ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 November 2019 DOCKET NUMBER: AR20190005192 APPLICANT REQUESTS: * removal of the DA Form 67-10-1 (Company Grade Plate (O1 – O3; W01 – CW2) Officer Evaluation Report (OER)) covering the period 15 November 2016 through 5 April 2018 from his Army Military Human Resource Record (AMHRR) * any other relief that is equitable and just 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) * Supplemental Statement of (Applicant), Counsel, dated 12 April 2019 * Memorandum, Headquarters and Headquarters Battery, 1st Battalion, 5th Field Artillery Regiment, 1st Armored Brigade Combat Team, 1st Infantry Division, Fort Riley, KS, dated 2 February 2018, subject: Letter of Concern, (Applicant) * DA Form 67-10-1 covering the period 15 November 2016 through 5 April 2018 * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 26 March 2019, subject: (Applicant) Evaluation Report Appeal FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. The applicant respectfully requests removal of the referred OER from his AMHRR because it is substantively inaccurate and unjust. The applicant signed the OER in question on 8 June 2018. b. The applicant was issued a letter of concern on 2 February 2018. c. The applicant submitted an OER appeal to HRC on 4 March 2019, which was summarily rejected by HRC and returned without action. d. An OER should be removed from a Soldier's record when it is erroneous, inaccurate, or unjust. There is a presumption that an OER "[r]epresents the considered opinions and objective judgment of the rating officials at the time of preparation." In this case, the presumption of objectivity should not be applied because the OER contains substantive errors and is unjust. The material error, inaccuracy, or injustice in this case is the clear discrepancy between the comments provided by the rater and senior rater and the "Not Qualified" rating for "potential." e. The comments entered for each rated block do not support the ultimate "Not Qualified" rating, nor is there any support for a referred OER based on the narrative comments. f. The rating chain failed to provide the necessary counseling to justify the referred OER. The letter of concern failed to detail the applicant's deficiencies with specificity and therefore did not provide the applicant with any meaningful notice as to what performance issues and/or behavior he needed to address. g. The applicant and counsel take exception with HRC's adverse treatment of the applicant's original appeal. HRC's response is nothing less than an effort to cleanse the rating chain of its clear deficiencies by claiming that the presumption of regularity has not been overcome by the applicant. HRC's rationale ignores the OER's obvious deficiencies and inconsistencies. HRC argues that comments regarding "progress" and "improvement" should be interpreted as negative comments. HRC clearly ignored all of the positive comments. HRC's comments regarding the lack of a Commander's Inquiry is a clear attempt to punish the applicant for his rating chain's shortcomings. 3. The applicant was serving in the Regular Army in the rank/grade captain/O-3 at the time he received the referred OER covering the period 15 November 2016 through 5 April 2018. 4. On 8 September 2017, the applicant received developmental counseling from the battalion executive officer. The DA Form 4856 (Developmental Counseling Form) shows: a. Purpose of Counseling: * treating teammates with respect and dignity always * creating a hostile work environment b. Key Points of Discussion: * it has come to the executive officer's attention that on several occasions the applicant treated the battalion S-1, 1st Lieutenant (1LT) X , and the battalion S-4, 1LT X , without the dignity and respect they are entitled to as professional officers and teammates * the applicant was directed to correct his behavior * the applicant's interactions with members of 1st Battalion, 5th Field Artillery Regiment, have been perceived as "aggressive" * this type of behavior is also not acceptable and must be corrected * creating a hostile work environment inhibits productivity and is not tolerated in this command 5. On 2 February 2018, the applicant received a letter of concern from his senior rater who stated: * this is a formal letter of concern reference the applicant's actions on 17 January 2018 * the applicant received a developmental counseling from his direct supervisor, Major X X , on 18 January 2018 * the applicant's actions on 17 January 2018 were not keeping with professional expectations of a commissioned officer in the U.S. Army * if the applicant were to receive an OER today, it would likely be a referred or adverse evaluation based on his actions * the applicant needs to continue to communicate directly with his supervisor, Major X , to keep him informed of his overall intent of his service in the 1st Battalion, 5th Field Artillery Regiment, and in the U.S. Army as his current performance displays a poor outlook for his potential service opportunities * he strongly encourages and supports the applicant's continued attendance of Environmental Behavior Health appointments and programs to allow him to build the skills and attributes needed to become a more positive, productive member of the team and the U.S. Army profession 6. A review of the applicant's AMHRR in the interactive Personnel Electronic Records Management System shows the referred OER covering the period 15 November 2016 through 5 April 2018 is filed his performance folder. a. Part IId (This is a Referred Report, Do You Wish to Make Comments?) is marked "Referred" and the applicant marked "Yes, comments are attached." b. Part IVb (This Officer's Overall Performance is Rated as) is marked "Capable" and shows a completed DA Form 67-10-1A (OER Support Form) was received with this report and considered in the evaluation and review. His rater entered the following comments: [Applicant] made steady improvement during this rating period. He balance [sic] his duties as an assistant operations officer with community service projects. He coached youth soccer and actively participated in Veteran activities in the local area. With supervision and specific guidance, [Applicant] met the standards set forth in his initial counseling. [Applicant] demonstrated one of the strongest work ethics in the S3 shop. He was entrusted with the initial development and supervision of five 2LTs [second lieutenants] and ensured their successful integration into the unit. c. In Part IVc1 (Character), his rater commented: "[Applicant] has a strong understanding [of] the Army Values. He fully supports the Army SHARP [Sexual Harassment Assault Response and Prevention], EEO [Equal Employment Opportunity], and EO [Equal Opportunity] Programs. He has trouble showing respect as well as good order and discipline at all times." d. In Part IVc2 (Presence), his rater commented: "[Applicant] made progress in developing the presence needed by commissioned officers. His professionalism improved over the rating period." e. In Part IVc3 (Intellect), his rater commented: "[Applicant] seeks to improve both his technical and tactical skills. While complicated and complex problems have proved to be challenging, he continually accepts mentorship from peers, superiors, and subordinates. He is on the path to develop these skills and become an effective leader." f. in Part IVc4 (Leads), his rater commented: "[Applicant] succeeded in the positions of responsibility he was assigned His peer-to-peer leadership is a point of growth for him. His treatment of subordinates improved significantly over the last 9 months." g. In Part IVc5 (Develops), his rater commented: "[Applicant] is developing, both personally and professionally, to a satisfactory level. He demonstrated excellent Soldier care by being of service to [a] hospitalized lieutenant. His behavior improved and helped to solidify a climate of mutual trust and respect within the S3 shop." h. In Part IVc6 (Achieves), his rater commented: "A good performance by an officer that [sic] can accomplish the mission. [Applicant] was chosen to serve as the battalions [sic] lead planner for the brigades [sic] collective event. He served as a battle captain during two field problems during the rating period." i. Part VIa (Potential Compared with Officers Senior Rated in Same Grade) shows his senior rater marked "NOT QUALIFIED." j. In Part VIc (Comments on Potential), his senior rater commented: "[Applicant] has displayed tactical competence through this rating period but needs further development with interpersonal and communications skills as well as his judgement. Promote and school given further development and improvements are made." 7. On 8 June 2018, the applicant completed an Evaluation Record Letter of Referral Rated Officer Response, wherein he stated: Character: I acknowledge that I need help to improve my military bearing at times. I am still developing as an officer, and have been attending behavior [sic] health over the past year to assist in that development. Presence (resilient): Over the past year I have made a constant effort to apply the lessons learned both from therapy and mentorship from superiors, peers, and subordinates. Despite a few isolated incidents, I have continued to maintain an open and honest assessment of my strengths and weaknesses. Intellect (innovation): In order to improve my interpersonal skills, I volunteered as Ft [Fort] Riley CYS [Child and Youth Services] youth soccer coach for 6-7 year olds. I continue to volunteer as I believe it will help further my goals of developing as a sympathetic, compassionate, and patient human being. Leads and Develops: I am determined to continue my service as an officer in the United States Army. I wish to make the most of this opportunity, to improve myself, and the quality of life for the Soldiers I serve. Achieves: I believe I have made progress during the past year. I accept responsibility for the challenges I faced, and the failures on my part. Changing myself and undoing years of undesired behavioral attributes is a challenge. I have fought and overcome many obstacles in life. Therefore I have the potential and ability to accomplish these goals. I am determined to get the results required of me so that my continued service will benefit my Soldiers, myself, and the Army. 8. On 26 March 2019 HRC returned the applicant's appeal of his referred OER without action. After thoroughly reviewing his case, HRC found the presumption of regularity would be applied to this evaluation. He had not proven the evaluation contained substantive error, was unjust, or contained material errors or inaccuracies. The narrative comments and holistic evaluation supported the "NOT QUALIFIED" rating. Comments may not appear to be critical; however, holistically, they painted a picture of numerous existing deficiencies as seen from the rater's perspective, even though he had shown some improvement. Although the senior rater recommended him for promotion, the senior rater made a caveat that promotion was warranted only after "further development and improvements are made," which means he was not ready for promotion. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found the requested relief is not warranted. 2. The Board considered the applicant's statement, as well as his record of service, and found that the record clearly documents the applicant's identified deficiencies and supports the ratings and comments provided on the OER. The Board agreed there is no clear and convincing evidence of a strong and compelling nature that establishes the contested evaluation contained substantive error, was unjust, or contained material errors or inaccuracies that would support the claim that the presumption of regularity should not be applied to the contested OER. Based on a preponderance of evidence, the Board determined it appropriate that the OER would remain in the applicant's AMHRR. 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. 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. 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 3-4 (The Support Form Communications Process) states initial and follow-up counseling between the rater and the rated Soldier that is documented on the support forms assures a verified communication process throughout the rating period. Although the support form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. The senior rater will ensure that a completed support form is returned to the rated Soldier when the evaluation is forwarded to Headquarters, Department of the Army (HQDA). b. Paragraph 3-9(1)a (Senior Rater) states that if the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater does not believe the rated officer should be retained on active duty, the senior rater will place an "X" in the "NOT QUALIFIED" box. c. Paragraph 3-9(7) states the choice of what to enter on the OER is ultimately up to the senior rater. 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. 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 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. e. 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 rests 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. //NOTHING FOLLOWS//