MEMORANDUM OF CONSIDERATION


	IN THE CASE OF:  
	                 

	BOARD DATE:      18 March 1998
	DOCKET NUMBER:   AC96-09500

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  The following members, a quorum, were present:




	Also present, without vote, were:




	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)


APPLICANT REQUESTS:  The removal from his Official Military Personnel File (OMPF) of an officer evaluation report (OER) covering the period from 15 July 1982 to 26 April 1983.

APPLICANT STATES:  That the contested OER does not represent an accurate evaluation by rating officials of his duty performance during the period of the report.  He goes on to state that a review of the statistics for his district when compared to statistics prior to his taking command were significantly higher and further support his contention that his rater’s allegations were unfounded.  He goes on to state that while his rater asserted that he (the applicant) was incapable of issuing orders and ensuring that they were carried out, he (the applicant) was pleased with the performance of his recruiting force as they consistently met their recruiting objectives in an ethical and efficient manner.  He goes on to state that while he was unsure why his rater was so harsh in his evaluation of his performance, there was one instance in which the rater directed him to relieve his newly assigned first sergeant.  He continues by stating that he refused to relieve his first sergeant because he had only been there for 1 month and had not finished in-processing and had not been provided sufficient reasons for doing so.  He further states that he later discovered that the sergeant major didn’t like his first sergeant based on having previously served with him and that eventually both he (the applicant) and the first sergeant were unjustly relieved of their duties.  He also states that he never met his senior rater (SR) and only spoke to him once on the telephone.  In support of his application he submits copies of statistics for his recruiting district and two letters of support.

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

The applicant was commissioned as a USAR second lieutenant with a concurrent call to active duty upon his graduation from OCS on 21 April 1978.

On 15 July 1980, while serving in the rank of first lieutenant, he was assigned as an administrative officer at the District Recruiting Command (DRC) in Albuquerque, New Mexico. He was promoted to the rank of captain on 1 November 1981. 

While assigned to the DRC the applicant’s rater recommended that the he be selected for duty as an area commander within Recruiting Command.  Consequently, the DRC commander selected the applicant to be the interim commander of the largest recruiting area within the DRC.

On 27 August 1982 he was assigned to the Oklahoma City DRC with duty in Amarillo, Texas as the areas commander.

On 8 April 1983 the applicant’s rater sent the applicant a three page letter conveying his dissatisfaction with the applicant’s performance as area commander and assistant area commander.  He provided the applicant with specific shortcomings he had detected and in which he expected the applicant to correct.  Shortcomings noted by the rater included a lack of intensity and enthusiasm in his area, that he was not providing positive leadership and guidance to his station commanders and recruiters, that he was not training his recruiting force or coaching them towards success, that he was not spending face-to-face time with his troops and that he was departing work while his people were still working.  He also indicated that the paperwork generated by his command was not correct and that he was not properly controlling the processing of applicants.  The rater further informed the applicant that he expected immediate improvement of the shortcomings and that if he desired to terminate his position as commander, he (the applicant) should so state.  The rater also stated that he would not tolerate recruiters who would not carry their load, nor commanders who were not in charge.

On 26 April 1983 the applicant received a relief for cause OER covering the period 15 July 1982 to 26 April 1983. In part IVa under performance evaluation, the applicant’s rater (a colonel) gave him ratings of five under “Motivates, challenges and develops subordinates” and “Sets and enforces high standards.”  His rater gave him ratings of three under “Performs under physical and mental stress”, “Displays sound judgment”, and “Is adaptable to changing situations”.  He gave the applicant ones in the remaining 9 areas.  The supporting comments indicate that the applicant failed to motivate his recruiting force toward mission accomplishment, that he requested relief under the pressures of corrective guidance, that he did not check the administrative forms required by regulations, that he was unable to adjust to demanding his recruiters to properly perform their duties, and that he did not set standards. 

In Part V, under performance and potential evaluation, the rater indicated that the applicant “Often failed requirements”.  The rater indicated in his supporting comments that the applicant was relieved from command due to his lack of leadership and forcefulness, and the general deterioration of recruiting procedures and administration. He recommended that the applicant not be promoted.

In part VIIa, under potential evaluation, the SR (a colonel) placed the applicant in the ninth block.  His supporting comments indicate that he concurred with the relief for cause as well as the rater’s comments and recommended that his talents be used more effectively in administrative areas.  He also indicated that the applicant should not be selected for further schooling or promotion. 

The contested OER was considered adverse and as such was referred to the applicant who acknowledged receipt of the adverse report on 16 May 1983.

However, on 28 April 1983 the applicant submitted a request for release from active duty for the purpose of exploring civilian job opportunities.  His chain of command supported his requests and it was approved by the Department on 3 June 1983.

Accordingly, he was honorably released from active duty on 7 September 1983 under the provisions of Army Regulation 635-100, chapter 3, and transferred to the USAR Control Group (Reinforcement).  He had served 11 years, 2 months, and 12 days of total active service.

The applicant appealed the contested OER to the Officer Special Review Board (OSRB) on 10 April 1984.  The basis for his appeal to the OSRB was essentially the same as he has made to this Board.  The OSRB denied his appeal on 17 December 1984.

The supporting statements submitted by the applicant with his application consists of two statements from fellow officers which praise the applicant’s performance as they knew it and opine that the applicant is an asset to the Army.

The applicant was promoted to the rank of major in the USAR on 9 August 1990 and received his notification of eligibility for Retired pay at age 60 (20-year letter) on 2 June 1992. 

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the OSRB which opined that the case summary for the applicant’s appeal was no longer available; however, the applicant had not submitted any new evidence that would warrant further adjudication by the OSRB

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation and 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 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 also 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 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, and advisory opinion(s), it is concluded:

1.  The ability of the Board to contact rating officials or to determine the extent to which the OSRB reviewed his appeal over 12 years ago has been severely hindered by the passage of time.  Therefore, the Board must accept the evidence submitted by the applicant as well as the evidence of record as sufficient evidence to adjudicate the case.

2.  Although the applicant does not address the issue, the contested report (in Part IVb comments) suggests that the applicant requested to be relieved from his duties, which appears to be the resultant cause of his receiving the contested OER.  

3.  Irrespective of whether or not the applicant requested to be relieved of his duties, it is apparent that his commander (rater) was not happy with his performance and gave him specific written reasons for his discontent.  His rater also gave him an opportunity and the guidance necessary to correct the deficiencies he had noted.  It appears that the applicant elected not to meet his rater’s expectations but to terminate his Army service and seek civilian employment instead. 

4.  While the third party statements provided by the applicant are complimentary, the Board feels that none were in a position to know the expectations of the rating chain or to appraise the applicant’s performance better than that of the rating officials.

5.  Therefore, it appears that the contested report represents a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Consequently, there is no basis to remove it from his records.

6.  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

 TNK     JS      CLA   DENY APPLICATION




						Karl F. Schneider
						Acting Director