PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 30 October 2001
         DOCKET NUMBER: AR2001057524


         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. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. Celia L. Adolphi		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Harry B. Oberg		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.

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2. The applicant requests that his Officer Evaluation Report (OER) for the period 19 March – 30 November 1993 and all related documents be removed from his Official Military Personnel File (OMPF), that his records be considered by a Special Selection Board (SSB) for promotion to Major, and that his records be reconsidered for selection to the resident Command and General Staff College (CGSC).

3. The applicant states that in September 1991, he was the executive officer (XO) of Company A, 5^th Battalion, 9^th Infantry. In October 1991, there was a change of command ceremony and the outgoing commander was presented the company guidon. A new guidon was placed on the staff for the company. In September 1992, he was reassigned to Headquarters and Headquarters Company (HHC), 5^th Battalion, 9^th Infantry. In December 1992, there was another change of command ceremony at Company A. He did not attend and in February 1993 it was brought to his attention that the outgoing commander had not been presented the company guidon. He then asked the Company A XO to ask the commander if he would be receptive to replacing the old guidon for a new one so they could follow military tradition and present the old company commander with the old guidon. He learned, from the XO and other senior leaders in Company A, that the commander would not be receptive to that request. In May 1993, while working late, he took the Company A guidon, minus the staff and in November 1993 he helped present it to the former company commander.

4. The applicant goes on to state that on the following morning his then company commander questioned him about a report that he had stolen and presented the missing guidon to the former commander. He admitted his actions and immediately went to the current Company A commander to explain his actions and apologize. He retrieved and returned the guidon to Company A. He maintains that he did not understand the severity of his actions. He was reassigned to a position in the Brigade Headquarters, received a locally-filed Memorandum of Reprimand (it is not known who issued it), and received an adverse OER. When the OER was referred to him, he requested a commander’s inquiry. The Inquiry Officer (IO) recommended a memorandum be prepared and sent to the U. S. Total Army Personnel Command (PERSCOM) requesting that the OER be returned to the rater for correction of Part Vd, promotion potential. The OER was not returned. In 1998, he met up again with the senior rater (SR) of this OER, who advised him to appeal the OER. He did so, but the Officer Special Review Board (OSRB) returned the appeal without action. He resubmitted his appeal in 2000. The OSRB denied his appeal.

5. The applicant states that the OER violated Army Regulation 623-105’s prohibitions against the inclusion of narrative gimmicks, was unfairly written, reflected the rater’s bias against him, and inaccurately depicted his overall performance, potential, and moral values. It provided an incomplete description of the facts upon which the report was based. His rater also improperly checked the “other” block in Part Vd. His SR from this OER has recently provided a statement which reveals that he was misinformed about some critical facts regarding the incident and his misimpressions influenced his rating decision at the time and caused him to mistakenly convey incorrect information to the OSRB. His SR was under the impression that the applicant had denied involvement in the incident and that impression may have caused him to change his evaluation of him and would certainly have caused him to amend his statement to the OSRB.

6. Supporting evidence is as listed on the attachment to the DD Form 149. One letter of support is from the First Sergeant who contacted the applicant after the guidon was noted to be missing. He states that the applicant immediately admitted he took the guidon when the First Sergeant asked him.

7. The applicant’s military records show that, after having had prior enlisted service, he was appointed a Second Lieutenant out of the Reserve Officers’ Training Corps on 16 December 1988 and entered active duty around October 1989 as an Infantry officer. He was promoted to First Lieutenant on 15 October 1991.

8. The applicant received two OERs prior to the contested OER. He was rated as center-of-mass on one and above center-of-mass on the other.

9. The contested OER is a 5-rated month change of rater report for the period 19 March – 30 November 1993. Part IVa8, “displays sound judgment,” contains a “2” rating. Part IVb contains the comment “1LT ___ stole a property book item from another company.” In Part V, his performance was rated as “always exceeded requirements” and all comments were highly laudatory. In Part Vd, potential for promotion, the “other” block was checked with the accompanying comment “1LT ___ has not completely internalized the moral values of the Officer Corps at this time. Promotion should be consistent with this development.” His SR gave him a second block rating and made all highly laudatory comments.

10. The OER was referred to the applicant and he requested a commander’s inquiry. The applicant had apparently brought up two issues and the IO found partial merit in one of the issues. The first concern was that the rater did not appropriately counsel him throughout the rating period. The inquiry found that the rater did perform the counseling required. The IO also found that the rater was justified in placing the comment “…stole a property book item…” on the OER. The IO found that the applicant admitted to committing the act and the act occurred during the rating period. The IO found that the “other” block in Part Vd should not have been used because that entry could be used only for very specific reasons, none of which met the criteria in this case. The IO recommended, since the OER had already been sent to PERSCOM, that PERSCOM be requested to return the OER for correction of Part Vd.

11. The applicant was promoted to Captain on 12 April 1994. He completed the Special Forces Detachment Officer Qualification course in August 1995. He is now a one-time nonselect for Major.

12. The applicant appealed his OER. On 30 December 1998, the OSRB returned his appeal without action. The OSRB noted that the applicant admitted to using poor judgment which the rater annotated in Parts IVa and IVb. The OSRB noted that Brigade Commander did not approve or disapprove the recommendation of the IO. The OSRB further noted that the “other” box is used when cases do not fit the promotion recommendations that are given and opined that the evidence did not support that the rater failed to meet his responsibilities as prescribed in the regulatory guidance. The OSRB commented that a statement from the rater and official determination of the Brigade Commander might increase the validity of the appeal and negate the fairness and objectivity of the rater’s assessment.

13. In September 2000, the applicant resubmitted his OER appeal. In support of his appeal, his rater provided a statement indicating that he believed the applicant had internalized the Army moral values and had learned from that mistake made early in his career. His SR provided a statement indicating that he felt that the rater’s comments were overly condemning and damaging but that when he spoke to the rater about his remarks he was careful to avoid even the appearance of undue command influence. He believed this isolated incident as a junior officer should not prevent the applicant from achieving his potential. The applicant’s former Brigade Commander provided a statement that he had approved the findings and recommendations of the IO but for some reason no memorandum approving the inquiry was forwarded to PERSCOM.

14. The OSRB noted that the SR’s statement did not state that he thought the rater was biased against the applicant or that the rater rendered an unfair or untrue assessment nor did his comments in Part VII note any disagreement with the rater’s assessment. The OSRB noted that the rater did not state that his assessment, at the time the report was rendered, was unfair or unjust. The OSRB contacted the rating officials for further information. The rater informed the OSRB that initially he wanted the applicant relieved for cause but the SR did not agree. The rater recalled conferring with a Major in the brigade about the OER and the Major suggested that the rater consider using the “other” block instead of the “do not promote” block. The SR informed the OSRB that he did not think about including a comment about disagreeing with the rater’s promotion potential rating in Part VII. He recalled his second block rating of the applicant was influenced by his belief that the applicant denied taking the guidon when first confronted about it. He stated that the rater was not biased and that his statements were in fact true.

15. The OSRB found that the comment in Part IVb was both clear and concise and was based on fact. Rating officials are free to write their assessments in a clear and concise manner as long as the report rendered is accurate, fair, and honest. The applicant provided no evidence that invalidated the quality or accuracy of the rater’s comments. The OSRB agreed with the IO that the rater’s use of “other” did not follow the examples provided in the regulation. However, in coordination with the PERSCOM Management Support Division, the OSRB opined that his use of “other” did technically meet the regulatory guidance. Specifically, the rater did not think the promotion recommendations (“promote ahead of contemporaries”/”promote with contemporaries”/”do not promote”) were appropriate and the required explanation was provided in Part Ve. Therefore, the OSRB opined that this contention was unproven. The OSRB found that the rater’s comment in Part Ve was not a narrative gimmick. It was clear, concise, and unambiguous in portraying the applicant was not ready for promotion at that time. The OSRB found that there was not sufficiently convincing evidence that Parts IV and V of the contested OER were inaccurate, unjust, and did not adequately reflect the applicant’s performance or potential. Therefore, his appeal was denied.

16. The applicant received six OERs subsequent to the contested OER. Four of the reports rated him as center-of-mass; two of them rated him as above center-of-mass.

17. Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER. The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

18. Army Regulation 623-105 states that when it is brought to the attention of a commander that a report made by a subordinate may have been illegal or unjust or violated the provisions of this regulation, that commander will look into the allegation. The primary purpose is to prevent obvious injustices and correct errors before they become a matter of permanent record. It is not intended to be a substitute for the appeals process. If the commander finds that an error, violation of the regulation, or wrongdoing has occurred and the OER has been forwarded to PERSCOM, the results of the inquiry will be forwarded to PERSCOM. The results of the commander’s inquiry will include the findings, conclusions, and recommendations in a format that could be filed with the OER in the OMPF for clarification purposes.

19. Army Regulation 623-105, paragraph 14c(4) states that the rater compares the rated officer’s potential for promotion with that of his or her contemporaries by placing an “X” in the appropriate box. It gives examples of when the “other” box might be used, such as using it for warrant officers in grade W5 or for 0-6s for whom the rater wishes to recommend retention on active duty without advocating promotion to brigadier general. It is used for cases that do not fit the promotion recommendations that are given.

20. Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officer personnel on active duty. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

21. Officers in the rank of Major or promotable Captain and have less than 168 months (14 years) of active Federal commissioned service as of a certain date are eligible for consideration by a Command and Staff College selection board. The applicant will have 168 months of active Federal commissioned service in December 2002.

CONCLUSIONS:

1. The Board agrees with the OSRB’s determination that while the rater’s use of “other” did not follow the examples provided in the regulation it did technically meet the regulatory guidance. Specifically, the rater did not think that any of the other promotion recommendations were appropriate and the required explanation was provided in Part Ve. Indeed, the Board concludes that the rater’s initial inclination was to check the “do not promote” block, a far harsher recommendation than “other.”

2. The Board notes that the applicant’s SR has stated only that his misimpression (that the applicant initially denied involvement in taking the guidon) may have caused him to change his evaluation of him. The SR also stated that the rater had no biases against the applicant.
3. Concerning the comment in Part IVb, “…stole a property book item…,” the Board agrees with the OSRB that it was clear and concise and based on fact but concludes nonetheless that it was not fair. It may have been the truth, but it was not the whole truth. Without an explanation of what the applicant stole and why he stole it, that “true” comment conveys the impression that he was a common thief. To present the whole truth, the comment should have been expanded to explain what he stole and why (“he took the company’s guidon to present to the former commander”). Such an explanation might mitigate the offense in the eye of any reviewer of this OER.

4. The Board notes that the applicant was not that young and inexperienced (he was a First Lieutenant, not a Second Lieutenant, and he had prior enlisted service). The Board finds it difficult to believe that he was naïve enough to think that one military tradition (presenting a guidon to an outgoing commander) overcame another military “tradition” (obeying a superior officer). He had learned from Company A’s XO and other senior leaders in Company A that the new Company A commander would not be receptive to surrendering his guidon. His subsequent actions in taking the guidon anyway is a severe lapse of judgment on the part of an experienced officer. However, all his other OERs (previous and subsequent to the contested OER) do contain very commendable comments and several show that he was rated above center-of-mass.

5. If the entry in item IVb of the contested OER (that the applicant stole an item from another company) had more fairly reflected what he stole (the company’s guidon) and why he stole it (to present to the former commander), the Board concludes that there may have been a reasonable chance that an otherwise successful Special Forces officer would have been recommended for promotion.
It would therefore be appropriate to have his records considered by a Special Selection Board after amendment of the contested OER. If the applicant is recommended for promotion by the Special Selection Board, he still has until December 2002 in which to be considered for Command and Staff College under normal criteria (officers in the rank of Major or promotable Captain with less than 168 months of active Federal commissioned service).

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

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by amending the applicant’s OER for the period ending 30 November 1993, Part IVb to read “1LT ___… company (he took the company’s guidon to present to the former commander).”

2. That following administrative implementation of the foregoing, the applicant’s records be submitted to a duly constituted Special Selection Board for reconsideration for promotion to Major.

3. That if the applicant is selected for promotion his records be further corrected by promoting him to Major and assigning the appropriate date of rank with all due back pay and allowances or by assigning him the appropriate promotion selection number if he would not yet be due for promotion.

4. That if the applicant is not selected for promotion, he be notified accordingly.

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

BOARD VOTE:

__cla___ __aao___ __hbo___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION



                           Celia L. Adolphi
                  ______________________
                  CHAIRPERSON

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INDEX

CASE ID	AR2001057524
SUFFIX
RECON
DATE BOARDED	20011030
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	111.01
2.	131.10
3.
4.
5.
6.