BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20170003673 BOARD VOTE: __x_______ __x_____ ___x__ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 27 April 2017 DOCKET NUMBER: AR20170003673 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant amendment of the decision of the Army Board for Correction of Military Records set forth in Docket Number AR20160002635, dated 28 July 2016 as follows: a. In accordance with the National Defense Authorization Act 17, section 531 (Improvements to Whistleblower Protection Procedures), the Department of the Army Inspector General (IG) include all evidence presented by the applicant in this case, AR201700003673, and his prior Army Board for Correction of Military Records (ABCMR) cases, AR201600002635, dated 28 July 2016, and AR20150003964, dated 11 June 2015. The ABCMR requests that the IG conduct any additional indicated investigations and reevaluation of the findings related to the two instances of alleged reprisal by the applicant. The results of the reevaluation will be provided to the ABCMR and to the applicant. b. The applicant’s effective date and date of rank for promotion to colonel in the U.S. Army Reserve be adjusted to be consistent with the date of rank he would have held as a result of his selection by the Fiscal Year 2012, Colonel, Army Reserve, Non-Active Guard Reserve, promotion board. ___________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: 27 April 2017 DOCKET NUMBER: AR20170003673 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). CONSIDERATION OF ADDITIONAL EVIDENCE: 14. On 16 November 2016, new information was received from the applicant regarding the decision of the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20160002635, dated 28 July 2016, which was a reconsideration of the ABCMR decision on Docket Number AR20150003964, dated 11 June 2015. 15. The evidence submitted consists of three documents: a. A memorandum from Headquarters, 108th Training Command (undated but about December 2013), subject: Letter of Character Support for Lieutenant Colonel (Promotable) [Applicant]. This memorandum was addressed to the U. S. Army Human Resources Command (HRC) from the major general (MG) commander (CG). It recommended retention of the applicant on the promotion list for colonel (COL) and promotion to COL. The MG stated the applicant was in the top five percent of 60 battalion commanders within his command, and his character, professionalism, and integrity were always above reproach. The MG stated the applicant accepted responsibility for command of a unit rife with complacency and minimal performance. The applicant sought to correct these negative unit conditions by holding subordinate leaders accountable and implementing an aggressive but realistic training program. He sought to maximize individual responsibility, collective performance, and mission accomplishment through uniform application of high standards in accordance with the expectations set for commanders. The applicant’s efforts were respected by his peers and supervisors. The MG stated that despite the negative effects of the Inspector General (IG) findings on his reputation, the applicant was successful and effective as a battalion commander and in his two subsequent assignments as Operations Officer (G-3) for the Army Reserve Counterterrorism Unit and as Deputy Chief of Staff for Plans (G-5) for the 84th Training Command. This memorandum was contained in AR20150003964 but not individually addressed in the record of proceedings. b. A “Chronological Evidence Map” which compares the time lines of causal events and the applicant’s decisions (right side of the map) to the Inspector General (IG) whistle blower investigation (left side of the map) during the period from 17 July 2009 to 29 March 2011. On 17 July 2010, the applicant in addressing Soldiers of Company A, 323rd Military Intelligence Battalion, during a field training exercise used the phrase “blow your wad,” which some interpreted as sexually offensive. This map was contained in AR20150003964 but not individually addressed in the record of proceedings. The map shows the applicant’s essential elements in making his decisions in rendering an evaluation and directing a position reassignment of his subordinate, Major (MAJ) Z. MAJ Z at the time was the Commander of Company A and the Chief of the Analysis and Control Element (ACE), 323rd Military Intelligence Battalion, a U.S. Army Reserve (USAR) Troop Program Unit (TPU) located at Fort Meade, Maryland. The evidence listed on the map demonstrates that protected communications (PC) made by MAJ Z followed performance feedback such as counseling, evaluation, and reassignment made by the applicant in every instance instead of following the PC as alleged by MAJ Z and the IG. The applicant states the PCs were not relevant to his evaluation and position reassignment decisions concerning MAJ Z. (1) The map uses the following timeline event acronyms: FP (field problem), PC (protected communication), UPA (unfavorable personnel action), Co-ADOS (Contingency Operations-Active Duty for Operational Support), ACE (Analysis and Control Element), AC11 (Austere Challenge 11 Annual Training), MIRC (Military Intelligence Readiness Command), and IG (Inspector General). The run, walk, jog notations refer to unit field training exercises. (2) In his application to the ABCMR contained in AR20150003964, the applicant gave a synopsis of key items on the Chronological Evidence Map as follows. The emails and enclosures referenced are contained in AR20150003964. 12 January 2010. Email Correspondence. MAJ Z provides suggested comments for first (favorable) OER (Officer Evaluation Report) prior to and thus not inclusive of Field Problem #1. I sent to senior rater in early February 2010. See emails #1 through #3 in enclosure Ill. 20-21 February 2010. Field Problem #1. MAJ Z performance failure documented by Command Sergeant Major (CSM) G and Sergeant First Class (SFC) G. See enclosures 1.(l), 1.(j), and 3. 24-25 July 2010 (black diamond on map). Field Problem #2. MAJ Z performance failure documented by Captain (CPT) D and SFC G. See enclosures 1.(f), 1.(j), and 3. I decide to render UPA #1. 25 July 2010. Email Correspondence. MAJ Z tenders written request to transfer (resignation). Although ambivalent, I clarify that I did not fire her. See email #10 in enclosure Ill. 29 August 2010. PC #1. 30 September 2010. Thru Date of Second (Unfavorable} OER – UPA #1. Date directed by MIRC IG on 3 November 2010. See email #18. 16-17 October 2010. Field Problem #3. MAJ Z performance failure documented by Chief Warrant Officer 2 (CW2) S and CSM G. See enclosures 1.(g), 1.(1), and 3. 18 October 2010. XO Counsels MAJ Z. MAJ Z’s performance failure dealing with junior enlisted personnel. See emails #14 through #15 in enclosure III and enclosure 6. I solicit input from MAJ T informing my decision to render UPA #2. 18 October 2010. Email Correspondence. I counsel MAJ Z on unprofessional attitude and her performance deficiencies to date presaging the written counseling of 7 November 2010 which was not signed until 20 March 2011. See emails #16 through #17 in enclosure III. 27 October 2010. PC #2. 7 November 2010. (The applicant) counseling for MAJ Z. Written counseling documenting earlier performance failures and outstanding actions. MAJ Z unavailable for signature due to unanticipated early absence for maternity. No response to email. I decide to render UPA #2. 16 February 2011. MAJ Z receives UPA #1. Delay due to MAJ Z’s unavailability. 22 February 2011. PCs #3 and #4. 20 March 2011. MAJ Z receives UPA #2. Delay due to consideration of MAJ T input. 23 March 2011. PC #5. 29 March 2011. PC #6. c. A “List of All Newly Available Evidence” keyed to the Chronological Evidence Map above. This same list was provided as a table of contents of evidence with his application to the ABCMR dated 20 February 2015 contained in AR20150003964 but not individually addressed in the record of proceedings. The evidence documents on this list are contained in AR20150003964. ADDITIONAL DISCUSSION: 7. At the time of the decision of the ABCMR in Docket Number AR20160002635 on 28 July 2016, which was a reconsideration of the applicant’s initial case, Docket Number AR20150003964, dated 11 June 2015, it was the intent of the ABCMR to make the applicant's record as administratively correct as it should properly have been at the time. However, on 28 November 2016, the applicant submitted evidence consisting of undated memorandum for the 108th Training Command MG CG, a Chronological Evidence Map, and a list of all newly available evidence contending that the evidence had not been properly considered previously by the board. 8. The 108th Training Command CG’s memorandum confirms that applicant’s contention that the applicant accepted command of a battalion which had leadership problems and exhibited substandard performance. The CG stated that the applicant sought to correct these problems by implementing aggressive training and holding subordinate leaders accountable. The CG states that the applicant was in the top five percent of his 60 battalion commanders in his leadership effectiveness and extols his character, professionalism, and integrity. The CG stated that the IG findings did not affect the applicant’s ability to perform. 9. The “Chronological Evidence Map” shows the applicant’s essential elements in making his decisions to render a less than fully favorable OER and reassigning a subordinate, MAJ Z, to a non-command position. The applicant contends that the evidence listed and timeline on the map demonstrate that the PCs made by MAJ Z followed his performance feedback (OER, counseling, and position reassignment) to MAJ Z in every instance instead of the performance feedback made as a result of the MAJ’s PCs. The applicant states that the PCs were not relevant to his evaluation and position reassignment decisions for MAJ Z. 10. One of the documents identified in the list of all newly identified evidence is a memorandum for record (MFR) dated 12 October 2013 from the battalion chaplain, a MAJ, who provided his objective observations of what transpired. He stated (emphasis in original): I served as Chaplain for the 323rd Military Intelligence (Ml) Battalion (Theater Support) – the largest Ml battalion in the Army Reserve – from 20090824 through 20111028 and was rated by [the applicant]. In this capacity, I had direct knowledge of his leadership style, performance counseling methods, and team-building approach…. During his tenure, the battalion was undergoing a needed period of rebuilding and revitalization as it made requisite changes to improve upon the pre-existing command climate. For most Soldiers serving in the unit, the transformation implemented by [the applicant] was a breath of fresh air. They were being afforded for the first time in many years the opportunity to train outside of the Army Reserve Center in relevant military intelligence exercises at the company level and in real-world missions supporting the operationally-aligned, active duty 66th Ml Brigade. A chronic challenge during this period was executing operations with limited support from our battalion operations section since the S-3 shop was simultaneously undergoing its own rebuilding process with the only assigned [Active Guard Reserve (AGR)] officer consistently unavailable due to health issues. This created some understandable tension; nevertheless, [the applicant’s] expectations were consistent, clearly communicated, and completely reasonable given our situation. [The applicant’s] objective was to have the companies conduct meaningful collective training events once-per-quarter with the goal of making the 323rd Ml Battalion the most effective in the [MI Reserve Command (MIRC)]. Each company internalized his objective differently and as result succeeded to varying degrees; however, Alpha Company appeared more resistant to the program than others – a circumstance which had less to do with clarity of intent or realistic expectations than it did with Company Commander buy-in. I am aware of specific allegations associated with the use of inappropriate terminology or suggestive metaphor by the battalion commander. I can say categorically that I never witnessed such usage in person and was unaware of any other instance of its use. I can only assess that the reported incident was either an expression taken out of context for personal gain or an aberration which was very much out of character. Battalion communications – those coming from [the applicant] in particular – were highly articulate, always professional, and very often, genuinely motivating. [The applicant] unquestionably set and maintained high standards – yet he enforced them uniformly and fairly without fail. He fully supported the Command Sergeant Major and his NCO chain as they worked to create a professional, Soldier-centric environment. He very effectively used a combination of monthly teleconferences, Battle Assembly training meetings, and substantive time in discussion with individual officers to build rapport and garner willing support for new performance expectations. Soldiers knew that he had an open door policy and would often come into his office to freely speak about their concerns. Although sometimes reticent to issue formal written counseling – as he wished to foster an open dialogue of opposing views – [the applicant] was not averse to employing the tools of command to appropriately enforce Army standards and battalion policy when circumstances required. Unfettered access to the IG and other oversight mechanisms was in evidence as a healthy component of his command climate. On at least two separate occasions, [the applicant] called on me and the [unit ministry team (UMT)] to intervene when personnel were having significant difficulty in managing the higher expectations now associated with being contributing unit members. The battalion commander's thoughtfulness allowed us to successfully mitigate these situations without negative consequence. This win-win approach was indicative of his leadership style. [The applicant] was also very supportive of working with Soldiers whose personal lives had percolated to the extent that they were no longer able to participate in Battle Assemblies. His direct involvement helped create opportunities for Soldiers to simultaneously continue their civilian employment and military service. In several instances, however, this did require the Soldier to be willing to accept a reassignment of duties. At no point during my tenure did [the applicant] refrain from listening to a Soldier or fail to demonstrate a willingness to work with a member of his leadership team (including one-on-one with his Company Commanders) to constructively resolve issues at hand. While [the applicant] was in command, we had one company deployed as well as numerous Soldiers mobilized individually. Due to the deployment OPTEMPO at the time, several personnel who had reached the end of their obligations chose to leave military service, including several officers who tendered their resignations; however, I know of no instance when this was done as a result of [the applicant’s] leadership. By the time of [the applicant’s] change-of-command, the 323rd Ml Battalion had gone from an underperforming, or even non-performing, unit to one of the best in the Ml Readiness Command as evidenced by the morale of the Soldiers, dedication of the leadership team, aggressive but realistic training opportunities, and solid but repeatable institutional programs. Although not all of his subordinate leaders fully bought into this success story, [the applicant] always acted with fairness, candor, and aplomb…. It is not consistent with [the applicant’s] character or performance as I have observed them over two years under his command that he would have improperly reprised against MAJ Z----- as alleged. Based upon my judgment as a Group Chaplain, former head of the largest UMT in the MIRC, and combat-tested infantry officer, I strongly recommend DA IG case DIH 11-6066 be reevaluated as unsubstantiated. 11. The views expressed by the chaplain are supported by the 11 other MFRs provided from a range of leadership within the MIRC to include the applicant’s rater (who was also the senior rater of MAJ Z), two LTCs, a MAJ, a CPT, two CW2s, two sergeants first class, the battalion command sergeant major (CSM), the brigadier general (BG) commander of 11 USAR MI battalions in MIRC, and from the MG CG of MIRC. The applicants' 23 emails noted on his list of all newly available evidence and plotted on the chronological evidence map also support the applicant’s contention that the IG findings improperly substantiated findings of reprisal. 12. The MIRC IG conducted an investigation into MAJ Z’s allegations of reprisal by the applicant for making PCs with the applicant’s senior rater and with the MIRC IG during the period 29 August 2010 to 27 October 2010. MAJ Z’s PC with the applicant’s senior rater was concerning her perception that the applicant made a sexually inappropriate statement to subordinates in a meeting. MAJ Z was not at the meeting and did not personally hear the applicant’s statement. The subsequent PC’s to the IG were related to what MAJ Z perceived as UPA toward her made by the applicant. The investigation was conducted between 4 April 2011 and 7 March 2013 under the provisions of the Military Whistleblower Protection Act. On 28 June 2013, the Department of Defense (DoD) IG approved the findings of the MIRC IG Report of Investigation (ROI) and its determination of substantiated reprisal allegations against the applicant. The applicant was notified of these determinations by memorandum dated 18 July 2013. 13. The applicant appealed the findings to the DoD IG on 1 December 2013. The applicant contended that the preponderance of evidence did not support the findings, provided analysis of the evidence, and provided additional documents. On 27 June 2014, the DoD IG denied the appeal stating that they confirmed that all relevant witnesses were contacted and the findings were supported by the evidence. 14. The applicant’s presentation of the chronology of evidence map, associated list of new evidence, and MFRs from significant members of the chain of command appear to be at odds with the IG findings. 15. The National Defense Authorization Act (NDAA) 17, section 531 (Improvements to Whistleblower Protection Procedures), states in pertinent part that in actions treatable as prohibited personnel actions, a correction board (such as the ABCMR) shall review the report of the IG and may request the IG gather further evidence (consider further evidence). Application of this provision would appear to be appropriate in this case. 16. As a result of the IG findings of two related instances of reprisal, on 8 May 2014, the applicant, a LTC (Promotable), was removed from the Fiscal Year (FY) 2012, Colonel, Army Reserve, Non-Active Guard Reserve, promotion list. In 2016, the applicant’s records were referred to a Department of the Army Promotion Review Board for reconsideration of the applicant’s promotion status. As a result, the Secretary of the Army directed that the applicant be retained on the FY 2015, Colonel, Army Reserve, Non-Active Guard Reserve, promotion list. Accordingly, the applicant was promoted to COL in the USAR on 15 September 2016 with a date of rank of 15 September 2016. This occurred after the issue of the decision on ABCMR case AR20160002635 on 28 July 2016. 17. In the advisory opinion for ABCMR case AR20160002635, the Chief of Officer Promotions, HRC, recommended that if the applicant is selected and approved by a subsequent selection board, that the applicant request through the ABCMR that the Secretary of the Army grant approval for an earlier promotion effective date under the FY12 promotion board criteria. Since the applicant was subsequently promoted to COL, it would appear appropriate that his promotion effective date and data of rank be corrected in accordance with the HRC recommendation. 18. The new evidence presented by the applicant and the recent promotion do not support changing any other decision in ABCMR Docket Number AR20160002635. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS ABCMR Record of Proceedings AR20170003673 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS Enclosure 1 ABCMR Supplemental Record of Proceedings (cont) AR20170003673 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS SUPPLEMENTAL RECORD OF PROCEEDINGS Enclosure 2