ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2019 DOCKET NUMBER: AR20170009864 APPLICANT REQUESTS: that his DA Form 67-10-1 (Officer Evaluation Report (OER) for the rating period 26 February 2014 through 8 July 2014 be removed from his file and replaced with a statement of non-rated time. In the alternate, he requests: * remove the referral statement * Intellect - remove the statement [Applicant's] lack of personnel management and leadership skills allowed for shortcuts to be taken on several occasions * Leads - remove [Applicant's] displayed sub-standard leadership qualities during the construction of the Functional Fitness Centers by authorizing his subordinates to directly disobey a battalion order, resulting as his Soldiers being placed at risk, but struggled to manage to manage personnel and work within the commander’s intent” * Develops- remove [Applicant's] lack of management skill resulted in repeated substandard work and lack of accountability” * Achieves - remove “However, [Applicant's] inability to effectively manage personnel during the construction of the Sports Complex Functional Fitness Center led to an obstacle having to be reconstructed” * Achieves - remove [Applicant] took shortcuts during the construction project, resulting in poorly executed construction and disobeying of orders * Comments on Potential - remove “However, his leadership skills and judgment are below that of his peers” APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2823 (Sworn Statement) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states he is appealing the subject evaluation report. He was recently involuntarily separated due to being a two-time non-select for promotion to captain and had his appeal to the Army Special Review Board was denied. He request that this evaluation report be removed from his file and replaced with a statement of non-rated time. He also requests that his updated file appear before a special selection board (SSB) for reconsideration for promotion to captain. If this is not feasible, his alternate request is that the referral and the following statements be removed from his OER: * [Applicant] displayed sub-standard leadership qualities during the construction of the Functional Fitness Centers by authorizing his subordinates to directly disobey a battalion order, resulting as his Soldiers being placed at risk, but struggled to manage to manage personnel and work within the commander’s intent” * [Applicant] displayed sub-standard leadership qualities during the construction of the Functional Fitness Centers by authorizing his subordinates to directly disobey a battalion order, resulting as his Soldiers being placed at risk, but struggled to manage to manage personnel and work within the commander’s intent” * [Applicant] lack of management skill resulted in repeated substandard work and lack of accountability” * “However, [Applicant] inability to effectively manage personnel during the construction of the Sports Complex Functional Fitness Center led to an obstacle having to be reconstructed” * [Applicant] took shortcuts during the construction project, resulting in poorly executed construction and disobeying of orders * “However, his leadership skills and judgment are below that of his peers” 3. The applicant also states, the basis for this appeal is substantive inaccuracy. a. He believes that the OER language, the capable/qualified rating, and the referral of this evaluation report do not accurately reflect his performance during the given rating period. This is particularly unfair to him because during this rating period he did not receive any initial or quarterly counseling as mandated in Army Regulation (AR) 623-3 (Evaluation Reporting System), Section 3-7 or any feedback whatsoever that indicated to him that his overall performance was seriously lacking. He graduated near the top of his class at West Point, was a distinguished graduate in his Basic Officer Leader Course, and received a top rating for his first annual OER as a Platoon Leader (PL). During his final four months as a PL he had a couple of disagreements with his chain of command that led to him receiving a very poor OER (referred report) which prevented him from having any reasonable chance of being promoted in the future. These disagreements were as follows: (1) he was asked by his chain of command to put up posters celebrating the Department of Defense Lesbian Gay Bisexual Transgendered (LGBT) pride month and promote a Fort Hood LGBT pride event to his platoon. b. After meeting privately with his Company Commander (CO) and then his Battalion Commander (BC) in which he made every effort to respectfully express that doing this would violate his personal religious beliefs, he was told by his Battalion Commander (BC) that due to his convictions, "if he were a company commander (CO) in his battalion he would be relieved immediately" and that he should find a different line of work because "there is no future in the military for leaders" with his beliefs. (2) After a water jug was filled with gasoline (violating a safety standard operating procedure for his battalion) by an unidentified Soldier in his company (and no one confessed to it when asked), he was asked by his CO to pick a Soldier at random to blame for it and he would give them an Article 15. When he refused to do what he thought was an unjust/unethical act, he received a negative counseling and it was recommended by his BC that his CO write a Letter of Concern for him for his inability to follow orders. Shortly after this event he received the referred OER, effectively ending his career. c. He appealed the evaluation through his chain of command, but it was rejected by his BC. He then went to the Fort Hood Inspector General to discuss his situation and was told that his only course of action was to submit an appeal through the Army Special Review Board, which he did. Along with his written appeal, he submitted 10 sworn statements from superiors, peers, and subordinates that he worked closest with during this time, testifying that this evaluation was not an accurate or reasonable representation of his performance as an officer. Since then he has tried his best to serve with excellence and honor, including deploying to Liberia as part of Operation United Assistance in support of the Ebola relief efforts there, earning an Army Commendation Medal, Army Achievement Medal, Armed Forces Service Medal, and a Superior Unit Award. As expected, he was rejected by the Captain's Promotion Board on both his first and second looks resulting in his mandatory involuntary discharge from the military. Evidence supporting his appeal is enclosed in the form of signed sworn statements from those whom he worked most closely with and who best observed his performance during this rating period. 3. The applicant provides several sworn statements that attest to the situation that resulted in his poor OER and his professional/personal character. 4. A review of the applicant service record shows the following: a. DA Form 71 (Oath of Office) shows that the applicant was sworn in as a second lieutenant on 26 May 2012. b. During July 2014, he received a Change of rater OER, covering the rating period 26 February 2014 through 8 July 2014, for his duties as platoon leader while assigned to the 104th Engineer Company at Fort Hood. His rater was the company commander and his senior rater was the battalion commander. This OER is listed as a referred OER and comments were provided by the applicant. (1) Part IV (Performance Evaluation -Professionalism, Competence, and Attributes) (Rater), the applicant's rater stated in c.3 (Intellect), "[Applicant's]” lack of personnel management and leadership skills allowed for shortcuts to be taken on several occasions in an effort to complete mission, resulting in poor management and substandard construction on three obstacles during the construction of the Functional Fitness Centers. (2), Part IV, the rater stated in c.4 (Leads), “[Applicant]” displayed sub-standard leadership qualities during the construction of the Functional Fitness Centers by authorizing his subordinates to directly disobey a battalion order, resulting in his Soldiers being placed at risk. “[Applicant]” led by example in the area of physical training but struggled to manage personnel and work within the commander’s intent. (3), Part IV, the rater stated in c.5 (Develops), “[Applicant]” gave squad leaders and team leaders within his platoon the opportunity for increased responsibility during construction of the Functional Fitness Centers. “[Applicant’s]” lack of management skill resulted in repeated substandard work and lack of accountability. “[Applicant]” often challenged his Soldiers when competing in company and battalion level competitions, greatly increasing the esprit de corps within the unit. (4), Part IV, the rater stated in c. 6 (Achieves), “[Applicant]” construction estimate planning resulted quick execution of the Veteran’s Field Functional Fitness Center. However, “[Applicant’s]” inability to effectively manage personnel during the construction of the Sports Complex Functional Fitness Center led to an obstacle having to be reconstructed. “[Applicant]” took shortcuts during the construction project, resulting in poorly executed construction and disobeying of orders. (5), Part IV, the rater stated in a. (Potential compared with Officers Senior Rated in the same grade) “[Applicant]” as Qualified. (6), Part IV, the rater stated in c. (Comments on Potential), ‘[Applicant]” is one of the most intelligent and physically fit officers in the battalion he did well handling some of the most complex at-risk Soldier cases in the battalion. However, his leadership skills and judgement are below that of his peers. He requires further development before he is ready to command a company. Promote with peers and continue to groom for positions of increased responsibility. c. The contested OER was referred to the applicant for comments. The applicant acknowledged receipt. He provided two statements as follows: (1) On 15 August 2014, he submitted OER comments wherein he stated that he believes the quality of his performance is not properly reflected in in his OER. The statements in OER insinuates that he routinely took shortcuts and failed to enforce quality control standards during obstacle construction. Though his platoon did have a few issues, so did the other platoons. His platoon also made several above-standard accomplishments that were not fully credited in the report. He acknowledges that he failed to follow two battalion directives: (1) Allowing his Soldiers to drive a privately-owned vehicle onto the project site to pick up tools; and, (2) overlooking his Soldiers using a water Jug marked with green tape as a fuel jug. These incidents reflect poor judgment and personnel management on his part. However, when compared to his overall body of work, both on the job site and in other areas (excelling in the physical, intellectual, and Soldier-care domains), he does not believe that his performance is properly represented by a "capable" rating. Other than the joint counseling for these two incidents, which he received following the completion of his involvement with the construction mission, he received no periodic or developmental counseling during this rating period. He believe that giving such a negative and career-altering evaluation without: (1) Necessary counseling; or, 2) Proper notice of his perceived poor performance in time to correct it, is unfair and is in conflict with standard leadership practices of the Army. (2) On 28 August 2014, he provided OER comments further adding to his previous disagreement with the OER. He stated that he disagreed with the Rater's assessment/description of my performance. However, my biggest concern is that I am receiving a potential rating that indicates you do not think the Army should retain me (as per the Senior Receive guidance/philosophy that you sent to us through our Commanders). While I understand that this is part of your job, I respectfully submit that I do not think I am being dealt with fairly or professionally as I did not receive necessary developmental/performance counseling. d. The contested OER was signed by his rater on 4 September 2014 and by the senior rater on 22 September 2014. The applicant's signature block is blank. The OER was processed at Headquarters, Department of the Army on 26 September 2014. A label was generated that shows the applicant's potential compared with officers senior rated in the same grade is "Qualified." e. On 3 December 2015, the applicant appealed his OER due to substantive inaccuracy. He requested this evaluation report be removed from his file and replaced with a statement of non-rated time. He also requested that his updated file appear before a special selection board for reconsideration for promotion to captain. f. On 24 August 2016, the applicant received notification of separation due to non-selection for promotion. The board’s report was approved in August of 2016 and the applicant separation date is to occur no later than 1 March 2017. g. He was discharged from active duty on 19 January 2017. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he completed 4 years, 7 months, and 24 days of active duty service with an honorable character of service. h. On 2 May 2017, after review of his appeal, the Officer Special Review Board determined that the evidence presented does not establish 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. Therefore, by unanimous vote, the OSRB denied his request. 5. AR 623-3 (Evaluation Report System) paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. c. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party 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. d. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. 6. AR 60-8-29 (Officer Promotions) paragraph 7-2a(1)(2)(3) states that a. The SSB may be convened under US 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1). An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL. (2). The board that considered an officer from in or above the promotion zoned did not have before it some material information (SSB discretionary). (3). The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. He received a referred OER. He appealed the contested OER to the OSRB, which voted unanimously to deny his request for appeal. 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. The Board agreed there does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's OMPF. 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 623-3 (Evaluation Report System) paragraph 4 states that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 3-37a and 4-7a will not be applied to the evaluation report under consideration. a. Action is warranted to correct a material error, inaccuracy, or injustice. b. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. c. For a claim of inaccuracy or injustice of substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third party 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. d. To be acceptable, evidence will be material and relevant to the appellant’s claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing in evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. 3. AR 60-8-29 (Officer Promotions) paragraph 7-2(a)(1)(2)(3) states that a. The SSB may be convened under US 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: (1). An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the TDRL and who have since been placed on the ADL. (2). The board that considered an officer from in or above the promotion zoned did not have before it some material information (SSB discretionary). (3). The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). Special Selective Continuation Boards may be convened in accordance with Title 10 USC, section 637 for commissioned officers and Title 10 USC, section 580 for warrant officers to consider for selective continuation officers who have twice failed selection for promotion, provided the officers would or should have been considered by a selective continuous board following their second failure of selection for promotion. Special Selective Continuation Boards for USAR warrant officers on the Active Duty List are solely governed by this regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009864 0 7 1