PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 19 September 2002
         DOCKET NUMBER: AR2001063444


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Victoria A. Donaldson		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Ms. Melinda M. Darby		Member
Mr. Ronald E. Blakely		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

---

2. The applicant requests removal of the DA 67-8 (Officer Evaluation Report (OER)) covering the rated period from 10 December 1993 to 30 October 1994 from his Official Military Personnel File (OMPF). He further requests subsequent consideration by a Special Promotion Board convened equivalent to the promotion board that did not select him for promotion to chief warrant officer three.

3. The applicant states in a 34-page memorandum to the Army Board for Correction of Military Records (ABCMR), that the OER for the period 10 December 1993 to 30 October 1994 [hereafter referred to as the contested OER], was premised upon substantive errors and injustice. He states that there are four separate reasons and other substantial background information why the contested OER should be removed from his OMPF.

4. The applicant further states that the contested OER was a result of basically one incident and that the negative comments and ratings are not based on truth, historic facts or Army regulations. The applicant maintains that he was "lawfully" detailed on an aviation maintenance Safety of Flight (SOF) mission for two days during which the monitoring of the Flying Hour Program (FHP) lapsed. As a result, he questions the legality and administrative regularity of the contested OER.

5. The applicant’s first contention is that the contested OER is inaccurate. He states that he was lawfully detailed to a SOF mission and that, during this period, the unit's tracking of the FHP lapsed. He further states that, at the time of the FHP problem, he was performing duties as the Task Force Flight Operations Officer and that he was one of three individuals responsible for monitoring and updating the FHP. He contends that, in his absence, it was the rater for the contested OER and the noncommissioned officer in charge (NCOIC) who were responsible for tracking and updating the FHP and that they did not complete that task. The applicant concludes that this resulted in him receiving a below center of mass OER. The applicant questions how the rater can give him a bad rating when the rater himself was responsible for tracking and updating the FHP in his absence.

6. Next, the applicant contends that he was not afforded due process in accordance with Army Regulation 623-105 (Personnel Evaluations). He states that the contested OER was referred to him on 30 October 1994, while he was deployed on the Big Island of Hawaii, and that he had a suspense date of
6 November 1994 to prepare his response to the referral. He states that he wanted to consult with an official in the Staff Judge Advocate's office or in the Inspector General's office before preparing his response to the referral of the contested OER, but he could not see them until 7 November 1994. The applicant states that he requested a one-day extension, but it was denied. Further, he asserts that the contested OER was going to be forwarded with or without his comments on 6 November 1994. The applicant also contends that he was oblivious to his rights, the significance and impact of his initial comments and did not know about a commander's inquiry or the appeal process.

7. The applicant admits that a seven day suspense is normal in the garrison. However, he argues that, since he was deployed on an exercise and did not have access to officials in the Staff Judge Advocate's office or in the Inspector General's office, that he was not given due process in preparing his response. He concludes that this violated the spirit and the text of Army Regulation
623-105.

8. The applicant's third contention is that the contested OER is in violation of Army Regulation 623-105 and Army Regulation 611-112 (Military Occupational Classification and Structure). In this matter, the applicant contends that he was assigned and erroneously rated on "non-military occupational specialty principal duties" without Headquarters Department of the Army (HQDA) approval. The applicant states that, although he held the military occupational specialty (MOS) 153B (UH-1 helicopter pilot), he performed principal duties as assistant flight operations officer. He further states that he was not assigned to his primary MOS in accordance with Army regulations and that the only duties he could have performed must be within the guidelines of MOS 153B UH-1 helicopter pilot. He contends that the only sub-specialties for his MOS are "P" for parachutist, "D" for Aeromedical Evacuation Pilot and "H2" for Aviation Life Support Equipment Technician. He concludes that performing duties outside of his MOS and subspecialties without HQDA approval is in violation of Army regulations.

9. The applicant's fourth contention is that the negative comments on the contested OER regarding performance and potential are related to non-MOS and non-technical specialty duties in violation of Army regulations. He contends the rater stated that the applicant's overall performance was satisfactory and that he was only negatively counseled one time for the FHP incident. The applicant further states that the senior rater (SR) evaluated his performance as “marginal” and that he can only perform to one standard. The applicant contends the rater and SR evaluated him on duties outside his MOS and not in accordance with Army regulation. In addition, the applicant states that the rater's comments are based entirely on the FHP incident which was in fact the responsibility of the rater. He concludes that the rater and SR lack fairness, honesty and impartiality required by AR 623-105 and, as a result, the contested OER should be removed.

10. After providing the four reasons that he believes the contested OER should be removed, the applicant contends that there are several other issues which resulted in negative ratings on the contested OER. Specifically he addresses several character issues and contends that the rating officials for the contested OER had substantial ulterior motives for rendering adverse comments and ratings on the contested OER.
11. The applicant further argues that the rating officials had "motive and opportunity" for intentional and deliberate inappropriate actions including effectively preventing him from providing rebuttal comments to the contested report.

12. The applicant also contends that the rating officials used him as a "scapegoat" to deflect blame from the SR's "protégé" and staff and that the rating officials were “adamant” and “irrational” with regards to rating him. The applicant also argues that the rating officials lacked "forthrightness, honest and trust." In support of this contention, the applicant states that the rater had an intimate rendezvous with a woman not his wife during a deployment to the Joint Readiness Training Center and was later relieved from company command and discharged from service for adultery.

13. In regard to the SR’s character, the applicant states that the SR held the philosophy that it was “alright” to chase other women when away from home and the wife. The applicant also asserted that the SR, who was married with children, had a large foldout poster of a naked woman attached to the back of the unit's operational map in the Tactical Operations Center and that the largest drawer of his desk was filled with pornographic material.

14. The applicant also argues that the rater and SR provided preferential treatment to several members of the unit and that "grave and intentional errors" could be overlooked for those unit members. Specifically, he cites the incident of an unsafe helicopter maneuver that he believes was a flagrant disregard for safety and unit standard operating procedures. He states that the alleged perpetrator received a "Top Block" OER [the highest rating from the SR]. The applicant questions how he can receive the "lowest rating ever given" on an OER from the SR for not tracking a FHP which did not have the potential to harm anyone and the perpetrator of the helicopter incident was given the highest rating from the SR.

15. The applicant also alleges that the rating officials assigned him illegal duties and rated him on those duties based on feelings, not sound objective facts and Army regulations.

16. In conclusion, the applicant states that the raters "warrior/killer attitude" and the senior rater's "bitterness over his owned doomed career" caused judgments and opinions concerning the actual truth about his performance and efforts to be "miscued."

17. The applicant then discusses his efforts to remove the contested OER from his records, specifically that he has tried three times since 1996 to have the contested OER "properly adjudicated" by the Deputy Chief of Staff for Personnel (DCSPER), Officer Special Review Board (OSRB) [hereafter referred to as the OSRB]. He contends each attempt ended without satisfactory results due to rulings of the OSRB which were based primarily on misinterpretation of pertinent regulations or due to “extra judicial rulings” by the OSRB which were not supported by regulatory authorities.

18. In support of this application, the applicant submitted a 34-page memorandum of explanation, dated 25 September 2001, in which he discussed in detail the basis for his application to the ABCMR, a copy of the contested OER with referral memorandum and rebuttal comments, several flow charts, exhibits 1-21 and exhibits A-Z as described in two lists of exhibits attached to the application to the ABCMR.

19. The applicant’s military records show that he enlisted on 25 May 1979 as a private E-1 in the United States Army Reserve (USAR). He entered active duty on 4 December 1979 and served until he was honorably separated from active duty and transferred to the USAR on 3 January 1983 in the rank of sergeant/pay grade E-5.

20. The applicant completed rotary wing aviation training and was appointed as a warrant officer one in the USAR on 1 November 1989. He served on active duty as a warrant officer until his separation on 31 January 1999 in the rank of chief warrant officer two/pay grade W-2. He is currently serving in the Regular Army as a staff sergeant/pay grade of E-6.

21. Records show that the applicant was assigned to the 25th Infantry Division during the period 1 December 1993 through 30 October 1994 as a chief warrant officer two.

22. Evidence of record shows the applicant received the contested OER for the period 1 December 1993 through 30 October 1994. This report was a change of rater OER which covered ten months of rated time for the applicant’s duties as Assistant Flight Operations Officer/UH-1 Pilot. The rater signed his portion of the contested OER on 30 October 1994 and the SR signed the contested OER on 30 October 1994. The applicant was provided a copy of the contested OER on 30 October 1994. [The intermediate rater's portion in the original version of the contested OER was removed in accordance with a ruling of the OSRB and is not otherwise available to the Board.]

23. By memorandum, dated 30 October 1994, the SR referred the contested OER to the applicant for acknowledgement of receipt and for comments under the provisions of paragraphs 4-27 and 5-28 of Army Regulation 623-105. The basis for the referral was that the SR determined that the contested OER would adversely affect the rated officer. The referral memorandum provided a suspense date of 6 November 1994 for acknowledgement of receipt of the contested OER and submission of comments by the applicant.
24. By memorandum, dated 6 November 1994, the applicant provided comments in response to the referral memorandum. The applicant wrote that his principal assigned duty during the rated period was Flight Operations Officer, MOS 15B, para 104, line 02, grade 0-3 from the MTOE 17185LP 125P11094, 5-9 CAV, UIC WALNAA, E-date 931016. He further responded that HQDA did not approve utilization of him in a commissioned officer position or MOS or performance of commissioned officers duties prior to his assignment as the assistant flight operations officer. He continues that Army Regulation 623-105 states a Department of the Army Memorandum from the Warrant Officer Branch providing such authorization should have been placed in his Field 201 file. He further states that the memorandum must be attached to the OER prepared for the time he served in that job and that the OER will not be accepted without the memorandum from the Warrant Officer Branch.

25. In his rebuttal comments, the applicant contended that the intermediate rater had only been in position to rate the applicant during the last two months of the rating period. He also contends that the former S-3 and Flight Operations Officer both verbally counseled him not to fly with the UH-1 Downed Aircraft/Air Crew Recovery Team at the JRTC rotation during the period July 1994 through September 1994, while he was assigned as a primary crew member by the Commander of "D" Troop, thereby limiting his opportunities to fly.

26. The applicant concludes his rebuttal comments by stating that, due to the above circumstances, the OER is unjust and does not accurately reflect his efforts or potential to progress as a warrant officer and aviator.

27. Evidence of record shows that the applicant signed the contested OER on 5 December 1994, which attested that the administrative portion of the contested OER was correct.

28. The contested OER with referral memorandum and comments was provided to Headquarters Department of the Army officials for processing. The contested OER was profiled on 14 December 1994 and entered into the applicant’s OMPF.

29. Records show the applicant was considered by the Fiscal Year (FY)
1997 Chief Warrant Officer Three, Four, and Five Promotion Selection Board which convened on 10 June 1997 and adjourned on 27 June 1997. He was not recommended for promotion by this promotion selection board.

30. The applicant was again considered for promotion to chief warrant officer three by the FY 1998 Chief Warrant Officer Three, Four, and Five Promotion Selection Board which convened on 12 May 1998 and adjourned on 3 June 1998, but was not among those officers recommended for promotion.

31. The OSRB case summary, dated 14 October 1997, shows that the OSRB considered the applicant’s first appeal of the contested OER on 19 March 1997. After review of all the evidence submitted by the applicant, the OSRB determined that the contested OER should be amended as follows:

         a. Delete in the third sentence in Part VIa (Intermediate Rater) which states: "As a pilot in the UH-1H, [the applicant’ name omitted] has yet to earn Pilot-in-Command status after 21 months and over 200 flying hours experience in the 25th Infantry Division (Light)."

         b. Replace the deleted sentence with the statement: " As a pilot in the UH-1H, [applicant] has yet to earn Pilot-in-Command status."

32. The OSRB further determined that "Promotion reconsideration is not warranted because of this partial change to the contested report. The OSRB is not convinced there would have been a reasonable chance for selection had the change been made before the applicant was considered for promotion."

33. Records indicate that on 21 October 1998, the applicant petitioned for reconsideration of the OSRB decision set forth in its 14 October 1997 case summary.

34. The OSRB considered the applicant’s second appeal of the contested OER in a case summary, dated 26 February 1999. That case summary shows that the applicant was again granted partial relief. The OSRB concluded that there was sufficiently convincing evidence that the report should be amended as follows:

         a. "Part Il [Period Covered], amend "From 931201 to 941031 to read From 931201 to 941030;

         b. Part Io [Rated Officer Copy] amend 941205 to read 941030;

         c. Part IIa & c [Authentication] change the dates [rating officials signature dates] from 941205 to read 941030;

         d. Part llb [Intermediate Rater] delete all entries referring to IR (Intermediate Rater) including Part Va [Intermediate Rater's Comments];

         e. In Part Vc (Rater's Narrative Comments on Performance) 5th sentence, reads "As a UH-1, FAC 2, aviator, [applicant] has flown over 100 hours during this period; and, he has not yet earned Day/Night Pilot-in-Command status." Change to read "As a UH-1, FAC 2, aviator, [the applicant’s name omitted] has flown over 100 hours during this period”;

         f. In Part VI [Intermediate Rater], "delete the IR comments."

35. The OSRB also determined that there was not sufficient evidence that the remainder of the report was inaccurate, unjust, and/or did not reflect the applicant’s performance and potential. Further, the OSRB stated that the presumption of regularity described in Army Regulation 623-105, paragraph 5-32, applied to the remainder of the OER. As a result, the OSRB did not amend the remainder of the contested OER.

36. In addition, the OSRB determined that the changes made to the contested report did not elevate the overall quality of the contested OER. As a result, the OSRB again did not grant promotion reconsideration because it was not convinced that there would have been a reasonable chance for selection had the changes been made prior to the applicant's consideration by either the FY 1997 or FY 1998 CW3 Promotion Selection Board.

37. The OSRB case summary also stated that the applicant's claims were without merit. The OSRB specifically denied his claim that the senior rater intentionally and improperly processed the contested OER, and that he was denied a reasonable extension of time to respond to the referred report in accordance with Army Regulation 623-105, 5-25e(1).

38. The contested OER currently filed in the applicant’s OMPF is the OER with all corrections made as directed by the OSRB. The contested report is a change of rater report for the period 01 December 1993 through 30 October 1994 for the duty title of Assistant Flight Operations Officer/UH-1 Pilot and contains the following entries:

39. Part Ig (PMOS) of the contested OER contains the entry "153B0."

40. Part IIc (Duty Description) of the contested OER states: "Assistant Flight Operations Officer of a light infantry division reconnaissance squadron. Responsible for supervising and monitoring the unit's flying hours program to include all required reports. Assist the Flight Operations Officer in ensuring the commander's airspace management requirements are met in accordance with FMs 1-103 and 100-103. As a Squadron Hazardous Waste Action Officer, responsible for the management of the squadron's Hazardous Waste Storage and Disposal Program. Maintains proficiency and meets all ATM/ATP requirements as a FAC 2, UH-1 aviator."

41. Part IIIc (SSI/MOS) of the contested OER contains the entry "153B0."

42. Part IVa (Professional Competence) of the contested OER shows that the applicant received ratings of "1" in all 14 elements and positive comments from his rater, an Army captain in the duty position of Flight Operations Officer. The rater commented: "Honest in word and deed."

43. In Part V (Performance and Potential), the rater placed his "X" in the second block (Usually Exceeded Requirements). In Part Vc. (Comments on Specific Aspects of Performance), the rater noted the applicant's overall duty performance for this period was "satisfactory." He further noted that the applicant often assumed the duties as the Flight Operations Officer during the rated period.

44. In Block Vd (This Officer's Potential for Promotion to the Next Higher Grade), the rater placed his "X" in the second block (Promote with Contemporaries) and stated: [The applicant] "needs to improve his overall duty performance both as an officer and an aviator before being considered for promotion."

45. In Part VIIa (Potential Evaluation), the SR placed his "X" in the third block which resulted in the following SR profile: [9/14/1*/0/0/0/0/0/0/]. The asterisk indicates the applicant’s position in the SR profile. This rating placed the applicant below center of mass in the SR's profile.

46. In Part VIIb (Comments) the SR commented essentially that the applicant's general performance was "satisfactory." The SR made positive comments regarding the applicant's accomplishments as an individual soldier. The SR noted that the applicant qualified as an expert with his weapon, scored 297 on the Army Physical Fitness Test and successfully completed the Common Task Test. The SR also noted that the applicant provided positive support to the unit Hazardous Waste Program.

47. The SR concluded his narrative comments as follows: [the applicant's name omitted] "performance as assistant flight operations officer is marginal. He does not keep me informed and can only perform to standard in one area at a time. He continues to receive additional training. Without significant progress, he should not be selected for CW3."

48. The SR placed his "X" in the "Yes" Block in Part VIIa indicating that a completed OER Support Form (DA 67-8-1) was provided by the applicant and considered in the SR's review.

49. Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time the contested OER was rendered establishes the policies and procedures for the OER system. Section I of Chapter 4 addresses evaluation principles. Paragraph 4-1d specifically states that rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army. Rating officials must make honest fair evaluations of the officers under their supervision. On the one hand this evaluation must give full credit to the rated officer for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.

50. Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army. Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative. Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.

51. Army Regulation 623-105 establishes the policies and procedures for the OER system. It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. 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 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. 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.

52. Paragraph 4-11c(4) of Army Regulation 623-105 (Officer Evaluation Reporting System) provides that the rated officer signs and dates the OER before sending it to the rater. The rated officer's signature verifies the accuracy of the administrative data in Part I (except item o), the rating officials in Part II, and the APFT [Army Physical Fitness Test] and height and weight data in Part IV. This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information. Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

53. Army Regulation 623-105 paragraph 4-12a (Duty Description) provides that the duty description: (1) Is entered in part III by the rater based on the rated officer's entries on DA Form 67-8-1, if appropriate, (2) Is an outline of the normal requirements of a specific duty position and (3) Should show type of work required rather than frequently changing tasks.

54. Army Regulation 623-105 paragraph 9-5d provides that when the board grants an appeal, in whole or in part, resulting in removal or substantive alteration of an evaluation report that was seen by one or more promotion boards that previously failed to select the appellant, the OSRB will make a determination whether promotion reconsideration by one or more boards is justified.

55. Army Regulation 611-112 (Military Occupational Classification and Structure) prescribes policies and procedures for designation of MOS for army officers. Paragraph 3-8 states that the duty MOS is either the MOS which identifies the authorized manning table (MTOE/TDA) position to which the individual is assigned or the reporting code from chapter 4 of this regulation which reflects the actual duty description. In accordance with the principles outlined in this regulation, the duty military occupational specialty (DMOS) should always be a currently authorized warrant officer MOS. However, local circumstances may dictate that a warrant officer be assigned to other than a currently authorized warrant officer position. These circumstances will be reported to the appropriate HQDA career management authority as described in paragraph 1-7d(2) of this regulation. Pending receipt of directions from HQDA, the duty position and MOS or position requirement code of the position to which the individual is assigned will be reported. In the cases where the individual is not assigned to an authorized MTOE or TDA position and none of the reporting codes in Chapter 4 of this regulation apply, then the using commander will (a) Report as the individual's DMOS or MOS which most accurately reflects the scope of duties actually being performed and (b) Submit a report as described in paragraph 1-7d(2) of this regulation.

56. Paragraph 1-7d of Army Regulation 611-112 provides that except as otherwise authorized by career management authority, assignment will be to a position commensurate to the warrant officer's group and classified with the individual's primary MOS. When a vacancy does not exist within an individual's primary MOS, the warrant officer will be assigned within the individual's additional MOS.

57. Paragraph 1-7d(3) of Army Regulation 611-112 provides that prior to the assignment of a warrant officer to a position not classified within the individual's primary MOS, the correspondence expressing HQDA career management authority concurrence in such assignment will be made a permanent part of the individual's field military 201 file. Pursuant to paragraph 6-2(b)1, Army Regulation 623-105, a remark reflecting the concurrence will be entered on each OER pertaining to the individual during the time so assigned.

58. Paragraph 1-7e(2) of Army Regulation 611-112 provides that warrant officers will not be utilized in a commissioned officer (except under the provisions of paragraph 1-7d(2) and (3) of this regulation) or noncommissioned officer position, and conversely, a commissioned officer or noncommissioned officer will not be utilized in a warrant officer position unless the immediate mission of the unit cannot otherwise be accomplished.
59. Army Regulation 611-112, paragraph 5-2 provides that each duty position is unique and each supervisor establishes performance standards which must be considered and met by individual warrant officers. Further there is no intent to imply that each position which has been established and classified in a warrant officer MOS must contain all of the duties listed in the specifications of this regulation. No attempt has been made in this regulation to include every skill requirement or duty performed within these occupations.

60. Table 5-37 (MOS 153B-UH-1 Pilot Rank Coding Table for TOE Units) of AR
611-112 shows that all units and all sections with the position description of UH-1 Pilots will use the MOS identifier of 153B0.

61. Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board. The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error. Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

CONCLUSIONS:

1. The Board considered the applicant's request for removal of the contested OER and for promotion reconsideration to the grade of warrant officer three.

2. The Board reviewed the applicant's 34-page self-authored memorandum, a copy of the contested OER with referral memorandum and rebuttal comments, several flow charts, exhibits 1-21, exhibits A-Z and his OMPF.

3. The Board considered the applicant's contention that the contested OER is inaccurate because he was detailed to a SOF mission and that the FHP was the responsibility of the rater and a NCOIC during his absence. Based on the evidence of record, the Board determined that this contention is without merit for the following reasons.

         a. Contrary to his contentions that the FHP was the responsibility of the rater and a NCOIC in his absence, the applicant's job description on the contested OER and his DA Form 67-8-1 states that he was responsible for supervising and monitoring the unit's FHP.
         b. There is no evidence and the applicant has provided no evidence which support his contention that the contested OER is inaccurate because he was detailed to a SOF mission and that the FHP was the responsibility of the rater and a NCOIC during his absence.

c. The Board noted that the applicant signed the OER verifying the administrative data, provided a detailed description of his duties and that he provided the SR with a DA Form 67-8-1 stating the duties he performed during the rating period. Therefore, the Board determined that the applicant was adequately trained and understood his duties and responsibilities.

4. The Board considered the contentions of the applicant that the contested OER was invalid because he was not afforded "due process" throughout the processing of all versions of the contested OER. The Board determined that this contention is without merit for the following reasons.

a. The contested OER was completed by the correct rating officials.

b. The SR recognized that the contested OER was adverse and properly referred it to the applicant for comment as required by regulation.

c. The applicant provided rebuttal comments in response to the referral.

d. The Board noted that the contested OER and the applicant's rebuttal comments were received, processed and properly placed in the applicant's OMPF by departmental officials.

e. While there is no evidence that the applicant requested a commander's inquiry in accordance with AR 623-105, the Board finds his contention that he did not know of his appeal options is without merit, particularly since the referral memorandum from the SR referred directly by paragraph to the appeal options available to him.

f. The applicant sought relief twice and was granted partial relief to the contested OER by the OSRB on both occasions.

g. The OER currently filed in the applicant's OMPF is the report amended in accordance with the directions in both of the OSRB case summaries.

h. As a result, the Board concluded, that the contested OER in this case was prepared by the properly designated rating officials and represented the considered opinion and objective judgment of the rating officials at the time the contested OER was prepared.

i. Based on a review of Army regulations, there is no evidence that the contested OER was prepared in "violation" of the spirit and text of the applicable regulations.

5. The Board noted the contentions of the applicant that he was not properly assigned to his MOS and that he performed duties outside his MOS. The Board determined that this contention is without merit for the following reasons.

a. The applicant authenticated the administrative portion of the contested OER which contains the entry in part Ig "153B0" that identifies his primary MOS and the entry in Part IIIc "153B0" that identifies the MOS for the duties that he was assigned during the rating period.

b. The applicant provided the SR a DA Form 67-8-1 (OER Support Form) for use when preparing the contested OER. The DA Form 67-8-1 lists the applicant's MOS, his duties and his significant contributions.

c. The applicant signed the contested report, and provided a self-authored statement listing his duties.

d. Contrary to the applicant's assertions that Department of the Army must authorize his assignment; there is no evidence that he was performing duties that were not included in his MOS.

e. In summary, there is no evidence, and the applicant has provided no evidence to support his contentions that he was not properly assigned in his MOS and that he performed duties outside of his MOS.

6. The Board considered the applicant's contention that the negative comments on the contested OER regarding performance and potential are related to non-MOS and non-technical specialty duties in violation of Army regulations. The Board determined that this contention is without merit for the following reasons.

         a. The applicant's records show that he was assigned as a UH-1 pilot with MOS 153B0.

         b. There is no evidence and the applicant as provided no evidence that support his contention that he was negatively rated on non-MOS and non-technical specialty duties in violation of Army regulations.

7. The Board considered the applicant's contention that the rater and SR lack fairness, honesty and impartiality required by AR 623-105 and, as a result, the contested OER should be removed. The Board determined that this contention is without merit for the following reasons.

a. The applicant provided detailed accounts of several incidents involving the rating officials that he feels directly affects their ability to render a fair and impartial evaluation. However, the applicant's unsubstantiated attack on the character of the rater and SR is not a basis to remove or amend the contested OER.

b. There is no evidence and the applicant has provided no evidence that supports his contention that the rating officials provided preferential treatment to other individuals assigned to the unit.

c. The Board noted the applicant's allegation regarding the character of the rating officials and determined that the applicant has not provided sufficient evidence to support his claims that the rater and SR lacked fairness, honesty and impartiality required by AR 623-105.

         d. Evidence of record shows that the applicant was counseled by the SR for the failure to supervise and maintain the FHP as required by his job description.

8. The Board noted that the applicant's contention that he was officially counseled by the rating officials for the FHP incident and that the OER was based on "one incident." The Board determined that this contention is without merit for the following reasons.

         a. The Board noted that the applicant admitted that he was counseled by the rating officials for not properly monitoring and maintaining the FHP.

         b. There is no evidence, and the applicant has provided no evidence to support the applicant's claim that the contested report is invalid because it was based on one incident.

9. Based on all of the foregoing, the Board determined that the applicant has not proven the contested OER fails to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The Board also determined that he has not overcome the burden of proof required to amend or remove the contested OER. Therefore, the Board concluded that, in this case, the applicant failed to meet the burden of proof necessary to justify further amendment or deletion of the contested OER.

10. The Board considered the applicant's request for promotion reconsideration and reviewed the applicable Army regulation that governs the policies and procedures for promotion of officers on active duty. Based on this review the Board concluded the following.

a. The Board noted the corrections directed by the OSRB occurred after the applicant's promotion consideration by the 1997 and 1998 promotion board.

         b. The Board noted that the OSRB opined in both of its case summaries that the corrections directed by the OSRB were not substantive changes. Therefore, the OSRB determined that promotion reconsideration was not warranted.

         c. The Board noted that the corrections to the contested OER directed by the OSRB did not change the essential nature of the contested OER. Specifically, the contested OER remained a below center of mass report. The rater's adverse comments on the applicant's potential remained unchanged, specifically that the applicant "needs to improve his overall duty performance both as an officer and an aviator before being considered for promotion." The contested OER also contains the original comments by the SR indicating that the applicant's performance was "marginal" and that he should not be promoted to CW3 without significant progress.

         d. The Board noted that the OSRB initially directed modification of the rater's comment on the applicant's failure to achieve pilot-in-command status. The Board also noted that, after a second appeal by the applicant, the OSRB directed further corrections related to the applicant's flying hours and pilot-in-command status and directed complete removal of the IR comments.

         e. Based on the foregoing, this Board determined that the version of the contested OER seen by the FY1997 and FY1998 promotion selection boards was substantially different from the version of the contested OER which now is filed in the applicant's OMPF.

         f. Contrary to the opinion of the OSRB that the changes directed to the contested OER do not warrant promotion reconsideration, this Board finds the changes to the rater comments and removal of the IR comments were substantial, particularly since this Board does not have access to the content of the IR comments.

         g. Therefore, the Board determined that applicant is entitled to promotion reconsideration under the criteria of the FY 1997 and FY 1998 Chief Warrant Officer Three, Four, and Five Promotion Selection Boards.

11. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.




RECOMMENDATION:

1. That records of the individual concerned be submitted for promotion reconsideration by a Special Selection Board under the criteria in effect for the FY 1997 and FY 1998 Chief Warrant Officer Three, Four, and Five Promotion Selection Boards.

2. That, in the event, the applicant is selected for promotion:

         a. He be restored to active duty as a Chief Warrant Officer Three;

         b. He be provided an appropriate date of rank; and

         c. He be paid all back pay and allowances to which he is entitled.

3. That, in the event, the applicant is not selected for promotion, he be so notified.

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

BOARD VOTE:

________ ________ ________ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ______________________
                  CHAIRPERSON

---

INDEX

CASE ID	AR2001063444
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020919
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY	MR SCHNEIDER
ISSUES 1.	111.0000.0000
2.
3.
4.
5.
6.