-7 (Policies), stated an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer was presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation d. Paragraph 4-11 (Burden of Proof and Type of Evidence) provided that the burden of proof in an appeal of an OER rested with the applicant. (1) To justify deletion or amendment of an OER, the applicant was required to produce evidence that clearly and convincingly overcame the aforementioned presumptions, and that action was warranted to correct a material error or inaccuracy. (2) Clear and convincing evidence would be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 2. Department of the Army Pamphlet (DA PAM) 623-3 (Evaluation Reporting System), in effect at the time, supplemented the regulation. It included a listing of non-rated codes in Table 2-25 (Codes and Reasons for Non-Rated Periods for DA Form 67-10 Series). The codes consisted of capitalized letters. The list includes the following: * "I" - in transit between duty stations, including leave, permissive TDY, and TDY * "Q" - lack of rater qualification * "S" - student at military or civilian school * "T" - on TDY/TCS [temporary change of station]/SD [special duty] less than 90 days * "Z" - none of the above 3. DOD Directive 7050.06, dated 23 July 2007, in effect at the time, implemented the provisions of the MWPA as codified in Title 10, U.S. Code, section 1034. a. The directive established that no person would restrict the right of members of the Armed Forces to make protected communications with specified leaders and government officials. (1) The MWPA prohibits restricting communications with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization. (2) It also prohibits personnel actions against members in retaliation or reprisal for making or preparing a protected communication. b. Protected communications are defined as: (1) Any lawful communication to a Member of Congress or an IG; (2) A communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including: * a law or regulation prohibiting sexual harassment or unlawful discrimination * gross mismanagement * gross waste of funds or other resources * an abuse of authority * a substantial and specific danger to public health or safety c. Reprisal is defined as "taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication." d. A "personnel action" is any action taken that affects, or has the potential to affect, the military member’s current position or career. Personnel actions include promotions; disciplinary or other corrective actions; transfers or reassignments; performance evaluations; and any other significant changes in duties or responsibilities inconsistent with the military member’s grade. 4. AR 20-1 prescribes policy and procedures concerning the mission and duties of The Inspector General (TIG). It also prescribes duties, missions, standards, and requirements for IGs throughout the Army. a. Paragraph 1-13 (Prohibited Activity), sub-paragraph b. (Prohibitions against reprisal) (2) (Military whistleblower) states: (1) Persons subject to this regulation will not take (or threaten to take) an unfavorable personnel action or withhold (or threaten to withhold) a favorable personnel action with respect to a member of the armed forces for making or preparing a (lawful) protected communication. (2) Lawful communications are those communications made to an IG; Member of Congress; member of a DOD audit, inspection, or investigation organization; law enforcement organization; or any other person or organization (including any person or organization in the chain of command starting at the immediate supervisor level) designated under regulations or other established administrative procedures to receive such communications. (3) The term "lawful communication" encompasses information that the Soldier reasonably believes provides evidence of a violation of law or regulation, including a law or regulation prohibiting sexual harassment or unlawful discrimination, gross mismanagement, a gross waste of funds or other resources, an abuse of authority, or a substantial and specific danger to public health or safety. b. The Glossary provides the following definitions: (1) Founded/Unfounded: * "Founded" is one of two final dispositions for an IG issue to be used when the IG’s inquiry into the matter determined that the problem had merit and required resolution * "Unfounded" is the second of two final dispositions for an IG issue to be used when the IG’s assistance inquiry into the matter yields no evidence that a problem existed for the IG to resolve (2) Substantiated/Not Substantiated: This is a conclusion drawn by an IG at the close of an investigative inquiry or investigation when the preponderance of credible evidence suggests that the subject or suspect did or did not do what was claimed in the allegation. (3) IG investigation: this is a formal fact-finding examination into allegations, issues, or adverse conditions of a serious nature that provides the directing authority a sound basis for making decisions and taking action. * an IG investigation involves the systematic collection and examination of evidence that consists of testimony recorded under oath; documents; and, in some cases, physical evidence * only the directing authority can authorize IG investigations using a written and signed directive * IGs report the conclusions of their investigations using a Report of Investigation (ROI) (4) ROI: A written report used by IGs to address allegations, issues, or adverse conditions to provide the directing authority, command, or State IG a sound basis for decisions. The directing authority or command or State IG approves the ROI Inquiry. 5. AR 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the Board. The Director of the ABCMR or a panel of the Board can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. The applicant, in effect, requests correction of a contested OER that was determined by the Secretary of the Army to be a personnel action resulting from reprisal for protected communications as addressed in the provisions of the MWPA. The requested corrections include both administrative and substantive changes to this report. a. The evidence of record confirms the contested OER meets the criteria of the MWPA and, given the DAIG's ROI and the Secretary of the Army's letter, the applicant appears to have overcome the presumptions outlined in AR 623-3. b. While the regulation permits either the removal or the revision of the contested OER, the applicant is, in effect, asking the Board to serve as both rater and senior rater when she requests the substantive revisions of improving her performance and potential ratings, as well as adding comments. (1) In this respect, fulfilling the applicant's request requires the Board to essentially supplant the judgment of her chain of command, who had the opportunity to directly observe the applicant for the entire rating period, with that of the Board's, for whom no opportunity is either available or possible to effectively assess the quality of her performance. (2) The inability to appropriately evaluate the applicant appears to make her request for substantive changes untenable. 3. Based on the foregoing, reasonable alternative courses of action could either be to remove the report or, as the applicant suggests, use the first iteration of the OER, following the completion of certain administrative (not substantive) changes. a. Removing the contested OER, and replacing it with a statement reflecting the rating period as non-rated time, would both correct the injustice of the contested OER and render as neutral the impact of this report. b. If the contested OER is replaced with the report's first iteration, along with specific administrative changes, the following would apply: (1) The applicant indicates her assertion of having attended all BAs and ATs should mean there is no need to enter any non-rated codes. * according to DA PAM 623-3, attendance or absence at either BAs or ATs is not among the listed non-rated code reasons * the applicant otherwise offers no evidence that would clearly show why the non-rated codes currently listed on the contested OER are not accurate * given this, it would appear appropriate to presume these codes are correct, and to use them in the revised OER (2) This version of the report shows the applicant is "Proficient" but has not achieved a rating of "Excels." It also reflects the senior rater viewed her as "Highly Qualified" but not "Most Qualified." Especially given the fact the applicant sees her performance as meriting the highest available ratings, it would seem using this report with these ratings would not only fall short of the applicant's perception of a fair rating, but may also serve to further the injustice perpetrated by the contested OER by inaccurately expressing the level of performance she actually achieved. 4. Given the aforementioned, it appears that removing the contested OER and replacing it with a statement reflecting the period as non-rated time would offer the most equitable result. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160017653 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160017653 12 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2