ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 October 2019 DOCKET NUMBER: AR20190003346 APPLICANT REQUESTS: removal of two DA Forms 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) covering the periods 1 October 2016 through 30 September 2017 and 1 October 2017 through 13 March 2018 from her Official Military Personnel File (OMPF). 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) * Memorandum, 147th Brigade Support Battalion, dated 16 July 2017, subject: Initial Request for Redress * Memorandum, Headquarters, 169th Field Artillery Brigade, Al Minhad Air Base, United Arab Emirates, dated 22 July 2017, subject: Response to Initial Request for Redress * Memorandum, Colorado Army National Guard (ARNG), Centennial, CO, dated 18 August 2017, subject: Report of Investigation – 147th Brigade Support Battalion Command Climate and Title 10/Title 32 Command Authorities * six DA Forms 67-10-2 covering the periods 5 October 2013 through 18 March 2018 * Memorandum, U.S. Army Human Resources Command (HRC), dated 18 December 2017, subject: Exception to Army Regulation 623-3 (Evaluation Reporting System) * Email, Major (MAJ) X____, dated 6 September 2017, subject: National Training Center, with forwarded email to Mr.X____ * Email, Applicant, dated 9 January 2018, subject: Selective Retention Board (SRB) Packet * Email, Colonel (COL) X___, dated 10 January 2018, subject: RE: SRB Packet * Email, Applicant, dated 15 January 2018, subject: (Applicant) OER Redress * Email, Brigadier General (BG) X____, dated 10 February 2018, subject: RE: (Applicant) OER Redress * Memorandum, 147th Brigade Support Battalion, Fort Collins, CO, dated 14 February 2018, subject: (Applicant) – Complaint of Wrongs – Section 28-3.1-604 * Memorandum, 147th Brigade Support Battalion, Fort Collins, CO, dated 2 March 2018, subject: Documentation of Conversation with Command Sergeant Major (CSM) X____ * Memorandum, Colorado ARNG, dated 6 April 2018, subject: Response to Complaint of Wrongs * Memorandum, Applicant, dated 30 April 2018, subject: (Applicant) – Request for Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Injunctive Relief * Memorandum, 147th Brigade Support Battalion, Fort Collins, CO, dated 25 July 2017, subject: Documentation of Text Exchange between CSM X____ – 5 and 7 July 2017 * Memorandum, U.S. Army Inspector General Agency, Washington, DC, dated 15 November 2018 * Timeline Document, Applicant, dated 13 July 2014 through 29 May 2018 FACTS: 1. The applicant states: * during the periods of the contested OERs, BG X____ and COL X____ were the subject of a Headquarters, Department of the Army (HQDA), Inspector General (DAIG) investigation * the DAIG investigation was for actions taken against her in the form of an unlawful, unjust, and unsupported relief from command and violations of law/statute, regulation, and policy * the relief from command actions were overturned by the Adjutant General of Colorado as the result of an Army Regulation 15-6 investigation completed on 17 August 2017 * the DAIG investigation closed on 15 November 2018 with substantiated findings * these two factors call into question their abilities to provide fair, objective, and unbiased evaluations of her performance as required by Army Regulation 623-3 2. On 30 September 2016, she was honorably released from active duty to become the battalion commander of the 147th Brigade Support Battalion, Colorado ARNG, as a traditional Guardsman. 3. At the time of the contested OERs the applicant was serving in in the rank of lieutenant colonel as the commander of the 147th Brigade Support Battalion, Colorado ARNG. 4. She provided a copy of a Report of Investigation – 147th Brigade Support Battalion Command Climate and Title 10/Title 32 Command Authorities, dated 18 August 2017. The general findings of the investigation found the preponderance of credible evidence does not substantiate the general allegation that the applicant fostered a negative command climate and proper procedures were not followed in executing the applicant's relief/suspension from command. The investigating officer recommended: * immediate resumption of the applicant's duties as the commander of the 147th Brigade Support Battalion * any commander who is mobilized under Title 10 orders should have no command relationship with any subordinate organizations that remain in a Title 32 status 5. Her OMPF contains the contested OER covering the period 1 October 2016 through 30 September 2017, signed by the applicant on 24 April 2018. The OER contains no derogatory comments. The senior rater rated her as "HIGHLY QUALIFIED" and commented on her potential as: "(Applicant) is a solid and tenacious officer as seen in the Brigade Support Battalion's outstanding performance at the National Training Center. Completing her first year in command, she should continue to grow in her current assignment. Continue to leverage her expertise and experience in Defense Support of Civil Authorities. Groom for positions of increased responsibility." 6. Her OER covering the period 1 October 2016 through 30 September 2017 also contained an approved exception to policy from HRC, dated 18 December 2017, to allow her senior rater to serve as both the rater and senior rater. Justification for the exception to policy stated the rater was mobilized and a new rater was not appointed. 7. On 14 February 2018, she submitted a request for redress and complaint of wrongs pursuant to Colorado Revised Statute, section 28-3.1-604, to the Adjutant General of Colorado. Her request was made due to conflicts of interest and bias which existed in the established rating scheme. She made the following arguments: * a valid rating chain existed during the rating period 1 October 2016 through 30 September 2017 * BG X____'s endorsement of COL X___'s decision to commit unlawful command authority by relieving her from command for "Toxic Leadership" while deployed under Title 10 authority was overturned by an Army Regulation 15-6 investigation * BG X____ is currently the subject of a DAIG investigation for her role in her unlawful relief from command, rendering her unable to provide an objective and fair evaluation * COL X____ is currently the subject of a DAIG investigation for her role in her unlawful relief from command, rendering her unable to provide an objective and fair evaluation 8. Her OMPF contains her contested OER covering the period 1 October 2017 through 18 March 2018. The OER contains no derogatory comments. The senior rater rated her as "HIGHLY QUALIFIED" and commented on her potential as: "[Applicant] possesses strong field grade competencies and commitment to the service. A DCSA [Defense Support of Civil Authorities] expert, leverage her experience in the domestic operations domain and continue to groom for positions of increased responsibility." 9. On 6 April 2018, the applicant's senior rater, BG X____, responded to the applicant's complaint of wrongs. BG X____ denied the applicant's request to change her rating scheme or to make corrections to her OER. BG X____ stated: * the rating scheme for the OER in which she was the rater and senior rater was proper and legal in accordance with Army Regulation 623-3 * HRC granted an exception to the policy to allow her to be both the rater and senior rater * her evaluation of the applicant's performance and potential was appropriate, fair, objective, and positive * with regard to current rating scheme, there is no reason or evidence that COL X____ as the Land Component Commander should not be her senior rater * the rating scheme is the same for all battalion commanders * officers do not get to choose their rating schemes 10. In November 2018, the DAIG notified the applicant of the results of the investigation into her allegations against BG X____ and COL X____. The allegation that BG X____ failed to take appropriate action when a subordinate improperly exercised command authority was substantiated. The allegation that COL X____ improperly exercised command authority was substantiated. Additionally, the DAIG completed a review of reprisal allegations against BG X____ and COL X___. The DAIG concluded that the allegations that BG X____ and COL X____ reprised against her were without merit and were therefore dismissed. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is warranted. 2. The Board agreed that the substantiated allegations against BG X___ and COL X___ are clear and convincing evidence that the presumption of regularity should not be applied to the reports under consideration. The substantiated allegations are a sufficient basis upon which to conclude that neither officer was able to render an objective evaluation of the applicant's duty performance during the periods in question. The Board concluded that the only effective relief would be to remove the contested OERs in their entirety and replace them with a statement of non-rated time. ? 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 and Army National Guard records of the individual concerned be corrected by: * removing from her Official Military Personnel File the Officer Evaluation Reports covering the periods 1 October 2016 through 30 September 2017 and 1 October 2017 through 13 March 2018 * adding to her Official Military Personnel File a statement of non-rated time for the period 1 October 2016 through 13 March 2018 I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 2-5 (Rules for Designating a Rater) states the rater will be the immediate supervisor of the rated Soldier responsible for directing and assessing the rated Soldier’s performance. The rater will normally be senior to the rated Soldier in grade or date of rank. Commanders will normally rate commanders. b. Paragraph 2-19 (Loss of a Rating Official or Rated Soldier) states that when the rater is eliminated from the rating chain and there is no intermediate rater, or if the intermediate rater does not have adequate knowledge of the rated officer's performance and potential to qualify him or her to render an OER, the senior rater will perform the rater's function, but only if he or she feels qualified to rate and has served in the rating chain for 60 or more calendar days. c. Paragraph 2-21 (Dual Supervision (DA Form 67-10 Series (OER) Only) states officers are considered to be serving under dual supervision when they are supervised by and assigned different duties by two separate chains of command or supervision throughout the entire rating period. d. 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 the HQDA Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by the 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. e. Paragraph 4-8 (Timeliness) states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the U.S. Army Reserve or ARNG. f Paragraph 4-11 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. 3. 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. Paragraph 6-1 (Deciding to Appeal) states an appellant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency. However, before actually preparing an appeal, an objective analysis of the evaluation report in question should be made. In an administrative appeal, for example, an official copy of a published rating scheme in effect during a specific evaluation report period may indicate that an incorrect rating official prepared an evaluation; or duty appointment orders and appropriate extracts from local personnel records may indicate that the period of a report, duty title, or periods of nonrated time are incorrect. 4. U.S. Code, Title 32, section 325 (Relief from National Guard Duty when Ordered to Active Duty) states each member of the ARNG of the United States who is ordered to active duty is relieved from duty in the National Guard of his State from the effective date of his order to active duty until he is relieved from that duty. 5. Colorado Revised Statute, section 28-3-204 (Call to Federal Duty – Status), states that when Congress has declared a national emergency or has authorized the use of the Armed Forces of the United States for any purpose requiring the use of troops in excess of those in the Regular Armed Services and the President has ordered into the active military service of the United States, to serve therein for the period of the war or emergency, any units and members of the National Guard of this State, all forces so ordered into the active military service of the United States shall from the date thereof stand relieved from duty in the National Guard of this State so long as they remain in the active military service of the United States when so provided by Federal law. Upon being relieved from such duty in the military service of the United States, all such individuals and units shall revert to their Colorado National Guard status. 6. Colorado Revised Statute, section 28-3.1-604 (Complaints of Wrongs), states: a. Any member of the State Military Forces, who believes himself or herself wronged by any commanding officer in his or her chain of command and who is dissatisfied with the redress afforded by the grievance procedures set forth in the regulations prescribed by the adjutant general, may petition for redress by filing a complaint of wrongs. The complainant shall deliver the complaint to the military reporting official in the complainant's chain of command who last responded to the complainant's petition for redress before it was submitted to the Inspector General pursuant to the regulations of the Adjutant General. The complaint shall set forth facts in support of the petition and shall state that the facts are true to the best of the complainant's knowledge and belief. The person to whom the complaint is delivered shall respond to the complaint within 45 days after receiving the complaint and shall address each allegation of the complaint. b. If the complainant is dissatisfied with the redress afforded by the response prepared pursuant to subsection (1) of this section and the complainant reasonably believes that he or she has evidence that rebuts the findings set forth in the response, the complainant may appeal to the military reporting official of the officer who responded to the complaint of wrongs. This appellate authority shall respond to the appeal within 45 days of receiving the appeal, shall address each allegation of the appeal, and shall deliver a copy of the response to the Adjutant General. The procedures set forth in subsection (2) shall apply through each step of the complainant's chain of command until the complainant reaches the Adjutant General. c. If the complainant is dissatisfied with the redress afforded by an appeal pursuant to subsection (2) of this section, the complainant may submit a complaint of wrongs directly to the Governor. The Governor shall respond to the complaint within 45 days of receiving the complaint and shall address each allegation of the complaint. d. The Governor may refer all complaints of wrongs to the National Guard Bureau Inspector General for an independent investigation and report pursuant to Federal law. Upon receipt of such report, the governor shall deliver to the complainant all portions of the report that may be released pursuant to Federal law. e. Retaliation in any form against a complainant for pursuing the remedies described in this section is prohibited. 7. Title 10, U.S. Code, section 1034, as amended, prohibits interference with a military member's right to make protected communications to members of Congress; IGs; members of Department of Defense (DOD) audit, inspection, investigation or law enforcement organizations; and other persons or organizations (including the chain of command) designated by regulation or administrative procedures. A protected communication is any lawful communication to a Member of Congress or an IG, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Services reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, mismanagement, a gross waste of funds or other resources, abuse of authority, or a substantial or specific danger to public health or safety). 8. DODD 7050.60 updates the policy and responsibilities for military whistleblower protection under Title 10, U.S. Code, section 1034. It states it is DOD 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. It further states that 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. ABCMR Record of Proceedings (cont) AR20190003346 5 1