IN THE CASE OF: BOARD DATE: 28 February 2023 DOCKET NUMBER: AR20220003952 APPLICANT REQUESTS: through counsel: a. amendment of the reason for submission of the applicant's DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) covering the period 22 July 2014 through 17 January 2016 (7 rated months) from "relief for cause" to "change of rater" filed in the permanent folder of the applicant's Army Military Human Resource Record (AMHRR); b. transfer of the amended DA Form 67-10-2 to the restricted folder of the applicant's AMHRR or, in the alternative, transfer of the DA Form 67-10-2 to the restricted folder of the applicant's AMHRR; c. reconsideration of the applicant for promotion to colonel (COL)/O-6 by a special selection board (SSB); and d. a personal appearance hearing before the Board. APPLICANT'S SUPPORTING DOCUMENT(S) 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 (Appeal for Correction of Military Records, (Applicant)), 9 February 2022, with Enclosures – * Counsel's Memorandum (Army Board for Correction of Military Records (ABCMR) Petition – (Applicant)), 11 August 2019, with Enclosures – * Enclosure 1 – Officer Special Review Board (OSRB) Record of Proceedings Docket Number AR20170001081, 5 December 2017, with Applicant's Petition to the OSRB and Supporting Documents * Enclosure 2 – Applicant's OERs through August 2019 * Enclosure 3 – School Army of Aviation Medicine Memorandum (Supporting Statement for (Applicant)), 20 November 2018 * Applicant's Letter to the Army Grade Determination Review Board (AGDRB), 3 December 2021, with Supporting Documents FACTS: 1. The applicant requests reconsideration of the OSRB's decision in Docket Number AR20170001081, 5 December 2017, regarding denial of removal of the contested OER. He states: a. The findings of the OSRB rendered an unjust outcome. As a consequence of that injustice, each COL Selection Review Board that convened and reviewed his board file in 2018, 2019, 2020, and 2021 viewed his performance folder as less than competitive. He remained as a lieutenant colonel (LTC) non-selectee for promotion to COL for 4 consecutive years leading up to his established mandatory retirement date in 2022. b. The OSRB denied his request for removal of the referred OER (R-OER) from the performance folder of his AMHRR. A reasonable and just decision, following a fair and unbiased review made by the U.S. Army leadership, in light of all other successful appeals exercised in due process by him to clear his performance folder of all derogatory records, will be a just outcome for him. Such justice should further warrant special consideration for a 2018 backdated review for selection to promotion to COL. He believes he deserves to have his entire record reviewed and for the ABCMR to decide to have the R-OER placed in the restricted folder of his AMHRR in his favor. The R-OER serves no purpose to him or the U.S. Army as it resides in the performance folder with no supporting evidence. Previous board review actions transferred all supporting evidence for the R-OER from the performance folder to the restricted folder of his AMHRR, where the R-OER should be filed at this date also. 2. He additionally states the OER was in error or unjust and contained derogatory comments that were unsubstantiated by a preponderance of the evidence in an Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation. His appeal to the Department of the Army Suitability Evaluation Board (DASEB) was fruitful in that it resulted in transfer of the general officer memorandum of reprimand (GOMOR) and related documents to the restricted folder of his AMHRR. However, justice now demands transfer of the R-OER to the restricted folder of his AMHRR. Subsequently, the OSRB determined his records and evidence did not meet the requirements of the "clear and convincing" evidentiary standard to overcome the presumption of regularity (see attachment). 3. Counsel states the applicant requests reversal of the OSRB decision, 20 December 2017. Specifically, the applicant requests: (1) amendment of the R-OER covering the period 22 July 2014 through 17 January 2016 to reflect a change-of-rater designation and (2) transfer of the amended OER from the performance folder of his AMHRR to the restricted folder or, in the alternative, transfer of the R-OER to the restricted folder of his AMHRR. a. Legal Issues/Errors: (1) There were many legal errors in the investigation and processing of the applicant's case. To summarize the investigation that ultimately gave rise to the GOMOR, the OER at issue was seriously flawed in that the investigating officer (IO) was of the same pay grade as the applicant, the IO worked directly with the main complainant, the IO did not use follow-up questions to his prepared questions to gain complete facts, the IO did not consider the bias and motivations of the witnesses, and the IO did not follow a specific order to comment on the credibility of the witnesses when evidence was in conflict. (2) Further, the relief-for-cause OER was based on an Army Regulation 15-6 investigation that substantiated allegations of favoritism and toxic leadership. At no point in the Army Regulation 15-6 report of investigation did the IO define what constitutes "favoritism" or "toxic leadership," weigh all credible evidence, or apply such credible evidence to meet elements constituting "favoritism" or "toxic leadership" (see Informal Army Regulation 15-6 Investigation Findings and Recommendations, 13 November 2015). (3) An error that was specifically proven before the OSRB that went uncorrected was that the OER covers a period of time that is longer than the period of actual rated time. The applicant proved beyond the shadow of any doubt that he was only rated by the rating official for 3 months, but the OER states the applicant was rated for 7 months. The enclosures to the OSRB petition are clear and more than reach the standard of "clear and convincing." They prove the 7-month period is false and the 3-month period is factual. The OSRB decision basically states the applicant signed the OER, so too bad. b. Injustice. (1) The applicant has shown in his various filings and complaints, that the OER is an injustice. Prior to this OER, the applicant had a very solid career and he has continued to contribute greatly to the Army mission in his assigned duties. To counter the decision of the OSRB, he and the applicant request consideration of all of the statements attached as enclosures by the various witnesses who were present in the applicant's unit at the time he was removed from his position. (2) In addition, he and the applicant ask this Board to consider the statement by Major (MAJ) that shed even more light on the situation in that unit at the time. MAJ clearly paints the picture of the environment the applicant was working in and the various opposition he was facing. The OSRB quickly discounts all of this evidence by stating the rater was in a better position to know the expectations of the rating officials, but the OSRB does not analyze any of the evidence. The OSRB merely concludes the evidence does not "overcome the presumption of regularity." He and the applicant argue that the statements by people who were physically present and actually witnessed the events in this case are in a far better position to relate what actually happened on a day-to-day basis vice the rater who relied on a very flawed and incomplete investigation. 4. The applicant was appointed as a Reserve commissioned officer of the Army in the Medical Service Corps and executed his oath of office on 15 July 1984. He was promoted to the rank/grade of LTC/O-5 effective 21 August 2006. 5. The applicant became the subject of an Army Regulation 15-6 investigation into the facts and circumstances surrounding the allegations that he created a hostile work environment and that he is belittling, demeaning, and unprofessional when dealing with subordinates in the Aircrew Health and Performance Division (AHPD). The Army Regulation 15-6 findings and recommendations report, 13 November 2015, shows (see attachment and auxiliary documents): a. After considering the evidence, the IO found that: (1) Since becoming the director of AHPD, the applicant has belittled, demeaned, and been unprofessional in his treatment of Captain (CPT) and Ms. on multiple occasions. (2) The applicant showed unwarranted favoritism to the contractor, Dr. (3) The applicant tried to evade mandatory regulatory training and Health Insurance Portability and Accountability (HIPAA) training through intimidation of those responsible for tracking that training. b. The IO recommended: (1) the appointing authority direct a relief-for-cause OER for loss of confidence and request issuance of a GOMOR; (2) a new sensing survey in approximately 3 months to determine if the recommendations have been effective in correcting the hostile work environment; and (3) the U.S. Army Aeromedical Research Laboratory (USAARL) Company Command Team review the unit's procedures for handling any complaints for hostile work environment and ways to remediate those complaints. 6. The U.S. Army Medical Research and Material Command Office of the Staff Judge Advocate memorandum (Legal Review for Allegation of Creating a Hostile Work Environment), 20 November 2015, states a legal review was conducted of the IO's investigation report and the report was found legally sufficient. 7. The applicant was reprimanded in writing by the Commander, U.S. Army Aviation Center of Excellence, Fort Rucker, AL, on 4 March 2016, wherein he stated: You are reprimanded for your reprehensible conduct as the Chief, Aircrew Health Performance Division (AHPD), USAARL, for creating a hostile, toxic work environment by bullying, demeaning, acting unprofessionally, and unnecessarily yelling at your team often in front of subordinates; showing favoritism to a contract[ed] employee; and failing to complete required Health Insurance Portability and Accountability (HIPAA) training. According to the enclosed Army Regulation 15-6 Investigation, including an Equal Employment Opportunity sensing session written report (Encl[osure] 1), your behavior caused your subordinates to fear reprisal or demeaning treatment from you when they ask clarifying questions after you give directions. When your subordinate Officers made suggestions or voiced concerns about your behavior, you became agitated and responded harshly or in a belittling tone. On numerous occasions, you raised your voice and admonished Officers by making derisive and insulting remarks to them often in front of their subordinates. You undermined your subordinate Officers's [sic] authority by placing junior personnel in charge when you were away, and you sent junior personnel to command meetings normally attended by senior personnel. Your appalling management damaged the morale, trust, and productivity of your division. You renewed a contract[ed] employee's contract despite reports of her scientific negligence and your subordinate's [sic] recommendation not to renew her contract. When subordinates informed you that some research technicians felt uncomfortable and would rather quit than work with this contractor, you replied, "Let them quit." When one contractor expressed her concerns about the situation, you asked her whether she could work well with others and told her to get along or find another department. As a doctor and medical professional, you should understand the importance of the HIPAA; yet, you attempted to evade mandatory HIPAA training by intimidating those responsible for tracking completion. When asked by one of the systems administrators if you completed the required training, you stepped into her personal space, stopping inches from her face, and responded, "I was busy." The administrator perceived your actions as inappropriate and meant to intimidate her. When one of the systems administrators informed you your network access would be suspended if you did not complete the HIPAA training, you replied in an unprofessional tone, "Good; do it," and you walked away. You also tried to use alternate guest accounts to work on your computer to avoid completing the training. Employees of the AHPD held an EEO sensing session, which also revealed a lack of effective communication and clear guidance from you, and that you created a threatening, intimidating, and hostile work environment hampering their ability to do their jobs. Your staff reported they felt intimidated by you, and have witnessed your repeated belittling, berating, and bullying behavior, making all who witnessed your actions uncomfortable. As a result, your subordinates do not offer suggestions or ask questions at meetings to avoid you targeting them. Your staff reported they love their jobs but no longer enjoy coming to work because of the lack of morale and hostile work environment. Finally, they reported they feared retaliation by you for offering input at the EEO session, and attended it only because it was mandatory. Your subordinates reveal an overall toxic leadership environment, despite some positive comments about your leadership in the investigation. Army Doctrine Publication (ADP) 6-22, Army Leadership, paragraph 11, characterizes toxic leaders as those who ''consistently use dysfunctional behaviors to deceive, intimidate, coerce, or unfairly punish others to get what they want for themselves." ADP 6-22 also recognizes that toxic leaders "may achieve results in the short term," but ultimately ignore other leader competencies, and "[p]rolonged use of negative leadership to influence followers undermines the followers' will, initiative, and potential and destroys unit morale." Your actions and the results of the EEO sensing session make it clear your leadership resulted in the unacceptable effects noted in ADP 6-22. As an Officer, you must set and maintain an example for all Soldiers to follow. Clearly, your actions fell below the standards expected of any Solider in the U.S. Army, regardless of rank. Your detestable leadership, judgment, and degrading conduct are intolerable and incompatible with our Army Values and professional ethic. You severely undermined the trust subordinates should have in their leaders, and you embarrassed yourself, the AHPD, and the Officer Corps. Further incidents of this nature may result in more serious action being taken against you. l trust your future duty performance will reflect the degree of professionalism expected of every Solider in this command. This is an administrative reprimand imposed under the provisions of Army Regulation (AR) 27-10 [Military Justice], paragraph 3-3.b., and not as punishment under the Uniform Code of Military Justice, Article 15. You are advised, in accordance with AR 600-37 [Unfavorable Information], Paragraph 3-4.b., that I am considering whether to direct this reprimand be filed permanently in your Official Military Personnel File. Before making my filing decision, I will consider any matters you submit in extenuation, mitigation, or rebuttal. You will immediately acknowledge receipt of this reprimand in writing (Encl[osure] 2). You will forward any matters you wish me to consider through your chain of command within seven calendar days, using the format prescribed in AR 600-37, paragraph 3-6, or submit an extension request through the Office of the Staff Judge Advocate. If you do not submit matters for my consideration within seven calendar days, or by the date specified in the approved extension request, I will make a filing determination without your input. 8. The applicant acknowledged receipt of the GOMOR on 19 January 2016. He submitted rebuttal matters for consideration in a 4 February 2016 memorandum(see attachment), wherein he denied the allegations against him and stated he never belittled anyone, was agitated, or raised his voice or admonished his staff or any contractors. His behavior was consistent with positive leadership attributes. He took over a fractured division and worked to make it better. He requested rescission of the GOMOR. 9. The Headquarters, U.S. Army Aviation Center of Excellence, memorandum from the commanding general (Filing Determination on Reprimand), 4 March 2016, stated he carefully considered the circumstances of the misconduct and all matters submitted by the applicant in defense, extenuation, or mitigation, along with the recommendation of the subordinate commander and directed: Consistent with the Soldier's rebuttal matters, references to the Soldier showing favoritism to a contractor employee by allowing her to attend a Mental Health Research Symposium were struck from the enclosed edited reprimand, signed 15 January 2016. As these edits are to the Soldier's benefit, it does not need to be served on him for comment. The edited reprimand will be placed permanently in the Soldier's Official Military Personnel File. All enclosures will be forwarded with the reprimand for filing as appropriate. 10. The applicant received the R-OER covering the period 22 July 2014 through 17 January 2016 (7 rated months with a non-rated code of "S" (student at military or civilian school)) on or about 19 April 2016 that addressed his duty performance as the Chief, AHPD, for the USAARL, Fort Rucker, AL. The reason for submission is shown as "Relief for Cause." His rater is shown as Mr. Science Program Director, and his senior rater is shown as COL Commander. The rater and senior rater digitally signed the OER on 18 April 2016. The applicant digitally signed the OER on 19 April 2016. The contested OER shows in: a. Part IId (This is a Referred Report, Do You Wish to Make Comments?), a checkmark was placed in block signifying to the applicant that he was receiving a referred report and a checkmark was placed in the "Yes" block, indicating the applicant's comments were attached; b. Part IVd(1) (Character), the rater commented: [Applicant] is a loyal, selfless and honorable officer, who has personal courage and superior military bearing. However, when confronted with difficult personnel issues in his research division, [Applicant] did not display sufficient respect and consideration for his subordinates to sustain the team and accomplish the mission. Supports SHARP [Sexual Harassment/Assault Response and Prevention Program], EO [Equal Opportunity], and EEO [Equal Employment Opportunity] principles. c. Part IVd(2) (Provide Narrative Comments Which Demonstrate Performance Regarding Field Grade Competencies and Attributes in the Rated Officer's Current Duty Position), the rater commented: [Applicant] is a very intelligent and devoted officer and psychologist who initially embraced the Laboratory's research mission and his Division with enthusiasm and energy. He successfully organized FY17 [Fiscal Year 2017] research planning and led a return-to-duty research workshop. However, it became apparent that his leadership style was detrimental to morale and the research mission. [Applicant] failed to analyze the situation and correct the developing hostile work environment, despite counseling. As a result, the Senior Rater directed his relief from the Division Chief position. [Applicant] remains a respectful and resilient officer. MSAF [Multi-Source Assessment and Feedback] initiated with projected completion 20160229 [29 February 2016]. d. Part IVe (This Officer's Overall Performance is Rated as), the rater marked "Unsatisfactory" and entered the following comments: "[Applicant] is an intelligent and devoted officer who presents himself very well and is capable of service beneficial to the Army. His tenure as Division Chief was prematurely terminated because of his errors in leadership and judgment." e. Part VIa (Potential Compared with Officers Senior Rated in Same Grade), the senior rater marked "Not Qualified" and entered the following comments: [Applicant] is intelligent, motivated, passionate, and diligent. The findings of an AR [Army Regulation] 15-6 [investigation] and lack of attention to the Army value of respect led to loss of confidence in leadership potential in this rating period. It also resulted in him being relieved of his position as Chief of AHPD and my decision to direct a Relief for Cause OER. [Applicant] has the potential for ongoing service in the Army as a staff officer, subject matter expert, or independent researcher. 11. The applicant acknowledged receipt of the R-OER on 15 April 2016 and submitted the following comments in his response to the letter of referral: I do not concur with the referred Officer Evaluation Report (OER) you are reviewing. The administrative data is correct. The substantive content of the evaluation does not adequately reflect my performance and potential during the period from July 6, 2015, through January 17, 2016. I signed the evaluation in compliance with AR [Army Regulation] 623-2 [623-3] [Evaluation Reporting System]. I understand that I can appeal. I ask that you review the OER enclosures submitted with the DA Form 67-10-1 and recognize that I did not receive formal counseling with the use of DA Form 67-10-1A [OER Support Form] throughout the entire rating period. The lack of adherence to standard U.S. Army counseling procedures is indicative of the measure of command support I received from both my rater and senior rater as we addressed complex personnel problems in the Aircrew Health and Performance Division that preceded my arrival at USAARL in July 2015. 12. A review of the applicant's AMHRR shows the contested OER is filed in the performance folder. 13. The memorandum for the Commander, U.S. Army Medical Research and Material Command and Fort Detrick, from the applicant (Request for Commander's Inquiry (CI)), 30 September 2016, requested a Commander's Inquiry for administrative changes to the rated months of his contested OER in accordance with Army Regulation 623-3 and Department of the Army Pamphlet 623-3 (Evaluation Reporting System). 14. The U.S. Army Medical Research and Material Command and Fort Detrick memorandum from the commander (CI Report on OER for (Applicant) from 22 July 2014 through 6 May 2016), 16 November 2016, responded to the applicant's CI request and noted the evaluation was accurate as written. The applicant's claim of an error in the nonrated time code was validated and an additional nonrated code of "Z" (none of the above) was recommended to account for his nonrated time due to his suspension from his position. 15. The memorandum for the U.S. Army Human Resources Command (HRC) from the applicant (Evaluation Report Appeal for (Applicant) OER from 22 July 2014 through 17 January 2015), 20 January 2017, appealed the contested OER based on both administrative and substantive errors. The applicant noted the sole basis for referral of the evaluation was the alleged misconduct and because the Army Regulation 15-6 IO investigating the alleged misconduct failed to substantiate it by a preponderance of the evidence. The applicant requested removal of the contested OER from his AMHRR and that the entire rating period be re-coded as unrated time (see attachment for details). 16. A review of the applicant's records revealed the HRC memorandum (Termination of Elimination Processing), 10 October 2017, wherein it discussed his requirement to show cause for retention in the Army. This memorandum terminated the elimination processing against him and retained him in the Army. 17. The applicant petitioned the DASEB for removal of the GOMOR, 4 March 2016, from his AMHRR or, alternatively, transfer of the GOMOR to the restricted folder of his AMHRR. On 2 November 2017 by unanimous vote in Docket Number AR20170002631, the DASEB determined the overall merits of the case did not warrant removal of the GOMOR from the applicant's AMHRR. However, the DASEB determined there was sufficient evidence warranting partial relief and noted: a. the GOMOR, 4 March 2016, would be transferred to the restricted folder of his AMHRR; and b. the action would not be considered retroactive and therefore did not constitute grounds for promotion reconsideration if previously non-selected. 18. A review of the applicant's AMHRR shows the GOMOR with allied documents is filed in the restricted folder. 19. On 5 December 2017 in Docket Number AR20170001081, the OSRB, by unanimous vote, determined the overall merits of the evidence presented did not warrant removal of the contested OER from the applicant's AMHRR. 20. The applicant submitted a voluntary request for retirement and grade determination. In his 3 December 2021 letter to the AGDRB, he requested retirement in the rank of LTC based on his overall record in lieu of the derogatory material in this record. 21. After reviewing the AGDRB's recommendation, the Deputy Assistant Secretary of the Army (Review Boards) determined the applicant's service in the grade of O-5 was satisfactory and directed his placement on the Retired List in his current grade of O-5 on 10 March 2022. 22. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he retired on 30 June 2022 in the grade of O-5 by reason of sufficient service for retirement. He completed 13 years, 9 months, and 4 days of net service during this period with 9 years, 2 months, and 22 days of total prior active service.? 23. The applicant provided a letter of support from MAJ Director of Occupational Medicine Residency, School of Army Medicine, 20 November 2018, who served with him at the USAARL. MAJ noted the applicant's communication skills and energetic leadership style that was inclusive and supportive, and further noted the applicant inherited the research division with low morale and young personnel with little experience. He supports removal of the R-OER from the applicant's AMHRR. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. 1. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 2. The evidence shows an AR 15-6 investigation supported a finding that the applicant created a hostile work environment and that he is belittling, demeaning, and unprofessional when dealing with subordinates in the Aircrew Health and Performance Division. An Administrative Law Attorney reviewed the AR 15-6 investigation and determined the investigation complied with legal requirements, there were no material legal errors present that affected the findings and recommendations, and sufficient evidence supported the IO’s findings. The recommendations were consistent with the findings. a. As a result of this investigation, the applicant was reprimanded for misconduct (creating a hostile, toxic work environment by bullying, demeaning, acting unprofessionally, and unnecessarily yelling at his team often in front of subordinates; showing favoritism to a contracted employee; and failing to complete required HIPPA training). He acknowledged receipt of the GOMOR and submitted rebuttal matters for consideration wherein he denied the allegations against him and stated he never belittled anyone, was agitated, or raised his voice or admonished his staff or any contractors. His behavior was consistent with positive leadership attributes. He requested rescission of the GOMOR. The imposing officer carefully considered the circumstances of the misconduct and all matters submitted by the applicant in defense, extenuation, or mitigation, along with the recommendation of the subordinate commander and directed the edited GOMOR be placed permanently in his AMHRR. b. The applicant petitioned the DASEB for removal of the GOMOR or, alternatively, transfer of the GOMOR to the restricted folder of his AMHRR. The DASEB determined the overall merits of the case did not warrant removal of the GOMOR from the applicant's AMHRR. The DASEB did not find the GOMOR to be untrue or unjust; and therefore, denied its removal. The DASEB did however determine the GOMOR served its purpose, warranting its transfer to the restricted portion of his AMHRR. c. Among the purposes of filing unfavorable information is protection, not just for the Soldier's interests but for the Army's as well. There is a reluctance to remove or transfer adverse information when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions. Here, the GOMOR is properly filed, and the applicant has not proven this GOMOR to be either untrue or unjust. d. The applicant also received a Relief for Cause OER covering the period 22 July 2014 through 17 January 2016 (7 rated months with a non-rated code of "S" (student) that addressed his duty performance. His rater indicated that he did not display sufficient respect and consideration for his subordinates, and he failed to analyze the situation and correct the developing hostile work environment, despite counseling. As a result, the Senior Rater directed his relief from his position. His rater marked his overall performance "Unsatisfactory," and the Senior Rater marked his potential as "Not Qualified." A Commander’s Inquiry noted the evaluation was accurate as written. The applicant's claim of an error in the nonrated time code was validated and an additional nonrated code of "Z" (none of the above) was recommended to account for his nonrated time due to his suspension from his position. He appealed this referred OER to the OSRB; however, by unanimous vote, the OSRB determined the overall merits of the evidence presented did not warrant removal of the contested OER from the applicant's AMHRR. e. The Board found insufficient evidence to support a conclusion that the contested report contains administrative or substantive errors or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the contested OER was prepared or that they exercised faulty judgment in evaluating him as they did. f. With respect to the SSB, by law and regulation, an SSB is appropriate if an officer was not considered in or above the promotion zone by a regularly scheduled board because of administrative error, or the promotion board that considered the officer in or above the promotion zone acted contrary to law or made a material error; or if the promotion board that considered the officer in or above the promotion zone did not have before it some material information. The Board determined since there is no material error in his record, an SSB is not warranted. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ? REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR members will direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists in the record. c. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Article 138 (Complaints of Wrongs against the Commanding Officer) of the Uniform Code of Military Justice states any member of the Armed Forces who believes himself wronged by his commanding officer and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine the complaint and take proper measures for redressing the wrong complained of, and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon. 3. Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 4. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-11 provides that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain. b. Paragraph 3-26 (Referred Evaluation Reports) provides that any report with negative remarks about the rated officer's values or leader attributes/skills/action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to HQDA. c. Paragraph 3-28 provides that the referral process ensures the rated Soldier knows that his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. (1) The senior rater will refer a copy of the completed OER (an OER that has been signed and dated by the rating officials) to the rated Soldier for acknowledgment and comment. (2) Upon receipt of the rated officer's acknowledgment (e.g., receipt of a signed OER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER for forwarding to the reviewer (if applicable). (3) If the senior rater decides the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater will not pressure or influence another rating official. Any rating official who elects to raise his or her evaluation as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the OER is changed but still requires referral, the OER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment ("YES" or "NO" on OER signed by the rated Soldier) and the rated Soldier's comments, if submitted, will be forwarded to HQDA. d. Paragraph 3-54 states a code 05, relief-for-cause OER, is required when an officer is relieved for cause, regardless of the rating period involved (e.g., information pertaining to a previous reporting period that did not come to light until a later rating period). "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. In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards consisting of attributes and competencies as part of the Leadership Requirements Model. These standards will apply to conduct both on and off duty. e. Paragraph 4-7 provides that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. The burden of proof rests with the appellant. f. Paragraphs 4-11a and 4-11b state an evaluation report accepted for inclusion in the official record of a rated Soldier's Official Military Personnel File (OMPF) 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. The burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-11d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources (see Department of the Army Pamphlet 623-3). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. h. Paragraph 4-13a(2) states limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letter of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. i. Paragraph 4-13c(2) states correcting minor administrative errors or deleting one official's rating does not invalidate the report. 6. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA. a. Paragraph 2-28 provides that: (1) If a referred OER is required, the senior rater will place an "X" in the appropriate box in Part II, block d, of the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in Part II, block d. (2) The rated officer may comment if he or she believes the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered in the OER; rating officials may not rebut rated officer's referral comments. (3) The rated officer's comments do not constitute an appeal. Appeals are processed separately. Likewise, the rated officer's comments do not constitute a request for a CI. Such a request must be submitted separately. b. Paragraph 2-30 provides that a mandatory review of relief-for-cause OERs is required following referral to the rated officer. (1) When an officer (commissioned or warrant) is officially relieved of duties and a relief-for-cause OER is subsequently prepared, the OER will be referred to the rated officer or warrant officer as described in the referral process in Army Regulation 623-3. Note: this referral must be completed before taking any of the actions in the following subparagraphs. (2) If the rater or intermediate rater directed the relief, the senior rater will perform the review, provided he or she is an Army officer or Department of the Army civilian when other rating officials are uniformed Army rating officials. Otherwise, the first U.S. Army officer, designated as the Uniformed Army Advisor in the organization or chain of supervision above the individual directing the relief, will perform a supplementary review of the OER. (3) Changed relief-for-cause OERs will be referred again to the rated officer by the senior rater (or other reviewer) in accordance with the referral process in Army Regulation 623-3 so that the corrected OER may be acknowledged and comments can be provided, if desired. Only the final referral and acknowledgment are forwarded with the report to HQDA. 7. Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the 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. Appendix B states the DA Form 67-9 and DA Form 67-10-2 are filed in the performance folder of the Soldier's OMPF. 8. Title 10, U.S. Code, section 628 (Special Selection Boards), paragraph (b)(1), states 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 an 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: 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 material information for its consideration. 9. Army Regulation 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the Active Duty List. Paragraph 7-2 states an SSB may be convened under Title 10, U.S. Code, 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: * an officer was not considered in or above the promotion zone by a regularly scheduled board because of administrative error (SSB required) * the board that considered the officer in or above the promotion zone acted contrary to law or made a material error (SSB discretionary) * the board that considered the officer in or above the promotion zone did not have before it some material information (SSB discretionary) //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220003952 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1