PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 3 December 2002
         DOCKET NUMBER: AR2002077461


         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
Ms. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. James E. Anderholm		Member
Ms. Charmane Collins		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 that his Officer Evaluation Report (OER) for the period 7 July 1993 - 31 January 1994 be removed from his records and replaced with the OER for that period provided with this application.

3. The applicant states the U. S. Army Reserve Personnel Command (AR-PERSCOM) incorrectly denied his appeal of the contested OER. They based their rejection on the fact he signed the OER despite the fact he provided supporting statements from his rater and the fact he provided no evidence that the rating chain on the OER was incorrect.

4. The applicant’s military records show that, after having had prior active service, he entered the Army Guard/Reserve (AGR) program in July 1991 as a captain, Judge Advocate General's Corps.

5. The applicant was assigned to the 121st U. S. Army Reserve Command (ARCOM) on 15 July 1991.

6. For the applicant's OER for the period 7 July 1991 - 6 July 1992, his rater was Lieutenant Colonel (LTC) H___ and his senior rater Colonel (COL) B___. His senior rater gave him a 2-block rating in Part VIIa (Potential Evaluation).

7. For the applicant's OER for the period 7 July 1992 - 6 July 1993, his rater was (LTC) H___ and his senior rater (COL) B___. His senior rater gave him a 1-block rating in Part VIIa.

8. For the contested OER, a change of rater OER for the period 7 July 1993 - 31 January 1994, his rater was COL B___ and his senior rater COL W___. The applicant signed the OER on 31 January 1994. His senior rater gave him a 3-block rating in part VIIa.

9. The applicant appealed the OER on 1 August 1994. He contended that the OER was not prepared in accordance with the published rating chain. As supporting evidence with his appeal he provided three sworn affidavits.

10. The affidavit from COL B___, the rater on the contested OER, attested to the fact that during his last drill the soldier who managed AGR personnel for the ARCOM (from the Office of the Deputy Chief of Staff, Personnel) told him he had to write a change of rater OER for the applicant. He told him to rate the applicant and COL H___, the Chief of Staff, would senior rate him. This was because LTC H___ had been mandatorily removed from his position. COL B___ attested to the fact he never established a written rating scheme indicating such a rating (as shown on the contested OER). COL B__ stated he complied with the directions he had received because it was his last day at the 121st ARCOM. He received a number of OERs on the applicant with Part I (Administrative Data) completed. He had the applicant sign those OERs and verify his height and weight data. COL B___ then wrote the OERs.

11. A copy of the published rating chain, signed by COL B___ and dated 24 June 1994, was provided with the sworn statement. This showed that LTC H___ was the applicant's rater and COL B___ was his senior rater.

12. The affidavit from Mr. H___, a Staff Administrative Assistant in the Office of the Deputy Chief of Staff, Personnel, 121st ARCOM, attested to the fact the published rating chain during the period covered by the contested OER showed the applicant was rated by LTC H___ and senior rated by COL B___. The office did not have then nor did it later have any rating scheme indicating that COL B___ was the applicant's rater or that COL W___ was the applicant's senior rater.

13. A copy of the published rating chain, signed by Mr. H___, was provided with the sworn statement. This showed that LTC H___ was the applicant's rater and COL B___ was his senior rater.

14. The affidavit from COL P___, who was the Deputy Chief of Staff, Personnel, for the 121st ARCOM until 30 June 1994, attested to the fact an updated published rating chain was not prepared upon the departure of LTC H___ or upon the departure of COL B___. The rating scheme attached to his affidavit, which showed the applicant was rated by LTC H___ and senior rated by COL B___, was the most recent. COL P___'s statement was dated 29 July 1994.

15. AR-PERSCOM either denied the applicant's appeal or failed to take action on it on an unknown date.

16. The applicant apparently re-appealed. By memorandum dated 25 April 1995, AR-PERSCOM informed him that his appeal correspondence was again returned because all official documents submitted in support of an appeal must be originals or certified true copies of the original documents. He did not submit original documents or certified true copies.

17. On 27 January 1998, the applicant again appealed the contested OER. He provided an additional sworn statement, dated 13 January 1997, from COL B___. COL B___ supplemented his earlier sworn statement. He also concluded that perhaps the correct way to have prepared the contested OER was for him, COL B___, to have acted as both the rater and the senior rater, due to the removal of the rater, under the provisions of Army Regulation 623-105, paragraph 3-16b. He provided a completed OER which both he and the applicant signed and which reflected how COL B___ would have rated the applicant had he rated him under the provisions of paragraph 3-16b on the change of rater OER for the period ending 31 January 1994.
18. Except for mostly minor changes (with more significant changes being the original last sentence in Part IIIc (Duty Description), "Coordinates training for all ARCOM JA assets and co-hosts the annual JA on-site training with the Alabama National Guard" versus the new last sentence in Part IIIc, "Coordinates all training for ARCOM JA officers and soldiers and co-hosts the annual JA On-Site legal education program (the nations (sic) largest) with the Alabama National Guard" and an additional sentence added to the end of Part Vc (Performance and Potential Evaluation)), COL B___'s rater's portion of the newly-prepared OER is the same as the contested OER. In the newly-prepared OER, COL B___ acts as the senior rater. He 1-blocked the applicant in Part VIIa and provided senior rater comments in Part VIIb (Comments) to include indicating he was serving as both rater and senior rater under the provisions of Army Regulation 623-135 (sic), paragraph 3-16b.

19. By memorandum dated 2 August 1999, AR-PERSCOM informed the applicant that the Deputy Chief of Staff, Special Review Board determined the evidence he submitted did not justify altering or withdrawing the contested OER.

20. Army Regulation 623-105, the version in effect at the time, established the policies and procedures for preparing, processing and using the OER. The regulation provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rested with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must have produced evidence that clearly and convincingly nullified the presumption of regularity. Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

21. Army Regulation 623-105, Appendix F-2b(4)(a) stated that official documents could substantiate than an OER was in error. As an example, it stated that a certified copy of a published rating scheme in effect during the specific report period could indicate that an incorrect rating official prepared an evaluation.

22. Army Regulation 623-105, paragraph 4-11c(3) stated that the rated officer signed the OER before sending it to the rater. The rated officer's signature verified the accuracy of the administrative date in Part I (except item o), the rating officials in Part II (Authentication), and the Army Physical Fitness Test and height and weight data in Part IV (Performance Evaluation).

23. Army Regulation 623-105, paragraph 3-16 stated that special rules applied when a rating chain member was unable to render an evaluation of the rated officer. When the rater was removed from the rating chain, it must have been determined whether the minimum requirements for an OER were met. If the minimum requirements were met and there was no intermediate rater, the senior rater performed the rater's function if he or she felt qualified to rate and had served in the rating chain for 90 or more calendar days. If the senior rater assumed the role of rater, he or she would serve as both rater and senior rater.

24. Army Regulation 623-105, paragraph 4-16d(4) stated that in cases where the senior rater was also serving as the rater, he or she would complete the rater's portion of the OER and the senior rater's potential evaluation in Part VIIa. The senior rater need not have made comments in Part VIIb but must have cited the authority for his or her acting as both rater and senior rater. This part would also describe any exceptional circumstances as described in paragraph 4-16d(2) (which stated that anything unusual about the OER would be noted in Part VIIb).

CONCLUSIONS:

1. The Board notes that AR-PERSCOM denied the applicant's OER appeal in part because he did not provide original or certified copies of his published rating scheme. While Army Regulation 623-105, appendix F-2b(4)(a), the version in effect at the time, did not specifically require certified copies of official documents, AR-PERSCOM acted within their authority to require submission of certified documentation with an OER appeal.

2. The Board also notes, along with AR-PERSCOM, that the applicant signed the OER. By regulation, his signature verified the accuracy of the rating officials in Part II.

3. However, the applicant provided sworn statements from his rater, a colonel in the Staff Judge Advocate General's Corps; from the Deputy Chief of Staff, Personnel, 121st ARCOM, another colonel; and from a Staff Administrative Assistant in the Office of the Deputy Chief of Staff, Personnel, 121st ARCOM attesting to the correctness of the provided rating scheme which showed the applicant's rater was LTC H___ and his senior rater was COL B___ (not COL W___).

4. The applicant's rater, COL B___, provided a reasonable explanation of how the error occurred. The loss of a rating official is not a common occurrence. It is a situation a rater may be reasonably expected not to know how to handle without obtaining expert advice. It is reasonable for COL B___ to have expected to receive good advice from the 121st ARCOM's Office of the Deputy Chief of Staff, Personnel. In this case, it appears he was given incorrect guidance on how to prepare the contested OER.

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5. The Board therefore accepts these statements as convincing evidence of a strong and compelling nature to show the rating officials on the contested OER were inaccurate.

6. While the applicant should have known that his signature on the contested OER verified the accuracy of the rating officials, the Board is aware that rating officials frequently ask rated officers to sign blank or partially completed OERs. Given the information provided in the sworn statements, the Board does not believe that the applicant should be penalized by being held to the letter of the regulation.

7. The Board believes that the new OER completed by COL B___, wherein he acts as both rater and senior rater, with a few exceptions, is a fair approximation of how that OER would have been completed had he actually prepared it at the time it was due. The top-block rating in part VIIa is the same as COL B___ gave the applicant in his preceding OER. The Board believes that the differences in Part IIIc are not significant enough to modify. The Board believes the last sentence in Part VC should be deleted as it does not appear in COL B___'s original rating at all. The Board believes that Part VIIb should be amended to add an explanatory phrase after the last sentence to indicate the applicant's rater was removed.

8. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That the contested OER for the period 7 July 1993 - 31 January 1994, wherein COL B___ was the applicant's rater and COL W___ was the senior rater, be removed from the applicant's records

2. That the provided OER for the period 7 July 1993 - 31 January 1994, wherein COL B___ acts as both rater and senior rater, be substituted for the contested OER with the following modifications:

a. That the last sentence in part VC be deleted; and

b. That Part VIIb be amended to add the phrase, "…Regulation 623-105, paragraph 3-16b, due to the removal of the rater.

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3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

_ _FNE _ __JEA___ ___CC__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION





                  ___Fred N. Eichorn _
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077461
SUFFIX
RECON
DATE BOARDED	2002/12/03
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	Partial Relief
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.