ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 15 August 2019 DOCKET NUMBER: AR20180013954 APPLICANT REQUESTS: removal of the DA Form 67-10-1 (Company Grade Plate (O1 – O3; WO1 – CW2) Officer Evaluation Report (OER)) covering the period 23 June 2016 through 22 June 2017 from his Army Military Human Resources Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Brief in Support of Application, Counsel, with exhibits * Email, Applicant, dated 3 November 2018, subject: RE: Question, with attachments FACTS: 1. The applicant defers to counsel. 2. Counsel states: * the applicant is a highly dedicated and highly capable officer with a previously unblemished record * the OER was prepared by a rater who was incapable of being fair and impartial * the rater was the "victim" of an alleged act of destruction of property the rater erroneously believed the applicant committed * the investigation produced no direct evidence of misconduct by the applicant * the chain of command used a highly discredited notion of "Statement Analysis" in order to reach a finding, resulting in unfair prejudice toward the applicant * the applicant provided information directly refuting the factual basis for the allegation that he destroyed Government property – this information was ignored * there was no documented counseling performed by the rater during the rating period to support the comment "consistently fails to control his emotions and military bearing" * the rater violated Army Regulation 623-3 (Evaluation Reporting System) by using unqualified superlatives or phrases and vague references to unproven allegations * there is no documented evidence related to the unsupported assertion of the applicant publicly degrading senior officers * it is inappropriate to reference conduct that occurred outside of the current rating period * the Officer Special Review Board improperly ignored the clear bias of the rating chain and failed to acknowledge the clear impropriety of having the "victim" of an act of misconduct serve as part of the rating chain * the applicant's disciplinary issues were the product of a flawed investigation initiated in retaliation for the applicant voicing concerns through command channels and submitting a Congressional inquiry * the rater should have been removed from the rating chain because the applicant raised leadership concerns to the chain of command 3. The applicant was serving in the Regular Army as a chaplain in the rank/grade of captain/O-3 at the time he received the referred OER. 4. A review of the applicant's AMHRR in the interactive Personnel Electronic Records Management System shows the OER covering the period 23 June 2016 through 22 June 2017 is filed in the performance folder. a. Part II (Authentication) shows the applicant signed the OER on 10 July 2017. b. Part IId (This is a referred report, do you wish to make comments?) shows the rater checked "Yes" and the applicant checked the block "Yes, comments are attached." c. Part IVa (Performance Evaluation – Professionalism, Competencies, and Attributes) shows the rater commented: "[Applicant] has shown improvement over his last APFT [Army Physical Fitness Test]." d. Part IVb (This Officer's Overall Performance is Rated as:) shows the rater checked the box "CAPABLE" and commented: "[Applicant] is an intelligent and passionate leader. However, he consistently fails to control his emotions and military bearing. During the rating period, [Applicant] was found to have destroyed government property in a founded investigation." e. Part IVc(1) (Character) shows the rater commented: "[Applicant] does not consistently support the Army Values. On multiple occasions he has displayed complete lack of respect and loyalty to senior officers, as well as to the unit as a whole..." f. Part IVc(2) (Presence) shows the rater commented: "[Applicant] is in mediocre physical condition and does not always carry himself in a professional manner or maintain his military bearing. This is evident by degrading senior officers in the battalion publicly..." g. Part V (Intermediate Rater) shows the intermediate rater commented: "...his ministry is undermined by career long unchecked character issues. [Applicant] is competitive in an unhealthy way. He lacks a sense of the appropriate. [Applicant] has an unteachable spirit which has resulted in a loss of trust and confidence of the command. Do not assign to supervisory positions. He is not ready for promotion at this time. Send to resident Chaplain Captain Career Course to correct insufficient Army training." h. Part VI (Senior Rater) shows the senior rated checked the box "QUALIFIED" and commented: "[Applicant] has had several challenges during this rating period but still remains in the top half of Chaplain I have worked with in my career. With further mentorship and guidance, his potential to serve in positions of greater responsibility will improve. Promote with peers." 5. On 10 July 2017, he submitted a memorandum for record, subject: Response to Referred OER – (Applicant), wherein he stated: * the OER is a retaliation OER * the rater was the owner of the property that he was alleged to have destroyed * the OER is also in retaliation for a Congressional inquiry he filed against the battalion for incomplete investigation that led to findings of alleged misconduct * the OER violated Army rating principles and the spirit of Army Regulation 623-3 * there were no documented initial counseling statements from any of the three raters * there were no counseling statements from any rater indicating a decline in his performance or concerns with his character or military bearing * the OER creates the appearance of reprisal based on the filing of a protected communication * the investigation did not produce any direct evidence or provide any witnesses showing he committed or had any part in the destruction of Government property * two forensic handwriting experts and a forensic video expert provided written reports refuting the allegation that he was involved in the destruction of Government property 6. On 23 April 2018, counsel submitted an appeal to the U.S. Army Human Resources Command wherein he stated: * the information included in the applicant's OER is substantively inaccurate and contains comments that improperly reference information outside the reporting period * the applicant's appeal is based on substantive factual errors within his OER * the comments in the OER violate both the letter and intent of Army Regulation 623-3 by using unqualified superlatives or phases and references to unproven allegations 7. On 21 September 2018, the Officer Special Review Board determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the OER under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 8. On 3 November 2018, the applicant provided an additional rebuttal to the ABCMR with attachments, stating: * the OER was written with the false belief that he was guilty of officer misconduct through the destruction of Government property * the investigation that led to his "guilty finding" was poorly done under a "short suspense in order to save time" and failed to take into account all the available and presented evidence * the OER contains contradictory statements and statements that are contradictory to previous OERs * the OER was written as an act of reprisal – two separate forms of protected communications (chaplain to chaplain and Congressional inquiry) were held against him 9. The applicant's OERs subsequent to the referred OER show senior ratings as: * 23 June 2017 through 3 February 2018 – "Highly Qualified" * 4 February 2018 through 15 June 2018 –"Highly Qualified" * 16 June 2018 through 23 February 2019 – "Most Qualified" * 10. Army Regulation 623-3 covers evaluations. 4 – 2. Information a. An OER, NCOER, DA Form 1059, or DA Form 1059 – 2 may have administrative errors or may not accurately record the rated Soldier’s potential or the manner in which they performed their duties. The Evaluation Report Redress Program protects the Army’s interests and ensures fairness to the evaluated officer or NCO. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A Commander’s or Commandant’s Inquiry and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a Commander’s or Commandant’s Inquiry. A Commander’s or Commandant’s Inquiry is not a prerequisite for the sub-mission of an appeal but may provide information to assist in a decision due to appeal. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement, his response to the OER through counsel to include a statement of alleged bias, the content of the OER, the response to the findings of the investigation, the video analysis, his statement regarding reprisal, the GOMOR and his OERs subsequent to the referred report. Based on a preponderance of evidence, the Board found insufficient evidence to determine that the applicant’s rating chain was biased, that he was reprised against or that the rating official comments on the referred OER were in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. 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. ADMINISTRATIVE NOTE(S): not applicable. ? REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy and tasks for the Army's Evaluation Reporting System, including officer, noncommissioned officer, and academic evaluation reports focused on the assessment of performance and potential. a. Paragraph 3-2 (Evaluation Report Requirements) states evaluations normally will not be based on a few isolated minor incidents. b. Paragraph 3-19 (Prohibited Narrative Techniques) states brief, unqualified superlatives or phrases, particularly if they may be considered trite, will not be used. c. Paragraph 3-21 (Prohibited Comments) states comments that are prohibited will not be included in evaluation reports. No remarks about performance or incidents that occurred before or after the rating period will be made in an evaluation. d. Chapter 4 (Evaluation Report Redress Program) states the Evaluation Report Redress Program consists of several elements at various levels of command. The program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred. e. Paragraph 4-7 (Policies) states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by Headquarters, Department of the Army (HQDA), Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. f. Paragraph 4-11 (Burden of Proof and Type of Evidence) states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 rested with the applicant. 2. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. 3. Department of Defense Directive 7050.60 (Military Whistleblower Protection) updates the policy and responsibilities for military whistleblower protection under Title 10, U.S. Code, section 1034. It is Department of Defense policy that members of the Armed Forces shall be free to make a protected communication and/or free from reprisal for making or preparing to make a protected communication. 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 member of the Armed Forces for making or preparing to make a protected communication. 4. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers). a. Paragraph 3–7. Rules of evidence and proof of facts: in general, proceedings under this regulation are administrative, not judicial. Therefore, an investigating officer or board of officers is not bound by the rules of evidence for trials by courts–martial or for court proceedings generally. Accordingly, subject only to the provisions of c below, anything that in the minds of reasonable persons is relevant and material to an issue may be accepted as evidence. For example, medical records, counseling statements, police reports, and other records may be considered regardless of whether the preparer of the record is available to give a statement or testify in person. All evidence will be given such weight as circumstances warrant. b. Paragraph 3–10. Findings a. General. A finding is a clear and concise statement of a fact that can be readily deduced from evidence in the record. It is directly established by evidence in the record or is a conclusion of fact by the investigating officer or board. Negative findings (for example, that the evidence does not establish a fact) are often appropriate. The number and nature of the findings required depend on the purpose of the investigation or board and on the instructions of the appointing authority. The investigating officer or board will normally not exceed the scope of findings indicated by the appointing authority. (See para 3–9.) The findings will be necessary and sufficient to support each recommendation. b. Standard of proof. Unless another directive or an instruction of the appointing authority establishes a different standard, the findings of investigations and boards governed by this regulation must be supported by a greater weight of evidence than supports a contrary conclusion, that is, evidence which, after considering all evidence presented, points to a particular conclusion as being more credible and probable than any other conclusion. The weight of the evidence is not determined by the number of witnesses or volume of exhibits, but by considering all the evidence and evaluating such factors as the witness’s demeanor, opportunity for knowledge, information possessed, ability to recall and relate events, and other indications of veracity. ABCMR Record of Proceedings (cont) AR20180013954 2 1