PROCEEDINGS


IN THE CASE OF:



BOARD DATE: 20 May 2003
DOCKET NUMBER: AR2002077546

         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. W. W. Osborn, Jr.		Analyst

The following members, a quorum, were present:

Mr. Melvin H. Meyer		Chairperson
Ms. Deborah S. Jacobs		Member
Mr. Jose A. Martinez		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. In effect, the applicant requests that a Relief for Cause Officer Evaluation Report (OER) for the period 17 December 1994 to 7 April 1995 be expunged from his Official Military Personnel File (OMPF) and the period declared non-rated.

3. The applicant states, in effect that:

•         He relies primarily upon the supporting information submitted to the Officer Special Review Board (OSRB), and contends that his rater never discussed his duties, responsibilities or performance or counseled him in any manner. He had no opportunity to improve his performance. The derogatory comments in Part Vc are inconsistent with the Part Vb mark indicating that he “Met Requirements”. The senior rater’s relief action and the comments in Part VII are unsubstantiated and unjust and should be expunged. The rater and senior rater were fixated on the failure of a long-term investigation concerning the theft of night vision goggles (NVG's) at Hanau. This case had the attention of Headquarters, Department of the Army and the Department of Defense. Because of pressure from above this was the only issue that the rater and senior rater cared about.

•         The commander’s inquiry determined that the rater and senior rater had not complied with counseling and notification requirements and that the relief was not adequately justified.

•         The rater told the OSRB that he had counseled the applicant daily, but had not documented a single instance of such counseling. The applicant considers such actions inconceivable. If there were a need to discuss goals and objectives on a daily basis, surely a conscientious leader would have documented such discussions. The senior rater’s assertion to the OSRB that, while she may have provided verbal counseling, she did not believe that a CW5 should need performance counseling is contrary to the letter and spirit of the OER system and leadership principles. She also revealed a personal bias against the applicant by admitting that he was not her first choice to fill the position.

•        

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He reports that the only time his rater ever discussed his performance occurred about two weeks before he was relieved. This conversation centered around the applicant’s inquiry as to why he had not received a recommended Meritorious Service Medal. His rater told him that the recommendation had been withdrawn in favor of recommending him for a Legion of Merit when he transferred from his current assignment. The applicant contends that plans to recommend him for a Legion of Merit is grossly inconsistent with the relief for cause for alleged shoddy performance of duty.

•         He believes that the absence of documented counseling, the inconsistencies and lack of detail within the subject OER and documentation of his performance constitute clear and convincing evidence that the relief for cause and the OER were unfair and unwarranted.

4. The applicant’s military records show that he was a Criminal Investigation Division (CID), chief warrant officer four (CW4) (promotable) with approximately 26 years of active duty experience when he was assigned as the battalion level operations officer (S3) in December 1994. He was promoted to CW5 on 1 March 1995. On 7 April 1995, he was relieved for cause. On 23 May 1995 the subject OER was referred to him.

5. According to the OER he was responsible for, “providing criminal investigative support to 28 military communities with a population of more than 211,000…provide oversight and inspections of CID (Criminal Investigation Division) elements conducting investigations of felony crimes…conducting crime prevention surveys and…Establish liaison with key upper lever staff members…and Federal, State and local law enforcement authorities."

6. In Part IV (Performance –Professionalism) the rater assigned “2”s (1 equaling “High Degree" and 5 equaling “Low Degree”) for the items a.1- Possess capacity to acquire knowledge/grasp concepts; a.2- Demonstrates appropriate knowledge and expertise in assigned tasks and a.8- Displays sound judgment. The rater provided corresponding remarks as follows: “a.1&2. unable to grasp and routinely exhibit level of expertise expected of a CW5 at battalion level;” and “a.8. Questionable does not instill confidence among superiors.”

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7. In Part Vb (Performance during this rating period) the rater marked the “Met Requirements" block and provided the following comments in Part Vc.

Although actually assigned as the battalion operations officer for only a brief period of time, the overall duty performance of [applicant] during the rated timeframe proved disappointing. [Applicant] was responsible for monitoring and coordinating the investigative operations of almost 100 special agents in 28 separate installations located throughout Germany, Italy and the Netherlands. This included some of the most sensitive and visible investigations of interest to the Army and the Department of Defense. The magnitude of this tremendous responsibility appears to have overwhelmed this officer and was reflected in questionable decisions and poor judgment, and the inability to routinely inform his higher headquarters of significant investigative information in a timely manner. The long-term assessment of retaining [applicant] in this critical position was perceived as detrimental to the investigative mission of this command.

8. The senior rater marked the applicant in the 5^th block and provided the following comments:

I have directed the immediate relief for cause of [applicant] for his lack of aggressive leadership and failure to demonstrate the necessary level of involvement, competence, decisiveness as the Senior Investigative Special Agent for Europe. [Applicant’s] continued inability to recognize, prioritize, energize and supervise the criminal investigative missions in Europe has been totally ineffective given his level of experience and rank. This unit’s mission cannot succeed under his style of leadership. With waning subordinate confidence and ever increasing outside supervision of his day-to-day operation, I have no more time to waste. I notified [applicant] of his relief on 7 April 1995. A DA Form 67-8-1 was not considered due to the short time he served in this job.

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9. In his 24 April 1995 response to the referred OER the applicant stated that he had reported for duty on 20 February 1995 and that there were significant disruptions to a smooth turnover because of personnel being elsewhere on temporary duty (TDY). He also addressed each deprecatory comment in significant detail and pointed out that there had not been a single specific incident offered to substantiate any of them.

10. The applicant requested a commander's inquiry. The 8 September 1995
report of that inquiry, conducted by the Commanding General, U. S. Army, Criminal Investigation Command (USACIDC), recorded the following conclusions:

a. Members of the rating chain failed to comply with AR 623-105 and
did not comply with all responsibilities of the rater and senior rater.

b. A major discrepancy is unresolved. The rater evaluated the soldier as meeting requirements/satisfactory performance despite the relief for cause directed by the senior rater.

c.       The communication process between the rated officer and the rater did not take place as directed by AR 623-105.

d.       DA Form 67-8-1 was not completed.

e.       Rater failed to coach and counsel the rated officer during the rated period.

f.       The reasons for relief after only 51 days in the position are not adequately justified in the report narrative.

g.       As a result of these failures, the OER does not provide a fair and objective assessment of the rated officer who had insufficient opportunity to succeed prior to the relief for cause.

11. The commander’s inquiry is filed in the applicant’s OMPF along with the OER and associated documents.

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12. The OSRB considered the applicant’s appeal based upon the contentions, as briefly described above in paragraph 3, and the following memoranda of support:

•         A retired CW4, CID agent, who had been the brigade level S3 while the applicant served as a company S3, before his December 1994 assignment as the battalion operations officer, states that he interacted with the applicant on a daily basis and his leadership had been highly effective. The applicant had been appointed acting commander for a period because of the commander’s early retirement. The applicant’s selection for the higher headquarters S3 position was an expected event. He believes the applicant may have suffered because some of the upper level commanders were used to being told what they “wanted to hear” whereas the applicant always reported what they “needed to hear.” In the Summer of 1994 the then commanding general USACIDC, in effect, told the commanders in Europe that they needed to relieve some warrant officer CID agents to prove that they were in control.

•         The CW4, CID agent, who replaced the applicant as the company level operations officer when he moved to higher headquarters in December 1994 writes that he closely observed the applicant’s leadership style and duty performance during the relieving process. “He was consistently…giving them guidance, direction, and advice on management…In turn he was briefing these cases up the chain of command to the next higher headquarters…. ” He describes the applicant as "highly regarded by subordinates and superiors alike…for his technical proficiency…and the manner in which he was performing.…” He notes that he “coordinated with [applicant] on a daily basis” and that the criticisms set forth in the subject OER “could not be further from the truth.” He notes that the applicant was supposedly relieved for his inability to manage numerous cases but he believes that he was really relieved for his inability to manage a case that was, in fact, the purview of the German authorities.

•         A 27 May 1999 letter from an individual who headed the economic crimes section in Europe during the period indicates that he too believes that the applicant's relief was related to the NVG case. He writes "I was in daily contact…at no time was there any question…that went ignored…it is still a mystery to me the exact motivation and cause to have the [applicant] relieved of duty."

•         Another CID warrant officer states that he was assigned in March 1995 to help re-investigate the Hanau NVG case. He reported that, as time progressed, the same things the original task force had completed were done again. He discovered that the, soon to retire, commander of USACIDC, a major general, was being pressured by the commanding general at Hanau to solve the case. The USACIDC commander, in turn pressured the applicant's senior rater to solve the case. He believes that the rater and senior rater "offered up [the applicant] as a ‘sacrificial lamb’.…[Applicant's] relief was inappropriate, unjust and totally wrong. The actions…[of the rater and senior rater]…caused the moral [sic] of the 5^th Det. to sink to an all time low."

•         In a 29 December 1999 memorandum, the brigadier general, who had conducted the commander’s inquiry, reiterated his findings and stated, “The entire process, in my view, demonstrates exactly how leaders should not treat soldiers.” In conclusion, he noted that, in the coming January, he, himself, was to become the Deputy Inspector General in the Office of the Secretary of the Army.

13. The OSRB concluded that, while the submitted documents were supportive, they were offered by individuals who were not in the applicant’s chain of command or in a position to observe the interactions of the applicant and his rating officials.

14. The contents of the commander’s inquiry were reported and it was noted that it was properly filed on the applicant’s performance fiche.

15. The rater and senior rater were contacted and agreed to the release of paraphrased versions of their remarks which were, briefly as follow:

•         The rater stated that the applicant's responsibilities had not shifted from a broad view to direct supervision of specific cases. He had not counseled the applicant "in writing but had daily verbal counseling sessions." A Form 67-8-1 (Support Form) with specific goals and objectives had not been used, but " we discussed my goals and objectives on a daily basis, the fact that they were not recorded doesn't mean [applicant] did not understand my expectations." He denied being biased about the applicant or providing evaluation suggestions to the senior rater. He denied that the applicant was destined to fail based on preconceived opinions or lack of counseling.

•         The senior rater stated that she had not counseled the applicant and that CW5’s should not need counseling. She reported that she obtained the information for this evaluation from personal observation, feedback from the rater, and others and inspection feedback. She credited the commander’s inquiry with, “a thorough analysis of regulatory compliance” and said she had made minor administrative changes but her and the rater's opinion of the applicant’s performance remained unchanged.

•         The OSRB detected “a potential bias against” the applicant which prompted specific questions to which the senior rater replied that the applicant had not been effective in his previous position that “they received low scores, he was not a hands-on supervisor." He had been allowed to assume the position from which he was relieved, because “he made CW5, was the most senior individual in USAREUR, and no one else was available. He was not my first choice.” When asked if she were biased she stated “I had my opinion of him prior to taking over.…I had a mental picture of the capabilities of a senior Warrant Officer should be able to perform and he was not meeting them.…”

16. The OSRB concluded that the applicant had failed to provide clear and convincing evidence and denied his request.

17. The applicant’s OER’s as a CW4 show that he never received any rating but a “1” in Part IV, was always marked as "Always Exceeded Requirements" in Part V, was never rated below the second block by the senior rater and never received a single negative comment from either rater or senior rater.

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18. The senior rater (a lieutenant colonel and the battalion commander) on his last prior OER became his rater for the OER at issue. That officer marked the applicant in the second block and provided the following remarks:

A top notch performance by an outstanding professional and truly dedicated officer who continually delivers quality results while overcoming every challenge he faced. His recent selection as CW5 attests to his extraordinary accomplishments as the operations officer of the largest and most diverse field office in Europe and selection as the next operations officer in this district. As the focal point for the investigative operations in Bavaria and Northern Italy, CW4 [applicant] has meticulously monitored over 300 criminal investigations and 40 special agents while simultaneously commanding this field office for four months. This dynamic versatility and ability to innovatively accomplish the toughest missions, has established [applicant] as a leader who is unequalled in competence and invaluable to this command.

19. Subsequent to the OER under review the applicant has received only the highest of ratings with laudatory remarks. In most he was the only officer rated, there was a single second block and 3 top block senior rater’s marks under the old system and none below the center of mass on the new system. There was not a single instance of “faint praise.” For his most recent available OER he was rated and senior rated by the Commanding General, USACIDC who provided the following remarks:

Outstanding performance by [applicant] as this command's liaison officer to federal and foreign law enforcement agencies…this seasoned CID agent was invaluable. [Applicant] epitomizes all we expect of our soldier agents and leaders in today’s Army. Not only the master of his trade…completely dedicate…totally selfless in all he does.…I’ve selected him to be our next regimental warrant officer and to head the training of CID soldier agents at the U. S. Army Military Police School. I have no doubt that, given his unlimited potential; he will excel in this endeavor.

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20. Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system. Paragraph 5-18 provides that an officer evaluation report is required when an officer is relieved for cause. The regulation further defines relief for cause as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty. Paragraph 5-29 of Army Regulation 623-105 requires that relief reports be referred to the rated officer in accordance with paragraph 5-28, which requires the rated officer to acknowledge receipt of the referred OER. This paragraph also states that the rated officer may make comments if he or she believes that the rating or remarks are incorrect, but the comments must be factual, concise and limited to matters directly related to the evaluation on the OER.

21. Army Regulation 623-105 provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the officer’s official record, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

22. Paragraph 9-30 of the above regulation provides that a commander’s inquiry, conducted by the next senior commander in the senior rater's chain of command, is to be conducted upon the request of the rated officer. If the subject OER has not been accepted by Headquarters, Department of the Army and included in the officer’s official record, it is returned to the senior rater along with the report of investigation with a request that the OER be corrected. If the report has been received and included in the individual’s record the report of investigation is to be filed with the OER.
CONCLUSIONS:

1. The Board recognizes that the OER was accepted for inclusion in the official record of the applicant and is presumed to be administratively correct and to represent the objective judgment of rating officials at the time of preparation. The Board also notes that the commander’s inquiry is properly filed in the applicant’s OMPF.

2. The applicant's fellow CID agent warrant officers may not, as the OSRB observed, have been in a position to observe the applicant's daily performance or been familiar with his rating chain's expectations but they were clearly in a place to judge whether or not the accusation of "waning subordinate confidence" was valid. Their stated opinions are unanimous that it was not.

3. Furthermore, this Board concludes that the senior rater's remarks to the OSRB reveals a bias significant enough to warrant the requested relief.

4. While the report of the commander's inquiry fulfills its regulatory function by being displayed along with the OER in the applicant's OMPF, it has in a larger sense been ignored. In this Board's view, the commander's inquiry points out inequities in this case that can only be resolved by eliminating, as a matter of equitable treatment, the challenged OER from the applicant's otherwise impeccable record.

5. In view of the foregoing findings and conclusions, correcting the applicant's records as recommended below will rectify an injustice.
RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by removing from the Official Military Personnel File of the individual concerned the officer evaluation report covering the period 17 December 1994 to 7 April 1995, and all documents related thereto.

2. That an appropriate non-prejudicial statement explaining the absence of that evaluation report be placed in his records.

BOARD VOTE:

__MHM__ _DSJ _ _JAM ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  _ Melvin H. Meyer_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002077546
SUFFIX
RECON
DATE BOARDED	20030520
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.