2.  The applicant requests removal of an officer evaluation report (OER) covering the period 29 December 1992 through 15 May 1993 from his records and promotion reconsideration to the rank of major.

3.  The applicant states that the contested report is a relief for cause OER rendered on him while he was serving as a United Nations Military Observer near Snoul, Cambodia, on the Vietnamese/Cambodian border.  He further states that the report was based on untrue derogatory information, erroneous perceptions not based on direct observation, bias by the senior rater (SR), and allegations that were not properly investigated.  He also states that he was accused of sending emotionally charged messages, when in fact he was only doing what he was told to do by the senior officer in charge who was the person responsible for the release of all messages. He goes on to state that subsequent to the contested OER he was given a general officer letter of reprimand (LOR) in connection with the incident described in the contested OER; however, after a 45 minute interview with the commanding general (CG) and an investigation by the command Judge Advocate’s office, the CG determined that the allegations were unfounded and rescinded the LOR.  He also states that he appeared before a board of officers to show cause why he should not be separated from the service and that the board unanimously determined that he had done nothing wrong and should have not been relieved.  He goes on to state that his rating chain was a minimum of 350 kilometers away and not only did they not observe his performance, had they properly investigated the incidents in question, he would never have been relieved in the first place.  Additionally, he was relieved while out of the country on leave (compensatory time) and not afforded an opportunity to defend himself prior to being relieved.  In support of his application, he submits the findings and recommendations of the show cause board indicating that his performance of duty as reflected on the OER was not substandard, and that he did not commit acts of misconduct, moral or professional dereliction as indicated in the contested OER.  He also submits a statement from a member of the show cause board, the recorder of the show cause board, and statements from other officers who served with him during the period of the contested report.  

4.  The applicant’s military records show that he enlisted on 2 August 1977 for a period of 4 years and remained on active duty as a special operations weapons sergeant through continuous reenlistments until he was honorably discharged from OCS on 12 December 1985 in the pay grade of E-6 to accept a commission as a USAR second lieutenant with a concurrent call to active duty on 13 December 1985.  He was promoted to the rank of captain on 1 June 1990.

5.  The contested OER is a relief for cause report for the period 14 December 1992 through 18 May 1993.  (It should be noted that the OER contained on the applicant’s Official Military Personnel File (OMPF) has different from and through dates than the report provided to the applicant.)  The report evaluated him as a captain while performing as a United Nations Military Observer in Cambodia.  The report was considered adverse and as such was referred to the applicant on 30 October 1993, 5 months after the ending period.  Meanwhile, the applicant was returned to his duty station at Fort Lewis, Washington, and was subsequently issued a letter of reprimand (LOR) from the CG of the Special Forces Command at Fort Bragg, North Carolina, on 11 August 1993.  However, on 8 November 1993, the CG rescinded the LOR. 

6.  In part IVa of the OER, professional competence, his rater assigned him a two under “Performs under physical and mental stress.”  He assigned a three under “Displays sound judgment” and ones in the remaining twelve areas.  In part Vc, comments on specific aspects of performance, the rater commented that the applicant “administered emergency lifesaving steps and saved a young girl’s life,” “lost my trust and confidence in being totally fair and accurate,” and “Disobeyed written directive of Senior US UN Military Observers regarding personally owned weapons.”  The applicant’s performance was rated by his rater as having “Usually exceeded requirements” and the rater recommended that the applicant not be promoted.

7.  The SR (a colonel) placed the applicant in the third block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the COM on the SR’s profile (19 officers were in the top block, 10 officers were in the second block, five officers were in the third block, of which the applicant was one.  The supporting comments indicate, in effect, that the SR directed the relief of the applicant because he displayed a lack of judgment on several occasions, fabricated and embellished incidents in his reports, and disobeyed his (SR’s) directive not to acquire personal weapons until a United Nations (UN) position on the matter was obtained.  He also indicated that he notified the applicant of the reasons for the relief. 

8.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) on 24 August 1994.  He cited as his reasons at that time, that his relief was based on three incidents that had they been thoroughly investigated or had he received due process and been allowed to clear up the misconceptions, he would not have been relieved.  He also provided statements from his supervisor and several other officers who served with him during the period in question that corroborated his contentions.  The OSRB opined that although there was a disparity in the actual dates that the contested OER was referred to the applicant, it did not warrant deletion of the OER.  The OSRB denied his request on 18 January 1995.

9.  On 4 December 1995 the applicant appeared before an officer elimination (show cause) board at Fort Bragg, North Carolina, to determine if he should be eliminated from the service.  The applicant, represented by civilian counsel, presented witnesses and statements in his behalf.  The board, after having considered all of the circumstances surrounding the applicant’s alleged substandard performance, misconduct, moral or professional dereliction, as well as mitigating and extenuating matters, found that the applicant’s performance was not substandard, that he did not commit acts of misconduct or moral or professional dereliction as depicted by the relief for cause OER, and that he should be retained on active duty.  The convening authority approved the findings and recommendations of the board.

10.  The applicant again appealed the contested OER to the OSRB on 28 February 1996.  In addition to his previous contentions, he contended that based on the results of the show cause board which showed he did not deserve the relief for cause OER and due to the fact that it had not been properly referred, it should be removed.  He also provided a statement from a member of the show cause board in support of his appeal.  The OSRB opined, in effect, that although the show cause board did not agree with rating officials and has no authority to remove documents from an official record, and despite the statement from the board member, the OSRB was not convinced that the OER was inaccurate.  The OSRB denied the appeal on 10 July 1996.

11.  The statement from the show cause board member (a colonel) indicates that all of the board members (colonels) unanimously decided without reservation that there was no evidence of wrongdoing on the part of the applicant, that there were no attempts by his rating chain to investigate the applicant’s alleged misconduct before the relief, that his rating chain was not in a position to observe the applicant’s daily performance and that statements from those who did observe his performance were laudatory.  Additionally, evidence and witnesses (senior to the applicant) were presented to prove that the applicant had been directed by the senior UN officer to send an offensive message to higher headquarters, and that the applicant was actually directed to send a message with stronger language. Furthermore, the senior UN officer at each post was singularly responsible for approving all message traffic to higher headquarters and the applicant was simply the messenger conveying the senior officer’s intent.  The board members were convinced that the applicant did nothing less than could be expected of any officer in his position.  

12.  A statement provided by the legal assistant of the special forces Judge Advocate General’s (JAG) office indicates that the CG traveled from Fort Bragg to Fort Lewis to talk to the applicant and after some months of investigation by the JAG, the CG rescinded the LOR on the basis that the allegations were without merit.

13.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 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.

CONCLUSIONS:

1.  While the Board recognizes and appreciates the sensitive nature of UN missions, it is apparent, based on the evidence presented, that the SR prematurely directed the relief of the applicant based on inaccurate and incomplete information he had been provided.  

2.  The information presented in the applicant’s case was primarily from officers who not only outranked him and were in a position to observe his performance and conduct on a daily basis, but who also have nothing to gain by supporting his case.  Unlike the applicant’s rating chain who were distanced from the applicant, these officers were on the ground with the applicant and had firsthand knowledge of the events as they occurred.  

3.  Consequently, the Board finds, as did the show cause board, that there is no evidence of wrongdoing on the part of the applicant and that the relief for cause OER was unwarranted.  Therefore, in the interest of justice, it should be removed from his records in its entirety and the period of the report deemed unrated time. 

4.  Although the Board cannot ascertain that the contested report has prevented the applicant from being selected for promotion, removal of the OER as indicated in the preceding paragraph would constitute a material change in his record. Accordingly, he should also receive promotion reconsideration to the rank of major by all appropriate special promotion selection boards under the criteria of the boards which failed to select him for promotion.

5.  Additionally, the documents denying his OSRB appeals should be removed from his records.

6.  In the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

   a.  by removing the OER ending on 18 May 1993 of the individual concerned from his OMPF;

   b.  by removing from his records the PERSCOM memorandum dated 20 January 1995 and any subsequent memorandums (related to the appeal of the contested OER), indicating the denial of his appeal of the contested OER; and

   c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by the fiscal year 1996 Major, Promotion Selection Board.

2.  That if he is selected for promotion, he be promoted with an appropriate date of rank, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

3.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON