APPLICANT REQUESTS: Removal of two officer evaluation reports (OER) from his records.

APPLICANT STATES : That the two OER’s covering the periods 6 May 1987 to 29 October 1987 and 30 October 1987 to 30 April 1988 are inaccurate and do not represent his performance during the rated periods. He further states that the two contested reports were the result of his wife cashing checks during a month when he had no pay due and having the checks returned due to insufficient funds. Although he took care of the checks and has never had the problem again, his squadron commander continued to hold the incident against him. He goes on to state that a review of his first OER and subsequent OER’s will show that he is a competent pilot and officer. In support of his application, he submits letters from three fellow warrant officers.

EVIDENCE OF RECORD : The applicant's military records show:

The applicant enlisted on 12 February 1985 for a period of 3 years under the warrant officer flight training enlistment option. He successfully completed his training and was appointed as a USAR aviator in the rank of warrant officer one (WO1) with a concurrent call to active duty on 6 May 1986.

The applicant was initially assigned to Germany for duty as a helicopter pilot in an armored cavalry regiment. The first OER (6 May 1986 to 5 May 1987) he received was an annual report that contained nothing but complimentary ratings and comments.

The second OER he received (first contested OER) was a change of rater report covering the period 6 May 1987 through 29 October 1987. In part IVa, professional competence (where on a scale of “1” to “5”, “1” is a high degree of competence and “5” is a low degree), his rater assigned him a three in one area, “Displays sound judgment,” and two’s in three areas, “Seeks self improvement”, “Sets and enforces high standards”, and “Possesses military bearing and appearance.” The rater assigned him one’s in the remaining ten areas. In part IVb, professional ethics, the rater commented that the applicant had difficulty managing his personal finances and that he had problems accepting responsibility for his actions. In part V, performance evaluation, the rater indicated that the applicant often failed requirements. In part Vc, comments on specific aspects of performance, the rater commented that the applicant performed adequately as a pilot but contributed minimally of the unit’s accomplishment. Additionally, he had difficulty accepting full responsibility for his actions and rarely lacked excuses. The rater recommended that he not be promoted.

In part VI, the intermediate rater commented that the applicant’s performance had been poor, that he had been counseled on numerous occasions without any signs of improvement, and that his problems revolved around his personal finances and his inability to accept responsibility or display self-discipline. He further commented that the applicant did not possess the attributes to be an officer and recommended that he not be promoted or selected for advanced schooling.

The senior rater (SR) placed the applicant in the sixth block of part VIIa, the potential evaluation portion of the OER. This placed the applicant below the center of mass (COM) on the SR’s profile. The supporting comments indicate that the applicant’s performance was substandard, that he had been counseled numerous times regarding his off-duty performance but had failed to show positive results. The SR also indicated that he had grave doubts about the applicant’s worth to the Army and that unless he made a dramatic improvement, his continued service was questionable and he would not be promoted.

The report was considered adverse and as such was referred to the applicant for comments. The applicant submitted a rebuttal to the OER contending that the OER was not an accurate reflection of his performance in that he had accomplished several significant requirements during the rated period and that he immediately took care of the bad checks when he became aware that he had no pay due and that his wife had written the checks. The SR reviewed his rebuttal and determined that no change to the OER was required.

The second contested OER was a change of duty OER covering the period 30 October 1987 through 30 April 1988 while assigned to the same unit as the first contested OER. In part IVa, professional competence, his rater (a different rater than that of the first contested report) assigned him five’s under “Motivates, challenges, and develops subordinates”, “Displays sound judgment”, “Seeks self-improvement”, “Is adaptable to changing situations”, “Sets and enforces high standards”, “Possesses military bearing and appearance”, and “Clear and concise in oral communications”. He assigned him a four under “Performs under physical and mental stress”, three’s under “Possesses capacity to acquire knowledge/grasp concepts”, “Demonstrates appropriate knowledge and expertise in assigned tasks”, “Maintains appropriate level of physical fitness”, “Encourages candor and frankness in subordinates”, “Clear and concise in written communication”, and a two under “Supports EO/EEO”.

In part IVb, professional ethics, the rater commented that the officer borders on fraternization with the enlisted ranks, that he made irrational decisions under pressure, displayed poor judgment, was regularly out of uniform or displayed poor appearance, and that he lies in order to service self.

In part V, performance and potential evaluation, the rater indicated that the applicant often failed requirements and should not be promoted. The rater commented that the applicant did not perform well and that he was removed from flight status due to his poor judgment and low moral standards. Furthermore, he often came to work late and out of uniform, and did not take responsibility for his actions and made excuses for his poor performance. The rater also indicated that the applicant was far from being dependable, that his lack of motivation and integrity hurts the command and lowers the standards of the officer corps. He also indicated that the applicant was not motivated and showed no promise to help the military in its mission. In higher positions of authority and responsibility, he would be dangerous and self-serving.

The applicant’s intermediate rater (different than the first contested OER) indicated that the applicant was an embarrassment to the command during the entire rating period and that he had been grounded pending the outcome of a flight evaluation board concerning his conduct. He also indicated that on more than one occasion, he had questioned the applicant’s integrity and did not trust him.

The SR, (same as first contested OER) placed the applicant in the seventh block of part VIIa, potential evaluation. The SR commented that the applicant failed to uphold his responsibilities as a warrant officer and that his conduct both on and off duty was always questionable. He was caught in more than one false statement as he attempted to cover his moral failures and lack of professionalism. The SR also indicated that he did not trust the applicant and that he would not be promoted to the rank of chief warrant officer two (CW2). Furthermore, he could see no reason for him to be recalled to active duty or placed in any Reserve component.

The OER was considered adverse and as such was referred to the applicant for comment. The applicant submitted a rebuttal of the OER contending that he had raised his physical fitness score, that he had been confined to a small room in the work area and was not afforded the opportunity to perform his duties in a high or low degree. He also contended that he had made significant contributions as the activities and recreation officer and questioned the comment that indicated that he bordered on fraternization. He went on to comment that either you did or you did not fraternize and that he did not fraternize with enlisted members in his chain of command.

There is no indication in the available records that indicates that the applicant ever appealed the contested OER’S to the Officer Special Review Board (OSRB).

On 13 August 1988, the applicant was honorably released from active duty for failure of selection for promotion to the rank of CW2 and transferred to the USAR Control Group (Reinforcement). He had served 3 years, 6 months, and 2 days of total active service.

The applicant subsequently attained the rank of CW3 in the USAR on 6 May 1994.

The supporting statements submitted by the applicant from three of his fellow warrant officers (two of the warrant officers attended flight school with the applicant) assigned to the same regiment as the applicant during the period of the contested OER’s indicate that the applicant was a good officer and aviator who had been stereotyped and never given a chance to prove himself. They further opined that the applicant was destined to fail before he arrived because he had requested a sponsor before his arrival and had done so directly to the squadron commander instead of the troop commander, thus creating the opinion that he was a troublemaker before he arrived.

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Requests that an accepted OER be altered, withdrawn or replaced will not be honored. An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1. The contested reports appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the periods in question. Therefore, there is no basis for removing the reports.

2. The applicant’s contentions in regards to the contested OER’s, as well as the supporting statements have been noted by the Board. However, it is apparent that the rating chains had more reasons, than those explained by the applicant, for rating him as they did, especially since the rater and intermediate raters were different on both reports. Given the amount of time that has elapsed and the absence of evidence to explain otherwise, it must be presumed that the contested reports are a valid appraisal of the applicant’s performance as viewed by his raters at the time.

3. While the supporting statements provided by the applicant are complimentary of the applicant’s performance, none of these individuals were in a better position than that of the rating chain to appraise the applicant’s performance or to know what was expected of him by his raters.

4. The applicant has failed to show through the evidence submitted or the evidence of record sufficient justification to warrant removing the OER as requested.

5. In view of the foregoing, there is no basis for granting the applicant’s request.

DETERMINATION : The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE :

GRANT

GRANT FORMAL HEARING

DENY APPLICATION




                                                      Karl F. Schneider
                                                      Acting Director