2.  The applicant requests that he be awarded USAR pay, retirement points and a military award for the period September 1992 through May 1993 that were denied him because of harassment which led to his premature transfer to the USAR Control Group.

3.  He states that his rater and senior rater conspired to lower the ratings on his Officer Evaluation Report (OER) for the period April 1991 to April 1992.  That through a pattern of retaliation and harassment he was unable to obtain an assignment within reasonable commuting distance of his home which forced him out of the active reserve thereby causing him to lose pay and retirement points and possibly a military award.  He contends that his commander deliberately canceled all alternative drilling methods for him because he was a black officer while at the same time allowing white officers to attend such alternate drills.  He says that he submitted an Inspector General (IG) and an Equal Opportunity (EO) complaints regarding his treatment but his higher headquarters refused to intervene.  He believes that his commander’s actions were an effort to destroy his USAR military career.

4.  His military records shows that he was appointed a first lieutenant, Judge Advocate General Corps, USAR, on 11 September 1984.  He was initially assigned to the Pennsylvania Army National Guard then later reassigned to a Military Law Center (MLC) of the 79th USAR Command in Willow Grove, Pennsylvania.  He was reassigned to the individual ready reserve (IRR) in August 1992 and remained there until May 1993 when he accepted another active Troop Program Unit (TPU) assignment.

5.  On 23 June 1992 he received an OER (for the period 26 April 1991 through 25 April 1992) which he challenged on the grounds that it contained incomplete and misleading statements, inappropriate information relating to his illness, unproved derogatory information and was based upon racial prejudice and retaliation.

6.  The applicant submitted a request for a commander’s inquiry of the OER to his major USAR commander.  That commander subsequently determined that both the rater and senior rater had made inaccurate statements on the OER that resulted in an unfair rating.  The commander recommended that the OER be removed from his file and the period of time it covered be considered non-rated time.  He also appealed the OER to the Office of the Deputy Chief of Staff for Personnel, Special Review Board (OSRB).  The appeal was approved (COPY ATTACHED) citing the findings of the commander’s inquiry as the basis for approval.  The rating period was officially declared non-rated.

7.  A member of the staff of the Board contacted the DAIG requesting records of the applicant’s IG inquiry.  The DAIG replied that no records could be found regarding the applicant.  

8.  A request for the EO inquiry into his case produced only a portion of the inquiry report.  In it the investigating officer indicates that he found that the complainant had established a prima facia case of race discrimination.  However, a substantial portion of the inquiry report, to include the recommendations and the action taken by the appointing authority, could not be located.

CONCLUSIONS:

1.  The applicant’s complaint regarding his OER was addressed by proper authorities and resolved in his favor. The OER was declared void and removed from his record.

2.  While only an incomplete copy of the OE inquiry into his case can be located (and no evidence of the IG inquiry can be found), it still appears that his allegation of unfair treatment in the TPU have been substantiated through the abbreviated portion of the EO report that is available and the findings of the commander’s inquiry into his OER.  In the absence of any official records to refute the findings of the aforementioned reports, the Board believes that the preponderance of the evidence supports the applicant’s contentions in this case.

3.  There is no available evidence that the applicant was recommended for a military award while he was a TPU member. Inasmuch a military award is a subjective determination of the commander, in the absence of substantial evidence that he was or should have been recommended for an award there is no basis to conclude that an injustice has occurred.  The fact that he had an OER removed from his file covering the same period he was in the unit does not imply then that his performance must have been worthy of recognition by an award.

4.  In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

Recommendation:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by showing that the individual concerned remained assigned to his TPU and attended all regularly scheduled unit training assembilies and annual training, and was awarded retirement points for the period 1 September 1992 through 31 May 1993, to include points for annual training, if appropriate; and 

	b.  by showing that he is entitled to any pay due as a result of the above correction.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION




						Karl F. Schneider
						Acting Director