IN THE CASE OF: BOARD DATE: 6 April 2022 DOCKET NUMBER: AR20210013636 APPLICANT REQUESTS: through counsel: * removal of the DA Form 67-10-2 (Field Grade Plate (O4-O5; CW3-CW5) Officer Evaluation Report (OER)) covering the period 12 January 2020 through 26 October 2020 (hereafter referred to as the contested OER) from his Army Military Human Resource Record (AMHRR) * removal of the Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) Report of Investigation and all allied documents and any other references to the Army Regulation 15-6 investigation from his AMHRR * any other relief that is equitable and just * a personal appearance hearing before the Board 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) * Counsel's Supplemental Statement to DD Form 149, item 12 (What correction and relief are you requesting for this error or injustice in the service member's record?), 27 July 2021 * Counsel's Memorandum (OER Appeal), 22 June 2021, with evidentiary documents labeled and organized as tabs (see tab A) * U.S. Army Human Resources Command (HRC) Appeals and Corrections Section Memorandum (OER Appeal), 20 July 2021 (see tab B) * Tab A – Contested OER * Tab B – DA Form 67-10-2 covering the period 27 October 2020 through 21 February 2021 * Tab C – Table of Contents for Army Regulation 15-6 Investigation with auxiliary documents * Tab D – Applicant's Memorandum (Response Matters to Referral of Report of Investigation – (Applicant)), 11 November 2020 * Tab E – Administrative Law Attorney, Office of the Staff Judge Advocate, Headquarters, I Corps and Joint Base Lewis-McChord, WA, Memorandum for Record (MFR) (Legal Review – Army Regulation 15-6 Investigation Regarding: (Applicant)), 4 December 2020 * Tab F – Applicant's Memorandum (Comments to OER – (Applicant)), 10 February 2021 * Tab G – Commander, Company C, 5th Brigade Engineer Battalion, 5th Security Force Assistance Brigade (SFAB), Joint Base Lewis-McChord, WA, MFR (Amendments to Sworn Statement Regarding (Applicant)), 8 June 2021 * Tab H – Applicant's S-3 In-brief Slides, 1 May 2018 * Tab I – Applicant's Awards * Tab J – Declaration of Applicant, 21 June 2021 FACTS: 1. The applicant defers to counsel. 2. Counsel states that on or about 22 June 2021, the applicant petitioned HRC through counsel to remove the contested OER from his AMHRR because it is substantively inaccurate and unjust. a. On 20 July 2021, HRC summarily denied the applicant's request (see tab B). In cursory fashion, an HRC analyst unilaterally acted to end the applicant's appeal without forwarding the appeal to the Board. HRC's conduct in this case requires discussion. (1) First, although the decisional document states the appeal was "returned without action," the substantive contents of the document indicate the decision was a denial of the appeal on its merits. The analyst wrote: "[i]n accordance with (IAW) Army Regulation (AR) 623-3, 14 June 2019, paragraph 4-7f., an appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered." The insinuation is that his appeal did not contain "usable supporting evidence." Not only is this conclusion wrong (see below), but it constitutes a substantive evaluation of the merits of the appeal. (2) Second, the appeal contains overwhelming evidence to support removal of the contested OER. The applicant submitted a lengthy appeal, which submits legal and factual challenges to the Army Regulation 15-6 investigation and the resulting comments in his OER. The appeal also contains nuanced legal arguments, which highlight the errors contained within the original Army Regulation 15-6 investigation and legal reviews. At a minimum, this appeal should have been forwarded to the full board for consideration on its merits. (3) Finally, the decisional document also contains the following statement: "The Commanding General, U.S. Army Human Resources Command, does not have the responsibility nor authority to refute or question a Field Commander's Findings and Recommendations on an investigation. You may, however, seek redress of the investigation according to policy and procedures outlined in AR [Army Regulation] 15-6." (4) Taken at face value, this statement appears to suggest that when an adverse OER is issued based on the findings of an Army Regulation 15-6 investigation, a rated officer can never successfully appeal the OER. This proposition is stunning. It is directly contrary to the authority vested in the Army Special Review Board in Army Regulation 623-3. There is nothing in Army Regulation 623-3 that precludes an officer from contesting the contents of an OER as long as the rated officer provides clear and convincing evidence that: (a) the presumption of regularity referred to in paragraphs 3-37a and 4-7a will not be applied to the evaluation report under consideration; and (b) action is warranted to correct a material error, inaccuracy, or injustice. (5) The applicant has met his burden under Army Regulation 623-3. HRC's denial of this appeal based on the existence of a founded Army Regulation 15-6 investigation is a complete abdication of the responsibility incumbent on the Army Special Review Board to consider and evaluate OER appeals on their merits. HRC's approach is not only contrary to Army regulation, but also renders the OER appeal process outlined in Army Regulation 623-3 entirely irrelevant. He questions why an officer should be required to waste time and financial resources pursuing an appeal to HRC where HRC's interpretation of the regulation is such that it refuses to even consider an appeal such as this on its merits. HRC's procedural approach and substantive determinations in this case are simply wrong and have had the net effect of causing further delay and compounding the damage to the applicant's career. b. HRC's refusal to act on the applicant's appeal constitutes an exhaustion of other administrative remedies on this issue. Accordingly, he requests that this Board consider his OER appeal (see tab A). For all the reasons outlined in the original appeal, the OER at issue is substantively inaccurate and unjust. The original appeal also provides evidence that the Army Regulation 15-6 investigation findings were equally erroneous. The applicant and counsel submit that the original OER appeal at tab A provides overwhelming evidence that a severe injustice has been done to the applicant and his career. Accordingly, the principles of fairness, justice, and equity require that the applicant be granted the relief requested. 3. Counsel further states in a statement, 22 June 2021 (see attachment) to HRC Evaluation Appeals that the applicant's contested OER should be removed from his AMHRR (see tab A). The applicant was issued another OER for the rating period 27 October 2020 through 21 February 2021 (see tab B). a. Background. An Army Regulation 15-6 investigating officer (IO) was appointed to investigate certain allegations made against the applicant. The IO made several findings adverse in nature to the applicant (see tab C). (1) The applicant provided his response to the Army Regulation 15-6 investigation on 11 November 2020 (see tab D). The legal review of the Army Regulation 15-6 investigation is enclosed (see tab E). Lieutenant General took the following action on the Army Regulation 15-6 investigation: (a) He approved "Finding 6a with the exception of the Investigating Officer's (IO) finding and analysis related to the DBAP [don't be a pussy] acronym"; (b) He approved the additional finding: "[Applicant] violated the Army's Equal Opportunity policy by changing the terms of counseling/training materials based on the sex of audience members. Specifically, [Applicant] indicated that he only used the DBAP acronym with his male Soldiers and would never use it with female Soldiers." (c) He approved the "remainder of the IO's findings as written." (2) The applicant provided his comments to the brigade commander for the referred OER at issue; however, his comments were not submitted along with the referred OER (see tab F). b. Discussion. The OER at issue was referred and contains multiple derogatory remarks; specifically, in Part III (Duty Description), block d1 (Character), and Part VI (Senior Rater), block c (Comments on Potential), related to an Army Regulation 15-6 investigation into certain allegations made against him. The applicant has provided his insights on the OER in his declaration. In this case, the presumption of regularity with respect to this OER should not be applied because this OER contains substantive errors and is unjust. Specifically, the findings contained within the Army Regulation 15-6 investigation, which precipitated the adverse remarks in the referred OER at issue, are not supported by the facts or the law. (1) First, neither the IO nor the approving authority gave consideration to the genesis of the inquiry into the applicant or the individual with whom the initial complaint originated. It is clear from the witness statements and the "Preliminary Inquiry" (dated 24 September 2020) that the primary complaint against him was the fact that he voiced his opinion on matters related to gender and race issues on "Readiness Day" (see tab C). The IO's findings and recommendations memorandum alludes to Readiness Day in a variety of places, which indicates the IO's analysis and approach to the investigation were clouded by the notion that the comments and opinions the applicant shared during Readiness Day were somehow inappropriate despite being directed within the Army Regulation 15-6 appointment: "Your investigation will disregard statements made during Readiness Day..." (see tab C, enclosure A). The facts establish that the applicant understood the Readiness Day event to be an opportunity during which all members of the group could feel free to voice their opinions on the topics the command asked them to discuss. It is remarkable that the IO failed to identify the very obvious theme in these witness statements that the applicant's comments were not welcome because his opinion differed from those of the other participants and because he is male and white. It is painfully obvious that he is being punished for participating in a command-sponsored event about race and gender and sharing opinions that were not approved of by others. In this country, freedom of speech and opinion is one of most cherished and coveted of those freedoms bestowed upon us by our creator as enshrined in the Bill of Rights (per U.S. Constitution, Amendment I). While we recognize that service members are not always free to speak their minds and thus do not always enjoy the full scope of the protections set forth in the Bill of Rights, this Readiness Day training was unique in that the command itself asked (perhaps required) the service members to engage in discussions about the topics of race and gender. As such, the applicant was specifically authorized to share his opinions on those topics, which he did. The U.S. Army exists to protect and defend the Constitution of the United States of America. By punishing him for exercising his right to free speech and free thought in an exercise the command itself required that he participate in, the Army and the command acted in a manner directly contrary their oath and duty to uphold the Constitution and have done violence to the values we hold dear. Make no mistake; the recent move to make certain speech and opinions off-limits to service members is an abhorrent and insidious effrontery to freedom itself. It must stop. This Board must correct this obvious injustice. (2) Second, it is clear that Captain (CPT) had motivation to fabricate and exaggerate the claims against the applicant and there is evidence that she encouraged others to do the same. The statements provided by the applicant and CPT outline that CPT was an inferior performer who was disrespectful of her superiors and had a reputation for filing complaints against those with whom she did not get along (see tab C, exhibit 5, and tab H). CPT attests that CPT actively engaged in a campaign to sully the applicant's reputation among the staff and gloated that he was "getting the punishment she thought he deserved" (see tab H). This indicates that CPT had clear motive to fabricate – or at least wildly exaggerate – the facts and circumstances of the comments made by the applicant and that she likely did so in order to retaliate against him for holding her accountable for her poor performance. This is corroborated by Major (MAJ) who wrote: "[Applicant] found himself at odds with a problem of 'toxic followership' within our organizational climate. [Applicant] was especially and immediately frustrated by CPT . Again, unsurprisingly, his leadership style did not markedly improve this situation and instead made him a focal point for her divisiveness, to include among those with whom she wields referent power" (see tab C, exhibit 6). (3) Next, there is evidence the IO was not an impartial investigator of the facts. In her statement, CPT wrote: During the investigation, I communicated the aspects of the culture and climate that I thought were relevant to the case to LTC [Lieutenant Colonel] however he disagreed regarding their relevance and made me remove them from my sworn statement" (see tab H). (4) CPT statement is direct evidence that the IO improperly influenced the content of witness statements. Obviously, it is improper for an IO to influence the evidence he is tasked with collecting. The IO must be a neutral and impartial investigator and, here, this IO violated this basic tenant of his mission. The IO's improper interference with the collection of evidence directly impacted the outcome of this investigation. Obviously, CPT is critical of CPT who was the genesis of the complaints against the applicant, which makes any evidence that CPT was biased against him directly relevant to the investigation. Here, the IO directed CPT to exclude her observations about the culture and climate, which eliminated those facts from consideration by the IO, the legal review officer, and the approving authority. This egregious interference by the IO makes this entire investigation and the resulting OER null and void. This clear error and injustice must be remedied. (5) Finally, the applicant's service record strongly indicates that he would never act in the way alleged in the Army Regulation 15-6 findings. Over the course of the applicant's s lengthy career, he has had no instance of misconduct. His OERs and awards reflect that he is a superior performer with unlimited potential (see tab I). His sustained excellence and his lack of prior acts of misconduct are affirmative evidence of his good character as a Soldier and as a person. The totality of his military record and good character are affirmative evidence that he would not act in the way that was alleged in the Army Regulation 15-6 findings. c. Finding 6(a)(1) and Finding 6(a)(3)(a). These findings are related and will therefore be discussed jointly. (1) Finding 6(a)(1) states the applicant did not on at least two occasions make comments to 5th Battalion Soldiers that were discriminatory in nature towards a group of people, or at a minimum were perceived by others as discriminatory in nature. The first example is his general opinion that Hispanic people are "dirty and untrustworthy," or words to that effect, as documented in exhibit 1 and exhibit 2. (2) Although the applicant communicated that any comment of this nature occurred during a single conversation with Sergeant First Class (SFC) Combined Arms Training Center, in which he was only referring to an isolated incident regarding a group of migrant workers involved in a fatal vehicular accident, the meaning that witnesses to this statement understood does not match this description. The applicant claims the comment was not a generalization about Hispanic people and he did not use derogatory terms. However, SFC recalls specifics of the conversation and states the applicant always had a derogatory story about Hispanics when a conversation about California came up. This incident was also confirmed in CPT statement (see exhibit 3). (3) Finding 6(a)(3)(a) states the applicant's comments violated the Army's Equal Opportunity (EO) policies that were in place at the time he made them. Because the comments addressed in this finding occurred under separate EO policies due to changes in the 24 July 2020 revision of Army Regulation 600-20 (Army Command Policy), it is necessary to evaluate them under slightly different standards. (4) The applicant's comment regarding Hispanic people made during attendance at the Combined Arms Training Center on or around February 2019 violated the Army's EO policy as described in Army Regulation 600-20, 6 November 2014, paragraph 6-2a, 6 November 2014. That regulation stated the: "The U.S. Army will provide EO and fair treatment for military personnel and Family members without regard to race, color, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior." The regulation goes on to describe the use of disparaging terms as one form of unlawful discrimination in paragraph 6-2c(2), stating that disparaging terms are "[t]erms used to degrade or connote negative statements pertaining to race, color, gender, national origin, or religion. Such terms may be expressed as verbal statements, printed material, visual material, signs, symbols, posters, or insignia. The use of these terms constitutes unlawful discrimination." Here, his comment regarding Hispanic people clearly connotes a negative statement pertaining to race, color, or national origin, and, as such, constitutes unlawful discrimination. (5) The facts do not support the finding that the applicant made these comments by a preponderance of the evidence. (a) First, the applicant has been unequivocal in his denial that he ever made such comments as alleged in Finding 6(a)(1) (see tab C, exhibits 1 and 5). (b) Second, the IO's finding is based on two statements: one by SFC and one by CPT (see tab C). Their statements relate to two entirely different alleged interactions. As such, they do not corroborate one another as claimed by the IO. (c) Next, there is no indication the IO actually conducted an analysis of the weight of the statements made by either SFC or CPT and the applicant as required by Army Regulation 15-6. Army Regulation 15-6, paragraph 3-10, requires that the IO analyze the credibility of the evidence and articulate a basis as to why he chose to believe one version of events over the other(s). (6) Even if the applicant did make such a comment (which we do not concede), it does not constitute a "discriminatory" comment as alleged in the finding as a matter of law. The alleged comments at issue were made in/about February 2019, when the 6 November 2014 version of Army Regulation 600-20 was in effect. Army Regulation 600-20, paragraph 6-2(c)(1), defined "discrimination" as "[a]ny action that unlawfully or unjustly results in unequal treatment of persons or groups based on race, color, gender, national origin, or religion." (7) Quite clearly, there is absolutely no evidence whatsoever that the applicant engaged in any action that resulted in the unequal treatment of anyone. It is entirely irrelevant that SFC or anyone else "perceived" the comment to be discriminatory, which was never established in the evidence as a matter of fact. These comments do not meet the specific regulatory definition of discrimination as promulgated by the Department of the Army. d. Finding 6(a)(2) and the "Additional Finding" as Indicated by the Approving Authority's Action. The applicant and counsel interpret the approving authority's action to mean that Finding 6(a)(2) was disapproved by the approving authority and was replaced with the "Additional Finding" (see tabs C and E). (1) The "Additional Finding" as actioned by the approving authority states: "[Applicant] violated Army's Equal Opportunity policy by changing the terms of counseling/training materials based on the sex of audience members. Specifically, [Applicant] indicated that he only used the DBAP acronym with his male Soldiers and would never use it with female Soldiers." (2) The facts do not support the finding by a preponderance of the evidence. The evidence demonstrates that the applicant used the DBAP acronym, which had originated from a peer, within training material at his previous duty location (see tab C, exhibit 5). The applicant stopped using the DBAP acronym and replaced it with "Don't Be a Wimp (DBAW)," as reflected in his new slide deck at tab H in 2018. He did not show the old slide deck to CPT and he never used it in any other briefing or training or counseling in the 5th SFAB. CPT saw a hand draw diagram during a one-on-one discussion after he requested details (see enclosure F, exhibit 1). Therefore, the evidence shows the applicant never used the term at all within written material during the relevant time period, and only referenced the acronym once with CPT (see tab C, exhibit 5). The applicant could not have changed the terms of his counseling or training because it was only used once, so there was nothing to change. This finding is therefore factually flawed. (3) This finding is null and void as a matter of law. (a) First, the "Additional Finding" fails to provide sufficient notice of what specific provision of the "Army's Equal Opportunity Program" he allegedly violated. The "Additional Finding" is overly vague, likely deliberately so, which renders it null and void. (b) The applicant never used the DBAP acronym within the 5th SFAB, outside of the limited discussion with CPT . Even if the applicant did use the DBAP acronym during the relevant time period, which we do not concede, it does not constitute a violative comment as alleged in the finding as a matter of law. The alleged comments at issue were made when the 24 July 2020 version of Army Regulation 600-20 was in effect. Army Regulation 600-20, paragraph 6-2(b), provides that: "The Army will provide an environment that is free of unlawful discrimination. Discrimination occurs when someone, or a group of people, is harassed, intimidated, insulted, humiliated, or is treated less favorably than another person or group, because of their race, color, sex (to include gender identity), national origin, religion, or sexual orientation. It includes use of disparaging terms with respect to a person's race, color, sex (to include gender identity), national origin, religion, or sexual orientation which contributes to a hostile work environment." (c) There is absolutely no evidence whatsoever that the applicant engaged in any action that caused anyone to be treated less favorably than another person or group. Even if the applicant and counsel assume arguendo that the applicant did change the material, which we do not concede, females would have been treated more favorably by not being exposed to a vulgar term. However, the evidence shows the applicant actually adjusted his acronym to "DBAW," as reflected in his new slide deck at tab H. The fact that the applicant stopped using the term "DBAP" in 2018 within training and counseling materials is evidence of his progression and maturity and is direct evidence that the applicant never used the "DBAP" acronym as alleged. Accordingly, the applicant's conduct did not violate any specific regulatory definition of the Army's EO Program as promulgated by the Department of the Army. (d) Finally, the applicant was not provided an Article 31(b) rights advisement prior to solicitation of his statements in connection with the Army Regulation 15-6 investigation. The legal review acknowledges this legal deficiency (see tab E). The legal review concluded: "Given the prior advisement during the preliminary inquiry and that the applicant sought counsel to help him prepare his sworn affidavit in the administrative investigation, there are no concerns that his statement was not given voluntarily. To the extent that the failure to advise of Article 31 rights in the administrative investigation is error, such error is harmless." It is unclear how the legal review arrived at this conclusion, as there is no analysis to support that conclusion. Moreover, there is no indication the IO consulted with his legal advisor to discuss the inclusion of the applicant's statement, which was obtained without proper advisement, as required by Army Regulation 15-6, paragraph 3-7(d)(8). It is also unclear how the legal review arrived at the conclusion that any error associated with this issue was "harmless," as the IO relied upon portions of the applicant's statement to reach his conclusions. These irregularities and procedural violations are additional basis to reject this finding. e. Finding 6(b). The finding states: [Applicant], on multiple occasions, both directly and indirectly, has not treated all Soldiers in 5th Battalion with dignity and respect. Directly, he has acted in an abrasive and condescending manner (Exhibit 1), is routinely dismissive of subordinate input to operations (Exhibit 3), and talks down to his subordinates (Exhibit 2). Indirectly, he has on multiple occasions discussed Officer and NCO [noncommissioned officer] performance with either Soldiers that are peers of, or subordinate to, the Officer or NCO being discussed. [Applicant] discussed CPT poor job performance with Sergeant (SGT) (exhibit 1). [Applicant] also discussed the poor performance of MAJ, CPT, and SGT with CPT (Exhibit 3). He discussed his opinion that CPT is unprofessional and incompetent with CPT (Exhibit 1). The overall impact of this behavior is a staff that operates with diminished organizational performance and cohesion. (1) The facts do not support this finding by a preponderance of the evidence. (a) The IO relies upon statements from witnesses who clearly have negative opinions of the applicant without considering the context in which those witnesses offered those opinions. As outlined above in the "Universal Observations" section, the IO failed to conduct any analysis into the motivations and biases of these adverse witnesses and the IO improperly tainted the evidence by discouraging CPT from providing additional context about the command climate in her statement. These witnesses have demonstrated clear biases against the applicant and their statements should have been discounted accordingly. (b) CPT was the recipient of critical feedback from the applicant and was close friends with CPT. Obviously, he had motive to fabricate and exaggerate his poor opinion of the applicant. (c) The IO cites CPT statement (tab C, exhibit 3) as evidence that the applicant is dismissive of subordinate input. CPT makes no such assertion in his statement. Moreover, CPT was not a member of the applicant's staff and had no direct knowledge of any fact relevant to this issue. His opinions are entirely irrelevant to this issue. The fact that the IO either did not know this or knew this and nevertheless considered CPT opinion suggests the IO lacked attention to detail and nuance in his approach to this investigation.? (d) The IO cites SFC statement (tab C, exhibit 2) as evidence that the applicant talks down to his subordinates. SFC clearly states he was told that information by a third party. This constitutes hearsay and, as such, is unreliable. The IO either did not recognize it to be hearsay or did and yet failed to follow up to explore the basis and source of the hearsay. Again, this illustrates a lack of attention to detail by the IO and sloppiness in the investigation. The IO provides no justification for his reliance on hearsay to substantiate such a serious allegation against the applicant. The statement carries no indicia of reliability. The IO should have rejected this assertion for what it is unreliable hearsay. (2) Finally, the investigation contains no fact that support the IO's assertion that the applicant caused the staff to operate "with diminished organizational performance and cohesion" by a preponderance of the evidence. This assertion has no logical or factual connection to the first sentence of the finding. It is therefore entirely erroneous and renders the entirety of Finding 6b null and void. f. Findings 6(c)(1) and (2) state: (1) The applicant displays leadership behaviors that are counterproductive in nature as defined in Army Doctrine Publication 6-22 (Army Leadership and the Profession), paragraph 8-46, as: "the demonstration of leader behaviors that violate one or more of the Army's core leader competencies or Army Values, preventing a climate conducive to mission accomplishment." (a) When applied to the core leader competencies, specifically "Develops, subcategory: Creates a Positive Environment/Fosters Esprit de Corps" the elements of paragraph 6b, above, the applicant contributed to an overall counterproductive environment with the 5th Battalion staff (exhibit 1, exhibit 2, and exhibit 3). In relation to the core leader competency "Leads, subcategory: Communicates," the applicant failed to communicate effectively with members of the staff for operational purposes. However, multiple factors contributed to his ability or lack of ability to communicate effectively, specifically strong personalities, overwhelming workload, and varying degrees of individual performance (exhibit 6, exhibit 11, exhibit 12, exhibit 13, exhibit 15, and exhibit 16). The IO did not find that the applicant failed to communicate effectively out of malice. (b) The IO found the applicant's treatment of people and use of discriminatory language as described in paragraph 6a and paragraph 6b, above, was counterproductive in nature and diminished organizational performance and cohesion. (2) The IO's conclusion in Finding 6(c)(1) is nonsensical. The IO specifically states: "However, multiple factors contributed to his ability or lack of ability to communicate effectively, specifically strong personalities, overwhelming workload, and varying degrees of individual performance." The IO ends by stating: "I do not find that [Applicant] failed to communicate effectively out of malice" (see tab C). If the applicant did not fail to communicate and if there were additional factors that contributed to the poor overall unit climate, then there is no basis to punish the applicant for the perceived poor communication amongst the staff. (3) The IO's conclusion in Finding 6(c)(2) is not supported by the facts or the law as outlined in the discussion of Findings 6(a) and 6(b) above. g. Finding 6(e) states that it was worth mentioning that during the course of the investigation there were a number of points of friction between personalities within the staff identified, an extremely large workload for a staff of their size, and varying levels of experience and capabilities across the staff. Most witnesses interviewed did not find the applicant's behavior to violate Army policy or appear counterproductive. However, very specific statements made and corroborated and individual interactions by their nature not widely known across the staff led the IO to his findings. (1) This finding is rather interesting in that it contradicts the other adverse findings. In this finding, the IO expressly recognizes the "friction between personalities" that exists among the staff. The IO identifies a number of contributing factors for this friction. Obviously, the applicant is not singularly responsible for the frictions among the staff. The investigation also revealed that there was a variety of motivations for the disgruntled members of the staff to exaggerate and/or fabricate their opinions about the applicant. The IO also specifically acknowledged that the majority of witnesses did not find the applicant's behavior to violate Army policy or believe it to be counterproductive (see tab C). This illustrates the IO's flawed judgment. The IO chose to rely upon the few negative opinions of the applicant, which were provided by disgruntled and biased members of the command, over the witness statements that were supportive of him, which outnumber the negative ones. The IO's assertion that the statements averse to the applicant were corroborated is faulty for all of the reasons outlined above. Not only did the IO fail to provide sufficient analysis to justify his reliance on the statements that were averse to the applicant, but his decision to rely upon those negative assessments of the applicant, which were fewer in number, reflects incredibly poor judgment on the part of the IO. (2) For these reasons, Finding 6(e) is fundamentally inconsistent and incongruous with the IO's other findings and thus renders the entirety of his report null and void. h. Conclusion. For all of the aforementioned reasons, the applicant has demonstrated that this OER should not be afforded the presumption of regularity and that this OER contains multiple material errors, inaccuracies, and injustices. The referred OER at issue should therefore be removed from the applicant's AMHRR in its entirety. 4. The applicant was appointed as a commissioned officer in the Engineer Branch in the rank/grade of second lieutenant/O-1 effective 17 December 2004. He was promoted to the rank/grade of MAJ/O-4 effective 1 April 2015. 5. Headquarters, U.S. Army Garrison, Fort Bragg, Orders 219-139, 7 August 2019, ordered him to execute a permanent change of station to the 5th Engineer Battalion, 5th Engineer Brigade, Joint Base Lewis-McChord, WA, with a reporting date of 15 January 2020. 6. The applicant became the subject of an Army Regulation 15-6 investigation into comments demonstrating a lack of respect for all Soldiers and engaging in counterproductive leadership behaviors. The IO was specifically tasked to investigate comments pertaining to race and gender, which other Soldiers found insensitive and inflammatory during the 5th Battalion's Readiness Day on 1 September 2020. The IO, at a minimum, was to address the following questions: a. Outside of the applicant's comments made on Readiness Day, did the applicant make comments to any other 5th Battalion Soldiers that were discriminatory toward any group of people? Provide specific comments, if any, that you find to be discriminatory, and provide the details regarding the context in which these comments were made. b. Outside of the applicant's comments made on Readiness Day, did the applicant make comments to any other 5th Battalion Soldiers that otherwise demonstrated a lack of dignity and respect for all Soldiers? Provide specific comments, if any, that you find demonstrated a lack of dignity and respect, and provide details regarding the context in which these comments were made. c. During the applicant time as the 5th Battalion Executive Officer, has the applicant exhibited counterproductive leadership as that term is defined in Army Doctrine Publication 6-22, paragraph 8-46? Note specific counterproductive leadership behaviors, if any. d. Has the applicant used his authority as the 5th Battalion Executive Officer in a manner inconsistent with the Army Values? e. Note any other information or findings you consider relevant to the investigation. 7. On 22 October 2020, the IO completed the Army Regulation 15-6 investigation and determined the following (see attachment with auxiliary documents): a. Findings: Based on the testimony and evidence gathered, the IO found by a preponderance of evidence that: (1) The applicant did on at least two occasions make comments to 5th Battalion Soldiers that were discriminatory in nature toward a group of people, or at a minimum were perceived by others as discriminatory in nature. (2) The applicant, on multiple occasions, both directly and indirectly, has not treated all Soldiers in the 5th Battalion with dignity and respect. Directly, he has acted in an abrasive and condescending manner (exhibit 1), is routinely dismissive of subordinate input to operations (exhibit 3), and talks down to his subordinates (exhibit 2). Indirectly, he has on multiple occasions discussed officer and NCO performance with either Soldiers who are peers of, or subordinate to, the officer or NCO being discussed. The applicant discussed CPT poor job performance with SGT (exhibit 1). The applicant also discussed the poor performance of MAJ , CPT and SGT with CPT (exhibit 3). The applicant discussed his opinion that CPT is unprofessional and incompetent with CPT (exhibit 1). The overall impact of this behavior is a staff that operates with diminished organizational performance and cohesion. (3) The applicant displays leadership behaviors that are counterproductive in nature as defined in Army Doctrine Publication 6-22, paragraph 8-46, as: "the demonstration of leader behaviors that violate one or more of the Army's core leader competencies or Army Values, preventing a climate conducive to mission accomplishment." (4) The applicant has not used his position or rank in a manner inconsistent with Army Values. (5) It is worth mentioning that during the course of the investigation there were a number of points of friction between personalities within the staff identified, an extremely large workload for a staff of their size, and varying levels of experience and capabilities across the staff. Most witnesses interviewed did not find the applicant's behavior to violate Army policy or appear counterproductive. However, very specific statements made and corroborated, and individual interactions by their nature not widely known across the staff led the IO to his findings. b. Recommendations: The IO recommended: (1) The applicant receive appropriate administrative or punitive action as his misconduct has damaged the reputation of himself, the unit, and the U.S. Army by violating the Army's EO policy, and his actions have damaged the trust of the 5th Battalion staff, diminished organizational performance, and diminished organizational cohesion. (2) The applicant should be processed for a Release for Standards from his security force assistance assignment in order to remove him from the 5th Security Force Assistance Brigade and facilitate his rehabilitation and retraining. (3) Given the multiple variables surrounding a counterproductive environment, the IO recommended that the 5th Battalion Commander immediately conduct a sensing session with the battalion staff and initiate a Defense Organizational Climate Survey to determine the root causes of stressors that are affecting unit cohesion and unit performance. 8. The applicant responded to the Army Regulation 15-6 investigation findings on 11 November 2020, providing his rebuttal. He requested disapproval of the IO's findings. The applicant's response, in effect, noted disagreement with the IO's findings and determination of his use of disparaging remarks about certain people, leadership, and communication to subordinates. The applicant stated some of the IO's analysis came via third-hand knowledge. The applicant believes the complaints about him being discriminatory are generalized, overinflated, and are inaccurate (see tab D). 9. The memorandum from the Office of the Staff Judge Advocate, 4 December 2020, states a legal review of the IO's investigation report was conducted and it was found legally sufficient with the exception of Finding 6a (see tab E). It noted that Finding 6a was partially unsupported by a preponderance of the evidence and recommended the following substituted finding for Finding 6a: "[Applicant] violated the Army's EO policy by making derogatory remarks about Hispanic people and by changing the terms of counseling/training materials based on the sex of audience members." 10. The DA Form 1574-1 (Report of Proceedings by Investing Officer) shows in Section VII (Action by Approving Authority), Lieutenant General approved the findings and recommendations on 8 December 2020 and noted the following in a continuation sheet: In the investigation regarding [Applicant]: 1) I approve Finding 6a with the exception of the Investing Officer's (IO) finding and analysis related to the DBAP acronym. 2) I approve the following additional finding: [Applicant] violated the Army's Equal Opportunity policy by changing the terms of counseling/training materials based on the sex of audience members. Specifically, [Applicant] indicated that he only used the DBAP acronym with his male Soldiers and would never use it with female Soldiers. 3) I approve the remainder of the IO's findings as written. 4) I release the IO's recommendations to the Commander, 5th Security Force Assistance Brigade, for further administrative action as he deems appropriate. 5) These findings include information that is derogatory, unfavorable, or of a nature that reflects unacceptable conduct or judgment on the part of [Applicant]. I direct the Office of the Staff Judge Advocate, I Corps, to insert the facts of these adverse findings in the Army Adverse Information Program database. 11. The applicant received the referred OER covering the period 12 January 2020 through 26 October 2020, a 10-month period, on 9 March 2021, which addressed his duty performance as the Executive Officer for the 5th Battalion, 5th SFAB, Joint Base Lewis-McChord. The reason for submission is shown as "Change of Duty." His rater is shown as LTC Battalion Commander. His senior rater is shown as Brigadier General Brigade Commander. The rater and senior rater digitally signed the OER on 28 January 2021 and 8 March 2021, respectively. The applicant digitally signed the OER on 9 March 2021. The contested OER shows in: a. In Part IId (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate block, signifying the applicant was receiving a referred report. A checkmark was placed in the "No" box, signifying no comments were attached. b. In Part IIf1 (Supplementary Review Required?), a checkmark was placed in the "No" block. c. In Part IVd1 (Character), the rater commented: [Applicant] is absolutely selfless in his service to the US Army and this organization. He continuously led our staff to find a way to yes and to understand that the staff supports the companies, and that the battalion should solve brigade-wide problems. An approved investigation found that [Applicant] made comments inconsistent with our Army's EO policies. d. In Part IVe (This Officer's Overall Performance is Rated as) and (A completed DA Form 67-10-1A was received with this report and considered in my evaluation and review), a checkmark was placed in the "Yes" block and the applicant was rated as "Proficient." The rater entered the following comments: As dedicated as any field grade officer I've rated in 3 years of Squadron and Battalion Command. [Applicant] utilizes his lessons learned, and those of others, to prevent or solve battalion and brigade level problems at the tactical level. His attention to detail with respect to initiating battalion programs and enforcing our battle rhythm helped the unit transition from initial standup to sustainable systems which helped us man, equip, and maintain our battalion to deploy for training to three different off-post locations within our first 18 months after activation. e. In Part VIa (Potential Compared with Officers Senior Rated in Same Grade), the senior rater marked "Qualified" and entered the following comments: I removed [Applicant] from his XO [executive officer] position following an AR15-6 [Army Regulation 15-6] investigation into counter-productive leadership practices. [Applicant] is a talented and resilient leader who has learned a great deal through this process. I fully endorse his promotion to LTC and continued service to full retirement eligibility. 12. The applicant acknowledged receipt of the OER and submitted a memorandum (Comments to OER – (Applicant)), 10 February 2021, in rebuttal to the contested OER's contents, wherein he stated (see tab F): a. He was grateful that his leadership believes in his capabilities and supports his promotion to LTC and continued service until retirement. b. He has come to realize that successful leaders in the Army do not concern themselves only with mission accomplishment, but are also concerned with the impression they leave on superiors, peers, and more importantly subordinates. c. He strives to be more open and honest about feedback from others. d. He recognized his leadership needs growth, but he disagreed with the finding regarding violation of the EO policy. 13. A review of the applicant's AMHRR shows the contested OER is filed in the performance folder. 14. The applicant's AMHRR does not contain the Army Regulation 15-6 report of investigation or any allied documents. 15. The applicant appealed the contested OER to HRC as evidenced by the HRC Appeals and Corrections Section memorandum (OER Appeal), 20 July 2021, that informed him that his appeal, as currently constructed, did not meet the criteria as outlined in Army Regulation 623-3. The applicant was advised that he could seek redress in accordance with Army Regulation 15-6, request a Commander's Inquiry to his next higher commander, and he could resubmit his appeal in accordance with the criteria in Army Regulation 623-3. 16. His record is void of documentation and he did not provide any evidence showing a CI was requested or conducted. 17. Counsel provided the following evidence in addition to that already discussed in this record of proceedings: a. Tab B contains the applicant's subsequent OER covering the period 27 October 2020 through 21 February 2021 with the same senior rater who rates him as a proficient performer and as a highly qualified, superb performer, and recommended his promotion to LTC. b. Tab G contains CPT memorandum, 8 June 2021, adding clarity to her sworn statement to the IO regarding the applicant. She noted tension and unhappiness between CPT the battalion assistant S-3, and the applicant. She noted the applicant began working to change the culture of the battalion staff due to lack of experience. During her interview with the IO, she communicated the aspects of culture and climate that she thought were relevant to the case; however, the IO disagreed with their relevance and made her remove them from her sworn statement. c. Tab H contains the applicant's S-3 in-briefing slides that he presented to the staff. d. Tab I contains several of the applicant's military awards during his service. e. Tab J contains the applicant's declaration, 21 June 2021, that outlines the timeline of events and his rationale for them. 18. The applicant is currently serving on active duty at Joint Base Lewis-McChord. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review through counsel of the applicants petition and available military records, the Board determined the counsel did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that the contents of the Officer Evaluation Report (OER) and the Army Regulation 15-6 are substantially incorrect and support removal. The Board determined the applicant at various times violated the EO policy for good order and discipline. The Board determined there does not appear to be any evidence the contested OER and the Army 15-5.was unjust or untrue or inappropriately filed in the applicant's AMHRR. Based on the preponderance of evidence the Board determined there was insufficient evidence to warrant lifeef. Therefore, relief was denied 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s records, they agreed the burden of proof rest on the applicant, however, he did not provide any supporting documentation and his service record has insufficient evidence to support the applicant contentions for removal of his OER and Army 15-6 investigation. 4.. 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. 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. 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. 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 31(b) (Compulsory Self-Incrimination Prohibited) of the Uniform Code of Military Justice states no person subject to this chapter may interrogate, or request any statement from an accused or a person suspected of an offense without first informing him or her of the nature of the accusation and advising him or her that he or she does not have to make any statement regarding the offense of which he or she is accused or suspected, and that any statement made by him or her may be used as evidence against him or her in a trial by court-martial. 3. Army Regulation 600-20 (Army Command Policy and Procedure) prescribes the policy and responsibility of command, which includes the Army Ready and Resilient Campaign Plan, military discipline and conduct, the Army EO Program, and the Army Sexual Harassment/Assault Response and Prevention Program. Paragraph 4-19 (Treatment of Persons) states the Army is a values-based organization where everyone is expected to do what is right by treating all persons as they should be treated – with dignity and respect. Hazing, bullying, and other behaviors that undermine dignity and respect are fundamentally in opposition to our values and are prohibited. This paragraph is punitive. Soldiers who violate this policy may be subject to punishment under the Uniform Code of Military Justice. Whether or not certain acts specifically violate the provisions of this paragraph, they may be inappropriate or violate relevant civilian personnel guidance. Commanders must seek the advice and counsel of their legal advisor when taking actions pursuant to this paragraph. 4. Army Doctrine Publication 6-22 (Army Leadership and the Profession) establishes and describes the Army Profession and the foundations of Army leadership, outlines the echelons of leadership (direct, organizational, and strategic), and describes the attributes and core leader competencies expected of all leaders across all levels and cohorts. 5. Army Regulation 15-6 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. 6. 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 during the evaluation process or after it has been completed, when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, her or she will conduct an inquiry into the matter. The definition of a rendered evaluation report is one that is authenticated by all designated rating officials with a senior rater's intent to present the final evaluation report to the rated Soldier for authentication, or apply the appropriate statement in the absence or inability for the rater Soldier to authenticate. The Commander's or Commandant's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation 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. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the accurate evaluation of a rated Soldier by a rating official that was made in good faith. The procedures used by the commander or commandant to process such an inquiry are described in chapter 4. b. Paragraph 2-5 states the rater will be the immediate supervisor of the rated Soldier responsible for directing and assessing the rated Soldier's performance. The rater will normally be senior to the rated Soldier in grade or date of rank. Commanders will normally rate commanders. For the DA Form 67-10 series, a rater will be an officer of the U.S. Armed Forces, U.S. Coast Guard, allied armed forces, or an employee of a U.S. Government agency (including nonappropriated fund employee). A civilian rater has no minimum grade requirement. The rater will be the supervisor of the rated officer for a minimum period of 90 calendar days. Note: For U.S. Army Reserve troop program unit, drilling individual mobilization augmentation, and drilling Individual Ready Reserve Soldiers; and Army National Guard Soldiers; the rater must have served as the supervisor for a minimum of 120 calendar days versus 90 calendar days. c. Paragraph 3-27 (Referred Evaluation Reports) provides that any report with negative remarks about the rated officer's values or leader attributes/skills/actions in the 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. d. Paragraph 3-29 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 (for example, 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. e. Paragraph 4-7 provides that evaluation reports accepted for inclusion in the official record of an officer are presumed to be administratively correct, been prepared by the proper rating officials, and 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 states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity referred to in paragraphs 3-37a and 4-7a will not be applied to the evaluation report under consideration; or? (2) action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-12b states clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. h. 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 (Evaluation Reporting System)). 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. 7. 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. Paragraph 2-28 provides that: a. 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. b. 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. c. 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 Commander's Inquiry. Such a request must be submitted separately. 8. 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. The AMHRR includes, but is not limited to the Official Military Personnel File, finance-related documents, and non-service related documents deemed necessary to store by the Army. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013636 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1