IN THE CASE OF: BOARD DATE: 26 May 2022 DOCKET NUMBER: AR20210012762 APPLICANT REQUESTS: removal of his DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report (OER)) covering the period 11 May 2019 through 11 February 2020 from his Army Military Human Resource Record (AMHRR) based on both administrative and substantive errors under the provisions of Army Regulation 623-3 (Evaluation Reporting System), Chapter 4 (Evaluation Report Redress Program). 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 for U.S. Army Human Resources Command (HRC) (Evaluation Report Appeal (Applicant), 28 June 2019 through 11 February 2020), 19 May 2020, with seven enclosures * Enclosure 1 – Copy of Evaluation Report * Enclosure 2 – Non-Ratable Time Exhibits * Enclosure 3 – No Initial Counseling Exhibits * Enclosure 4 – U.S. Army Training and Doctrine Command (TRADOC) Appeal Exhibits * Enclosure 5 – Insufficient Army Regulation 15-6 (Procedures for Administrative Investigations and Board of Officers) Legal Findings * Enclosure 6 – Army Regulation 15-6 Investigation Rebuttal * Enclosure 7 – Army Regulation 15-6 Investigation Findings * HRC Memorandum (Evaluation Report Appeal (200190628 – 20200211)), 16 June 2020 FACTS: 1. The applicant states: a. In accordance with Army Regulation 623-3, paragraph 3-36 (Authorized Enclosures) the evaluation was not referred as required. He was never "Flagged" for a relief for cause OER and it was not referred to him with a letter of referral by his senior rater for comment. b. In accordance with Army Regulation 623-3, paragraph 3-20 (Unproven Derogatory Information) TRADOC had not processed to completion, adjudication, or taken final action on his appeal before submitting the OER to Headquarters Department of the Army (HQDA). c. He was forced to sign the evaluation report before he was allowed to receive his medical retirement orders. 2. In his memorandum to HRC (Evaluation Report Appeal (Applicant), 28 June 2019 through 11 February 2020), 19 May 2020, he states: a. His appeal is based on both administrative and substantive error: (1) Part I (Administrative), item j (Period Covered) shows 11 May 2019 through 11 February 2020, it should be 11 May 2019 through 4 October 2019, as required by Army Regulation 623-3, paragraph 3-55 ("Relief for Cause" report (DA Form 67-10 Series)). He was suspended from his position on 4 October 2019 and removed from his position on 11 February 2020. Suspended time is not ratable. (2) Part I, item I (Reason for Submission) the reason for the OER is relief for cause, but it was not referred as required by Army Regulation 623-3, paragraph 3-36. He was never "Flagged" for a relief for cause OER and the OER was not referred to him with a letter of referral by his senior rater for comment. (3) Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), item e (This Officer's Overall Performance is Rated as:) states his DA Form 67-10-1A (OER Support Form) was received with this report. There was no DA Form 67-10-1A completed and the rater refused to conduct initial counseling with him even as it was requested in writing. (4) Part IV, item d1 (Character), d2 (Provide Narrative Comments Which Demonstrate Performance Regarding Field Grade Competencies and Attributes in the Rated Officers Current Duty Position), and Part VI (Senior Rater) item c (Comments on Potential) comments made prior to final actions by TRADOC, which did not yet respond to his appeal on the investigation and removal. As required by Army Regulation 623-3, paragraph 3-20, references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA. b. The substantive error is the basis of this report and his removal from the Professor of Military Science (PMS) position is not supported by the Army Regulation 15-6 investigation conducted in late 2019. The allegations of failing to execute his duties and created a toxic environment were absolutely false. The Investigating Officer (IO) jumped to conclusions and made insufficient legal findings that were not supported by the preponderance of the evidence. He submitted over 400 pages of factual and statistical rebuttal, including statements from former students not interviewed by the IO, yet the brigade commander did not modify or disapprove any findings. 3. The applicant was serving in the Regular Army in the rank/grade of lieutenant colonel/O-5 at the time he was notified of his suspension of favorable personnel actions (Flag). Headquarters, 3rd Brigade, U.S. Army Cadet Command memorandum (Counseling for Commanders Investigation), 4 October 2019, notified the applicant that the purpose for the memorandum is to notify him that he will be "FLAGGED" for a Commander's Investigation effective 4 October 2019, due to multiple allegations of inappropriate behavior made against him in the recent 3rd Brigade Command Climate Survey. He was directed to have no contact with cadets or cadre from this point forward until the completion of this investigation. The applicant acknowledged receipt of the memorandum with his signature on 4 October 2019. 4. The applicant's DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) and the 3rd Brigade Command Climate Survey is not in evidence for the Board's review. 5. The IO's memorandum (Army Regulation 15-6 Investigation Findings and Recommendations), 21 October 2019, states: a. The bottom line up front is, she conducted an investigation into five allegations of misconduct of the applicant, PMS, and substantiated the allegations. Accordingly, recommend the command remove him from position with a referred OER and take action against him as leadership deems, note: the rest of the paragraph is redacted. b. Discussion and Findings – (1) She found that the preponderance of the evidence supports that (Applicant) does show favoritism and special treatment towards a group of female Cadets and has created the perception that female Cadets receive special treatment, which is impacting the program climate. (2) She found that the preponderance of the evidence substantiates that (Applicant) did harass and gave lavished unwanted attention and comments to female Cadets. Specific allegations included foot rubs after training events; counseling's regarding female Cadet's personal, intimate relationships and/or their religious or spiritual needs; using unwanted nicknames for certain female Cadets; and generally being "overly familiar" with female Cadets. Allegations also include that these actions took place behind closed doors or otherwise in "secret." (3) Note: page 10 through page 11 were not in evidence. (4) She found that (Applicant) violated the Army privacy policy. She found that (Applicant) made inappropriate and unprofessional comments about Cadet's personal life and/or medical condition amongst the Cadre and staff which could have caused embarrassment to the Cadet. (5) She found that there is evidence that (Applicant) is a toxic leader and that there is probable cause to think that he retaliated against Cadets or present or former Cadre members for any reason. c. Recommendations – Based off the preponderance of the evidence, she recommended the command remove the applicant from his position with a referred OER. (Note: the rest of the paragraph is redacted.) 6. Headquarters, 3rd Brigade, U.S. Army Cadet Command memorandum (Notification of Removal from the Specified Position of Reserve Officers' Training Corp (ROTC) Cadre), 11 February 2020, notified the applicant of his removal from the specified position ROTC Cadre. The basis for his removal was substantiated adverse information from an officially documented investigation wherein a preponderance of the evidence showed he made sexually harassing comments to Cadets and rubbed female Cadet's feet without their consent. It also showed he met with Cadets in his home on several occasions. 7. In his memorandum (Appeal to Removal as ROTC Cadre (Applicant)), 10 March 2020, for the Deputy Commanding General, TRADOC, he states: he is requesting an appeal for two findings against him and would like to provide extenuating factors for the third finding. After an objective review, he believes the basis to remove him from the PMS position is not supported. 8. TRADOC's response to the applicant's memorandum (Appeal to Removal as ROTC Cadre (Applicant)) is not in evidence for the Board's review. 9. A review of the applicant's AMHRR shows his contested OER covering the period 28 June 2019 through 11 February 2020 is filed in the performance folder on 19 May 2020. The OER and attached documents show: a. Part I (Administrative), shows – * item i (Reason for Submission) – "Relief for Cause" * item j (Period Covered) – 11 May 2019 through 11 February 2020 * item k (Rated Months) – 5 * item l (Non Rated Codes) – Z (None of the above) (Note: there is no Non Rated Code for the suspension of duties) b. Part IIa, c, and e (Authentication) – the rater signed the OER on 10 May 2020, the senior rated signed the OER on 11 May 2020, and the applicant signed the OER 13 May 2020. c. Part IId – this was a referred OER and the "Yes" block was marked stating the applicant wished to make comments. d. Part IVd1 (Character) – his rater commented "(Applicant) displayed questionable judgement and character that resulted in a lack of trust and confidence in his leadership which inhibited his ability to enforce the Army's [Sexual Harassment/Assault Response and Prevention] SHARP, [Equal Opportunity] EO, and [ Equal Employment Opportunity] EEO programs." e. Part IVd2 – his rater commented on the applicant's demonstrated performance in part "(Applicant) failed to maintain a climate that a conducive to teaching and training of the Cadets he was charged at XXX. He failed to treat everyone equally, with dignity and respect which created a toxic environment for the Cadre and Cadets. He failed to properly administer and manage the program which undermined his ability to serve as the leader that the XXX program needs." f. Part IVe (This Officer's Overall Performance is Rated as:) – his rater marked "Unsatisfactory" and commented in part "I directed the relief for cause due to (Applicant's) failure to the execute his duties. A [Army Regulation] 15-6 investigation was conducted resulting in an unfavorable outcome, causing him to be removed from the position as the PMS at XXX." g. Part VI (Senior Rater) – his senior rater rated his potential as "Not Qualified" and commented "(Applicant) ranks at the bottom of the 274 PMSs I senior rate in [U.S. Army Cadet Command] USACC. He failed in the execution of his duties, resulting in his removal as the PMS at XXX following a substantiated [Army Regulation] AR 15-6 investigation. Do not promote." h. The Evaluation Record Letter of Referral Rated Officer Response, the applicant stated "I understand the reason for this referred report and take responsibility for it as a leader. I would ask the leadership for mercy and to consider matters of extenuation given the physical disability problems, pain, and multiple pain medications (including narcotics) during this rating period." The applicant digitally signed his response, 5 May 2020. i. In his memorandum (Acknowledgment and Comment on Relief for Cause OER – (Applicant), 13 May 2020, he states he takes responsibility for climate at the XXX ROTC program. However, the basis to remove him from the PMS position is not supported by the Army Regulation 15-6 investigation conducted in late 2019. The allegations of failing to execute his duties and creating a toxic environment are absolutely false. He submitted over 400 pages of factual and statistical rebuttal, including statements from former students not interviewed by the IO, yet the brigade commander did not modify or disapprove one adverse finding. 10. His DA Form 199 (Informal Physical Evaluation Board Proceedings), 24 April 2020, shows the physical evaluation board found him physically unfit and recommended his placement on the Temporary Disability Retired List with a combined disability rating of 100 percent and reexamination during January 2021. 11. The Headquarters, U.S. Army Garrison Command, Fort Knox Orders 142-0152, 21 May 2020, released him from assignment and duty because of physical disability and placed him on the Temporary Disability Retired List with an effective date of retirement of 1 June 2020 and date placed on Retirement List of 2 June 2020. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found relief is not warranted. 2. The Board did not find clear and convincing evidence of a strong and compelling nature that establishes that the presumption of regularity should not be applied to the OER in question. Based on a preponderance of the evidence, the Board determined the OER in question should 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. 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 15-185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-20 (Unproven Derogatory Information) stated references will be made only to action or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA. Rating officials will ensure that evaluations document any substantiated findings, in an Army or Department of Defense investigation or inquiry, that a rated Soldier committed an act of sexual harassment or sexual assault. b. Paragraph 3-27 (Referred DA Form 67-10 Series) states OERs with following entries are referred reports. Such OERs will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to HQDA, to include a "Relief for Cause" OER. c. Paragraph 3-36 (Authorized Enclosures) states no enclosures, other than those listed in this paragraph, will be attached to evaluation reports when forwarded to HQDA, to include the senior rater's letter of referral (retained by HQDA only) and the rated officer's acknowledgment and comments regarding a referred OER. d. Paragraph 3-55 ("Relief for Cause" report (DA Form 67-10 Series) states a "Relief for Cause" OER, is required when an officer is relieved for cause, regardless of the rating period involved. "Relief for Cause" is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty. Cases where the rated officer has been suspended from duties pending an investigation will be resolved by the chain of command as expeditiously as possible to reduce the amount of potential nonrated time involved. If the rated officer is suspended and subsequently relieved, the period between the suspension and the relief is nonrated time. e. Paragraph 4-4 (Purpose) states alleged errors, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated Soldier or anyone authorized access to the report. The primary purpose of a Commander's or Commandant's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA. However, in these after-the-fact cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. f. Paragraph 4-7 (Policies) states an evaluation report submitted and accepted for inclusion in the rated Soldier's AMHRR is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. g. Paragraph 4-11 (Burden of Proof and Type of Evidence) 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 evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. No appeal may be filed solely based on the contention that the applicant was never counseled. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting to HQDA evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Table 2-8 (Authentication for the DA Form 67-10-2) states action is required if referral of the DA Form 67-10-2 is required. The senior rater will place an "X" in the appropriate box in Part IId of the DA Form 67-10-2 before he or she has signed and dated the DA Form 67-10-2. The DA Form 67-10-2 will then be provided to the rated officer for placement of an "X" in the appropriate box in Part IId, signature, and validation of administrative data ("Yes" if the rated officer will provide comments as an enclosure to the DA Form 67-10-2 or "No" if the rated officer will not provide comments). b. Table 2-25 (Codes and Reasons for Nonrated Periods for DA Form 67-10 Series OERs) shows the reason for code "Z" as "None of the above." 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012762 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1