PROCEEDINGS


         IN THE CASE OF: .
        

         BOARD DATE: 16 December 2003
         DOCKET NUMBER: AR2002077426

         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:

Mr. Samuel A. Crumpler		Chairperson
Ms. Shirley L. Powell		Member
Mr. John N. Slone		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)

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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.

2. The applicant requests reconsideration of his previous application to correct his military records by removing an officer evaluation report (OER) covering the period of 20 March 1996 through 21 June 1996, and all associated documents from his Official Military Personnel File (OMPF).

3. The applicant states, in effect, that the Board did not give sufficient weight to the evidence he presented regarding his rater’s qualifications to render a fair and impartial evaluation of his performance and potential. He further provides a name of a Central Intelligence Agency intelligence officer who knows his rater and the circumstances that led to her being removed from the promotion list to colonel, removal from the War College Selection List, receiving a general officer letter of reprimand (GOMOR), receiving nonjudicial punishment, and being forced to retire. He requests that due to her covert employment status she be allowed to provide a verbal classified statement in a secure setting. He goes on to state that a review of the Criminal Investigative Division (CID) investigation will provide some insight into the matter; however, it is classified and he does not have access to it. However, the board has the ability to obtain it and he requests that it be done in the interest of justice. He also states that because of the rater’s involvement in criminal and unethical behavior, which he would not be a party to, and for which he brought to her attention, she retaliated with negative and adverse counseling statements and efficiency reports. He also asserts that the rater was under intense pressure at the time because she was under investigation for criminal behavior that eventually led to her house arrest soon after departing battalion command and the other actions that eventually led to her retiring. He contends that the rater should be deemed “Not Qualified” because of her criminal conduct and unethical behavior and should not be allowed to ruin an otherwise excellent career. In addition, he was never counseled on the deficiencies noted on the OER and was not given the OER until the date of his departure from Korea, which made it difficult at best to respond to.

4. The Memorandum of Consideration (MOC) of the Board’s 16 May 2002 review of the case (AR2001060669) is incorporated herein by reference as if wholly set forth.

5. The applicant’s submission is new evidence and/or argument that requires Board consideration.

6. The applicant’s military records show that he was commissioned as a United States Army Reserve second lieutenant on 14 September 1983, with a concurrent call to active duty as a chemical officer. He was promoted to the rank of major (below the zone) on 1 July 1994 and to the rank of lieutenant colonel on 1 May 1999.

7. On 26 March 1996, while serving in the rank of major in Korea, the applicant received a senior rater (SR) option OER covering a period of 9 months. The report evaluated him as a battalion S3 officer. His rater, a lieutenant colonel (same rater as contested report) gave him maximum ratings and positive comments on his performance. The SR gave him a top block rating and indicated that the applicant exceeded all expectations, his ability to think clearly and see through complex problems and develop sound recommendations has enabled the battalion to excel. He further indicated that the applicant should be promoted early to lieutenant colonel and had clear potential for command. The SR was a colonel and served as the Group Commander.

8. The contested OER is a change of rater OER covering a period of 3 months (20 March 1996 to 21 June 1996) and was rendered by the same rater (battalion commander) and a different group commander. In this report, the rater gave the applicant “2” ratings in Part IVa under Performance Evaluation, in the areas of “Possesses capacity to acquire knowledge/grasp concepts”, “Demonstrates appropriate knowledge and expertise in assigned tasks”, “Motivates, challenges and develops subordinates”, “Encourages candor and frankness in subordinates”, “Clear and concise in written communication”, “Displays sound judgement”, “Seeks self-improvement”, and “Sets and enforces high standards.” He received “1” ratings in the remaining six areas. In Part IVb, under Professional Ethics, the supporting comments indicate that the applicant cannot translate concept into concrete, does not perform at a level expected of a field grade officer and although intelligent, has difficulty in grasping what needs to be done. He failed to gain the respect and confidence of subordinates and set a poor example by his own inability to follow.

9. In Part V, under performance and potential evaluation, the rater gave the applicant a “Met requirements” rating and indicated that he should be promoted with his contemporaries. In the rater’s comments on his performance, she indicated that his overall performance as operations officer had been disappointing, that he spent a great deal of time and effort on a path divergent from the commander’s guidance, that it was unclear whether his inability to be a member of the team is due to his inability to comprehend guidance or conscious defiance. She further indicated that while he had vocalized his disregard for the commander’s policies and direction to peers and subordinates within the unit, she believed that his problem stemmed primarily from an inability to grasp guidance and direction.

10. The SR (a colonel and group commander) placed the applicant in the third block of his SR profile, which placed the applicant below center of mass on the SR’s profile. The SR comments indicate that he concurred with the rater’s comments based on his own assessment of the applicant’s duty performance and its impact on the unit. His substandard performance in this critical position should be weighed carefully when considering him for promotion. The OER was considered adverse and was referred to the applicant on the day of his departure from the unit.

11. On 24 October 1997, the applicant submitted an appeal of the contested OER to the Officer Special Review Board (OSRB) contending that the report was not an accurate assessment of his performance and potential, that his SR only observed him once and relied on untrue and inaccurate information to make his assessment, that he was not counseled or provided any feedback on his performance, and that his significant achievements were not placed on the report. He also provided third party statements from other officers in the unit who asserted that there was a personality conflict between the rater and the applicant, and given the rater’s leadership style and command climate at the time, some authors questioned the rater’s ability to make an objective rating of the applicant. All spoke highly of the applicant’s performance. In the processing of the appeal, the OSRB contacted the rater (battalion commander) who contended that the report was an accurate assessment of the applicant’s performance and potential. She also stated that after numerous counseling, the applicant refused to take corrective actions required to perform his duties. He was openly defiant of her policies and guidance and vocalized this to peers and subordinates in the unit. He was a disruptive influence in the unit and had she had the support of the previous group commander, she would have relieved him of his duties. She also acknowledged that there was a personality conflict between her and the applicant and that she questioned his loyalty to her. However, she contended that it had no bearing on her assessment of his performance and potential. The OSRB denied his appeal.

12. The applicant again appealed the OER to the OSRB on two more occasions and both appeals were denied. The Board notes that the applicant submitted a letter from his former group commander who rendered the SR option OER just 3 months prior to the contested OER. The former SR indicates in his letter of support that in September 1995, he counseled both the rater and the applicant on their relationship, attitude and performance and the combined effects on the battalion and the mission. He recognized that there was a difference in leadership styles and while friction existed between the two, the mission was being accomplished. He asserted that he did not believe that the outstanding level in which the applicant was performing had deteriorated to the point indicated by the rater in just 3 months after his departure and contended that a severe personality conflict was allowed to adversely affect the rater’s judgment when she rated the applicant.

13. A review of the applicant’s OER history shows that with the exception of the contested report, he has received “top block” and maximum ratings on every OER he has received. He has two masters degrees (education and military science) and is a graduate of the Command and General Staff Course (both resident and non-resident).

14. During the processing of this case a staff member of the Board reviewed the CID investigation results of the rater, as requested by the applicant, after he agreed that he would not be afforded access to the classified information contained in those files. The files confirm that an extensive investigation was conducted, beginning as early as 1995, in which the rater was involved and titled for her conduct during the period of Aug 1990 through May 1991. On 16 January 1998, nonjudicial punishment was imposed against the rater for wrongful appropriation of government property. Her punishment consisted of a forfeiture of pay and a letter of reprimand.

15. The applicant has provided many letters of support from various officers, subordinates, co-workers and other observers who dispute the rating of the applicant’s performance and potential during the period in question.

16. Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraphs 5-32 and 9-2 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. Each report must stand alone. 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.

CONCLUSIONS:

1. While the Board notes that the contested report was processed and filed in accordance with applicable policies and regulations, it is apparent after reviewing the additional evidence in this case, that the derogatory report for the 3 rated months is clearly uncharacteristic of the applicant’s entire career prior to and following the period of the report.

2. The Board also understands that each report must stand alone; however, there is sufficient evidence to suggest that the argument presented by the applicant in which he asserts that he would not be a party to the commander’s unethical actions appear to have some merit.

3. As a result of the applicant’s failure to support the commander in actions he believed to be improper, a personality conflict developed, which was recognized by the first group commander who took steps to ensure that the conflict did not result in an adverse effect. However, it appears that the second group commander was not as actively involved in the unit’s day-to-day activities and relied on the battalion commander’s (rater) input.

4. Given all of the credible letters of support from members who served with the applicant during the contested period, the letter from the former SR explaining the climate prior to the period of the contested report, and the undisputed evidence (OER history) showing that the report is out of character for the applicant, the Board is convinced that the personality conflict between the rater and the applicant spilled over into what should have been a professional working relationship. The Board is hard pressed to believe that the applicant’s performance could have been so stellar for the 9 months prior to the referred report and then suddenly, without evidence of counseling or professional development, would have deteriorated to the degree that comments such as “I believe his problem stems from an inability to grasp guidance and direction” were warranted. The Board cannot reconcile the ratings the applicant received on the appealed OER with those received on the previous OER by the same rater, nor with any of the other reports in the applicant’s file.

5. Notwithstanding the denial of the applicant’s appeals by the OSRB, the Board is convinced that the OER is not a fair and accurate reflection of the applicant’s performance and potential. The Board also does not believe that his professional competence, ethics, performance and potential evaluation could have been as bad as reflected on the contested 3-month report, especially in view of the previous report rendered by the same rater.

6. The applicant’s evaluation reports before and after the contested report have all been excellent. He has always received maximum reports from his raters and has always been rated as a top block officer by his senior raters. His reports both prior to and subsequent to the contested 3-month report show that he has always exceeded requirements and that he should be promoted ahead of his contemporaries. This is further supported by the letters of support from other soldiers who served with him during the contested period. As such, the Board concludes that as a matter of equity and justice, the applicant should be given the benefit of any doubt in this matter and that the contested report, along with all associated documents should be removed from his OMPF.

7. In view of the foregoing findings and conclusions, correcting the applicant’s records as recommended below would correct an error or rectify an injustice.

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RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

a. by removing from the OMPF of the individual concerned the OER covering the period from 20 March 1996 through 21 June 1996, and all documents related thereto;

b. by inserting an appropriate nonprejudicial statement in his OMPF explaining that the period in question is deemed as non-rated time; and

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

2. That 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:

_SAC___ ___JS__ ___SLP___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  Samuel A. Crumpler
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077426
SUFFIX
RECON
DATE BOARDED
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.111.0005	221/VOID OER
2.
3.
4.
5.
6.