MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:



         BOARD DATE: 16 MAY 2002
         DOCKET NUMBER: AR2001060669

         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.

Mr. Carl W. S. Chun		Director
Ms. Gale J. Thomas		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Roger W. Able		Member
Ms. Paula Mokulis		Member

         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)

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APPLICANT REQUESTS: That the Officer Evaluation Report (OER) for the period 20 March 1996 through 21 June 1996, and all related appeal documents, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: That the three month (March - June 1996) evaluation was an inaccurate and an unjust evaluation of his performance and potential, and that the evaluation was an act of reprisal against him because he put Army Values ahead of his rater’s unethical demands and did not acquiesce to her unprofessional behavior. The applicant submits a brief in support of his request, which includes his appeals of the OER with the Officer Special Review Board (OSRB), and numerous letters of support.

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

The applicant served as the Battalion S-3, for the 23^rd Chemical Battalion at Camp Carroll, Korea, during the aforementioned rating period.

A review of the applicant’s evaluation reports between October 1992 and March 1996, show that he received all 1’s in Part IV (Performance Evaluation – Professionalism) on each of the reports render during that period. Comments on those reports included:

Perceptive and astute, cool, calm and collected in pressure situations. Freely accepts and demands responsibility, trustworthy, loyal and completely honest. Would make an excellent permanent professor at the U.S. Military Academy. Ability to think clearly and see through complex problems and develop sound recommendations, and outstanding performance, exceeds all expectations.

On all of those reports, his raters stated that he always exceeded requirements and should be promoted ahead of his contemporaries. His senior raters, on all the reports rendered during that period, rated him in the top block.

The OER in question was the second of two OER’s rendered by the same rater while the applicant served as the Battalion S-3. In the first OER, for the period
3 June 1995 through 19 March 1996, the applicant received all 1’s in Part IV (Performance Evaluation – Professionalism). He was rated in the top blocks in Part V (Performance and Potential), indicating he always exceeded requirements and should be promoted ahead of his contemporaries. Comments on that report included:





[applicant] is a gifted historian and this talent has produced two outstanding professional development seminars on the Korean War. These projects were thoroughly researched and expertly presented, enhancing the ability of the unit officers and NCO’s to apply lessons learned from history to the challenges they currently face in the Korean theater of Operations. [applicant] developed a battle-focused training strategy that linked subordinate decontamination company battle tasks to
the supporting critical collective and individual tasks. With his talent and interest in history and philosophy, he would make an excellent permanent professor at the United States Military Academy.

In Part VII of that report, the senior rater placed him in the top block, noting that the applicant’s performance was outstanding, that he exceeded all expectations, that his ability to think clearly and see through complex problems and develop sound recommendations enabled the battalion to excel; that he was instrumental in the professional development of the Support Group officers and NCO’s, that he had the potential to serve with distinction at any level of command, should be promoted early to LTC, and had clear potential for battalion command.

In Part IV (Performance Evaluation - Professionalism) of the three month OER in question, the applicant’s rater (the same rater who rendered the earlier report mentioned above) gave him “2” marks in 8 out of the 14 items included in that part (“1” being the highest rating and “5” being the lowest). Additionally, the rater stated that the applicant:

Cannot translate concept into concrete. Does not perform at a level expected of a field grade officer. Although intelligent, has difficulty in grasping what needs to be done. Has failed to gain the respect and confidence of subordinates. Sets a poor example by his own inability to follow.

In Part V (Performance and Potential Evaluation) of that OER, the applicant’s rater stated that the applicant met requirements and should be promoted with contemporaries. The rater also stated that:

[applicant] continued to demonstrate his singular talent for military history during this rating period. He contributed to the development of the battalion Transition to War Plan by coordinating the collation and corrections of input received from other staff principles. His meaningful contribution to the battalion headquarters training program and contingency planning was his development of a plausible intelligence




scenario to support a Battalion CPX. [applicant’s] overall performance as Operations Officer has been disappointing. He spent a great deal of time and effort on a path divergent from the commander’s guidance. It is unclear whether his inability to be a member of the team is due to his inability to comprehend guidance or conscious defiance. While he has vocalized his disregard for the commander’s policies and direction to peers and subordinates within the unit, I believe his problem stems primarily from an inability to grasp guidance and direction.

In Part VIIa of the OER in question, the senior rater (who was not the same senior rater as the earlier report), rated the applicant in the third block, which was
the lowest rating of the six officer he had rated. In Part VIIb (Senior Rater Comments), he stated:

Concur with rater’s comments based on my own assessment of [applicant’s] duty performance and it’s impact on the unit. [applicant] has the potential to contribute in appropriate staff assignments. His substandard performance in this critical position should be weighed carefully when considering him for promotion.

The applicant contends that the senior rater’s evaluation was prejudiced against him, because each of the three sources of the information he relied on to render his assessment were improper or unreliable, that the senior rater stated he had no direct contact with the applicant during the period of the report. The applicant contends he relied on the rater, information provided by the results of the Inspector General assessment, and information from the Battalion Executive Officer.

The referred report was given to the applicant on 21 June 1996, with a suspense date of 26 June 1996 for him to respond. The applicant did not submit a rebuttal to the OER, other than through the appeal process. The applicant contends that he was not given sufficient time to prepare a response because he was departing Camp Carroll for Seoul, Korea on 22 June 1996, enroute to his assignment at Fort McClellan, Alabama, and that the documents he felt he needed to form an appropriate response, were not at his disposal. The applicant contends that he was not aware, nor counseled by his senior rater, that he could request an extension of time to respond to the referred OER. The applicant presents boarding passes to substantiate his departure from Seoul, Korea on
24 June 1996.






On 19 June 1997, the applicant’s previous senior rater, for the period 3 June 1995 through 19 March 1996, provided a letter of support concerning the applicant’s OER appeal. In that letter, the former senior rater states that he had counseled both the applicant and rater over their relationship, attitudes and performance. He further states it was clear there were differences in leadership styles, and from his knowledge of both officers’ performance and relationship, he did not believe the applicant’s duty performance changed in the short rating period to the degree indicated by the rater. He believed that a severe personality conflict was allowed to adversely affect the rater’s judgment.

The Officer Special Review Board (OSRB) contacted the applicant’s rater and informed her of the applicant’s contentions, she stated that her evaluation was an accurate representation of his performance and potential during the rating period. She agreed that there was a personality conflict but stated that it did not effect her objectivity in evaluating the applicant. She stated that even after numerous counseling, the applicant refused to take the necessary corrective actions required to perform his duties as the S3, that he was openly defiant regarding her policies and direction and vocalized this to his peers and subordinates in the unit.

During the processing of the applicant’s second appeal the OSRB contacted the Senior Rater on the contested OER. The Senior Rater recalled the applicant and the contested OER. He stated that he had no direct contact with the applicant during the rating period and had relied on the rater, the information provided by the results of the IG assessment, information from the Battalion Executive Officers and the applicant’s support form. When asked specifically about the IG sensing sessions, he responded that the IG found that the applicant did not support the rater’s policies and directives, which lead to friction in the unit. The Senior Rated stated that he was not aware of a personality conflict between the rater and the applicant, and felt that the applicant did not support the rater’s decisions and his personal actions had caused a conflicting situation in the unit.

The applicant provides strong affirmations of support from various senior officers, subordinates, co-workers and other observers. These individuals worked within the same organization as the applicant, or in an agency that the applicant coordinated with within the performance of his duties during some portion of the period of the appealed report. Most of the individuals worked directly with, or routinely had contact with the applicant and the rater, and spoke of either personally witnessing or hearing of the disharmony in the working relationship between the applicant and his rater. Several addressed the issue of a stress-filled working environment within the unit, as the result of an unhealthy command climate. All the letters of support spoke very highly of the applicant’s professionalism, loyalty, work ethic, and dedication to duty, and questioned the validity of the OER the applicant wishes to have expunged from his OMPF.


The applicant’s two appeals, to the OSRB for removal of the OER were denied and a third attempt was returned without action because of insufficient new evidence. The OSRB determined that the applicant did not provide, and they did not find elsewhere, the necessary evidence to delete or amend the contested OER.

Army Regulation 623-105 states that an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

Army Regulation 623-105 further states that the officer evaluation report Redress Program, which includes Commander’s Inquiries, appeals to the OSRB and petitions to this Board, protects Army interests and ensures fairness to the officer. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.

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 applicant has not shown that the contested report contains any serious administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.

2. The Board agrees with the OSRB that the applicant provided no evidence to justify altering or withdrawing the OER.

3. The applicant states that there was a personality conflict between himself and his rater, and that his OER was an act of reprisal against him. A personality conflict is not grounds for removing the contested OER. The Board concludes that the applicant has provided no evidence to show that the personality conflict resulted in an inaccurate or unjust rating.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence to show that there was an error or injustice in this case.

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

__FNE __ __RWA__ __PM___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001060669
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020516
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.