IN THE CASE OF: BOARD DATE: 17 December 2018 DOCKET NUMBER: AR20180009770 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 17 December 2018 DOCKET NUMBER: AR20180009770 APPLICANT'S REQUEST AND STATEMENT: 1. The applicant requests: a. Removal of the DA Forms 67-10-1 (Company Grade Plate (O1 – O3; W1 – CW2) Officer Evaluation Report (OER)), for the periods 14 July 2013 through 13 July 2014 (hereafter referred to as contested OER1) and 14 July 2014 through 13 July 2015 (hereafter referred to as contested OER2), from his official military personnel file (OMPF); b. Replacing them with the OERs for the same rating periods prepared by Brigadier General (BG) W.W., the Land Component Commander for the District of Columbia Army National Guard (DCNG); c. In the alternative, "other just relief" (presumed to mean removal without replacement); and d. A personal appearance before the Board. 2. The applicant states: a. The errors/injustices in his military records are as a result of reprisal for making a protected communication. The Department of Defense Inspector General (DoDIG) / Department of the Army Inspector General (DAIG) has substantiated his claim under the provisions of Title 10, U.S. Code, section 1034 [the Military Whistleblower Protection Act (MWPA)] that he received a retaliatory personnel action as a result. b. Additionally, he provides a self-authored six-page letter to the Board, dated 17 July 2018. As a result of the IG findings, he requests the Officer Special Review Board's (ORSB) decision be overturned and the requested relief be granted. He believes substantive errors, bias, lack of objectivity, and inconsistency with his actual performance as a result of being reprised against, coupled with the DAIG ROI should be sufficient evidence in replacing his OERs. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting documents as listed and categorized in enclosures: * Enclosure 1 – Letter from Chief, Investigations Division, Office of the Inspector General (IG), digitally signed and dated 8 May 2018 * Enclosure 2 – Memorandum for Army Human Resources Command (HRC) from BG W.W., subject: Commander's Inquiry (CI) on the OERs for the rating periods…(Applicant), DCNG, dated 6 January 2017 * Enclosure 3 – CI Report of Investigation (ROI) – Findings, Analysis and Conclusions * Enclosure 4 – Army Regulation 15-6 [Investigation Guide For Informal Investigations], conducted 25 August 2015 to 15 September 2015 * Enclosure 5 – Notification memorandum from National Guard Bureau (NGB) of Department of the Army OSRB, dated 10 April 2018 * Enclosure 6 – OSRB Record of Proceedings, Docket Number AR20170007810, dated 27 February 2018 * Enclosure 7 – Applicant's additional statements for OSRB appeal, dated 5 May 2017 and 3 May 2017, respectively * Enclosure 8 – Replacement OER for the period 14 July 2013 through 13 July 2014, prepared by BG W.W. * Enclosure 9 – Replacement OER for the period 14 July 2014 through 13 July 2015, prepared by BG W.W. * Enclosure 10 – Contested OER1 with auxiliary documents * Enclosure 11 – Contested OER2 with auxiliary documents * Enclosure 12 – Letter of Support from BG W.W., Acting Commanding General, DCNG, dated 10 March 2017 * Enclosure 13-19 – Seven Letters of Support for OER Appeal * Enclosure 20 – Email addressing Warrant Officer request revocation 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * DD Form 214 (Certificate of Release or Discharge from Active Duty), for the period ending 30 June 2015 * U.S. Army Inspector General Agency, ROI – Case Number 17-00019, digitally signed and dated 4 April 2018 REFERENCES: 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. 2. Department of Defense Directive 7050.06 (Military Whistleblower Protection), implemented the provisions of the MWPA as codified in Title 10, U.S. Code, section 1034. a. The directive established policy that: (1) Members of the Military Services (referred to in this directive as "Service members") are free to make protected communications. (2) No person will restrict a Service member from making lawful communications to a member of Congress or an inspector general (IG). (3) Service members will be free from reprisal for making or preparing to make or being perceived as making or preparing to make a protected communication. (4) No person may take or threaten to take an unfavorable personnel action or withhold or threaten to withhold a favorable personnel action in reprisal against any Service member for making or preparing to make, or being perceived as making or preparing to make a protected communication. b. Protected communications are defined as: (1) Any lawful communication to a Member of Congress or an IG. (2) A communication in which a member of the Armed Forces communicates information that the member reasonably believes evidences a violation of law or regulation, including: * a law or regulation prohibiting sexual harassment or unlawful discrimination * gross mismanagement * gross waste of funds or other resources * an abuse of authority * a substantial and specific danger to public health or safety c. Reprisal is defined as "taking or threatening to take an unfavorable personnel action, or withholding or threatening to withhold a favorable personnel action, for making or preparing to make a protected communication." d. A "personnel action" is any action taken that affects, or has the potential to affect, the military member’s current position or career. Personnel actions include promotions; disciplinary or other corrective actions; transfers or reassignments; performance evaluations; and any other significant changes in duties or responsibilities inconsistent with the military member’s grade. 3. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-9 contains guidance on the burden of proof. It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. b. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. c. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 4. Army Regulation 20-1 (Inspector General Activities and Procedures) prescribes policy and procedures concerning the mission and duties of the IG. It also prescribes duties, missions, standards, and requirements for IGs throughout the Army. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states letters of reprimand and OERs will be filed in the performance section of the OMPF. 6. Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION: 1. While 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. The applicant was ordered to active duty for training on or about 15 July 2011, while serving in the rank/grade of captain (CPT)/O-3. He was assigned to the Joint Force Headquarters, District of Columbia Army National Guard (DCARNG). 3. The evidence of record shows the applicant received annual reports, wherein he received a "Capable" rating in Part IVb (This Officer's Overall Performance is Rated as) from his rater on both the contested OERs. He received a "Qualified" rating in Part VIa (Potential Compared with Officers Senior Rated in Same Grade) from his senior rater on both the contested OERs. 4. The applicant appealed the contested OERs to the OSRB. The OSRB, on 27 February 2018, found insufficient evidence to show the ratings by the applicant's rater and senior rater were unjust. Therefore, the requested relief was not supported. 5. The applicant provides two completed OERs, prepared by BG W.W., Commander, DCARNG, as substitutions for the contested OERs. The Commander, DCARNG had conducted the applicant's requested Commander's Inquiry and concluded that both of the contested OERs were prepared with bias, lacked objectivity, and did not fairly reflect the applicant's performance or potential. The commander further noted the rater and senior rater were both being investigated for retaliation against the applicant at the time of the OERs and should have been disqualified from the applicant's rating. 6. Based on an applicant's complaint, the DAIG conducted an investigation under the provisions of the MWPA, and provided its ROI on 4 April 2018. The report affirmed allegations that the rater and senior rater had given the applicant adverse OERs (the contested OERs in question) in reprisal for making protected communications. 7. The applicant received a letter from the Chief, Investigations Division, Office of the IG, dated 8 May 2018, informing him of the IG's ROI and findings. It noted the DoDIG concurred with their findings as well. Additionally, the letter referred him to this Board for consideration in correcting his military records. 8. The applicant's request for a personal appearance hearing was carefully considered. However, by regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant are sufficient to render a fair and equitable decision at this time. BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Removing the DA Forms 67-10-1 (Company Grade Plate (O1 – O3; W1 – CW2) Officer Evaluation Report (OER)), for the rating periods 14 July 2013 through 13 July 2014 and 14 July 2014 through 13 July 2015, from his official military personnel file (OMPF); and b. Replacing them with the OERs for the same rating periods prepared by Brigadier General W.W. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to receiving a personal appearance before the Board. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20160005706 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20180009770 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2