IN THE CASE OF: BOARD DATE: 30 January 2023 DOCKET NUMBER: AR20220006341 APPLICANT AND COUNSEL REQUESTS: in effect – . removal of Officer Evaluation Reports (OERs) covering the periods of 15 June 2013 to 14 June 2014 and 15 June 2014 to 1 October 2014 from the applicant's Official Military Personnel File (OMPF) . Special Selection Board (SSB) for consideration for promotion to lieutenant colonel (LTC)/O-5, backdated to 2017 . backpay for the difference in salary from 2017 to 30 November 2021 . difference in retirement pay from December 2021 to present APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: . DD Form 149 (Application for Correction of Military Record) . Memorandum in Support of Application for Correction of Records . Exhibit 1: 2003 Bronze Star Medal . Exhibit 2: Defense Meritorious Service Medal (July 2005 to May 2006) . Exhibit 3: Meritorious Service Medal (2006 to 2009) . Exhibit 4: 2nd Meritorious Service Medal (2009 to 2012) . Exhibit 5: 3rd Meritorious Service Medal (2014 to 2019) . Exhibit 6: Officer Evaluation Report (OER) for 1 October 2015 to 29 September 2016 . Exhibit 7: OER for 1 October 2016 to 15 August 2017 . Exhibit 8: OER for 16 August 2017 to 25 December 2017 . Exhibit 9: 2018 Selective Continuation (SELCON) Memorandum . Exhibit 10: DD Form 214 (Certificate of Release or Discharge from Active Duty) [Applicant] . Exhibit 11: 2021 Disability Retirement Orders Number 299-0501 . Exhibit 12: 24 April 2019 Application to Army Human Resources Command (HRC)] . Exhibit 13: 6 May 2019 HRC Response . Exhibit 14: Rebuttal of [Applicant] to the 1st OER dated August 2014 . Exhibit 15: 1st Negative OER for the period of 15 June 2013 to 14 June 2014 . Exhibit 16: 2nd Negative OER for the period of 15 June 2014 to 1 October 2014 . Exhibit 17: Affidavit of Major (MAJ) . Exhibit 18: Affidavit of [Applicant] . Exhibit 19: 2014 Army Commendation Medal Recommendation Packet . Exhibit 20: 2014 Army Commendation Medal . Exhibit 21: Collected Other Medals FACTS: 1. The applicant and counsel states, in pertinent part: a. The applicant served the United States faithfully and without reproach for more than 25 years. Before his deployment to Korea, he was a highly decorated Soldier, having been awarded the Bronze Star for his service in Iraq in 2003, and a Defense Meritorious Service Medal for his second tour there from July of 2005 to May of 2006. Up until his service in Korea from 2013 to October of 2014, he was a very highly rated Soldier, being awarded the Meritorious Service Medal first for his service from 2006 to 2009, and second for his service from 2009 to 2012. He proved to be an excellent Soldier. He rapidly rose through the ranks, reaching MAJ/O-4, in only nine years. b. At the time of his service in Korea, the military was undergoing a personnel reduction, and Colonel (COL) was seeking to advance his career by negatively rating subordinates. This was because superior officers could benefit from "offering up" candidates to be released from the ranks, a process greatly aided for the Army if the candidate had negative ratings. Several of the applicant's colleagues have offered sworn testimony as to the toxic command climate under COL , and his use of negative ratings. The applicant immediately returned to his high ratings the second he was out from under COL s command. His subsequent commanders rated him in the top 5 percent of MAJ's they had ever rated, and he was awarded his third Meritorious Service Medal for his performance from October of 2014 to June 2019. Yet by this point, the damage had been done. c. Due to COL s two wrongful negative OERs the applicant was passed over for promotion to LTC three times, leading to his mandatory retirement of November of 2021 and his separation on 16 January 2022. Without the two negative OERs, the applicant's stellar OERs and highly decorated career make it all but certain that he would have been promoted to LTC. The stress caused by COL 's actions, and the long-lasting damage they caused to his career, played a partial role in the applicant's medical retirement at 60 percent disability. d. He applied to HRC board of appeals on 24 April 2019, to have the negative OER's removed. He was informed on 6 May 2019, that he should apply to the Army Board for the Correction of Military Records (ABCMR). This serves as the exhaustion of all available and effective remedies. The applicant offered a rebuttal in 2014 and did not learn of the permanent damage to his career caused by the negative OERs until his successive pass-overs from 2017 to 2019. He had, prior to then, believed, based on the statements of COL , that he could surmount the negative OERs through subsequent excellent service. The full scope of the injustice thus did not become fully apparent until late 2018. This resulted in his 2019 appeal, and an ABCMR application only becoming available after that appeal was rejected in May of 2019. e. In conclusion, the applicant gave 26 years of stellar service to his country, and yet saw his career permanently stalled by the wrongful actions of a single officer. This Board is tasked with the correction of error and injustice. It is clear that both occurred in regard to the assessments given by COL to not only the applicant, but also to the rest of the majors of the 8th Army G-4, barring his favorite. This Board should thus act to undo the harm which stained the remainder of the applicant's career and lead to the premature end of the service to his country which he so deeply loved. Remove the clearly erroneous and unjust harshly negative ratings of a stellar officer. Grant him a SSB for a proper consideration for promotion as of 2017, free of the errors which wrongfully hamstrung his prospects. Grant him the backpay he is due based on the difference in ranks from 2017 to 16 January 2022 and in retirement pay from 17 January 2022 to the present. In short, undo the injury inflicted on an officer who made his country proud. The applicant does not request reentry into the ranks based on medical conditions he now suffers from. 2. Counsel's memorandum in support of application for correction of records in its entirety is available for review in the supporting documents. 3. A review of the applicant's official military records show the following: a. On 24 August 1995, he enlisted in the U.S. Army Reserve (USAR). b. DA Form 597 (Army Senior Reserve Officers' Training Corps (ROTC) Non-Scholarship Cadet Contract) shows he enrolled as an ROTC Cadet at the University of Memphis, effective 23 August 1998. c. On 13 April 2001, Headquarters, U.S. Army Cadet Command (USACC), Fort Monroe, Virginia, issued Orders Number 103-94-A-957, ordering the applicant to active duty, effective 5 June 2001. d. On 3 May 2001, DA Form 71 (Oath of Office – Military Personnel) shows he executed an oath of office and was appointed as a Reserve commissioned officer. e. On 5 September 2001, Headquarters, USACC, issued Orders Number 248-8, amending Orders Number 103-94-A-957, to read the applicant was accessed for the month of July 2001 and would enter active duty, effective 16 July 2001. f. Orders Number 320-048 published by HRC, Fort Knox, KY, promoted the applicant to the rank of MAJ/O-4, effective on with a date of rank of 1 December 2010. g. On 12 October 2021, an informal physical evaluation board recommended his permanent retirement by reason of disability with a rating of 60 percent. h. Orders Number 299-0501 issued by Headquarters, U.S. Army Garrison, Fort Lee, Virginia, retired the applicant by reason of permanent physical disability, effective 16 January 2022 and placed him on the Retired list in the rank/grade of MAJ/O-4, effective 17 January 2022. These orders show: . Statute Authorizing Retirement: 1201 (Title 10, United States Code (USC), section 1201) . Other eligible laws: 1372 (Title 10, USC, section 1372) . Percentage of Disability: 60 . Basic Pay: 26 years, 4 months, 23 days . Disability Retirement: 21 years, 0 months, 4 days . Section 1405 Service: 21 years, 0 months, 4 days i. On 16 January 2022, he was retired by reason of permanent disability. DD Form 214 shows he completed 20 years, 8 months, and 14 days net active service this period with 3 months and 20 days total prior active service. Item 4a (Grade, Rate, or Rank) shows MAJ, and item12i (Effective Date of Pay Grade) shows 1 December 2010. Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows: . Bronze Star Medal . Defense Meritorious Service Medal . Meritorious Service Medal (4th Award) . Army Commendation Medal (2nd Award) . Army Achievement Medal (4th Award) . Joint Meritorious Unit Award . Meritorious Unit Commendation . National Defense Service Medal . Global War on Terrorism Expeditionary Medal . Global War on Terrorism Service Medal . Korea Defense Service Medal . Iraq Campaign Medal with Campaign Star (3rd Award) . Army Service Ribbon . Overseas Service Ribbon (3rd Award) . Parachutist Badge . Air Assault Badge . Parachute Rigger Badge . Army Staff Identification Badge 4. The applicant provides through counsel: a. Exhibit 1: Bronze Star Medal certificate covering the period of 19 March to 31 July 2003, for the applicant's meritorious service during combat operations while serving as a platoon leader in Iraq. b. Exhibit 2: Permanent Orders Number 100-023 dated 10 April 2006, awarding the applicant the Defense Meritorious Service Medal for the period of 22 July 2005 to 15 May 2006. c. Exhibit 3: Meritorious Service Medal certificate covering the period of 7 August 2006 to 15 April 2009, for exceptional and meritorious service culminating as a company commander. d. Exhibit 4: Meritorious Service Medal certificate covering the period of 24 November 2009 to 10 March 2012, for exceptionally meritorious service while assigned as the executive officer. e. Exhibit 5: Meritorious Service Medal certificate covering the period of 14 October 2014 to 30 June 2019, for exceptionally meritorious service by serving in multiple roles to include the Lead Budget, Travel and Action Officer for the fielding of the Global Combat Support System. f. Exhibit 6: DA Form 67-10-2 (Field Grade Plate (04 – O5; CW3 – CW5) OER) period covered 1 October 2015 to 29 September 2016, wherein, it shows the applicant was rated as a logistics staff officer and was evaluated as excels, most qualified and top 5 percent of majors his senior rater led in his career. g. Exhibit 7: DA Form 67-10-2 period covered 1 October 2016 to 15 August 2017, showing the applicant was rated as excels, highly qualified and a top 5 percent officer performing at the level of LTC. h. Exhibit 8: DA Form 67-10-2 period covered 16 August 2017 to 25 December 2017, showing the applicant was rated as proficient, highly qualified and he ranked in the top 3 percent of MAJ's his senior rater served with in his 35 years of government service. The senior rater recommended promote now and assign as a battalion commander. i. Exhibit 9: HRC memorandum dated 12 June 2018, notifying the applicant that he was not selected for promotion by the Promotion Selection Board; however, he was recommended for SELCON and the Secretary of the Army approved the recommendation. The SELCON period ended on his Mandatory Retirement Date (MRD) effective 30 November 2021. He elected to accept the SELCON period ending on his MRD. j. Exhibit 12: Memorandum dated 24 April 2019 from the applicant to HRC appealing the negative OERs from 15 June 2013 to 14 Jun 2014 and 15 June 2014 to 1 October 2014. In pertinent part, his appeal was based on substantive inaccuracy. He alleged no substantiating counseling or documentation to warrant the evaluations and verbiage. k. Exhibit 13: HRC memorandum dated 6 May 2019 that shows, HRC returned his OERs appeal request without action based on the 3-year time restriction on the submission of substantive appeals. He now had to apply to ABCMR. l. Exhibit 14: Memorandum dated 7 August 2014 from the applicant to HRC, Officer Records, rebutting his senior rater recommendation for referred report for the applicant. m. Exhibit 15: DA Form 67-10-2 period covered 15 June 2013 to 14 June 2014, showing the applicant was rated as capable by his rater LTC , qualified and he had an acceptable performance by his senior rater COL . Among his current peer group, he ranked 10th from a group of 13 extremely high performing MAJ's in the "8th Army G-4 staff." o. Exhibit 16: DA Form 67-10-2 period covered 15 June 2014 to 1 October 2014, showing the applicant was rated as proficient by his rater LTC , qualified, and continued acceptable performance. His senior rater ranked him 10th from a group of 12 extremely high performing MAJ's in the "8th Army G-4 staff." p. Exhibit 17: An affidavit from MAJ dated 24 February 2022, wherein he states, in part, under COL the 8th Army G-4 was one of, if not the worst command climates he encountered in his 20 years of military service. q. Exhibit 18: An affidavit from the applicant undated, wherein he states, in part, until August of 2014 he had never received any negative or subpar assessments. Barring the two ratings from COL , he had never received any negative or subpar assessments since. The second OER occurred because he had volunteered to stay an extra two months in Korea to assist in the performance of a theater wide field exercise. When given the OERs by COL he informed the applicant that he could overcome the negative OERs by "Soldiering back" and that they would blow over. However, the applicant would later learn that this was not the case, and that the OERs would severely hamper his promotion prospects. r. Exhibit 19 and 20: DA Form 638 (Recommendation for Award) with Army Commendation Medal certificate showing he was awarded the Army Commendation Medal on 30 August 2014 for meritorious service as the Eighth Army G-4 current operations and exercise operations officer. s. Exhibit 21: Three Army Achievement Medal certificates, Army Achievement Medal orders, DA Form 638 awarding him an Army Achievement Medal, and an Army Commendation Medal certificate covering various periods, responsibilities, achievements, and meritorious service. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered the applicant's contentions, the military record, and regulatory guidance. The Board reviewed the contested OERs and found no clear or convincing evidence of an error or injustice. and, in the absence of any new or relevant information, concluded that the burden of proof had not been met. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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): N/A REFERENCES: 1. Army Regulation (AR) 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the Army Board for Correction of Military Records (ABCMR). In pertinent part, it states that 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 will decide cases based on the evidence of record. It is not an investigative agency. 2. AR 600-37 (Unfavorable Information) sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's Army Military Human Resource Record (AMHRR). Paragraph 3-3 (Filing of information exempt from the referral procedure) provides that, officer evaluation reports may be filed in the performance portion of the Army Military Human Resources Record (AMHRR) without further referral to the recipient. Administrative processing, and the appeal of evaluation instruments are governed by AR 623-3 (Evaluation Reporting System). 3. AR 600-8-104 (AMHRR Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. It provides that, the performance folder contains performance related information to include evaluations, commendatory documents, specific disciplinary information, and training/education documents. The primary purpose of this folder is to provide necessary information to officials and selection boards tasked with assessing Soldiers for promotion, special programs, or tours of duty. This folder populates various board related applications (for example, Army Selection Board System, National Guard Army Board System). Once placed in the OMPF/AMHRR, a document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. 4. AR 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 (ERS). a. Section III (Evaluation Appeals), paragraph 4-7 (Policies), provides that, an evaluation report submitted and accepted for inclusion in the rated Soldier's AMHRR is presumed to (1) Be administratively correct. (2) Have been prepared by the proper rating officials. (3) Represent the considered opinion and objective judgment of the rating officials at the time of preparation. b. An appeal will be supported by substantiated evidence (see paragraph 4–11). 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 will be made by HRC, Evaluation Appeals Branch. c. 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 (ASRB) (see paragraph 4–13). d. Paragraph 4-13 (Army Special Review Board and Army Board for Correction of Military Records) states, the ASRB operates within the guidelines established in this regulation. The board, which is comprised of senior officers and noncommissioned officers (NCOs), evaluates and acts on evaluation report appeals. The president and assistant president for each board, under the direct authority and supervision of the Army's Director of Military Personnel Management, are delegated the authority to take action on evaluation report appeals. A Soldier may always appeal further to the ABCMR. The ABCMR is the highest level of administrative review within the Department of the Army and acts for the Secretary of the Army. The ABCMR will determine a final decision, or, when required, forward the decision to the Secretary of the Army for a final decision (see AR 15–185). 5. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs. a. Paragraph 7-2 states the SSBs may be convened under Title 10, United States Code (USC), section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the officer record brief or Official Military Personnel File (OMPF). It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11, officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. d. A special SELCON board may be convened in accordance with Title 10 USC, section 637 for commissioned officers to consider officers for SELCON who have twice failed selection for promotion, provided the officers would or should have been considered by a SELCON board following their second failure of selection for promotion. 6. Title 10 USC, section 628 (Special selection boards) subsection(b) (Persons Considered by Promotion Boards in Unfair Manner) states, (1) If the Secretary of the military department concerned determines, in the case of a person who was considered for selection for promotion by a promotion board but was not selected, that there was material unfairness with respect to that person, the Secretary may convene a SSB under this subsection to determine whether that person (whether or not then on active duty) should be recommended for promotion. In order to determine that there was material unfairness, the Secretary must determine that, (A) the action of the promotion board that considered the person was contrary to law in a matter material to the decision of the board or involved material error of fact or material administrative error; or (B) the board did not have before it for its consideration material information. 7. Title 10, USC, section 1552 states the Secretary concerned may pay, from applicable current appropriations, a claim for the loss of pay, allowances, compensation, emoluments, or other pecuniary benefits, or for the repayment of a fine or forfeiture, if, as a result of correcting a record under this section, the amount is found to be due the claimant on account of his or another's service in the Army. 8. Title 10, USC, section 14104 (Non-disclosure of board proceedings) states the proceedings of a selection board convened under section 14101 or 14502 of this title may not be disclosed to any person not a member of the board, except as authorized or required to process the report of the board. //NOTHING FOLLOWS//