PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 24 June 2003
         DOCKET NUMBER: AR2002077383


         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Frank C. Jones		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 the removal of an officer evaluation report (OER) and all related documents from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that his chain of command did not adhere to the standards of service in Army Regulation 623-105 and deceived both members of Congress and the Officer Special Review Board (OSRB) during the reviewing process. He goes on to state that the OER covering the period from 16 June 1999 through 15 June 2000 is unjust and does not accurately reflect his performance and potential. He also states that his chain of command has managed to manipulate the truth and offers only their word as confirmation of such truths. He continues by stating that despite attempts by himself to seek guidance/counseling from his rater, it simply did not occur as the rater claims. The rater apparently had his own un-stated set of ambiguous performance objectives which he never shared with him, which meant that he had no chance of succeeding. He further states that he was unaware that the rater was unhappy with his performance, especially since he was recommended for and approved for an award of the Defense Meritorious Service Medal. However, after the award was approved on 16 February 2000, it was rescinded on 17 March 2000. It was not until 24 May 2000 that the applicant discovered that the award had been rescinded and then his rater fabricated a lie as to the reason for rescinding the award by stating that he was reconsidering the type of end of tour award that the applicant would receive. He continues by stating that the rater improperly used the results of the Inspector General (IG) inspection, a staff assistance visit (SAV) conducted after his change of command and congressional complaints/inquiries made by his civilian employees to formulate the negative ratings. Additionally, the chain of command improperly stated to congressional officials that the award had been rescinded because of the results if the IG inspection, when in fact, it was rescinded well before the inspection. He goes on to state that the senior rater (SR) lied to Officer Special Review Board officials when she told them that she had conducted counseling when in fact, no counseling was conducted after the initial counseling on 25 October 1999. In fact, neither the rater or the SR can produce evidence of complying with the applicable regulation regarding counseling, despite the fact that he provided a support form. In addition, neither the rater nor SR were Army officials and the reviewing officer was not senior to the SR and was directly subordinate to the SR, which may have influenced his objectivity. In support of his application he submits numerous supporting documents for review by the Board.

4. The applicant’s military records show that he initially enlisted on 19 August 1981, for a period of 4 years, training as a chemical operations specialist, assignment to Europe and a cash enlistment bonus. He served until he was honorably released from active duty in the pay grade of E-5 on 7 September 1984, to enter the Reserve Officer Training Corps (ROTC) Simultaneous Membership Program.
5. He was commissioned as a United States Army Reserve second lieutenant on 10 May 1986. He was ordered to active duty on 10 October 1986 and accepted a Regular Army commission as an Adjutant General Corps second lieutenant as a result of being a Distinguished Military Graduate. He was promoted to the rank of captain on 1 June 1991 and the rank of major on 1 March 1998.

6. His initial assignment was as an operations officer at a recruiting battalion in California followed by an assignment to Recruiting Command as an aide-de-camp and then as Chief of the Recruiting Command Family Assistance Branch. He then served in an infantry division as chief of personnel actions, personnel management, commander of the division replacement company and then as the operations officer (S-3). He was transferred to be a major command officer strength manager followed up by an assignment as a commander of a Military Entrance Processing Station (MEPS) commander, where he received the contested report. Upon his departure from that assignment he attended the command and general staff officer course (CGSOC) in residence at Fort Leavenworth, Kansas, where he remained as an operations officer after graduating from the CGSOC. With the exception of the contested report, all of his evaluation reports have placed him at or above center of mass on the SR's profile.

7. The applicant's first OER as a commander of a MEPS covered the period from 16 June 1998 through 15 June 1999. He was rated by a Navy Captain (0-6) and his SR was an Army Colonel. His rater deemed his performance as Outstanding, must promote and his SR deemed him best qualified, with a center of mass rating. His rating officials also deemed him to be an excellent commander and recommended he be selected for battalion command, attendance at the CGSCO and promotion to lieutenant colonel at the first opportunity.

8. On 2 February 2000, the applicant's rater recommended him for award of the Defense Meritorious Service Medal (DMSM) for the period of 10 July 1998 to 16 June 2000 and cited his accomplishments as a commander. His rating chain supported the recommendation and it was approved by the Commanding General of Training and Doctrine Command on 9 March 2000. On 17 March 2000, officials at the USAMEPCOM requested that the recommendation be returned without action.

9. His next report (contested OER) covered the period from 16 June 1999 through 15 May 2000. His rater was a Marine Corps Colonel and in Part IVb, under Leader Attributes/Skills and Actions, his rater gave him "No" ratings under "Interpersonal – Shows skills with people, coaching, teaching, counseling, motivating and empowering", "Motivating – Inspires, motivates, and guides others toward mission accomplishment", "Developing – Invests adequate time and effort to develop individual subordinates as leaders."

10. In Part V, under Performance and Potential Evaluation, the rater gave the applicant a rating of "Unsatisfactory Performance – Do Not Promote". His supporting comments indicate that the applicant ranked last among the rater's subordinate commanders, that he had a mediocre performance in command. He recommended that the applicant not be promoted and that he be assigned to staff positions where there is limited supervision of subordinates.

11. His SR was a Navy Captain who also recommended that the applicant not be promoted. She placed the applicant below center of mass in her SR profile and indicated that his performance as a commander was marginal. She further stated that he should not be promoted or given assignments of increased responsibility, but, that he should be retained and assigned in a staff role.

12. The report was considered adverse and was referred to the applicant, who elected to comment on the report. He contended that his support form was a more accurate representation of the truth and that his rating chain never gave him counseling or any indication that he was not meeting their expectations until he received the report. In fact, the rater recommended him for award of the Defense Meritorious Service Medal, which the SR endorsed and was approved. The award was subsequently revoked.

13. A supplementary review of the OER was conducted by an Army Colonel who served as the Deputy Commander and Chief of Staff under the SR. He indicated that the OER was complete and correct as written and required no further comment.

14. On 1 September 2000, the applicant submitted a request for a commander's inquiry, contending that the OER was a product of uncaring leaders who provided little or no guidance, neither accepted nor acknowledged input from him and took no interest in his personal or professional development. He further stated that they used IG inspection results as a basis for negative remarks and allowed their staff subordinates who had never visited his work place to influence their decisions. Additionally, they used events which occurred outside of the rated period as an evaluation tool and never made the time or took the effort to acknowledge or discuss performance objectives and significant contributions, nor did they ever give him an indication that he was "off the mark."

15. A commander's inquiry was conducted and the reviewing official (a vice admiral) opined that the OER was fair and representative of his performance during the rated period.

16. The applicant appealed the contested OER to the Officer Special Review Board (OSRB) on 6 August 2001, contending that his rating chain failed in all aspects of the regulation governing the OER. He cited essentially the same issues he has cited in his extensively documented appeal to this Board. The OSRB indicated that they conducted an exhaustive analysis of his contentions and opined that there was no evidence that he was evaluated unfairly or unjustly. His appeal was denied on 20 June 2002.

17. United States Military Entrance Processing Command (USMEPCOM) Regulation 20-1, prescribes policies and provides procedures for general inspections, investigations and inquiries, reports and requests for assistance. It provides, in pertinent part, that the USMEPCOM IG will provide a report on the IG inspection to the commanders containing meaningful and timely corrective actions for problem areas and to provide a tool to assist in training and will not be used as a basis for either award recommendations or evaluation report material.

18. Army Regulation 20-1 describes IG functions, including teaching and training, inspections, investigations and assistance. It provides, in pertinent part, that IG inspection results will not be used to compare units, organizations, or as criteria for unit competitive awards. IG inspections are not designed to reward or penalize unit, commanders or individuals.

19. Army Regulation 623-105 prescribes the policies and tasks for the OER Reporting System. It provides that if the SR is not a United States (US) Army officer or Department of the Army (DA) civilian, a supplementary review will be conducted by the first US Army officer or DA civilian above the SR in the chain of command or supervision. When such a review is conducted, the supplementary reviewer will prepare an enclosure that contains comments on the accuracy and clarity of the completed OER.

20. That regulation also provides that commanders must ensure that rating officials give timely counseling to subordinates on professionalism and job performance, encouraging self-improvement when needed. Commanders must ensure that each rating official knows how the subordinates he or she evaluates have performed. Each SR and supplementary reviewer, if any, must understand that he or she must provide his/her support form to rated officers and examine the entries on the evaluation reports to ensure objectivity and fairness have been maintained. Rating officials greatly affect a rated officer's performance and professional development. Thus these officials must ensure that the rated officer thoroughly understands the organization, its mission, his or her role in support of the mission, and all of the standards by which his or her performance will be judged. The support form processes are designed specifically to assist in this rating chain responsibility. It promotes a top down emphasis on leadership communication, integrating rated officer participation in objective setting, performance counseling and evaluation from the beginning, throughout and to the end of the rated period. Evaluation will normally not be based on a few isolated minor incidents and should cover failures as well as achievements.

CONCLUSIONS:

1. Although the applicable regulations require that a report stand alone, a review of the applicant’s OER history clearly shows that the applicant has not shown a tendency of being a below COM officer. This, coupled with the fact that the applicant's previous OER in the same position by a different rating chain, which consisted of at least one Army officer in the rating chain, portrays a picture of performance and potential that has been consistently depicted throughout his career and lends cause for the Board to question the validity of the contested report.

2. While there are many issues in this case which may be interpreted in many different ways, the Board does not find it reasonable to believe that if the rating chain was communicating with the applicant, either good or bad, that he went from being one of the top commanders to one who should only work in a staff position in his current grade or that he was not relieved from command if he was as bad as the contested report depicts him.

3. The Board also finds that the supplementary review was not conducted in accordance with the applicable regulation, in that, the officer who conducted the review was junior to the SR and worked under the SR as the deputy commander and chief of staff. The Board finds this to be a conflict of interest which denied the applicant due process and should have been identified before the report was accepted for filing in his Official Military Personnel File.

4. More important than the issues raised by the applicant is the process by which the contested report evolved. The Board believes that the communication process was either never firmly established or it simply broke down over a short period of time. In February he was recommended for a DMSM and in March it was being withdrawn. By June he was considered by his rating chain to be an officer who should not be promoted and should not supervise or command troops. While the Board will not attempt to tread through the many underlying currents in this case, it is convinced that the contested report is not indicative of the applicant's performance and potential during the rated period.

5. Given the applicant's documented record of performance and potential both before and after the contested report, the Board is also not convinced that the rating chain properly mentored and counseled the applicant or made him aware of what their expectations were in sufficient time for him to overcome any perceived deficiencies. Accordingly, the Board finds that the evidence in this case warrants the applicant receiving the benefit of any and all doubts in this case by removing the contested report from his OMPF.

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:

         a. by voiding the contested OER ending on 15 June 2000 and declaring the period non-rated time.

         b. by removing from his records all documents related to his appeal of the contested OER; and

         c. by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration to LTC under the criteria followed by all boards, if any, that previously reviewed the contested OER (less below the zone consideration).

2. That if he is selected for promotion, he be promoted with an appropriate date of rank with entitlement to all back pay and allowances, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

3. Following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing

BOARD VOTE:

__mkp___ __fcj____ __reb___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Margaret K. Patterson___
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077383
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/06/24
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1. 193	111.0000
2. 328	134.0000/Removal OER
3.
4.
5.
6.