IN THE CASE OF: BOARD DATE: 20 October 2022 DOCKET NUMBER: AR20220001842 APPLICANT REQUESTS: * removal of the comment "Rated Soldier refuses to sign" from Part VIc (Comments on Potential) of his DA Form 67-10-2 (Field Grade Plate Officer Evaluation Report (OER)) covering the period 1 January 2016 through 15 October 2016 * removal of the DA Form 67-10-2 covering the period 16 October 2016 through 11 February 2017 from his Army Military Human Resource Record (AMHRR) * removal of the comment "Rated Soldier refuses to sign" from Part VIc of his DA Form 67-10-2 covering the period 12 February 2018 through 10 October 2018 * removal of the Department of the Army Office of the Inspector General letter, 18 April 2017, from his AMHRR * appointment to the rank/grade of lieutenant colonel (LTC)/O-5 retroactive to the Fiscal Year (FY) 2018 (below the zone), FY 19 (in the zone), or FY 20 (above the zone) promotion board or, in the alternative, referral of his corrected file to a special selection board (SSB) 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) * Self-authored Memorandum (Request for Correction of Military Records, (Applicant)), 7 December 2021, with 18 enclosures FACTS: 1. The applicant did not file within the 3-year time frame 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 OER covering the period 1 January 2016 through 15 October 2016 stating "Rated Soldier refuses to sign" is not true. His OER was signed by a retired Army general officer who was working as a civilian in the private sector at the time. He was not informed about this OER and not provided an opportunity to review the OER with the senior rater or anyone else prior to the general officer's signature. b. A show-cause Board of Inquiry (BOI) exonerated him of the alleged misconduct that served as the basis for the referred relief-for-cause OER covering the period 16 October 2016 through 11 February 2017. c. For the OER covering the period 12 February 2018 through 10 October 2018, the senior rater's comment, "Rated Soldier refuses to sign," is untrue and inaccurate. d. It is in the interest of justice that he requests correction of material errors and injustices in each of the enclosed OERs and retroactive promotion to the rank/grade of LTC/O-5 or referral of his corrected records to an SSB. 3. He was serving in the U.S. Army Reserve (USAR) in the rank/grade of major/O-4 when he was assigned to the 335th Signal Command effective 1 January 2015. 4. The U.S. Army Inspector General (IG) School memorandum (IG Course – Completion Notification), 13 February 2015, shows he successfully completed the Army IG Course. It directed an update of his qualification record to reflect award of additional skill identifier 5N (IG). 5. His DA Form 67-10-2 covering the period 1 January 2015 through 31 December 2015 shows: a. His rater rated his overall performance as "Proficient" and commented: "[Applicant] projected enough flexibility to almost complete the oldest (2009) IG investigative case. He wrote a concise and well-articulated report of investigation in an effort to finalize the case. He adhered positively to the Command IG's guidance to evaluate each allegation thoroughly, while maintaining a fair and impartial stance." b. His senior rater, BG rated his potential as "Highly Qualified" and commented: "[Applicant] continues to be a positive contributor for this critical assignment, consistently performing on par with his peers. He displayed the skills and work ethic needed for more senior assignments. [Applicant] has tremendous potential. Promote to Lieutenant Colonel with peers and assign as a Battalion Commander." 6. An email (Invitation – BGRetirement Ceremony – 17 November), 27 September 2016, shows the invitations to BG retirement ceremony on 17 November 2016. 7. His contested OER covering the period 1 January 2016 through 15 October 2016, uploaded to his AMHRR on 9 August 2017, shows in: a. Part II (Authentication), his rater electronically signed the OER on 3 February 2017. His senior rater manually signed the OER on 27 June 2017. The applicant's signature is not shown on the OER; b. his rater rated his overall performance as "Proficient" and commented: "[Applicant] is actively learning and continues to be a contributor for this critical broadening assignment. He displayed a degree of comfort in the use of his technical IG competencies and aspects of the job, resulting in a satisfactory performance of his IG duties"; and c. his senior rater, BG rated his potential as "Highly Qualified" and commented: "Rated Soldier refuses to sign. [Applicant] possesses tremendous potential, and he is a contributor to this critical broadening assignment for the command. His performance was on par with his peers. Select for resident military education at first opportunity. Promote with peers and assign as a Battalion XO [Executive Officer] or S3 [Training Officer] S3." 8. His DA Form 5500 (Body Fat Content Worksheet), 3 December 2016, shows his body fat at 25 percent (exceeding the maximum allowable body fat percent standard for his age group of 24 percent). 9. On 6 December 2016, he received event-oriented counseling from his rater. On 3 December 2016, Headquarters and Headquarters Company, 335th Signal Command (Theater), conducted a mandatory weigh-in and he was found not in compliance with Army Regulation 600-9. He was identified as exceeding the body fat standard; his current body fat is 25 percent. His authorized body fat is 24 percent. 10. On 8 December 2016, he emailed his first sergeant and requested to discuss the training noncommissioned officer's availability for the remainder of December 2016 to possibly perform another heigh and weight assessment. 11. On 13 December 2016, his company commander emailed him, stating as per the regulation, a Soldier's weight and body fat assessment is done on a monthly basis. He cannot be re-weighed and taped in December because it is inside the 30-day window as outlined in Army Regulation 600-9. He replied to the company commander, stating: "As I work toward the goal of ensuring I meet height and weight standard I request the opportunity to come in as tentatively scheduled Friday, 16 December, 0900 to be taped and weighed to see my progress." 12. On 14 December 2016, his company commander emailed him, stating in accordance with "Army Regulation 600-9, we will not grant any special favors regarding a courtesy weigh-in and taping this month. I advise you to measure your progress through a scale and tape measure at home (or at the gym, etc.) in order to measure your progress over the coming month. We can weigh and tape you during the next Battle Assembly to measure your progress. At that time, you will be counseled and entered into the Army Body Composition Program (ABCP) and instructed to show progress in accordance with the standards outlined in Army Regulation 600-9 in the coming Battle Assemblies to follow." 13. On 5 January 2017, the applicant's senior rater emailed him and notified him of the referred OER that was signed that day for the period ending 31 December 2016. His senior rater instructed him to review the OER and provide any comments, if he desired, no later than 14 calendar days from today, no later than 19 January 2017. 14. On 5 January 2017, his senior rater, Major General (MG) signed his draft referred OER covering the period 1 January 2016 through 31 December 2016. The draft DA Form 67-10-2 shows in: a. Part I (Administrative), the reason for submission as "Annual"; b. Part II (Authentication), this is a referred report and the applicant attached his comment. The applicant's signature is not shown; c. Part Iva, the applicant's height and weight, not within standard and his rater commented: "[Applicant] is expected to participate in the unit's monthly ABCP assessments to document his progress towards compliance with Army Regulation 600-9"; d. Part IVe, his rater rated his overall performance as "Capable" and commented: "[Applicant] is actively learning and continues to be a contributor for this broadening assignment, demonstrating adequate technical IG competencies. He was notified with ample time to provide a DA Form 67-10-1A (OER Support Form) to complete this report; however, an incomplete support form was received instead. Another opportunity with a short suspense was extended, and he was unwilling to comply"; and e. Part IV (Senior Rater), his senior rater did not rate his potential and commented: "I am not qualified to evaluate the Rated Soldier because I have not been his or her Senior Rater for the required number of days." 15. On 19 January 2017 via email, the applicant replied to his senior rater's administrative officer referencing his referred OER covering the period 1 January 2016 through 31 December 2016, stating: The administrative data such as my weight and the comment in Part IV, block a, is inaccurate, and I respectfully request my Senior Rater, MG resolve the problem. I explained to MG during our face-to-face discussion in December 2016 the method used to obtain my height and weight was not conducted correctly in accordance with AR [Army Regulation] 600-9, (Appendix B (Standard Methods for Determining Body Fat Using Body Circumference, Height, and Weight)) B-1, b. because two members of the unit were not utilized in the taking of measurements; one to place the tape measure and determine measurements and the other to assure proper placement and tension of the tape, as well as to record the measurement on the worksheet. If MG is willing to resolve the problem with the administrative error in my height and weight, I can be physically available to sign digitally or manually acknowledging I saw my eval[uation] and the administrative data is correct. 16. On 21 January 2017, he received developmental counseling from his supervisor, LTC . His DA Form 4856 (Developmental Counseling Form), 21 January 2017, shows in: a. Part II (Background Information), the purpose of the counseling as event-oriented counseling: * his actions brought to light on his email, 19 January 2017, could have been immediately resolved on 3 or 4 December 2016 – he waited until 19 January 2017 to claim improper taping procedures * added emphasis – his rater expected him to address any concern directly with her upon occurrence exercising military courtesy and protocol expected of a field grade officer and detailed IG * during their verbal session early this morning, he demonstrated hostility against her from the onset by adopting an adversarial posture * she will not tolerate his attitude of belligerence when she is exercising her leader's responsibilities of counseling him as required * he is not a positive contributor to the IG section b. Part III (Summary of Counseling), key points of discussion, in part: * this is not the first counseling he received regarding his negative attitude toward his rater * his actions from 3 December 206 showed a lack of personal integrity as a Soldier and more to the IG profession – and a failure to his inherent IG duties and responsibilities to uphold the standard prescribed in regulation * he also violated the IG sworn responsibility of special trust and confidence in IG positions * on 3 December 2016, he appeared to be complicit upon allowing one person to take his tape measurement * he failed in his IG sworn responsibilities to stop the improper taping procedure; provide, teach, and train by properly providing guidance in accordance with Army Regulation 600-9 * he then waited until 19 January 2017 to bring it to anyone's attention * he failed MG suspense of 19 January 2017 to provide input to his referred evaluation and instead claimed improper procedures during the taping of 3 December 2016 * the time span does not allow for going back to correct a taping procedure that should have been immediately corrected during the battle assembly of 3-4 December 2016 – however, he chose to remain silent in an effort to buy him time to lose weight for compliance * he attempted to circumvent the rater to some degree using a circular reference of a conversation he had with MG to compel the administrative Officer to change his evaluation for the period ending 31 December 2016 * his claim of improper taping procedures gave the appearance of using his IG title to influence a modification of the procedures to benefit him (using it as an excuse after the fact) c. The applicant disagreed with the information and provided a memorandum with remarks. 17. In his memorandum ((Applicant) Remarks to Event-Oriented Counseling from (Rater) LTC , 21 January 2017, he states he disagrees with the information in the plan of action provided to him and provided his arguments. 18. His DA Form 5500, 21 January 2017, shows his body fat percent at 24 percent. 19. In his email to his senior rater, MG (Request Immediate Relief and Intervention), 22 January 2017, he requests an immediate transfer or temporary assignment. Being subjected to continuous harassment, attacks on his personal and professional character, and exposed to this hostile work environment is detrimental to his Army career, personal health (mental and physical) and welfare. Based on LTC assessment, it was communicated to him that he is unwanted within her section and he does not add value as a result of his concerns that he reported earlier to MG . 20. The Headquarters, 335th Signal Command (Theater), memorandum from the commanding general (Removal from Detail IG Duty, (Applicant)), 11 February 2017, notified him of initiation of action to remove him from his detailed IG duties and any other duties in the command. The commanding general stated he has lost trust and confidence in him as a detailed IG to remain impartial in the performance of his inherent IG duties. 21. His referred OER covering the period 16 October 2016 through 11 February 2017, uploaded to his AMHRR on 5 April 2017, shows in: a. Part I (Administrative), the reason for submission as "Relief for Cause." His rated months are shown as 3 months with a code "Z" (None of the Above) nonrated period; b. Part II (Authentication), his rater and senior rated signed the OER on 12 February 2017. The OER is marked "Referred" and the applicant marked "Yes" for comments are attached. The applicant signed the OER on 24 March 2017. Item 11 (Supplementary Review Required?) is marked "NO"; c. Part IVd(1) (Character), his rater commented: "Although [Applicant] supported SHARP [Sexual Harassment/Assault Response and Prevention], EO [Equal Opportunity], and EEO [Equal Employment Opportunity] programs; he inconsistently displayed high ethical standards expected of Detailed Inspectors General"; d. Part IVd(2) (Provide Narrative Comments Which Demonstrate Performance Regarding Field Grade Competencies and Attributes in the Rated Officer's Current Duty Position), his rater commented: "[Applicant] showed extreme mastering of maintaining his individual medical readiness. However, he failed to promptly report an improper procedure pursuant to AR [Army Regulation] 600-9, The Army Body Composition Program to anyone until after a 35 day period. In the process, he also made an official false statement resulting in his removal action as a TPU [troop program unit] Detailed IG"; e. his rater rated his overall performance as "Unsatisfactory" and commented: "MG , Directing authority removed [Applicant] from duty as a TPU [troop program unit] Detailed IG for violations of the sworn IG oath. [Applicant] showed an inability to uphold the standards for Detailed Inspectors General. A DA Form 67-10-1A [OER Support Form] was not received nor considered in this evaluation due to the removal action occurring on 20160211 [11 February 2016]"; and f. his senior rater rated his potential as "Not Qualified" and commented: "[Applicant] was unable to uphold the standards for IG's upon requesting special treatment from a subordinate during a unit weigh-in. Upon failing to meet standards, [Applicant] claimed improper taping procedures and despite an initial counseling session on 21 December 2016 he failed to properly notify his supervisory chain. In an attempt to recover from his failure to notify, he then made a written false official statement. His lack of honesty and integrity resulted in his removal from IG duties." 22. In his Evaluation Record Letter of Referral Rated Officer Response, 24 March 2017, he states: a. He respectfully requests a supplementary review conducted in accordance with Army Regulation 623-3 (Evaluation Report System) and Department of the Army Pamphlet 623-3 (Evaluation Reporting System). A detailed response is enclosed in the memorandum with supporting document for review that addresses comments in OER made by the rating officials, such as failure to properly report an improper procedure pursuant to Army Regulation 600-9 to anyone until after a 35-day period, accusations of his request for special treatment, and allegations of intentionally making a false statement. The comments in the relief-for-cause OER are an inaccurate demonstration of his performance, actions, or character. b. His detailed memorandum, 24 March 2017, reflects how he exhibited more than a minimum effort in his attempts to show he believed he met the required Army standard. He positively contributed to the mission, the Soldiers, the unit, and the Army by supporting and assisting his rater in preparation for upcoming FY 17 IG inspections and morale survey assessments. 23. His memorandum ((Applicant) Rebuttal to Relief for Cause OER), 24 March 2017, states he has never had any adverse action taken against him and he has tried to hold himself to extremely high standards and lead as an example. He has unquestionably demonstrated that he has upheld the standards of an IG. He further states: a. Contrary to the allegations, he attests that he did not request special treatment from a subordinate during a unit weigh-in conducted on 3 December 2016, as he immediately departed the room following the taping procedure. Thereafter, on 6 December 2016, he was subsequently notified by his supervisor/rater via a counseling statement that he was determined to not be in compliance with Army Regulation 600-9. He wanted to reconfirm that he was non-compliant with Army Regulation 600-9 by attempting to contact Sergeant First Class (SFC) by phone to inquire about the taping results. SFC did not answer the phone, so he followed up with an email on 8 December 2016 to SFC and First Sergeant requesting the possibility to be rescheduled for a tape test. This was not a request for a special favor; he was simply trying to reconfirm the results because he did not believe he was non-compliant. That same day, SFC responded, stating he would be available the following week to perform the tape test. b. Subsequently, on 12 December 2016, he emailed SFC and courtesy copied his supervisor/rater, of confirmation that he would report on 16 December 2016 to have another tape procedure conducted. His supervisor advised him of the negative impact this could have. He received an email from Captain (CPT) stating his request was not in accordance with Army Regulation 600-9. He responded to the email to inform CPT that his request was to see his progress of ensuring he met height and weight standards. On 14 December 2016, CPT email stated in accordance with Army Regulation 600-9, "we will not grant any special favors regarding a courtesy weigh-in and taping this month." His supervisor emailed him and accused him of requesting procedures outside of the regulation and refusing to comply with Army Regulation 600- 9. He never refused to comply with Army Regulation 600-9. c. He requested a face-to-face meeting with his senior rater to discuss ongoing concerns pertaining to his supervisor/rater, LTC The discussion led to his senior rater asking him specifically how many individuals were present in the room during the taping procedures, to which he responded that there was only one person present during the taping procedure. During the discussion, he was unaware the regulation specifically stated two members of the unit will be utilized in taking measurements. Thus, he did not intentionally delay identifying the improper taping procedures because he was not fully knowledgeable of the regulatory standards. His senior rater had accused him of failing to properly notify his chain of command regarding the improper taping procedures. d. On 5 January 2017, he received an email notification from his senior rater regarding his referred OER covering the period 1 January 2016 through 31 December 2016. On 17 January 2017, he realized the tape procedures were performed incorrectly. On 19 January 2017, he responded with his concerns regarding his inability to verify the accuracy of the administrative portion of his OER. On 22 January 2017, his senior rater stated the tape test should be considered invalid. e. On 11 February 2017, his senior rater issued a relief-for-cause memorandum and a relief-for-cause OER covering the period 6 October 2016 through 11 February 2017. 24. His records contain no evidence of a supplementary review or an appeal of his referred OER. 25. A review of his AMHRR shows the Office of the IG letter, 18 April 2017, posted to his service folder and his personnel records review folder, titled "Qualification and Skills," on 1 June 2017. The IG states: I have been informed of your removal from the position of Detailed IG at the 335th Signal Command (Theater). I find that your actions were not consistent with the standards that I expect from officers who are assigned as IGs. Accordingly, your certification to serve in the capacity of Detailed IG is terminated. Your credentials as an IG are permanently revoked and the Additional Skill Identifier 5N (IG) will be removed from the Military Occupational Specialty in your official records. 26. Headquarters, 81st Regional Support Command, Orders 17-129-00003, 9 May 2017, reassigned him from the 335th Signal Command to the 94th Training Division effective that day. 27. The heavily redacted memorandum from the investigating officer (IO) (Findings and Recommendations for Investigation of Equal Opportunity (EO) complaint filed by (Applicant)), 21 June 2017, states: a. On 17 April 2017, he was appointed as an Army Regulation 15-6 (Procedures for Administrative Investigations and Board of Officers) IO to conduct an informal investigation into the facts and circumstances surrounding an EO complaint filed by the applicant against (redacted) on 2 April 2017. b. Based on the preponderance of evidence, the applicant's EO complaint filed on 2 April 2017 is unsubstantiated. (Redacted) did not bully the applicant, nor did she fail to treat him with dignity and respect. (Redacted) did not take any action that was unlawful or unjust in her treatment of the applicant. Race was not a factor. c. Findings. After considering the evidence, he found that: (1) (Redacted) did not bully or harass the applicant. (2) (Redacted) did not discriminate against the applicant because of his race. Race was not a factor in (Redacted's) treatment of the applicant. (3) (Redacted) and the applicant seemed to have a less than ideal working relationship. Their personalities and styles did not seem to work well together. Nor could they communicate well with each other. (4) (Redacted) should have allowed the applicant the second weigh-in to avoid a referred OER. There is no provision in Army Regulation 600-9 that precluded the applicant from having a second official weigh-in ahead of the January battle assembly. (5) (Redacted's) advice to the (Redacted) regarding the frequency of weigh-ins to prevent the applicant from the second weigh-in was wrong. (Redacted) was incorrect in her interpretation of Army Regulation 600-9. More troubling was that in her statement she said that she sought and received advice from the Army Regulation 600-9 proponent. d. Recommendations. In view of the above findings, he recommended: (1) No action taken against (Redacted) in terms of the EO complaint submitted by the applicant. (2) (Redacted) create an ABCP policy that clearly defines the minimum time that a Soldier must wait after failing Army Regulation 600-9 before taking a subsequent weigh-in/tape test. 28. His DA Form 67-10-2 covering the period 12 February 2017 through 11 February 2018 shows his rater rated his overall potential as "Proficient" and provided positive comments. His senior rater rated his potential as "Highly Qualified" and provided positive comments. 29. The Headquarters, 4th Brigade (Personnel Support), 94th Division (Force Sustainment), memorandum for record from his then senior rater, COL (Active Duty Operational Support – Active Component (ADOS-AC) Brigade Commander Non- Concurrence – (Applicant)), 24 September 2018, states she does not concur with the applicant's request for mobilization in an ADOS position. He is assigned to a critical brigade staff position and has ben advised to transfer to another unit in order to vacate the position. 30. Headquarters, 81st Regional Support Command, Orders 18-276-00058, 3 October 2018, reassigned him from Headquarters, 4th Brigade (Personnel Support), 94th Training Division, to the First U.S. Army Support Command effective 10 October 2018. 31. His DA Form 67-10-2 covering the period 12 February 2018 through 10 October 2018, posted in his AMHRR on 24 May 2019, shows in: a. Part II (Authentication), his rater signed the OER on 31 March 2019. His senior rater signed the OER on 24 May 2019. The OER is not marked as a referred report. The applicant's signature is not shown on the OER. b. His rater rated his overall performance as "Proficient" and commented: "[Applicant's] performance in this assignment is better than most Majors I have rated. [Applicant] demonstrated leadership and understanding of all aspects of command." c. His senior rater, COL rated his potential as "Qualified" and commented: "Rated Soldier refuses to sign. [Applicant] has demonstrated potential to work to serve as a field grade. He is continuously working on his leadership and problem solving skills geared toward executing duties of greater responsibility. He cares about the unit and is a contributing member. Promote with peers." 32. In an email exchange, 13 March 2019 through 21 March 2019, the applicant asked his former rater for assistance getting his OER completed. a. His rater stated he spoke to the applicant's senior rater regarding his OER. As they discussed during his transition to a new unit, it was recommended that he depart before 1 October 2019 to avoid the requirement for an OER from the brigade commander. Consequently, he should not expect a top block with glowing remarks. To avoid "less than ideal" remarks, he recommended that the applicant consider this period as non-rated time. The choice was his: an OER from them or non-rated time. b. The applicant replied: (1) It appears to be an ultimatum – "either I accept not receiving an OER from my previous rating chain or expect to receive "less than ideal" remarks on my OER." (2) "I have not, until this point, received any indication that my performance as the 4th Brigade/94th Division S-1 was "less than ideal" during the performance period." (3) In accordance with Army Regulation 623-3, "I believe I deserve to receive a fair "Change of Rater" OER that accurately reflects my performance from the rating chain with the responsibility for resolving the gap time for the performance period." (4) "Again, I request that I please be provided with a justification for the "less than ideal" remarks; and I request my previous rating chain seriously consider providing me with a fair "Change of Rater" OER which adequately reflects my performance." c. His rater replied: "Not offering an ultimatum. Providing feedback. Presuming you expect your OER to have your offered remarks, the OER will be less than ideal." 33. In an email exchange, 31 March 2019 through 5 April 2019, his senior rater, COL notified him that his OER was ready for his signature. On 4 April 2019, she informed him that if she doesn't hear back from him by 7 April 2019, she will forward his evaluation with the comment: "Soldier refused to sign." On 5 April 2019, he responded requesting 7 additional calendar days beyond her established suspense to review the OER, to which she responded: "It is probably best that you notify your current command of your request. Based on your earlier emails your evaluation is late and they are requesting you remedy the situation with your former change of command, ASAP [as soon as possible]." 34. The HRC email (Evaluation: 2691144 was Returned), 17 May 2019, notified the applicant and his rater and senior rater that his OER was being returned for corrections. Part VIc (Comments on Potential) – the narrative portion includes comments that are considered to be negative in nature and may have an adverse effect on the rated officer's future potential. This report must be referred to the rated officer by the senior rater for the referral process. (Note: the original OER in not in evidence.) 35. In an email exchange (94th Training Division Office of the IG), 17 May 2019 through 28 May 2019, the 94th Assistant IG states they have received the applicant's case from the Department of Defense (DOD) IG and requested a copy of his OER covering the period 12 February 2018 through 10 October 2018. a. On 24 May 2018, the applicant asked his senior rater, COL when will my OER with the necessary corrections or revisions for the period covered February 2018 thru October 2018 be completed for me for me to review and sign," as the 94th Assistant IG requested a copy. His senior rater, COL replied: "I made the corrections and forwarded back to HRC with 'Soldier refused to sign.'" b. The applicant's email to his senior rater, 28 May 2018, states: "Per email reply "Soldier refused to sign" is an untrue statement on the corrected evaluation you re-signed, then forwarded back to HRC. I was not provided an opportunity to review, sign, and confirm that I have seen the corrected evaluation report prior to you forwarding it back to HRC. The corrected evaluation report has been added to my AMHRR." c. His senior rater replied: "You refused to sign the original evaluation and had professed your disapproval of my comments. The corrections were not changing my intent which in turn would not change your mind and only further delay the processing of your evaluation. [Applicant], as a Human Resource professional you clearly understand and are fully aware of the procedures to dispute your evaluation with HRC. If you feel so inclined, you can go that route. At this point, I do not believe any further dialogue is warranted." 36. In an email exchange (Inquiry Evaluation was Returned), 28 May 2019 through 29 May 2019, the applicant asked the S1NET Facilitator three questions regarding his returned evaluation, to which the S1NET Facilitator responded with the reference Army Regulation 623-3, paragraph 3-28 (Referral Process for DA Form 67-10 series DA Form 1059 (Service School Academic Evaluation Report). 37. In an email exchange (Inquiry Evaluation was Returned), 28 May 2019 through 29 May 2019, the applicant asked HRC the same three questions regarding his returned evaluation, to which the HRC representative responded: a. Yes, after the senior raters "revised" their comments in Part VIc (Senior Rater), it is the senior rater's responsibility to re-sign, ensure efforts are made to contact the Rated Soldier via email, phone, and/or mail prior to electronically re-submitting the "corrected" evaluation report to Headquarters, Department of the Army (HQDA), in the Evaluation Entry System with a comment stating: "Soldier refused to sign." b. There isn't any established written regulatory guidance, policy, procedure, authority and/or exception to policy that allows a senior rater to digitally re-sign a "revised/corrected" evaluation report and submit it in the Evaluation Entry System to HQDA without making attempts to provide the rated Soldier an opportunity to review, sign, and confirm the rated Soldier has seen the corrected evaluation report. c. Whenever the senior rater comments state "Soldier refused to sign," the senior rater is not required to provide documentary evidence to the evaluation processing section and is not required to attach documentation to the evaluation report to show the Soldier was provided an opportunity to sign the evaluation report. 38. The Headquarters, First U.S. Army memorandum (Initiation of Involuntary Separation, (Applicant)), 18 March 2020, notified the applicant of his requirement to show cause for retention in the service under the provisions of Army Regulation 135-175 (Separation of Officers), paragraph 2-13 (Acts of Misconduct or Moral or Professional Dereliction). The underlying factual allegations are: a. He received a relief-for-cause OER for the period ending 11 February 2017. The reasons he received a relief-for-cause OER were that: he requested special treatment from a subordinate with regard to a unit weigh-in, he failed to notify his chain of command of improper weigh-in procedures pursuant to Army Regulation 600-9, and he made a false written statement. b. His conduct described in his relief-for-cause OER was unbecoming an officer and warranted his involuntary separation. 39. In a post on the S1NET (False Senior Rater Comment), 1 May 2020, the applicant asks: "What should a Soldier do if a Senior Rater failed to complete a change of rater evaluation report due to the senior rater retiring from the Army? Then about 3 to 6 months later 'Retired' senior rater completed an evaluation report on the rated Soldier which included a false senior rater comment such as 'Soldier Refused to Sign' because the rated Soldier was never contacted to review the evaluation report prior to submission to HQDA." The S1NET Facilitator stated: "If the evaluation has been submitted, accepted, and processed into (AMHRR), the only thing to do is submit an appeal." 40. In an email exchange (Senior Rater Comments), 1 May 2020 through 4 May 2020, the applicant asked HRC "Why does the Army Regulation 623-3, DA [Department of the Army] Pamphlet 623-3, or any other established policy and tasks for the Army's Evaluation Reporting System not instruct a Senior Rater to attach documentation of the rated Soldier's receipt or acknowledgment and/or annotation of actions taken to obtain the rated Soldier's signature on the evaluation report prior to submitting an evaluation to Headquarters Department of the Army with statements such as the Rated "Soldier refuses, is unable, or unavailable to sign?" The HRC Evaluation Policy Branch responded and provided rating officials' and rated officer's responsibilities regarding evaluation reports as defined in Army Regulation 623-3, within chapters 2 and 3. 41. The Whistleblower Reprisal Report of Investigation, DIH#, First U.S. Army Headquarters, 20 July 2020, shows the 80th Training Command Total Army School System IG conducted an investigation into allegations of Whistleblower Reprisal, in response to the applicant, that his rater and senior rater took unfavorable personnel action against him in reprisal for making a protected communication. The executive summary shows: a. The evidence showed the two responsible management officials were not aware of the protected communications and did not take a personnel action against the applicant. The evidence also showed the personnel action was reasonable and would have been rendered against the applicant absent the protected communication. The personnel action directly represented the applicant's job performance and future potential. b. The allegation that COL (former senior rater) rendered a less than favorable evaluation in reprisal for making a protected communication in violation of DOD Directive 7050.06 (Military Whistleblower Reprisal Protection) was not substantiated. c. The allegation that LTC (former rater) rendered a less than favorable evaluation in reprisal for making a protected communication in violation of DOD Directive 7050.06 was not substantiated. 42. The affidavit from MG 17 August 2020, the applicant's senior rater for his referred OER covering the period 6 October 2016 through 11 February 2017, states: a. On 11 February 2017, he removed the applicant from his position as a detailed IG due to conduct surrounding his failure to meet ABCP standards, which demonstrated a lack of the honesty and integrity that is expected from field grade officers and IGs. b. At no time during the 21 December 2019 meeting did the applicant claim that the tape test he received on 3 December 2019 did not comply with Army Regulation 600-9, which is supported by his handwritten notes from the meeting. c. It wasn't until almost a month later on 19 January 2017 when the applicant sent an email to his administrative officer, alleging the tape test he received on 3 December 2016 did not comply with Army Regulation 600-9. The email the applicant sent to his administrative officer was in response to an email he sent to the applicant 2 weeks earlier concerning his annual OER covering the period 1 January 2016 through 31 December 2016 and instructing him to respond directly to him by 19 January 2017. d. He was troubled by the content of the applicant's message in which he falsely claimed the applicant told him the tape test did not comply with Army standards during their 21 December 2016 meeting. His email stated: "I explained to MG during our face- to-face discussion in December 2016 the method used to obtain my height and weight was not conducted correctly in accordance with Army Regulation 600-9, (Appendix B (Standard Methods for Determining Body Fat Using Body Circumference, Height, and Weight)) B-1(b), because two members of the unit were not utilized in the taking of measurements; one to place the tape measure and determine measurements and the other to assure proper placement and tension of the tape, as well as to record the measurement on the worksheet." e. The fact that the applicant did not raise his concern about the defective tape test is even more significant because his annual rating period ended on 31 December 2016. Had he raised his concern during their 21 December 2016 meeting, there would have been time to perform another tape test in accordance with the regulation to be included on his annual OER. (Note: therefore, his previous OER dates were corrected to change the period to 1 January 2016 through 15 October 2016, signed by the rater on 3 February 2016 and then by the senior rater, BG (Retired) on 27 June 2017). f. As reflected in the relief-for-cause OER he gave the applicant for the period 6 October 2016 through 11 February 2017, he relieved the applicant from his duties as a detailed IG for three reasons: (1) the applicant's repeated attempts to get special treatment from subordinates, the Headquarters and Headquarters Company Commander and the training noncommissioned officer to be retaped; (2) the applicant's failure to properly notify his chain of command about the defective tape test he received on 3 December 2016; and (3) the written false statement the applicant made claiming that he told him about the defective tape test during their 21 December 2106 meeting. Each of these actions reflected a basic lack of integrity and honesty that is expected from a field-grade officer and IG. 43. The DA Form 1571-2 (Report of Proceedings by Board of Officers), 5 November 2020, shows in: a. Section IV (Findings). In the BOI concerning the applicant, the board finds by a preponderance of evidence that: (1) The applicant did not request special treatment from a subordinate with regard to a unit weight-in event. This does not warrant involuntary separation. (2) The applicant did not fail to notify his chain of command of improper weigh-in procedures pursuant to Army Regulation 600-9. This does not warrant involuntary separation. (3) The applicant did not make a false written statement. This does not warrant involuntary separation. (4) This conduct was not unbecoming an officer. This does not warrant involuntary separation. b. Section V (Recommendations). In light of the above findings, the board recommends the applicant's retention without reassignment. 44. His memorandum for the Chairperson, Army Board for Correction of Military Records (Request for Correction of Military Records, (Applicant)), 7 December 2021, states: a. He was given three OERs that contain material errors. Following those OERs, which included a relief-for-cause OER, he was subjected to a show-cause BOI in 2020 that exonerated him of the alleged misconduct. He was approved for selective continuation following the BOI, yet he continues to be passed over for promotion to LTC/O-5 by the primary selection boards because of the errors in his OERs. b. The OER covering the period 1 January 2016 through 15 October 2016 was signed by Brigadier General (BG) after BG retired and was placed in his AMHRR without his knowledge. This OER was posted to his AMHRR nearly 7 months (on 9 August 2017) after the BG retired (on 17 November 2016). The senior rater did not digitally sign the OER and he did not receive this OER until after he received his next OER covering the period 16 October 2016 through 11 February 2017. As a result, he was never afforded an opportunity to review and sign the OER. The OER states he is "Highly Qualified," yet states he refused to sign. It does not stand to reason that he would refuse to sign this OER. This "Highly Qualified" OER from a general officer, in theory, could carry significant weight before a promotion board. A preponderance of evidence does not support the notion that he would refuse to sign something that would help his career. This request for correction should be considered in the interest of justice. c. A show-cause BOI exonerated him of the alleged misconduct that served as the basis for the relief-for-cause OER in his AMHRR. The BOI found by a preponderance of evidence that he did not commit the misconduct alleged in the OER. The BOI President, Colonel (COL) drafted a letter for this fiscal year's Promotion Selection Board, saying the BOI members carefully considered the evidence presented, including his testimony and the investigating officer's testimony, ultimately finding that the misconduct did not occur. She further goes on to state that his rater "made the situation personal" and the relief-for-cause OER filed in his AMHRR is "not an accurate representation of (my) performance as an officer." d. The BOI found by a preponderance of evidence, the same standard the ABCMR is held to, that the misconduct serving as the basis for the relief-for-cause OER did not occur. As such, any mention of the alleged misconduct is material error and an injustice, and the relief-for-cause OER should be removed from his AMHRR. e. There is material error in his OER covering the period 12 February 2018 through 10 October 2018, stating he refused to sign. This material error and the language should be removed. The remark is false and creates an impression on promotion boards that he had no respect for accountability, his senior rater, or the Army Evaluation System in general. It almost certainly creates an inaccurate and unfair perception of his character. f. In 2018, he requested issuance of ADOS orders and his then-senior rater did not support his request. However, the request was approved and he entered active duty in October 2018. In March 2019, he contacted his previous rater for assistance getting his OER closed out. In response, his rater gave him an ultimatum – he could receive "less than ideal comments" or count his time as "non-rated." During his time in this assignment, he was never counseled that his performance warranted "less than ideal comments" and he was never in a status that would have correctly qualified as non- rated time, so he asked for a fair OER. g. His senior rater told him that his OER was ready for review and when he did not respond, she told him that he had until 7 April 2019 to review the OER or she would send it forward with the comment that he "refused to sign," which was not true. While he was serving on active duty, he was heavily involved in his assignment. As such, he requested an extension. However, his OER was submitted to HRC with the "refused to sign" comment. h. On 17 May 2019, he was notified by HRC that his OER was rejected, stating "the narrative portion includes comments that are considered to be negative in nature and may have an adverse effect on the rated officer's future potential. This report must be referred to the rated officer by the senior rater." Clearly, a substantive change to the OER was required. i. On 24 May 2019, he asked the senior rater when he would be able to review and sign the corrected OER. That same day, his senior rater replied, "I made the corrections and sent it back to HRC with 'Soldier refused to sign.'" This is not true and he informed her as much on 28 May 2019, the day the OER populated in his AMHRR. Later that day, his senior rated responded, "you refused to sign the original evaluation and had professed you [sic] disapproval of my comments. The corrections were not changing my intent which in turn would not change your mind and only further delay the processing of your evaluation." This is an express admission that she never intended to give him an opportunity to review and sign the corrected OER and further evidence that he did not "refuse to sign" the OER. His senior rater lied about his refusal to sign the updated OER. Not only did not refuse to sign, he was never afforded an opportunity to see the evaluation before it was submitted to HRC. This is material error and an injustice, and the language should be removed. 45. In his memorandum for the President, Department of the Army Suitability Evaluation Board (Request for Removal of the Inspector General Letter for (Applicant)), 7 February 2022, he states: a. He was falsely accused of misconduct, unjustly relieved of his duties, and issued a referred OER beyond his control. The subject letter at issue filed in his AMHRR revoked his Inspector General (IG) credentials and removed his additional skill identifier "5N" (IG). b. The FY 21 Promotion Selection Board recommended his referral to a show-cause BOI. On 5 November 2020, he appeared with counsel before a BOI to present his case for retention in the USAR. At the conclusion of the BOI, he was unanimously exonerated of the alleged misconduct and recommended for retention in the USAR. c. The BOI found by a preponderance of evidence that he "did not request special treatment from a subordinate with regard to a unit weigh-in," "did not fail to notify [his] chain of command of improper weigh-in procedures pursuant to Army Regulation 600-9 (The Army Body Composition Program)," "did not make a false written statement," and his conduct "was not unbecoming an officer." d. The President of the BOI, who evaluated the evidence, found that his rater "made it personal" and said the alleged misconduct is "not an accurate representation of [his] performance as an officer." e. In July 2021, he was selected for continued service by a Selective Continuation Board despite the unjust and inaccurate reflection of his performance as an officer as shown in his AMHRR and being passed over for promotion to LTC. f. Removal of the document would be in the best interest of the Army. His current commander has provided a memorandum of support reflecting that the document has served his intended purpose and that removal of the document is in the best interest of the Army. An independent BOI found the alleged misconduct serving as the basis for enclosed letter from the Inspector General, 18 April 2018, did not occur, and the BOI president found that his rater made the situation personal. This is clear convincing evidence that the letter is inaccurate and unjust, and it should be immediately removed from his AMHRR. 46. The Headquarters, First Army letter, 7 December 2021, from the BOI President to the President, FY 21, LTC, Army Promotion List, Non-Active Guard Reserve Promotion Selection Board, states: a. It was alleged against the applicant that he requested special treatment from a subordinate Soldier after he failed a tape test. It was further alleged against him that he failed to notify his chain of command of improper tape test procedures and made a false written statement to conceal the alleged misconduct. b. After careful consideration of the evidence presented and the testimony of the investigating officer and of the applicant, the board concluded the applicant committed no wrongdoing and unanimously recommended his retention in the USAR. c. Having had the privilege of hearing his testimony, "I find him to be a well-qualified and extremely professional officer who is fit for promotion to LTC. I respectfully ask that in your consideration of his promotion potential, you not hold against him the relief for cause OER in his file. After hearing the testimony of his rater, I concluded that she made the situation personal and failed to mentor and coach [Applicant]. It is not an accurate representation of his performance as an officer." 47. The memorandum from the Commanding General, Headquarters, USAR Support Command, First U.S. Army (Separation under Army Regulation 135-175 (Separation of Officers) (Applicant)), 10 December 2020, states: "I have reviewed the enclosed file concerning the BOI held on 5 November 2020 to determine whether [Applicant] should be retained in the Army. I approve the board's findings and recommendations and recommend that [Applicant] be retained. 48. The Headquarters, 88th Readiness Division, memorandum (Selective Continuation on the Reserve Active Status List), 2 July 2021, notified the applicant that the Secretary of the Army directed a board to consider continued service of those officers who were twice non-selected by the Promotion Selection Board. Even though the Promotion Selection Board did not select him for promotion, the Selective Continuation Board recommended him for continuation in his present grade and the Secretary of the Army approved the recommendation. 49. The memorandum from the Commanding General, Headquarters, U.S. Army Support Command, First U.S. Army (Letter in Support of Request or Transfer of the IG Letter for (Applicant)), 1 February 2022, states he supports the applicant's request to remove the Office of the IG letter, 18 April 2017, from his AMHRR. However, if the Board is not convinced that the document should be removed, he supports the applicant's request to transfer it from the performance (service) folder of his AMHRR to the restricted folder. (Note: this memorandum is not signed.) He further states: a. The document has served its intended purpose and no longer needs to be filed in the applicant's AMHRR. Immediately after the Inspector General issued the letter, the applicant was relieved of his duties and transferred out of the unit where he served as a detailed IG. To his knowledge, the applicant has not been placed in or requested to be assigned into an IG assignment. b. He supports the applicant's request to have this letter removed from his AMHRR for the following reasons: (1) In December 2020, his command held an HRC-directed BOI to determine whether the applicant should be retained in the Army in light of his removal as a detailed IG in 2017. The board found that the alleged wrongdoing that led to the applicant's removal was unfounded and recommended his retention in the Army. (2) The Army selected the applicant for continued service, despite this letter and the other documentation related to his removal from his IG duties being in his permanent record. He agrees with the Army's decision to allow the applicant to continue his service and believes the applicant should be able to complete his service to the Army and our nation without this letter, which has served its purpose. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant’s military records, the Board found partial relief is warranted. 2. Regarding the OER for the period ending 15 October 2016, the Board found insufficient evidence support removal of the comment “Rated Soldier refuses to sign.” The Board noted that other than his own statement, the applicant has not provided and his service record does not contain evidence indicating the statement on the OER is an error. The Board determined the OER for the period ending 15 October 2016 should not be amended. 3. Regarding the OER for the period ending 11 February 2017, the Board found insufficient evidence to support removing this OER from his AMHRR. While the applicant argues that the findings of a BOI support removal of this OER, the Board noted the purpose of a BOI is to make a determination as to whether an officer should be retained in the service. A BOI finding does not retroactively invalidate the derogatory information that was cause for referral to the BOI. Further, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. The Board determined there is insufficient evidence to support a recommendation to remove this OER from the applicant’s record. 4. Regarding the OER for the period ending 10 October 2018, the Board found the evidence supports removing the comment “Rated Soldier refuses to sign.” For this OER, the evidence shows his senior rater did not give him an adequate opportunity to review the OER after it had been returned by HRC for revisions, which is required by regulation. The Board determined the commend “Rated Soldier refuses to sign” should be removed from this OER. 5. Regarding removal of the Department of the Army Office of the Inspector General letter, 18 April 2017, from his AMHRR, the Board found the statement from the Commanding General, Headquarters, U.S. Army Support Command, First U.S. Army, compelling evidence in support of a conclusion that the document has served its purpose. However, the Board did find it in the best interest of the Army to maintain a copy of the document in the applicant’s AMHRR. The Board determined the Department of the Army Office of the Inspector General letter, 18 April 2017, should be transferred to the restricted folder in his AMHRR. 6. The applicant requests appointment to LTC/O-5. This Board is not empowered to appoint officers to a higher grade. 7. The applicant has also requested referral of his records to an SSB for the applicable FY 2018 (below the zone), FY 19 (in the zone), or FY 20 (above the zone) LTC/O-5 promotion boards. SSBs are not conducted for below-the-zone considerations for promotion, therefore this portion of his request is denied. The corrections the Board has recommended above, however, do support SSB review under the criteria for the FY 19 and FY 20 promotion boards. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: * Removing from his OER for the period ending 10 October 2018 the comment “Rated Soldier refuses to sign” * Transferring the Department of the Army Office of the Inspector General letter, 18 April 2017, to the restricted folder in his AMHRR * Referring his records to an SSB for review under the criteria for the applicable FY 19 and FY 20 LTC/O-5 promotion boards 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to any relief in excess of that described above. 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. 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 15-6 (Procedures for Administrative Investigations and Board of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and board of officers when such procedures are not established by other regulations or directives. 3. Army Regulation 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 ABCMR. The ABCMR considers individual applications that are properly brought before it. a. Paragraph 2-2 (ABCMR Functions) states the ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. b. Paragraph 2-9 (Burden of Proof) states 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 evidence. c. Paragraph 2-10 (ABCMR Consideration) states each application will be reviewed to determine whether the preponderance of evidence shows an error or injustice exists and, if so, what relief is appropriate or, if not, deny relief; whether to authorize a hearing; and, if the application is filed outside the statute of limitations, whether to deny relief based on untimeliness or waive the statute in the interest of justice. d. Paragraph 2-11 (ABCMR Hearings) states 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. 4. Army Regulation 135-175 (Separation of Officers) prescribes the policies, criteria, and procedures governing the separation of Reserve officers of the Army. a. Paragraph 2-13 (Acts of Misconduct or Moral or Professional Dereliction) states while not an all-inclusive list, existence of one of the following or similar conditions at the standard of proof required by Army Regulation 15-6 (Procedures for Administrative Investigations and Board of Officers) authorizes involuntary separation of an officer by the separation authority due to moral or professional dereliction. Officers discharged for any of the following reasons may receive an honorable, general (under honorable conditions), or other than honorable conditions discharge: * discreditable failure, whether intentional or not to meet personal financial obligations * mismanagement of personal affairs, whether intentional or not, to the discredit of the service * intentional misrepresentation of facts in obtaining an appointment or official statements or records * acts of serious or recurring misconduct punishable by military or civilian authorities * relief-for-cause OER * conduct or actions that result in the loss of a professional status * conduct unbecoming an officer b. A BOI is defined as a board of officers convened to give fair and impartial hearing to evidence concerning the fitness of an officer who has been required to show cause for retention and make findings and recommendation whether he or she will be retained or eliminated. 5. Army Regulation 600-9 (The Army Body Composition Program), 28 June 2013 established policies and procedures for implementation of the ABCP. a. Paragraph 3-4 (Weigh-in and Body Fat Assessment) stated Soldiers will be measured by trained individuals of the same gender. b. Paragraph 3-9 (Monitoring Soldier Progress in the ABCP) stated approximately every 30 days (or during unit assemblies for Reserve Component Soldiers not on active duty), commanders will conduct a monthly ABCP assessment to measure Soldier progress, with the results annotated on a DA Form 5500 or DA Form 5501. During monthly assessments, every Soldier enrolled in the ABCP will be weighed and have a body fat assessment conducted to document weight and fat loss progress. c. Appendix B (Standard Methods for Determining Body Fat Using Body Circumferences, Height, and Weight) stated two members of the unit will be utilized in the taking of measurement: one to place the tape measure and determine measurements and the other to assure proper placement and tension of the tape, as well as to record the measurement on the worksheet. d. There is no provision that clearly defines the minimum time that a Soldier must wait after failing an ABCP assessment before taking a subsequent weigh-in/tape test. 6. 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. a. 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 another authorized agency. b. The Required Document List represents current active forms and documents required for filing in the AMHRR. Qualifications and skills documents are filed in the service folder and the personnel records review folder. 7. Army Regulation 623-3 (Evaluation Reporting System), 1 January 2016, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 2-15 (Review of Evaluation Reports) stated the review is normally an inherent responsibility of the senior rater. A documented supplementary review will be performed by a Uniformed Army Advisor, designated in the officer's rating chain who is senior to the rated officer, and normally senior to the senior rater within the organization, to include relief-for-cause reports when the senior rater is the individual directing the relief. b. Paragraph 3-26 (Referred DA Form 67-10 Series) stated OERs with the following entries are referred or adverse 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: (1) a "NO" entry for the height and weight indicating noncompliance with the standards of Army Regulation 600-9, (2) a rater performance evaluation of "Unsatisfactory," (3) a senior rater potential evaluation of "Not Qualified," (4) any negative or derogatory comments, or (5) a relief-for-cause OER submitted under the provisions of paragraph 3-54 (Relief for Cause). c. Paragraph 3-28 (Referral Process for DA Form 67-10 Series, DA Form 1059 (Service School Academic Evaluation Report), and DA Form 1059-1 (Civilian Institution Academic Evaluation Report) stated the referral process ensures the rated Soldier knows that his or her OER contains negative or derogatory information and affords him or her opportunity to sign the OER and submit comments, if desired. Senior raters will refer the OER even if the rated Soldier is geographically separated from the senior rater or has departed the unit or organization due to permanent change of station, retirement, or release from active duty. d. Paragraph 3-33 (Preparation and Submission Requirements) state, the rated Soldier's signature will verify the accuracy of the administrative data in Part I. This procedure ensures that the rated Soldier has seen the completed evaluation report. 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 report 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 3-36 (Modifications to Previously Submitted Evaluations Reports) stated an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. For evaluation reports that have been completed and filed in a Soldier's AMHRR, substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Administrative appeals will be considered regardless of the period of the evaluation report. f. Paragraph 3-54 ("Relief for Cause" Report (DA Form 67-10 Series OER)) stated 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 his or her performance of duty. g. Paragraph 4-1 (Overview) stated 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 correct them once they have occurred. h. Paragraph 4-4 (Purpose) stated 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. i. Paragraph 4-7 (Policies) stated an evaluation report 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. j. Paragraph 4-8 (Timeliness) stated a request for administrative appeal or correction, by either the rated Soldier or the rating chain, will submitted and received not later than 3 years after an evaluation report "THRU" date for an administrative error so significant as to affect not only personnel management decisions, but selection board proceedings and career decisions. Substantive appeals will be submitted and received no later than 3 years after an evaluation report "THRU" date. k. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated 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. 8. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), 10 November 2015, 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 if referral of the DA Form 67-10-2 is required, the senior rater will place "X" in the appropriate box in Part II, block d, 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 II, block d, 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 2-8 states a documented supplementary review will be performed by a Uniformed Army Advisor above the rating chain when there are no uniformed Army designated rating officials for the rated officer for relief-for-cause reports when the senior rater is the individual directing the relief. 9. Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of military human resources support operations. It provides for career progression based upon recognition of an officer's potential to serve in positions of increased responsibility. Additionally, it precludes promoting officers who are not eligible or become disqualified, thus providing an equitable system for all officers. Chapter 6 (Special Selection Boards) states an SSB may be convened to consider or reconsider commissioned officers for promotion when HQDA determines that one or more of the following circumstances exists: (1) Administrative error – an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error; or (2) Material unfairness – the action of the promotion board that considered the officer from in or above the promotion zone was contrary to law in a material to the division of the board or involved material error or fact or material administrative error; or the board that considered the officer from in or above the promotion zone did not have before it for its consideration material information. 10. 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. 11. DOD Directive 7050.60 updates the policy and responsibilities for military whistleblower protection under Title 10, U.S. Code, section 1034. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220001842 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1