ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 22 July 2019 DOCKET NUMBER: AR20170007272 APPLICANT REQUESTS: in effect, reversal of the Officer Special Review Board’s (OSRB) decision not to remove his officer evaluation report (OER) for the rating period 11 October 2012 through 27 April 2013. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Online Application) * attorney representative authorization * OER Appeal * exhibit 1, OER (11 October 2012 - 27 April 27 2013 - filed version) * exhibit 2, General Officer Memorandum of Reprimand (GOMOR), dated 25 July 2013 * exhibit 3, Report of Investigation * exhibit 4, email exchange * exhibit 5, OER (4 December 2012 - 27 April 27 2013 - draft as of August 2013) * exhibit 6, applicant’s GOMOR rebuttal * OSRB evaluation report appeal response FACTS: 1. The applicant states to review his evaluation report appeal memorandum addressed to the Human Resources Command (HRC), dated 29 February 2016. 2. The applicant provides: a. Through his attorney, a memorandum (i.e. document) in support of his OER Appeal to the Officer Special Review Board (OSRB). Despite an otherwise flawless 34 year career, the applicant suffered a grave injustice when he received an adverse relief-for-cause OER that derailed his career and threatens to inflict future irreparable harm. As demonstrated in this document, however, the OSRB's objective review of the facts and circumstances will reveal that the OER is substantively inaccurate because its contents are so negatively incongruent to what actually occurred that it rises to the level of a manifest injustice, especially in light of his more than three decades of impeccable, unblemished service. Based on the arguments presented herein, the OSRB has sufficient cause to grant the applicant the full relief he seeks. His attorney provided a detailed 15 page memorandum (i.e. document) consisting of an introduction, timeliness and exhaustion, factual background, statutory and regulatory guidelines, requested relief, argument, and a conclusion that may be reviewed (detailed memorandum (i.e. document) enclosed in packet). b. Exhibit 5, draft OER as of August 2013 from 4 December 2012 – 27 April 2013. His senior rater rated his promotion potential with do not promote and his potential compared with officers senior rated in his same grade as “Below Center Mass, Do Not Retain.” c. Exhibit 1, OER from 11 October 2012 - 27 April 2013 is filed in his Army Military Human Resources Record (AMHRR). d. Exhibit 4, email exchanges from 12 April – 26 May 2013 between the applicant and his rater Mr. X___. They discussed the applicant’s support form, major performance objectives, and counseling dates. e. Exhibit 3, Report of Investigation (ROI), dated 28 June 2013, states an administrative investigation was conducted 14 May - 26 June 2013 at Defense Intelligence Agency Headquarters(DIA HQ), Joint Base Anacostia-Bolling, Washington, DC, under the authority of DIA Memorandum 60-1 (Administrative Investigations), dated 28 April 1997. f. Exhibit 2, GOMOR from Major General (MG) X___, for inappropriate language and contact with a female subordinate, dated 25 July 2013. g. Exhibit 6, applicant’s GOMOR rebuttal, dated 15 August 2013. h. The OSRB memorandum, dated 2 March 2017, response to his evaluation report appeal. 3. A review of the applicant’s service record shows: a. Having had prior service in the Army National Guard of the U.S. and the U.S. Army Reserves (USAR), he was appointed as a reserve commissioned officer and executed an oath of office on 30 June 1986. b. On 29 June 1986, he was discharged from the ARNG and transferred to the USAR. He executed an oath of office in the Mississippi Army National Guard (MSARNG) on 30 June 1986. He served in a variety of assignments. c. He was promoted to colonel (COL) on 25 September 2009. d. He served in Afghanistan from 26 November 2012 to 29 April 2013. e. Exhibit 1, OER from 11 October 2012 - 27 April 27 2013 is filed in his AMHRR. His senior rater referred his OER. (1) Part V (Performance and Potential Evaluation) (Rater) – Part Va – Officer’s performance and promotion potential during the rating period – unsatisfactory performance, do not promote (2) Part Vb (Comment on specific aspects of the performance) – [Rater] relieved the [applicant] from his duties based upon a subordinate's complaint and his subsequent admission that he made inappropriate sexual comments and gestures to female subordinates. He led an organization that accomplished its mission during this truncated rating period, achieving a first ever total inventory of DlA equipment in theater, starting a process of eliminating excess property in preparation for drawdown in Afghanistan and expanding the mission to absorb reception and processing functions from another area in theater. His team also successfully supported all aspects of logistical support to DIA personnel coming into theater, remaining there and departing. [Applicant] did not take an Army physical fitness test since he was relieved of duty prior to expiration of his last test and he was deployed at the time. (3) Part Vc (Comment on promotion potential) – [Applicant] does not possess the requisite personal attributes to perform as a general officer. (4) Parts VII (Senior Rater), part VIIa (Officer’s promotion potential to the next higher grade) - Do not promote (5) Parts VIIb (Potential compared with officers senior rated in his same grade) - Below Center of Mass Do Not Retain. (6) Parts VIIc (Comment on performance/potential) – The rater relieved applicant from his duty as a result of his inappropriate sexual comments and gestures toward his female staff members. His performance during this shortened evaluation period was otherwise satisfactory in that he led his team to complete a vital DIA theater-wide equipment inventory in preparation of the drawdown in Afghanistan. His team was solely responsible for the reception and processing of DIA personnel entering and departing theater, which improved consistently during this period. [Senior Rater] assess, however, that he does not possess the requisite basic attributes to perform as a general officer. (7) Parts VIId (List three future assignments for which this officer is best suited) - None. f. He submitted a response to his referred OER, he stated that he was notified on or about 27 April 2013, that he was relieved of his duties and is currently in the Inactive (i.e. Individual) Ready Reserve (IRR). Having spent the last 9 years, with the exception of 8 months, mobilized and/or deployed in support of the Global War on Terrorism, he has no USAR reserve unit. He does not agree with the comments regarding the circumstances that led to his relief for cause and believes that he has been unjustly accused and judged too harshly. He is overwhelmed by his negative OER, and the language used to describe his actions. He was never given any direct performance guidance or counseling and was consistently told that the Defense Intelligence Support Office-Afghanistan (DISO-A), was doing a good job on their end. The OER disproportionately focuses on a minor lapse in judgment, mischaracterizes the facts and neglects to comment on the bulk of his successful performance during the rating period. He requests that his report be rewritten to place his conduct in perspective and give him appropriate credit for his accomplishments. He provided a detailed five page memorandum to his rating chain consisting of the incident and his military accomplishments that may be reviewed (detailed memorandum enclosed in packet). g. Exhibit 3, Report of Investigation (ROI), dated 28 June 2013, states an administrative investigation was conducted 14 May - 26 June 2013 at DIA HQ, Joint Base Anacostia-Bolling, Washington, DC, under the authority of DIA Memorandum 60-1 (Administrative Investigations). It was a fact finding mission into sexual harassment allegations against the [applicant], who at the time was serving as the DISO-A Chief in Bagram, Afghanistan. The basis for the investigation was a statement made by X___ to her mother X___), and her mother subsequently contacted Mr. X___, asking him to make sure MQ was alright. The ROI is 116 pages consisting of a background, finding of facts, discussion, a conclusion, recommendations, four memorandum for records, interview notes, Facebook and email correspondence, two statements, case opening summary of allegations that may be reviewed (detailed ROI enclosed in packet). h. Exhibit 2, GOMOR from Major General (MG) XXX, for inappropriate language and contact with a female subordinate, dated 25 July 2013, that reads: (1) As the Chief, DIA Support Office in Bagram, Afghanistan, [applicant’s] sexual comments and gestures offended his subordinates and created a hostile work environment. His comments regarding two of the civilian women in his organization were offensive and inappropriate. His repeated touching of a female subordinate's leg and arm was unwelcome and his foul language and sexually inappropriate comments made his workplace a toxic environment. (2) His conduct is inexcusable and demonstrates a complete lack of judgment and maturity. As a senior leader, he is required to know, uphold and enforce the Department of Defense (DOD) and Army standards and regulations with regard to sexual harassment and equal opportunity at all times. He sets the example for subordinates to follow. By creating this hostile environment with inappropriate sexual comments and gestures, he undermined the trust the Army, DOD and DIA senior leadership place (i.e. placed) in him. This serious lack of judgment caused MG X____ to question whether he had the character and attributes required to continue as a senior leader and to doubt his potential for continued service in the Army. (3) This reprimand is imposed as an administrative measure consistent with AR 600-37 (Unfavorable Information), paragraph 3-6, and not as punishment pursuant to the Uniform Code of Military Justice. In accordance with AR 600-37, paragraph 3-6, MG JSB considered filing his reprimand in his official military personnel file (OMPF), but decided to consider any written matters he wished to submit before the filing decision. i. Exhibit 6, applicant’s GOMOR rebuttal, dated 15 August 2013. He regrets that his actions lead to the expenditure of resources necessary to investigate his case and the impact this incident has had on the mission of the DISO-A. He believes that the evidence submitted in the ROI was exaggerated, misconstrued and in some instances, blatantly false. He asked that [MG X___] consider the additional evidence that he provided, including emails from one of the complainants (Exhibit 2) and a statement from a contractor not affiliated with DlA that was present and on scene to witness his interaction with the employees and staff on a daily basis (Exhibit 3). He believes this evidence paints a much different picture of him and he hopes that upon reviewing the evidence [MG JSB] will consider filing his GOMOR locally and not in his OMPF. He provided a detailed 10 page memorandum rebuttal that may be reviewed (detailed memorandum enclosed in packet). j. On 29 October 2013, MG X___ directed the GOMOR to be filed in his OMPF. k. On 4 June 2013, HRC published Orders 155-0001 releasing him from active duty, and transferring him to the USAR Control Group (Reinforcement) effective 9 September 2013. l. On 4 March 2016, HRC published Orders C-03-602936 transferring him from the USAR Control Group (Reinforcement) to the Retired Reserve on 1 July 2016 by reason of completing 20 or more years of Reserve duty. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was credited with 11 months and 2 days of active service this period and 7 years, 11 months, and 28 days prior active service. m. On 2 March 2017, the OSRB determined that the evidence the applicant submitted did not justify altering or withdrawing the evaluation report for the period 11 October 2012 – 27 April 2013. n. On 3 May 2017, HRC published orders C05-793838 placing him on the Army of the U.S. Retired List in the retired grade of COL effective 22 July 2017. 4. By regulation, a. Evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, and counseling forms. b. An evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. c. The rater will be the supervisor of the rated officer for a minimum period of 90 calendar days. d. The rated Soldier has a role and responsibility in the counseling process. He/she must participate in counseling and provide and discuss with the rating chain the duty description, performance objectives. Although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s counsel contentions were carefully considered. The applicant received the contested GOMOR and was afforded the opportunity to review all of the evidence against him and to submit matters in his own behalf prior to a final filing decision. He submitted a rebuttal in which he accepted responsibility for his actions. The imposing general officer directed the GOMOR be filed in the performance folder of his OMPF. The GOMOR was properly administered in accordance with applicable regulations and properly filed in the performance section of his OMPF. There is no evidence of any violation of any of the applicant’s rights. The GOMOR is an administrative tool used by the imposing officer to train and rehabilitate. Once the GOMOR was filed in his OMPF, it became a permanent record and will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. The Army has an interest in maintaining the accuracy of its records. The information in those records must reflect the conditions and circumstances that existed at the time the records were created. As required by the applicable regulation, the GOMOR is properly filed in the performance folder of his OMPF. The GOMOR may be appealed for transfer to the restricted folder of the OMPF based on proof that its intended purpose has been served and that the transfer would be in the best interest of the Army. The governing regulation provides maintaining derogatory information in the OMPF permits the Army to consider all available relevant information when choosing Soldiers for assignment, and when ensuring that Soldiers of poor moral character are not continued in the Army or selected for positions of significant trust and authority. The Board must determine if the evidence in this case meets that standard. The applicant admitted to his misconduct in which he received the GOMOR, and was provided due process appealing administrative actions. Based upon the preponderance of evidence, the Board agreed there was no error or injustice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION 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. 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. REFERENCES: 1. Army Regulation (AR) 623-3 (Evaluation Reporting System) states: a. Evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3 (Evaluation Reporting System). b. An evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. c. The rater will be the supervisor of the rated officer for a minimum period of 90 calendar days. d. Although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. e. The senior rater 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 senior rater has previously senior rated and those in his or her current senior rater population. If the potential assessment is consistent with the majority of officers in that grade, the senior rater will “X” the “center of mass” (COM) box. If the rated officer’s potential exceeds that of the majority of officers in the senior rater’s population for that rank, the senior rater will “X” either the “above center of mass” (ACOM) or COM box. In order to maintain a credible profile, the senior rater must have less than 50 percent of the ratings in the ACOM box for a given rank. A report with an ACOM rating that causes a senior rater’s profile to have 50 percent or more ACOM ratings will be processed with a COM Headquarters Department of the Army electronically generated label; however, it will be charged against the senior rater’s profile as an ACOM report if it is unresolved, and a documented senior rater profile misfire will occur. If the rated officer’s potential is below the majority of officers in the senior rater’s population for that rank and the senior rater believes the rated officer should be retained for further development, the senior rater will “X” the “below center of mass” (BCOM)–Retain box. If the rated officer’s potential is below the majority of officers in the senior rater’s population for that rank and the senior rater does not believe the rated officer should be retained in the Army, the senior rater will “X” the BCOM–Do Not Retain box. f. The narrative for Part VII, Block c may be based in part on the rated officer's final support form. However, the choice of what to enter on the officer evaluation report is ultimately up to the senior rater. g. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. h. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources (see DA Pam 623-3). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The Commander's Inquiry may provide support for an appeal request. 2. Army Regulation 600-8-104 (Army Military Human Resource Record (AMHRR) Management) governs the composition of the AMHRR (which includes the official military personnel file (OMPF)) and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170007272 8 1