| Mr. Carl W. S. Chun | Director | |
| Mr. Joseph A. Adriance | Analyst |
| Mr. Raymond J. Wagner | Chairperson | |
| Mr. Lester Echols | Member | |
| Ms. Margaret V. Thompson | Member |
APPLICANT REQUESTS: In effect, reconsideration of his request that four Officer Evaluation Reports (OERs) he received between 13 February 1985 and 30 June 1988 be corrected.
APPLICANT STATES: In effect, in his original application to this Board, he stated that the rater on his OER for the period 13 February 1985 through
12 February 1986 was a liar and a dishonest person. He also claimed that the character of the senior rater (SR) on this OER left something to be desired, and that this SR was later relieved for psychiatric reasons. He also contended that he had supported an investigation against a fellow officer of the rater, and that this resulted in retaliation against him in the form of inaccurate and unfair evaluations. He claimed that he should have been rated in the top block on all the reports in question, and should be reconsidered for promotion to colonel (COL).
COUNSEL CONTENDS: In effect, counsel from the Army Legal Services Agency requested action by this Board in a motion it submitted to the United States District Court for the District of Columbia. Counsel referred the action based on a court order that voluntarily remanded the applicant’s case to this Board. The court action obligates the Board to provide a substantive review of the applicant’s 12 February 1986 OER. However, counsel indicates that it does not object to the Board’s use of its discretionary authority to conduct substantive reviews of all the OERs in question. In support, counsel provides a copy of the court order granting the motion to voluntarily remand the instant action to the Board for further discussion and explanation of its 3 May 1995 decision, and of counsel’s motion itself.
EVIDENCE OF RECORD:
Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AC95-05829) on 3 May 1995.
Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. Given a review of the oldest of the OERs in question is required by the court remand action, the Board has elected to conduct a substantive de novo review of all four of the OERs in question. The review of the three reports not covered by the court action will determine if it would be in the interest of justice to excuse the applicant’s failure to timely file in these cases.
The applicant’s military records show that he was originally appointed in the United States Army Reserve (USAR) from the Reserve Officer Training Corps on 11 August 1967, and later appointed in the Judge Advocate General’s Corps (JAG). On 15 November 1982, he was promoted to lieutenant colonel (LTC) and his promotion eligibility date (PED) for COL was 14 November 1987.
The first OER in question was an annual report covering the period 13 February 1985 through 12 February 1986. In this report, the applicant was evaluated as the Chief, International Law of a USAR Judge Advocate General (JAG) Detachment, Urbana, Illinois. The rater on this report was the commander of the 7th Military Law Center, Fort Sheridan, Illinois, a colonel. The rater gave the applicant all 1 scores (Highest Degree) in the 14 questions contained in Part IVa (Professional Competence), and provided the following complimentary supporting comments: he was a leader in showing his dedication to the command and the USAR; he had the highest degree of integrity and was always striving to make the right moral decision; and that he consistently accepted more work and responsibility than expected and performed well above average.
In Part Vb (Performance During the Rating Period) the rater placed the applicant in the third block (Met Requirements). The following rater comments were provided to support this evaluation: he was an adequate commander who had completed the organization of his detachment; he needed some prodding to help him finish the requirement of operating the detachment; he had adequate skills as a lawyer and a soldier; he had maintained the proper level of education in military law and soldier skills; he was capable of being promoted to colonel; and his strength was in assisting commander and Staff Judge Advocates (SJAs), which would make him a competent executive officer or deputy commander. In Part Vd (Potential for Promotion), the rater placed the applicant in the second block (Promote With Contemporaries) and provided the comment that the applicant performed adequately in his position, he should be considered for promotion to colonel with his contemporaries, and he could command any other detachment in the rater’s command.
In Part VIIa (SR-Potential Evaluation), the SR placed the applicant in the third block with 18 other officers. The SR profile showed 9 first block, 32 second block, 19 third block, and 1 fourth block evaluations. It also confirmed that the total officers rated by the SR was 61. The supporting comments of the SR credited the applicant with performing his duties adequately and bringing his unit to full strength and MOS qualification content. This report was not considered adverse and there is no evidence that suggests that the applicant questioned the evaluation or requested a commander’s inquiry at the time the OER was received.
The second contested report was an annual report that covered the period
13 February 1986 through 12 February 1987. In this report, the applicant was again evaluated as the Chief, International Law of a USAR JAG Detachment. The rater on this report was again the commander of the 7th Military Law Center, a colonel. The rater gave the applicant all 1 scores (Highest Degree) in the
14 questions contained in Part IVa (Professional Competence), and included the following supporting comments: the applicant had the highest degree of integrity; he was dedicated to both his unit and the USAR; and he was loyal to the USAR and the command.
In Part Vb (Performance During the Rating Period), the rater placed the applicant in the second block (Usually Exceeded Requirements), and provided comments that included that the applicant had continued to lead his detachment in a fine fashion; he was competent as a lawyer and soldier; he improved unit readiness; he completed assignments in a timely manner; and he was suited to instruct other units in the Law of War based on his knowledge and expertise.
In Part Vd (Potential for Promotion), the rater placed the applicant in the second block (Promote With Contemporaries) and provided the comment that the applicant should be considered for promotion to colonel as soon as eligible and that he had the ability to command a military law center or be a SJA.
In Part VIIa (SR-Potential Evaluation), the SR placed the applicant in the third block with 14 other officers. The SR profile showed 0 first block, 14 second block, 14 third block and 2 four block evaluations. It also confirmed that the total officers rated by the SR was 30. The SR supporting comments included that the applicant was an intelligent, dedicated professional officer, who accomplished the majority of assignments in a timely and excellent fashion. This report was also not considered an adverse OER, and there is no indication that the applicant questioned the evaluation or requested a commander’s inquiry at the time the report was issued.
The third contested report was an annual report that covered the period
13 February 1987 through 12 February 1988. In this report, the applicant was also evaluated as the Chief, International Law of a USAR JAG Detachment. The rater on this report was also the commander of the 7th Military Law Center, a colonel. The rater gave the applicant all 1 scores (Highest Degree) in the
14 questions contained in Part IVa (Professional Competence), and included the following supporting comments: he constantly strived to make the right moral judgment; he was very loyal to the command and the USAR; and his dedication to the USAR was a model for other officers.
In Part Vb (Performance During the Rating Period), the rater placed the applicant in the second block (Usually Exceeded Requirements) and included supporting comments that indicated that the applicant continued to be a competent commander and that he was competent as an attorney and soldier.
In Part Vd (Potential for Promotion), the rater placed the applicant in the first block (Promote Ahead of Contemporaries) and provided the comment that the applicant had served as a detachment commander and based on his performance, he should be a serious candidate for higher command.
In Part VIIa (SR-Potential Evaluation), the SR placed the applicant in the third block with 1 other officer. The SR profile showed 0 first block, 4 second block,
2 third block, and 1 fourth block evaluations. It also confirmed that the total officers rated by the SR was 7. The SR provided complimentary comments that included that the applicant was an articulate, extremely capable detachment commander who performed in an excellent manner, and that he was an officer with exceptional potential that should be considered for promotion ahead of his contemporaries. Again, this OER was not considered adverse and there is no evidence to show the applicant questioned the evaluation or requested a commander’s inquiry at the time the report was given.
The last OER in question was a change of duty report that covered the period
13 February 1988 through 30 June 1988. In this report, the applicant was evaluated as the Chief Counsel of a JAG Detachment. The rater on this report was the commander of the 7th Military Law Center, a colonel. The rater gave the applicant all 1 scores (Highest Degree) in the 14 questions contained in Part IVa (Professional Competence), and included the following supporting comments: he is fully qualified and competent in military law, doctrine, and techniques; and he is devoted to the USAR program.
In Part Vb (Performance During the Rating Period), the rater placed him in the second block (Usually Exceeded Requirements) and provided complimentary comments on his ability to maintain his unit at full strength and on his training ability and accomplishments during the rating period. In Part Vd (Potential for Promotion), the rater placed the applicant in the second block (Promote With Contemporaries) and provided comments that indicated that the quality of the applicant’s qualification and ability qualified him for promotion to the next higher grade, and that his command of his detachment confirmed his ability to maintain the unit’s strength; MOS qualification; and accomplish the mission.
In Part VIIa (SR-Potential Evaluation), the SR placed the applicant in the fourth block with 3 other officers. The SR profile showed 2 first block, 35 second block, 28 third block, and 4 fourth block evaluations. It also confirmed that the total officers rated by the SR was 69. The SR provided comments that included that the applicant was an intelligent, dedicated officer who accomplished the majority of his assignments in an excellent manner. Of particular note during the rating period was his successful training of his detachment personnel, and subsequently other unit personnel, on the enactment of the Reserve Forces Military Justice legislation. The SR also commented that unfortunately this emphasis on training detracted from the administrative efficiency of his detachment, which was marginal. The SR concluded that the applicant was an extremely ethical and professional individual with superior potential, and he should be considered for promotion with his contemporaries.
On the four contested reports, the first three contained the same rater and the fourth a different rater. There were two different SRs involved in the four reports. One evaluated the applicant on the first report and the second evaluated him in the remaining three reports. All of the contested reports were accepted for filing at Headquarters, Department of the Army (HQDA) and there is no indication that the applicant ever requested or received a commander’s inquiry into any of the four contested reports at the time they were completed.
The applicant provides a copy of a document that indicates that on 30 June 1988, he requested a commander’s inquiry into the OER he received for the period 13 February 1985 through 12 February 1986, and subsequent OERs.
On 28 September 1992, the applicant appealed the contested OER covering the period 13 February 1985 through 12 February 1986. In this appeal, he contended that the OER was substantively inaccurate, was biased, and that the evaluation did not accurately reflect his performance. The applicant claimed that the inaccurate and unjust rating was the result of his signing an incomplete OER, because he was not part of the “good old boy network”; and that he had initiated several whistleblower complaints. The applicant’s appeal was submitted to the Deputy Chief of Staff, Personnel (DCSPER), Officer Special Review Board (OSRB) for action.
On 19 November 1992, the OSRB published a case summary that outlined its consideration of the applicant’s appeal. In connection with its review of the case, the OSRB contacted the rater of the report. The rater commented that the applicant was the worst commander in his organization, and in retrospect, he should have probably removed the applicant from command, but chose to cut him some slack. The rater further commented that an Inspector General (IG) inspection team had indicated that the applicant’s unit was the worst organization they had inspected. The rater also stated that the applicant was a nice guy, who tried, but was not a leader and did not have the respect of the soldiers in his unit. The rater concluded his comments to the OSRB by indicating that he gave the applicant more than a fair rating. The OSRB also contacted the SR on the contested report. The SR indicated to the OSRB that the applicant had received a fair rating. He had compared the applicant to other officers in similar positions and grade and also the rater’s input in deriving his senior rating. He also commented that he did not know what the applicant was talking about in alleging a “good old boy network” and stated that he had many open investigations ongoing in the Army Reserve Command (ARCOM). It was a huge command and he did not hold any grudges against participants in this process. He also commented that he had no recollection of the specific investigation the applicant referred to in his appeal.
The OSRB finally concluded that the applicant had failed to provide clear and convincing evidence that supported his contentions that the contested OER was substantively inaccurate and unjust, and that the rating did not adequately reflect his performance. Therefore, the OSRB recommended that the applicant’s appeal be denied.
Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).
The OER regulation also provided guidance regarding redress programs. This included commander inquiries and appeals. It also provided a basic presumption of regularity rule, which stated, in effect, that an evaluation report accepted by HQDA and included in the official record of an officer was presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It further stipulated that requests that an accepted report be altered, withdrawn, or replaced with another report would not be honored.
Chapter 4 contained guidance on referred reports, and stated, in pertinent part, that any report with a SR potential evaluation in one of the bottom three blocks, six through nine, in Part VIIa; and any report with ratings or comments that, in the opinion of the SR, was so derogatory that the report may have an adverse impact on the rated officer’s career, would be referred to the rated officer by the SR for acknowledgement and comment prior to it being sent to HQDA for processing.
Chapter 6 contains guidance on redress programs. It stipulated that Commanders are required to look into alleged errors, injustices, and illegalities in
OERs. These matters may be brought to the commander's attention by the rated officer or anyone authorized access to the report. The primary purpose of the commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. While a secondary purpose is to obtain command involvement in clarifying errors or injustices after the OER is accepted at HQDA, this provision is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record. This provision also stipulated that an inquiry done after the OER in question has been accepted at HQDA must be forwarded to HQDA not later than 120 days after the through date of the OER in question.
Chapter 6 contained the policy and guidance for submitting OER appeals. It stated, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer was presumed to be administratively correct; to have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. Finally, it defined the burden of proof and type of evidence necessary to support the submission of an OER appeal. It stated, in effect, that the burden of proof rested with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant was required to produce evidence that established clearly and convincingly that the presumption of regularity referred to in the regulation should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.
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 Board notes the applicant’s contention that the four OERs he received between 13 February 1985 and 30 June 1988 were unfair, unjust, and that they should be corrected. However, after an extensive review of the facts in this case, the Board finds insufficient evidence to support these claims.
2. By law, applications for correction of military records must be filed within
3 years after discovery of the alleged error or injustice. Failure to file within the time allotted may be excused by a correction board if it finds it would be in the interest of justice to do so. Regarding the three OERs not covered by the court remand action, the Board concludes that the applicant has failed to explain or satisfactorily demonstrate by competent evidence that it would be in the interest of justice to excuse the failure to apply within the 3 year statute of limitations.
3. The evidence of record confirms that all four of the contested OERs were processed in accordance with applicable regulations in effect at the time, and that they were accepted by HQDA and filed in the applicant’s Official Military Personnel File (OMPF). None of the reports in question were identified as adverse at the time they were prepared, and there is no evidence of record to show that the applicant ever contested the reports at the time they were received.
4. The applicant does provide a copy of a request for a commander’s inquiry, dated 30 June 1988, in which he requested a commander’s inquiry on the first contested report that ended on 12 February 1986, and as an aside on all subsequent reports submitted. There is no evidence of record to show that this request was ever acted upon by his chain of command. In the opinion of the Board, given the regulation stipulated that a commander’s inquiry must be forwarded to HQDA not later than 120 days after the through date of the OER in question, this submission does not demonstrate a good faith effort on the applicant’s part to resolve the OER issues he now raises in a timely manner.
5. The Board notes and carefully considered the applicant’s contention that he was reprised against because he was a whistleblower and supported investigations against other officers in the command. The Board takes every allegation of reprisal seriously and would never let stand an action that was found to be an act of retaliation based on a protected communication. However, in this case, it finds no evidence of record or independent evidence provided by the applicant that would support a conclusion that the evaluations he received were the result of reprisal by rating officials. Thus, the Board finds no evidence to support granting the requested relief on this basis.
6. The Board also considered the applicant’s allegations that the rater on the first contested report was a liar and dishonest person, and that the character of the SR also left something to be desired, and he was ultimately relieved of duty for psychiatric reasons. However, even if these allegations were true, the Board finds no evidence that suggests that these factors had any bearing on the ratings he received in any of the contested reports.
7. Finally, as the OSRB determined in its review of the first contested report in 1992, the Board now finds that the applicant has failed to satisfy the regulatory burden of proof necessary for the successful appeal of an OER in any of the four reports he now contests. In the opinion of the Board, he has failed to provide clear and convincing evidence to support his contentions that any of the contested OERs were substantively inaccurate and unjust, or that the ratings contained in these four reports did not adequately reflect his performance during the rating periods covered. Thus, the Board finally concludes that relief is not warranted in this case.
8. 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.
9. 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
__RJW__ ___LE___ __MVT__ DENY APPLICATION
| CASE ID | AR2002074934 |
| SUFFIX | |
| RECON | AC95-05829 |
| DATE BOARDED | 2002/08/08 |
| TYPE OF DISCHARGE | N/A |
| DATE OF DISCHARGE | N/A |
| DISCHARGE AUTHORITY | N/A |
| DISCHARGE REASON | N/A |
| BOARD DECISION | DENY |
| REVIEW AUTHORITY | |
| ISSUES 1. 193 | 111.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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