BOARD DATE: 19 October DOCKET NUMBER: AR20170003353 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: 19 October 2017 DOCKET NUMBER: AR20170003353 BOARD DETERMINATION/RECOMMENDATION: 1. 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. 2. The Board requests that the appropriate agency add to his official military personnel file (OMPF), as an addendum to his officer evaluation report (OER) for the period 1 May 2010 through 30 April 2011, the Headquarters, 6th Military Police Group (CID) memorandum dated 30 September 2011; subject: Results of Commander's Inquiry – OER of CW2 [Applicant], 19th Military Police Battalion (CID), 6th Military Police Group (CID). ____________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: 19 October 2017 DOCKET NUMBER: AR20170003353 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 the removal from his official military personnel file (OMPF) of a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 1 May 2010 through 30 April 2011 (hereafter referred to as the contested OER). He further requests the addition of a memorandum to his OMPF, in place of the removed OER, which classifies the period as unrated time. 2. The applicant states: a. Portions of the contested OER are not in compliance with Army Regulation 623-3 (Evaluation Reporting System), as evidenced by the attached commander's inquiry (CI), dated 27 September 2011. b. The contested OER was appealed and a decision was rendered by the Officer Special Review Board (OSRB) on 31 May 2012. However, he believes the following portions of the contested OER are not in compliance with the governing Army regulation: (1) The check mark in the "No" block in Part IV (Performance Evaluation – Professionalism (Rater)), sub-section a.6. (Army Values - Respect). (2) The rater's narrative comment in Part V (Performance and Potential Evaluation (Rater)), sub-section b. (Comment on Specific Aspects of the Performance…); specifically, the comment "[the applicant] exercised extremely poor judgment and demonstrated disregard for the Army's policy on Equal Opportunity when he made sexually explicit comments regarding the KFO 1SG (First Sergeant), the senior NCO (noncommissioned officer) of the organization." (3) The senior rater's narrative comment in Part VII (Senior Rater), sub-section c. (Comment on Performance/Potential); specifically, the comment, "While exercising incredibly poor judgment when he failed to support the Department of the Defense's (DoD) and the Army's policies regarding prevention of sexual harassment, prevention of a hostile work environment and the Army's policy on fraternization," and "until [applicant] has demonstrated that he can consistently embrace Army values…" c. The rating officials used unproven derogatory information not supported by the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation. During the above referenced rating period, there were no findings that the rated Soldier engaged in unlawful discrimination, equal opportunity policy violations, sexual harassment, hostile work environment or other similarly egregious violations of DoD or Army policy. d. The Army Regulation 15-6 investigation that formed the basis for the negative OER comments was initiated by Lieutenant Colonel (LTC) L on 11 May 2011. The investigation revealed two incidents where alleged unprofessional conduct occurred. (1) The first occurred sometime between 6 May 2011 and 9 May 2011. This is outside of the rating period and therefore cannot be mentioned in this OER in accordance with (IAW) Army Regulation 623-3, paragraph 3-24c. According to Headquarters, Department of the Army (HQDA), this information was not specifically mentioned in the OER. While this may be correct, the conduct is inferred and was used in making the determination that he did not possess the "Respect" value of the Army values. (2) The second incident occurred sometime in April of 2011. The applicant made a comment that did not offend anyone around him and the investigation revealed that no one believed that he crossed the line into sexual harassment or equal opportunity violations. Although the Army's policy is clear that fostering an environment where comments regarding sexual harassment should never be made or taken lightly, nothing said rose to the standard that would have made a Soldier feel like they were being sexually harassed or that equal opportunity violations had occurred. Furthermore, at the time the alleged comments were made, the applicant was at his assigned duty station, which was Camp Casey located outside Dongduchen, Korea, while the KFO 1SG (the one accusing him of making sexual comments within the workplace) was at her assigned duty location located outside Seoul, Korea. On the date of the alleged incident, the KFO 1SG was not present. e. The investigation further revealed that the rater's statement "[The applicant] demonstrated disregard for the Army's policy on Equal Opportunity..." was not supported by the Army Regulation 15-6 findings and should be removed. In addition, there is no basis for the senior rater's comment that the applicant "failed to support the DoD's and the Army's policies regarding prevention of sexual harassment, prevention of a hostile work environment and the Army's policy on fraternization" and therefore should be removed. f. The portions of the OER regarding fraternization are not supported by any findings and the investigating officer (IO) stated that the applicant merely gave an appearance that he did not support the policy. However, there was no evidence of fraternization, nor was there any substantiated findings that he engaged in fraternization. The applicant's assigned duty station, physical location, and place of duty was Camp Casey, located outside Dongduchen, Korea, while the KFO 1SG's assigned duty location, physical location, and place of duty was Camp Coiner, located outside Seoul, Korea. g. The initial allegation was for the offense of falsifying an official statement. Per Army Regulation 15-6, paragraph 3-9, the IO, Chief Warrant Officer Three (CW3) B_, at no time, requested or was granted a modification to the original scope of the Army Regulation 15-6. CW3 B_ exceeded the timeline afforded to her by the appointment authority. At the time, the IO was a member of the same command team and a peer of the applicant. Therefore, under Army Regulation 15-6, chapter 2-3, the IO could not perform her duties in an unbiased, objective and impartial manner since she and the applicant were serving together as Special Agents in Charge and had consulted each other on other investigations. The IO's findings were presented using forms germane to the U.S. Army Criminal Investigation Command (USACIDC) and not those as outlined in Army Regulation 15-6 and Army Regulation 25-50 (Preparing and Managing Correspondence), which falsely gives the appearance of an official USACIDC investigation. h. Per regulation, Colonel (COL) KB, the Commander of the 6th Military Police Group (CID), was never apprised of the investigation or informed of its initiation. Per Army Regulation 623-3, chapter 4, MAJ H_ and LTC M_ at no time conducted counseling on the decision to refer the OER nor was the Army Regulation 15-6 investigation provided to the applicant to mount, plan or conduct an affirmative defense for either action. 3. The applicant provides: * the contested OER * Army Regulation 15-6 Investigation results, dated 8 June 2011 * Commander's Inquiry to the contested OER, dated 27 September 2011 * Results of Commander's Inquiry to the contested OER addressed for U.S. Army Human Resources Command (HRC), dated 30 September 2011 * Request to appeal the contested OER, dated 29 November 2011 * OSRB Record of Proceedings (ROP), dated 31 May 2012 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 Army Board for Correction of Military Records (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. After prior Regular Army and Army National Guard service, the applicant was appointed as Reserve warrant officer of the Army on 19 January 2006. He entered active duty on that same day. He was promoted to CW3 on 1 December 2011. 3. A DA Form 67-9 shows the applicant received the contested OER based on his duty performance as the Special Agent in Charge while assigned to a CID unit. a. His rater was MAJ LH, the Korea Field Office (KFO) Commander, and his senior rater was LTC RM, the Battalion Commander. b. Part I (Administrative Data), sub-section i. (Period Covered), shows the report covered 12 months of rated time. c. Part II (Authentication), sub-section d. (This is a referred report, do you wish to make comments?), shows a check mark in the "Yes, comments are attached" block. d. Part IV (Performance Evaluation), sub-section a.6., shows a check mark in the "No" block. e. Part V (Performance and Potential Evaluation), sub-section a. (Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), shows a check mark in the "Unsatisfactory Performance, Do Not Promote" block. f. Part VII (Senior Rater), sub-section a. (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), shows a check mark in the "Do Not Promote" block. 6. Although the contested OER covers the period 1 May 2010 through 30 April 2011, the OER was signed by the rater on 17 August 2011, by the senior rater on 18 August 2011, and by the applicant on 29 August 2011. 7. An Army Regulation 15-6 IO reported findings and recommendations of an informal investigation surrounding allegations the applicant was falsely inputting information into the Automated Criminal Investigation and Criminal Intelligence System (ACI2). At the time of the investigation, the applicant was a CW2 stationed in the Republic of Korea. a. On 10 May 2011, CID from Wheeler Army Airfield, Schofield Barracks, HI, appointed a CW3 as the IO to conduct an investigation into allegations the applicant input false information in Agent's Activity Summary (AAS) entries into the ACI2. During the conduct of the investigation, it was alleged the applicant used indecent language during conversations. b. The IO found the applicant did not falsify official statements; however, he did commit the offense of indecent language, a violation of Article 134 under the Uniform Code of Military Justice (UCMJ), when he orally stated language to his subordinates that was prejudicial to good order and discipline. The language was grossly offensive to modesty, decency, and propriety, or shocked the moral sense because of its vulgar, filthy or disgusting nature, when he changed the lyrics to a song while that was overheard by a sergeant first class, and when he made inappropriate comments regarding the KFO 1SG. Further, his inappropriate comments gave the appearance that he did not support the Army's policy against fraternization between different ranks IAW Army Regulation 600-20 (Army Command Policy), chapter 4-14(2), wherein intimate or sexual relationships between officers and enlisted personnel are prohibited. c. The IO recommended he receive a local letter of reprimand for the offense of indecent language and recommended he provide training to his subordinates regarding the Army's fraternization policy and the use of indecent language. 8. On 27 September 2011, Headquarters, 6th Military Police Group's (CID) Judge Advocate, CPT JH, provided the Group Commander his findings and recommendations after reviewing the contested OER upon a CI. a. CPT JH determined the following portions of the OER were not in compliance with Army regulations: (1) The check mark in the "No" block for "Respect" in Part IV, sub-section a.6. (2) Rater comment in Part Vb "[the applicant] exercised extremely poor judgment and demonstrated disregard for the Army's policy on Equal Opportunity when he made sexually explicit comments regarding the KFO 1SG, his senior NCO of the organization." (3) The senior rater comment in Part VIIc "While exercising incredibly poor judgment when he failed to support the DOD and the Army's policies regarding prevention of sexual harassment, prevention of a hostile work environment and the Army's policy on fraternization," and "until [the applicant] has demonstrated that he can consistently embrace Army values…" b. During the investigation, the IO was informed of allegations of unprofessional incidents involving the applicant. Ultimately, the IO determined that while the allegations of inputting false entries were unfounded, some of the alleged unprofessional incidents did occur: * sometime between 6 - 9 May 2011, he substituted profane language for song lyrics while singing aloud in the presence of subordinates * sometime during the month of April 2011, he made an inappropriate comment of wanting to engage in sexual intercourse with the KFO 1SG c. It is clear that the comments were unprofessional and should not be condoned, no one [subordinates question by the IO] believed the applicant crossed the line into sexual harassment or equal opportunity violations. d. CPT JH determined the "No" in "Respect" was unfounded because there was no substantiated equal opportunity complaint against the applicant. He also determined the comment "made sexually explicit comments regarding the KFO 1SG, the senior NCO of the organization" was substantiated; however, CPT JH determined the comment "demonstrated disregard for the Army's policy on Equal Opportunity…" was unsubstantiated because there was no equal opportunity complaint. e. CPT JH determined there was no basis for the senior rater's comment that he "failed to support DoD's and the Army's policies regarding prevention of sexual harassment, prevention of a hostile work environment and the Army's policy on fraternization," because no equal opportunity complaint was investigated in which the results were substantiated. f. CPT JH determined there was no basis for the senior rater's assertion that he had not "demonstrated that he can consistently embrace Army values…" Because there was no IO finding he failed to embrace Army values, only one substantiated unprofessional comment occurred during the rating period, and there was evidence he "consistently" disregarded Army values during the rating period. h. CPT JH noted that he informed the applicant's chain of command of the findings; however, the senior rater responded that he did not concur with his findings and would not change his portion of the OER. 9. On 30 September 2011, the 6th Military Police Group (CID) Commander notified HRC of the results from the CI in reference to the contested OER. A review of the applicant's record does show the commander's memorandum to HRC was made a permanent record within his OMPF. 10. The applicant appealed the contested OER on 29 November 2011. In Docket Number AR20120000298, the OSRB voted unanimously, on 31 May 2012, to deny his appeal of the contested OER stating the following: a. Careful consideration was given to the appellant's contentions; however, he has not provided sufficient evidence of a clear and convincing nature to substantiate removal of the contested OER. (1) The incident regarding the profane language [in changing song lyrics] occurred sometime between 6 and 9 May 2011 and is not commented on in the contested OER. The comments regarding the 1SG occurred during the rating period. As noted in the governing regulation, verified derogatory information may be used. (2) The appellant, as the Special Agent in Charge, was, at a minimum, responsible for establishing an inclusive leadership climate within the unit which set the tone for social and duty relationships. His comments were made in the company of male enlisted Soldiers and an NCO. In the considered opinion of his rating officials, the appellant's remarks regarding the 1SG were demonstrative of poor judgment, and called into question whether the appellant was supportive of DOD's and the Army's policies regarding prevention of sexual harassment, prevention of a hostile work environment and the Army's policy on fraternization. (a) By giving voice to his inappropriate thoughts, the appellant gave the appearance that this behavior would be acceptable, even if in male company alone. This type of conduct was contrary to the Army Value of respect in the opinion of the appellant's rating officials. The appellant's contention that the rating officials failed to substantiate that he did not uphold the Army value of respect is without merit. (b) Contrary to the appellant's assertions, Army Regulation 600-20 does not require the type of behavior exhibited by the appellant to be substantiated by any type of investigation or equal opportunity complaint. (c) Careful consideration was given to the CI IO's findings; however, a commander's inquiry is not considered a substitute for an appeal, and the OSRB is not bound by its findings. Contrary to the IO's findings, and commensurate with the analysis above, the rating officials have the final discretion on the OER content within reasonable parameters of the governing regulations. The available evidence supports that the rating official's comments were reasonable in view of the appellant's conduct. (d) There is no evidence to show that the OER was not processed IAW applicable laws and regulations. The commander's inquiry was properly conducted and its findings were referred to the senior rater who did not concur with the findings and would not change the comments in the OER. IAW the governing regulation, the CI IO cannot force rating officials to change their ratings and/or evaluations when the rating officials believe that they have rendered a fair and honest assessment of a Soldier's performance. b. Essentially, the entire substance of the appellant's appeal rests on his premise that the rating officials could not "legally" make comments on his behavior and performance, because no one filed an equal opportunity complaint against him, or in the words of the IO, "It was clear that none of the appellant's female subordinates believed that he had made inappropriate comments to them, thought they were being sexually harassed, or that he had created a hostile work environment. All the male subordinates who heard the inappropriate comments stated that they did not believe these comments created a hostile work environment or constituted sexual harassment." In other words, the appellant and IO appear to be arguing that it is permissible to express inappropriate sexual comments regarding a female NCO, as long as it is restricted to male company, none of the females in the unit are aware of it, and no one files an official equal opportunity complaint. (1) The appellant's premises are false, and go to the fundamental misunderstanding he appears to have of the Army Values, and which the senior rater noted that he failed to consistently follow. (2) Furthermore, the appellant's furtive comments made in male company alone are even more indicative that he failed to understand the Army's policies on sexual harassment, creating a hostile work environment, and fraternization. c. The appellant has not provided sufficient evidence to show that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Both rating officials were consistent in their assessments of the appellant's performance and professional behavior. REFERENCES: 1. Army Regulation 600-8-104 (AMHRR Management) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, a 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. 2. Army Regulation 15-6 establishes procedures for conducting preliminary inquiries, administrative investigations, and may be used as a general guide for investigations authorized by another regulation or directive. a. Paragraph 2-9 (Request for Reconsideration) provides a subject, suspect, or respondent (such as an officer against whom an adverse finding was made) may request reconsideration of the findings of an inquiry or investigation upon the discovery of new evidence, mistake of law, mistake of fact, or administrative error. New evidence is that information that was not considered during the course of the initial investigation and that was not reasonably available for consideration. New evidence neither includes character letters nor information that, while not considered at the time of the original investigation, the subject of the investigation could have provided during the course of the investigation. b. A request for reconsideration is not permitted when the investigation resulted in administrative, non-judicial, or judicial action, or any action having its own due process procedural safeguards. Requests for reconsideration must be submitted to the approval authority within 1 year of the approval authority’s approval of the investigation. The approval authority may entertain a request outside of 1 year for good cause. While not exhaustive, good cause is the discovery of new relevant evidence beyond the 1-year time limitation, which the requester could not have discovered through reasonable diligence, or the requester was unable to submit, because duty unreasonably interfered with his or her opportunity to submit a request. The approval authority’s determination of good cause is final. A request for reconsideration will only be considered if the material presented impacts a finding concerning the requester. c. All requests for reconsideration must be submitted through the Office of the Staff Judge Advocate/legal advisor responsible for advising the approval authority at the time he or she approved the original investigation. If the approval authority has changed assignments or duty location, the SJA or legal advisor receiving the request, will present it to the approval authority’s successor who, for purposes of the request for reconsideration, will be the approval authority. (1) Upon receipt of a request for reconsideration, the approval authority will determine whether the material presented would impact any finding concerning the requester and, if so, whether the impact is such that the finding is no longer supportable by a preponderance of the evidence. (2) If, after considering a request for reconsideration, the approval authority determines that the finding is no longer supportable, the approval authority will modify the approved findings and update any database or record where the original findings were sent. 3. Army Regulation 623-3 (Evaluating Reporting System) in effect at that time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. This includes the DA Form 67-9. This regulation states in: a. Paragraph 3-20 states 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. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. Guidance concerning modification of previously submitted OERS is in paragraph 3–39. b. Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA. c. Paragraph 3-39a states that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the Soldier 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. d. Paragraph 3-39b requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF: (1) Statements from rating officials that they underestimated the rated Soldier. (2) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did. (3) Requests that ratings be revised. (4) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential. Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report. e. Paragraph 3-39c states exceptions to paragraph 3-39b are granted for OERs only when information that was unknown or unverified when the report was prepared is brought to light or verified, and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared. f. Chapter 4, currently in effect, states the results of commanders' inquiries forwarded to Headquarters, Department of the Army (HQDA), will include the findings, conclusions, and recommendations in a memorandum that will be filed with the evaluation report in the rated Soldier's AMHRR for clarification purposes. The results will include the commander's or commandant's signature, will stand alone without reference to other documentation, and will be limited to one page. Sufficient documentation, such as reports and statements, will be attached to justify the conclusions. 4. Army Regulation 600-20, in effect at that time, states when evaluating officers, enlisted Soldiers, or Department of the Army Civilian employees, rating officials will evaluate those individuals' commitment to the goals and objectives of the equal opportunity and equal employment opportunity program. This includes the individuals' actions or non-actions toward the prevention and elimination of unlawful discrimination and/or sexual harassment. Raters are required to document significant deviations from that commitment and identify instances of reprisal/retaliation taken by the rated individual in that evaluation report. Substantiated equal opportunity complaints as a result of Army Regulation 15-6 investigations require a "No" in Part IV-Performance Evaluation Professionalism-Respect on the officer evaluation report. There is no stipulation requiring the substantiating of an equal opportunity complaint, by way of an Army Regulation 15-6 investigation, in order to check "No" by an Army value. DISCUSSION: 1. The applicant's request to remove the contested OER was carefully considered. He contends the contested OER is not IAW the governing regulation as supported by a CI. 2. A review of the evidence provided shows there was no mention of any specific incident that occurred outside of the rating period on the contested OER. The negative evaluation given may have well resulted alone from the April 2011 comments regarding the KFO 1SG. The contested OER complies with Army Regulation 623-3, and sufficiently addressed his performance and potential during the rated period. 3. The CI did not provide convincing evidence that shows the contested OER is unjust, in whole or in part, that it fails to accurately reflect the honest and valued judgments of his rating officials at the time the report was rendered, or that it fails to accurately portray his performance during the rating period. Additionally, although he contends there were errors, he failed to submit evidence that definitively shows the contested OER contains material errors or substantive inaccuracies. 4. He appealed the contested OER to the OSRB, which voted unanimously to deny his request for appeal. 5. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. There does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF. 6. The 6th Military Police Group's (CID) Commander notified HRC of the results of the commander's inquiry to the contested OER. However, a review of the applicant's record shows the memorandum was not made a permanent record of his OMPF. As a matter of equity, the memorandum should be filed as an addendum to the contested OER. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150017490 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20170003353 13 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2