MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2002069206

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O’Connor, Jr.		Chairperson
Mr. John P. Infante		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: The removal of an officer evaluation report (OER) covering the period from 17 October 1998 to 10 March 1999 from his Official Military Personnel File (OMPF).

APPLICANT STATES: That the poor evaluation he received was given based on his refusal to extend in Korea past his commitment. He further states that it was in the best interest of the chain of command to keep him there to ensure a high level of aviators assigned; however, it was in his best interest to return home in order to help his children deal with the fact that his wife was leaving him. Accordingly, he was labeled as selfish, not being a team player and was ostracized by his command. He goes on to state that the very same chain of command previously gave him an OER that was not derogatory and is contrary to the disputed OER. In support of his application, he submits a letter from the senior rater (SR) of the disputed OER as well as three other third party letters of support.

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

He initially enlisted on 28 November 1990, for a period of 6 years and 29 weeks, training as a tactical transport helicopter repairer and assignment to Fort Bragg, North Carolina. He successfully completed his training and was transferred to Fort Bragg, where he remained until he was accepted for warrant officer flight training at Fort Rucker, Alabama.

He completed his training and was honorably discharged in the pay grade of E-5 on 10 May 1994, for the purpose of accepting an appointment as a warrant officer one (WO1), with a concurrent call to active duty. He was appointed as a United States Army Reserve (USAR) WO1 on 11 May 1994. He was promoted to the rank of Chief Warrant Officer Two on 11 May 1996.

On 16 November 1998, while serving as a UH-60 pilot in Korea, the applicant received a change of rater OER covering the period from 16 January to 16 October 1998. The rater, a first lieutenant (1LT) rated his performance as “Outstanding – Must Promote.” The intermediate rater (a captain) deemed his performance as exceptional and indicated that he should be challenged with difficult assignments. The SR, a lieutenant colonel (LTC) and battalion commander, rated his performance as “Best Qualified” and placed him in the center of mass (COM) of his SR profile.

On 24 March 1999, the applicant received a permanent change of station (PCS) OER covering the period of 17 October 1998 to 10 March 1999. The rater of this OER (contested report) was a different rater from the previous report and in Part IVa, under Performance Evaluation – Professionalism, he gave the applicant “No” ratings under “Selfless Service – Places Army priorities before self” and “Duty – Fulfills professional, legal and moral obligations.”
In Part V, under Performance and Potential Evaluation, the rater gave the applicant a rating of “Unsatisfactory Performance – Do Not Promote.” In the supporting comments, the rater indicated that the applicant’s performance was unsatisfactory, that his performance across the board had declined throughout the rating period due to personal problems, that his personal problems affected his ability to make sound decisions, as evidence by his lack of discipline to be on time for daily tasks. The rater further indicates that the applicant received remedial training as well as written and verbal counseling and despite being given every opportunity to excel, he consistently failed to take positive corrective action on his shortcomings and deficiencies. He also indicated that the applicant had difficulty staying abreast of events in the unit’s high “OPTEMPO” environment and that his promotions and schooling should be directly linked to his ability to overcome personal challenges.

The intermediate rater (same as previous report) indicated that the applicant’s performance was unsatisfactory, that he failed on several occasions to perform his duties as a UH-60 pilot, that his character is marred by selfishness and an arrogant attitude towards duty. He also indicates that the applicant did not reach his full potential and that he would not until he overcomes his personal challenges. He recommended that the applicant not be promoted or sent to school.

The SR (same as previous report) gave the applicant a potential rating of “Do Not Promote” and placed him below COM on his profile. The supporting comments indicate that the applicant performed in less than an adequate manner, that he spent much of the rating period overcoming personal challenges, that he was unable to stay abreast of events in the units fast-paced environment, that he never achieved his full potential, and that he had reached the end of his useful life as an officer of our Army. He recommended that the applicant not be promoted or sent to school.

The OER was considered adverse and as such was referred to the applicant for comment. The applicant acknowledged receipt of the referred report and indicated that he desired to submit comments in his own behalf. However, on 21 April 1999, the SR authored a Memorandum for Record indicating that the applicant had failed to submit a statement in his own behalf by the established suspense date of 10 April 1999. Accordingly, the OER was forwarded for processing and inclusion in his OMPF.

On 23 May 2001, after being twice nonselected for promotion, the applicant submitted an appeal of the contested OER to the Officer Special Review Board (OSRB), citing essentially the same reasons as he has to this Board. He also submitted the same supporting letters with his appeal.

In the processing of his case, the OSRB contacted the SR of the contested report for additional information because he had provided the applicant a letter of support. The SR indicated that he remembered the applicant and the OER and had since been apprised of new information that caused him to support the applicant’s appeal. When asked what problems the applicant had that he (the SR) was not aware of at the time, the SR indicated that there were no problems he was unaware of, but as he panned back, he believes that he could now see them in a different perspective. He also indicated that he had considered all of the applicant’s accomplishments at the time and had since learned from the applicant’s current brigade commander, that the applicant’s performance was outstanding and he (the SR), believes now that he had been too harsh. The SR acknowledged that retrospective thinking was applicable in this situation and that after being prompted by the applicant’s current chain of command regarding the applicant’s excellent performance, he (the SR) reconsidered the issue and felt badly that the OER might result in the applicant’s forced departure from the service.

In regards to the remaining third party statements submitted by the applicant with his appeal, the OSRB opined that none of those individuals were in a position to understand the expectations of the rating officials during the rated period and therefore were not germane to the issues at hand. The OSRB opined that the applicant had failed to provide sufficiently convincing evidence to show that the contested OER was substantively inaccurate, unjust or that it did not adequately portray his demonstrated performance or potential. The OSRB denied his appeal on 7 January 2002.

The supporting statement from the SR of the contested OER indicates that he fully supports the removal of the contested OER, that he was not aware of some of the favorable aspects of the applicant’s performance at the time that he was going through a difficult period in his life, that he has reviewed statements from other officers who witnessed his performance and after speaking to his current chain of command, he would have rated the applicant differently had he known these things.

The remaining three supporting statements are from two of his aviator peers and a captain who were assigned to the same unit with the applicant in Korea. All of these individuals observed no indications that he would receive a substandard OER based on his otherwise excellent performance of duty.

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 3-57 and 6-6 provide than 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 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports. Each report must stand alone.

Appendix F-2b (3) of that regulation addresses the issue of retrospective thinking. It provides, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant’s non-selection or other unfavorable personnel action claimed to be the sole result of the contested report. As a result, claims by rating officials that they did not intend to evaluate as they did, will not, alone, serve as the basis of altering or withdrawing an evaluation report. Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations. Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of the report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared.

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 contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. Therefore, there is no basis for removing it from his records.

2. While the applicant has solicited the support of his SR, the SR clearly is engaging in retrospective thinking, and cannot provide any substantive basis for his support other than he now has learned that the applicant is performing well in his new assignment and he does not want to be responsible for ending the applicant’s career.

3. Of particular note to the Board is the fact that the applicant has not provided supporting statements from his rater and intermediate rater, the persons most familiar with his performance on a daily basis. The evaluations rendered by those officials were based on daily contact with the applicant and he has failed to show through the evidence of record, or the evidence submitted with his application, that the ratings rendered by those officials were not a true depiction of his performance and potential during the rated period.

4. The Board has noted the supporting third party statements submitted by the applicant with application and finds that while they are complimentary of the applicant, they were not in a position to know the expectations of the rating chain regarding the applicant’s performance and potential.

5. 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 that would satisfy this requirement.

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

___pm __ __rvo ___ ___jpi ___ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069206
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2002/05/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 221	111.0005/VOID OER
2.
3.
4.
5.
6.