ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 25 July 2019 DOCKET NUMBER: AR20190000672 APPLICANT REQUESTS: removal of the DA Form 67-10-2 (Field Grade Plate (O4 – O5; CW3 – CW5) Officer Evaluation Report (OER)) covering the period 16 January 2014 through 4 May 2014 from his Army Military Human Resource 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) * Exhibit A – Letter from Master Sergeant (MSG) X X , Retired, undated * Exhibit B – Memorandum from Division Chief, Training Management Doctrine Division, U.S. Army Combined Arms Center and Fort Leavenworth, dated 16 May 2016, subject: Supporting Statement of OER Appeal of (Applicant) * Exhibit C – Memorandum from U.S. Army Central, dated 2 May 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit D – Memorandum from 25th Infantry Division (ID) and U.S. Army Hawaii, dated 23 May 2016, subject: Supporting Statement of Evaluation Report Appeal (Applicant) * Exhibit E – Memorandum from U.S. Army Trial Defense Service, dated 16 February 2016, subject: Stipulation of Facts (2d Brigade's Command Climate under Colonel (COL) X ) * Exhibit F – Memorandum from Headquarters, 25th ID, dated 6 May 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit G – Memorandum for Record from 25th Sustainment Brigade, 25th ID, dated 24 May 2016, subject: OER Appeal 4 May 2014 – On behalf of (Applicant) * Exhibit H – Memorandum from Headquarters, 25th ID, dated 5 May 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit I – Memorandum from Headquarters, 3d Expeditionary Sustainment Command, dated 16 May 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit J – Memorandum from Headquarters, 916th Support Brigade, dated 24 May 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit K – Letter of Support from X X to the applicant, dated 11 May 2016, * Exhibit L – Letter of Support from X X , dated 16 May 2016, subject: Statement on Behalf of (Applicant) * Exhibit M – Memorandum from Headquarters, 25th ID, dated 19 August 2016, subject: Supporting Statement of Evaluation Report Appeal of (Applicant) * Exhibit N – Memorandum from Headquarters, 2d Stryker Brigade Combat Team (2SBCT), 25th ID, dated 10 April 2014, subject: Memorandum of Intent to Relieve (Applicant) * Exhibit O – DA Form 4856 (Developmental Counseling Form), dated 28 February 2014 * Exhibit P – DA Form 4856, dated 28 February 2014 * Exhibit Q – DA Form 4856, dated 5 May 2014 * Exhibit R – Email from Major (MAJ) X X. X to Captain (CPT) X X. X and MSG X X. X , dated 17 April 2014 * Additional Documents – * DA Form 67-10-2 covering the period 16 January 2014 through 4 May 2014 * Self-authored Memorandum for Record, dated 18 July 2014, * Self-authored Memorandum, dated 14 September 2016, * Officer Special Review Board (OSRB) Record of Proceedings, dated 21 November 2017 * Letter from the Department of the Army Office of the Inspector General (DAIG) to the applicant, dated 11 April 2018 FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) 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: a. His original appeal submitted to the OSRB on 14 September 2016 was denied due to not having the completed IG investigation at that time. The Army Board of Appeals referred him to the ABCMR based on this new information being outside the 3-year time limit. This new information does meet the 3-year time limit outlined in Army Regulation 15-185, paragraph 2-4. b. The IG investigation found that COL X 's actions show a clear and convincing presumption of regularity should not be applied to his evaluation report under consideration. The report warrants an appeal and removal from his file to correct these inaccuracies and injustices. c. He requested a full copy of the IG investigation findings through a Freedom of Information request on 9 May 2018. The point of contact is X X . d. Based on the DAIG letter, COL X was found "failing to effectively communicate, vision, purpose and direction; failing to provide teaching, coaching and counseling; failing to effectively build discipline while inspiring motivation, confidence, enthusiasm and trust in subordinates; and failing to treat subordinates with dignity, respect, fairness and consistency." e. The DAIG investigation substantiated COL X 's complicity involving retribution against a subordinate and creating a hostile climate. f. The DAIG complaint was filed along with his appeal to the Army Board of Appeals in September 2016, however, the DAIG findings represent a serious injustice to himself that warrants correction. 3. He is currently serving in the Regular Army in the rank of MAJ With an effective date of 1 October 2011. 4. The Developmental Counseling Form, dated 28 February 2014, states: a. The applicant received initial counseling that outlined expectations and guidance along with receiving feedback and questions. b. He agreed to work to learn and grow with his section. c. He agreed to improve his physical fitness test score to 270 in 6 months. d. He would provide constant feedback and communication. 5. The Developmental Counseling Form, dated 28 February 2014, states: a. This is an event-oriented counseling. On 25 March 2014, the applicant presented a lack of professionalism during a meeting with MAJ X X , S-3 planner, and battalion/squadron executive officers and S-3s. b. On 26 March 2014, the applicant showed lack of professionalism when given a task by him as his supervisor. c. On 26 March 2014, he failed to ship leadership training program equipment in accordance with the published timeline to prepare and setup for leadership training at the National Training Center (NTC) on 31 March 2014. d. He will continue clear and concise communication. e. He agreed to continue to improve his communication abilities by being specific, clear, and concise. f. He agreed to use the Multi-Source Assessment and Feedback 360 as a tool to create a unit distribution plan that was geared to improving himself and his shop. 6. The memorandum from COL X X. X , Commander, Headquarters, 2SBCT, to the applicant, dated 10 April 2014, states: a. This is a developmental counseling. He is deeply concerned. The applicant is failing in his competence and leadership as the 2SBCT S-4. As he acknowledged, the performance of the 2SBCT S-4 shop has declined since he began his duties as the S-4. He was given ample overlap with the previous S-4 to ensure this would not occur. He has a very competent section, but he is failing to lead them and communicate with them. He is not providing clear guidance; he is not listening to his subordinates; and he is not utilizing them to their full potential. His fitness, military bearing, and competency also need improvement. The Soldiers of his section deserve better leadership than what they are receiving and his duty position demands competence. He questions his performance. b. He is his senior rater and he owes it to him to let him know when he is failing in his duties. He has 90 days to correct his deficiencies or he will relieve him. He expects him to acknowledge this counseling in writing and in person. This is a developmental counseling and not a memorandum of reprimand; only the commanding general can issue a letter of reprimand. He will relieve him pending his response to this counseling, his plan to address his deficiencies, and visible improvement in his leadership. 7. He provided email correspondence between himself and MAJ X , CPT X X. X , and MSG X X. X , dated 17 April 2014 through 20 April 2014, subject: Top Logistical Problem Area, discussing the unit's Financial Liability Investigation of Property Loss statistics and timeliness. 8. His OER covering the period 16 January 2014 through 4 May 2014 shows in: a. Part Ii (Administrative – Reason for Submission), the reason for submission as code 05, Relief for Cause; b. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes): (1) block a (Army Physical Fitness Test (APFT) Pass/Fail/Profile), he passed the APFT on 14 April 2014 with the following comments: "Consistently did not lead his section from the front when conducting physical readiness training when he was present. He barely met the standard for situps with 65 points during the last APFT"; (2) block b (This Officer Possesses Skills and Qualities for the Broadening Assignments), his rater commented: "Do not recommend any broadening assignments for [Applicant] due to poor interpersonal skills, and the inability to communicate clearly"; (3) block c (This Officer Possesses Skills and Qualities for the Following Operational Assignments), his rater commented: "Could succeed in a Division or higher headquarters staff where he receives direct supervision and he is not in charge of Soldiers"; (4) block d1 (Character), his rater commented: "[Applicant's] inability to speak clearly led to his integrity being questioned on multiple occasions. According to the commander's inquiry conducted on the climate of the S4 section, he did not foster a climate where his subordinates felt respected"; (5) block d2 (Provide Narrative Comments Which Demonstrate Performance Regarding Field Grade Competencies and Attributes in the Rated Officer's Current Duty Position), his rater commented: "[Applicant] is able to execute one task at a time well. He quickly become overwhelmed with multiple projects and failed to delegate to his subordinates in a timely manner. He also was unable to manage his time successfully, which led to his subordinates standing in for him unprepared at meetings with the division's senior leadership. The command executed an inquiry on the climate of the S4 section and found a hostile working environment due to a lack of his leadership abilities"; (6) block e (This Officer's Overall Performance is Rated as), his rater marked the block "No," indicating a DA Form 67-10-1A (Officer Evaluation Support Form) was not received with this report and considered in his evaluation and review; rated his as "Unsatisfactory"; and commented: "[Applicant] does not meet the Army Leadership Requirements of fitness, military and professional bearing, and communication IAW [in accordance with] ADP [Army Doctrine Publication] 6-22. During this rating period, [Applicant] received an initial counseling and two follow up counselings on DA [Form] 4856." c. Part VIa (Senior Rater – Potential Compared with Officers Senior Rated in Same Grade), his senior rated entered "Not Qualified"; and d. Part VIc (Senior Rater – Comments on Potential), his senior rater commented: "[Applicant] was relieved of his duties due to issues with competence and leadership. Demonstrates limited potential to serve in positions of increased responsibility. Do not promote to LTC [lieutenant colonel]. Officer refused to sign evaluation." 9. The Developmental Counseling Form, dated 5 May 2014, states: a. The purpose was event-oriented counseling. The applicant did not respond with a plan of action after receiving the battalion commander's 90-day letter notifying him of his intent to relieve him from his duties. He completed the Multi-Source Assessment and Feedback 360 and closed it without meeting the minimum required responses from superiors. b. He contracted a 30,000-pound capacity forklift for the BCT's download operations at NTC without confirming that the BCT had a licensed operator. He contracted for 400 portable latrines, which was enough to support approximately 4,000 Soldiers. They used less than 300 because they were placed outside of the geographic zone of the contract and scope of work. c. He agreed with the plan of action and initiated all requirements. He was told he had more time to complete the response to COL X upon MAJ X 's comments. COL X stated he could take the time to discuss his response with his counselor. His counselor is working with him to improve and has helped him in many of the areas discussed. He made mistakes and could have helped fix them; he felt he wasn't given the time to do so. He did not say he messed up because he disobeyed or misunderstood any guidance. He erred by not coordinating fully. He requested time to work on his mistakes and a full opportunity to help the brigade succeed. 10. His memorandum for record, dated 18 July 2014, subject: Comments in Response to Referred OER for (Applicant), states: a. He did not serve in the position for an appropriate length of time for MAJ X and COL X to adequately observe and provide a valid rating. He officially took over the S-4 shop upon returning from the NTC reconnaissance on 3 February 2014. He assumed his duties as the S-4 less than 60 days from his temporary duty in March 2014. He was notified of the commander's inquiry and shortly thereafter he was given a relief-for-cause memorandum by COL X . b. He was not afforded an opportunity to meaningfully respond to the commander's inquiry concluded on 8 April 2014. While he was given the opportunity to do so, after repeated requests, it was not until he received the referred OER in July 2014 that he also received a complete copy of the commander's inquiry. He filed a response to the commander's inquiry contemporaneous with these comments. c. He was never given a fair opportunity to succeed. COL X told him that he never would get an above center-of-mass rating at his initial counseling a week after assuming his duties as the S-4. Also, during his 90-day letter of intent to relieve him counseling, COL X once again illustrated that he was not interested in him improving when he stated he would be removed before he left the command no matter how much he improved and was not given a second key developmental job in his brigade. d. He had many significant concerns with the due process he was afforded for the underlying commander's inquiry for the subsequent referred OER. He believes if he had the opportunity to speak completely with the investigating officer (IO) prior to completion of the investigation, he may have been able to clarify incidents or interactions which he assessed as failures, thereby potentially leading to different findings and recommendations. 11. The memorandum from the U.S. Army Trial Defense Service Board Members to the Board of Inquiry, dated 16 February 2016, subject: Stipulation of Facts (2d Brigade's Command Climate under COL X ) states: a. In response to COL X relieving or suspending four field grade officers, including MAJ X , while at NTC rotation in May of 2014, the 25th ID Commanding General investigated the command climate of 2SBCT. The investigation substantiated that COL X created an unhealthy command environment requiring the commanding general's attention. b. Specifically, COL X 's leadership resulted in two distinct leadership groups within the brigade, to include the inner circle consisting of "key" brigade staff members and select battalion commanders and the outer circle consisting of "secondary" brigade staff, some battalion commanders, battalion staff, and company commanders. c. The inner circle had a personal relationship with COL X , understanding his guidance, preferences, leadership style, and personality. The outer circle, on the other hand, had limited access to COL X , feeling alienated, adrift, and scared. They did not understand his guidance, his personality, and his true intentions with an introverted brigade commander. They did not trust COL X . d. They feel the brigade is a zero-defect environment and the brigade commander is only interested in personal gain and does not genuinely care for them. They live in a constant state of fear that they may be the next to receive a letter of concern, intent to relieve memorandum, or memorandum of relief. e. The climate within the inner circle is positive while the climate in the outer circle is very unhealthy. The outer circle is exponentially larger than the inner circle. Over 70 percent of them felt this way out of the dozens of leaders in the outer circle who were interviewed. Many of them were too fearful of retribution to commit an official statement. 12. He provided 11 memorandums/letters of support, dated 2 May 2016 through 24 May 2016, attesting to his character, professionalism, work ethic, management, leadership, ability to multi-task, and ability to exceed by surpassing expectations. 13. In his memorandum to the U.S. Army Human Resources Command, dated 14 September 2016, subject: Evaluation Report Appeal of (Applicant), covering the period 16 January 2014 through 4 May 2014, he stated: a. He is not pending promotion, change of career status, or personnel action. He requests processing of his appeal before his below-the-zone promotion board meets. b. The basis of this appeal is substantive inaccuracy and unethical bias in the rating chain. Specifically in: (1) Part I, block i, this is due to reprehensible bias and substantive inaccuracies in the evaluation based on the evidence in paragraph 3 of this memorandum; (2) Part IV, block a, this is an inappropriate derogatory comment. This block is reserved for APFT failures or for profiles and it is not supported in counseling statements (see supporting evidence below in paragraph 3a and exhibits P-R); (3) Part IV, block b, this is a prejudicial comment that illustrates reprehensible bias based on evidence in paragraph 3a and deviates from the guidance in Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-9f(6) and Department of the Army Pamphlet 623-3 (Evaluation Reporting System), table 2-12. It is also not factual based on supporting evidence below in paragraph 3c and exhibits G, I, and J; (4) Part IV, block c, this is a prejudicial comment that illustrates reprehensible bias based on evidence in paragraph 3a and deviates from the guidance in Army Regulation 623-3, paragraph 3-9f6 and Department of the Army Pamphlet 623-3, table 2-12. It is also not factual based on supporting evidence below in paragraph 3c and exhibits G, I, and J; (5) Part IV, block d1, this is an inaccurate and reprehensible bias statement. These comments are reflective of the toxic command climate supported in paragraph 3; (6) Part IV, block d2, this paragraph is an inaccurate statement based on confirmation bias and the toxic command climate described in paragraph 3 and exhibit E; (7) Part IV, block e, this rating and subsequent comments are inaccurate statements based on confirmed bias and the toxic command climate described in paragraph 3 and exhibit E. It also show proof of the rater's violation of Article 107 of the Uniform Code of Military Justice, false statements, as evidenced in exhibits O-Q and further described in paragraph 3a5; (8) Part V, block a, this rating is based on the toxic climate that the senior rater established in the brigade as supported in paragraph 3b and exhibits B-G; and (9) Part V, block c, this paragraph is based on the toxic climate that the senior rater established in the brigade as supported in paragraph 3b and exhibits B-G. The last comment "refused to sign" is in violation of Army Regulation 623-3, paragraph 2-17d(8) and paragraph 3-33k(2). c. He further requested removal of the entire evaluation report from his records based on the following evidence: (1) Part IV, block a, this shows MAJ X 's excessive personal bias. In accordance to the guidance in Army Regulation 623-3, block a is meant to comment on APFT failures or profiles. Comments are not required for passing scores. Also, MAJ X never stated a higher standard to him in any form, verbal or written, requiring him to perform at a higher standard of physical performance than the Army. Therefore, meeting the standard of the APFT requires that he receive a fair and unbiased rating. The inflammatory comment that MAJ X makes is an example of a toxic leadership trait known as hypercritical. (2) Part IV, blocks b and c, again reflect a toxic hypercritical behavior and a confirmation bias. According to Army Regulation 623-3, these blocks are normally used to illustrate career jobs in which a Soldier would best serve the Army. If a rater feels that a person doesn't have the potential to serve in jobs of more responsibility, it is common knowledge to use these blocks to input three Army jobs that have lower responsibility. Instead, MAJ X uses these blocks to once again provide inflammatory comments solely intended to denigrate his character. (3) Part IV, block d1, MAJ X bases his comments on the sensing session he conducted without his entire shop present (exhibit M) and the commander's inquiry conducted on his shop once a month after he arrived. The commander's inquiry was not conducted and completed properly. (4) COL X disregarded Army Regulation 15-6 when he appointed MAJ X as the IO. Army Regulation 15-6 states, "In all cases, an IO or voting member of a board will be senior in rank to any person whose conduct or performance of duty may be investigated, or against whom adverse findings or recommendations may be made, except when the appointing authority determines this to be impracticable because of military exigencies. Inconvenience in obtaining an IO or the unavailability of senior persons within the appointing authority's organization are not military exigencies that would justify the above exception." The spirit of this requirement is to find someone more experienced than the person under investigation. MAJ X was his senior in date of rank, however, he does not have more logistics experience than himself. Also, there are many LTCs within the 25th ID and 2SBCT that could have conducted the inquiry. Appointing MAJ X was also a conflict of interest based on CPT X 's statement that he heard MAJ X and MAJ X insulting him behind his back in public (exhibit F). (5) According to MSG (Retired) X , the brigade S-4 noncommissioned officer in charge (NCOIC), these events were predicated on three officers who "did not give the applicant a chance and created the problems with the chain of command" (exhibit A). The senior NCOIC in the S-4 shop also states, "That at no point was [Applicant] disrespectful or hostile to anyone in the shop." MSG X goes on to state that these officers comments were the reason the sensing session and commander's inquiry were initiated. They were "trying to get him fired." In addition to the fact that he was deploying to the NTC, these officers and his rating chain did not give him the time to act effectively against these accusations. This was further compounded with the chain of command violating his rights to face the direct accusations by not providing him with the full findings of the sensing session or commander's inquiry until months after he was relieved. (6) He tried his best and in many ways succeeded to remedy or fix any issues he faced as illustrated in all of the third-party statements he provided (exhibits A-M). He was relieved less than 30 days later after receiving his 90-day letter of intent to relieve him on 10 April 2014 (exhibit N). The chain of command never provided him with the time to meet their requirements. Also, if the unfounded allegations of disrespect and hostile leadership that is alleged from his inquiry were factual, then COL X and MAJ X would have referenced it in the Memorandum of Intent to Relieve (exhibit N). He would think that would be the primary reason for relief and because it isn't even stated, it shows a lack of continuity and truth within their reasons for relief. (7) Due to the above procedural errors, his relief for cause violates Army Regulation 600-20 (Command Policy) which states, "If a relief for cause is contemplated on the basis of an informal investigation under Army Regulation 15-6, the referral and comment procedures of that regulation must be followed before initiating or directing the relief." Commands must follow Army Regulation 15-6 before they can relieve someone. Since COL M failed to appoint an IO correctly and one who would remain impartial, COL M violated Army Regulation 15-6 and therefore had no authority to relieve him. (8) Part IV, block d2, again proves substantive bias and reprehensible inaccuracies. MAJ X 's comments violate Army Regulation 623-3, paragraph 3-2f, which states, "Evaluations normally will not be based on a few isolated minor incidents." Sending one Soldier only one time, who happened to be the officer that prepared the report for that meeting and therefore the best prepared for that meeting, is not a reflection of all of the things he did in this rating period. He is highlighting one minor incident that happened during his rating period that was not repeated, for the specific attempt to denigrate his character. (9) Mrs. X , a knowledgeable Department of the Army Civilian who sees multiple NTC rotations and multiple brigade S-4s per year, considered him one of the best brigade S-4s she had seen due to his ability to multi-task stating, "He sent many well formulated and written Requests for Information so that he could understand or improve the process" (exhibit M). (10) A key point is that CPT X states, "he was able to out load a SBCT of 1700 pieces of equipment off the island of Hawaii while planning for a little notice major training exercise" (exhibit F). There is no way he could have done this without delegating, communicating inside and outside the brigade, handling multiple tasks at the same time, and respectfully working with others to accomplish this mission. (11) The commander's inquiry and the climate of his shop is less a reflection of his leadership than a direct reflection of the toxic leadership from the chain of command. MSG X stated that when he was able to directly address the issues within his shop based on the commander's inquiry, the "officers once again lied to [Applicant] by stating that MSG X was the one who went to MAJ X to complain about him" (exhibit A). This lack of integrity from these officers tainted the sensing session and the commander's inquiry with false accusations. COL X and MAJ X used these accusations to push him out of the inner circle (exhibit E) and caused dissention between the shop and other staff elements. The misinformation these officers created and the overtly biased actions his rating chain infused into the shop caused the spiral of negativity, not his actions. (12) MAJ X used the difficult tasks of deploying to NTC as a means to increase the staff's occupational stress, which he believes also caused his shop to decrease productivity. This is a good example of a toxic leadership trait known as "workload" or "setting up to fail." COL X and MAJ X would consistently approve a course of action, even against what he recommended, but when it did not work, blamed him for its failure instead of working as a team to fix it (exhibit B and D). With the consistent insults and degradation, his workload stressors became even more insurmountable (exhibits B, D, and F). The largest stressor was not providing him with the feedback from the sensing session and commander's inquiry to work on the issues it presented or work to find the actual facts of the problem. Instead, after the commander's inquiry when the IO recommended not to relieve him, MAJ X still ordered him not to contact his shop and work out of the S-3 shop, but still made him responsible for what his shop accomplished day to day. He learned from Army Doctrine Reference Publication 6-22 that this is known as dysfunctional behaviors to deceive, intimidate, coerce, or unfairly punish others to get what MAJ X wanted; essentially to force him to make mistakes that would lead to his relief. (13) Part IV, block e, these statements are factually untrue. First, he passed his APFT. Also, why is there no specific documentation or examples of his shortcomings in military and professional bearing? MAJ X just makes general statements of bad leadership. Based on Third Party Statements, he was exceptional with communicating. The most serious offense in this block is that MAJ X violates Article 107, Uniform Code of Military Justice, when he states, "During this rating period, the applicant received an initial counseling and two follow up counselings on DA Form 4856." Exhibits O-Q show he was only counseled twice during his rating period. Looking at the initial counseling and first event-oriented counseling (exhibits O and P), they were both conducted at the same time and signed on 27 March 2014, 53 days out of the 91 days total in the position. The second event counseling was conducted after his relief on 5 May 2014. MAJ X purposefully falsified this evaluation by reflecting multiple counseling events when there was only one documented on two separate DA Forms 4856 during his rating period. d. He made mistakes, especially in the complexities of logistics in a contingency environment like the one NTC replicates. COL X failed to use NTC as a way – through an observer, controller, and trainer – to give him the chance to improve those mistakes. COL X 's and MAJ X 's failure to lead transferred into blaming him and others for bad leadership. This resulted in COL X relieving four MAJs, one battalion commander, and several company commander's during one NTC rotation. There hasn't been one person who has heard about all those reliefs who doesn't question what was wrong with COL X or MAJ X to cause those reliefs. 14. On 21 November 2017, the OSRB denied his request for removal of the OER covering the period 16 January 2014 through 4 May 2014 from his AMHRR. The board determined the evidence presented did not establish 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. 15. The letter to the applicant from the Chief, Investigations Division, DAIG, dated 11 April 2018, states: a. The U.S. Army IG Agency concluded an investigation into the allegation he made against COL X X in that he failed to foster a healthy command climate was substantiated. b. The evidence established that COL X failed in his leadership responsibilities to foster a healthy command climate which directly impacted the applicant's professional development and personnel well-being. c. The following factors contributed to an unhealthy climate: * recommending to deploy on short notice to the NTC * failing to effectively communicate vision, purpose, and direction * failing to provide adequate teaching, coaching, and counseling * failing to effectively build discipline while inspiring motivation, confidence, and enthusiasm and trust in subordinates * failing to treat subordinates with dignity, respect, fairness, and consistency 16. The contested OER is currently filed in the restricted folder of his AMHRR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board found that the preponderance of the evidence in the record indicated that an injustice had occurred and the OER should be removed from the applicant’s AMHRR. The Board found that the IG investigation, pursuant to the OSRB’s decision, established that a toxic environment existed in the applicant’s brigade, fostered by the brigade commander. The Board found that the leadership’s failures to effectively communicate vision, purpose, and direction; to adequately teach, coach and counsel; and to treat subordinates with dignity, respect, fairness and consistency established conditions unfavorable to successful performance within the brigade, thus affecting the applicant’s perceived performance and evaluation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from his record the Officer Evaluation Report for the period 16 January 2014 to 4 May 2014 and replacing it with a statement of non-rated time. 12/18/2019 _____________________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. ADMINISTRATIVE NOTE(S): not applicable. 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 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. Army Regulation 623-3 (Evaluation Reporting System), in affect at that time, prescribed the policy for completing the DA Form 67-9 (OER); associated DA Form 67-9-1 (OER Support Form), and DA Form 67-9-1a (OER Developmental Support Form) that are the basis for the Army's Evaluation Reporting System. Procedures, tasks, and steps pertaining to the completion of each evaluation report and support forms are contained in Department of the Army Pamphlet 623-3. a. Paragraph 1-9 states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or Noncommissioned Officer Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Leadership Requirements Model, and responsibilities identified on evaluation reports and counseling support forms. b. Paragraph 1-11 states when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, he or she will conduct an inquiry into the matter. The commandant's inquiry (CI) will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. c. Paragraph 3-19d states any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's reference to verified derogatory information. For example, when an interim evaluation report with verified information is made available to a commander, the verified information may be included in evaluation reports. For all evaluation reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the evaluation report. Evaluation reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status. Upon completion of the trial or investigation, processing of evaluation reports will resume. Evaluation reports will be completed when due and will contain what information is verified at the time of the "THRU" date of the evaluation report. d. Paragraph 3-33k(2) states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and social security number on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials in Part II; and APFT and height and weight entries. This procedure ensures that the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments. If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the changed evaluation report. e. Paragraph 4-7a states an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR is presumed to be administratively correct, prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. f. Paragraph 4-11 a states 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 will not be applied to the report under consideration; and, action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-11d states 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 . 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 results of a commander's inquiry may provide support for an appeal request. 3. Army Regulation 20-1 (IG Activities and Procedures) prescribes policy and procedures concerning the mission and duties of The IG. The IG records are protected documents that contain sensitive and confidential information and advice. Army IG records are any written or recorded IG work product created during the course of an IG assistance inquiry, inspection, investigative inquiry, or investigation. An IG record includes, but is not limited to, correspondence or documents received from a witness or a person requesting assistance, IG reports, IG Network data, or other computer automatic data processing files or data, to include IG notes and working papers. 4. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is placed in the AMHRR, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS//