MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2002079661

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mrs. Carolyn G. Wade		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Thomas B. Redfern, III		Member
Ms. Karen A. Heinz		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         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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APPLICANT REQUESTS: That an Officer Evaluation Report (OER), DA Form 67-9, for the period 990528-991020 be removed from his Official Military Personnel File (OMPF) and that he then be reconsidered for promotion based upon that removal.

APPLICANT STATES: In effect, that he believes the record to be in error or unjust because he filed an equal opportunity (EO) complaint against the rater of the subject OER. The applicant states that no measures were taken by his chain of command to protect him from reprisals. He believes the OER is a direct reprisal and that it is in opposition to EO policy and regulation.

The applicant submits the following documents in support of his application:
DA Form 7279-R (Equal Opportunity Complaint Form), dated 2 September 1999; a memorandum appointing an Army Regulation (AR) 15-6 investigating officer; a letter from a captain co-worker in support of the applicant’s OER appeal; a copy of paragraph 6.10.a (Entries), AR 600-20, Army Command Policy; and a copy of the contested OER. The applicant also submitted a copy of a letter from this Board advising him that he had not exhausted all of his administrative remedies and a copy of a letter, dated 19 September 2001, indicating that his OER appeal had been denied.

EVIDENCE OF RECORD: The applicant's military records show:

He was discharged from the Regular Army with an honorable discharge on 12 January 1995 to accept a warrant officer appointment in the Army Reserve. He was promoted to Chief Warrant Officer Two (CW2) on 18 February 1997.

The applicant received the report in question in November 1999. It was a change of rater OER covering a period of 5 rated months. The rater was a Captain, company commander. There was no senior rating; his senior rater did not evaluate him because he did not meet the required number of days to rate the applicant.

Shortly before the end date of the subject OER, the applicant filed an EO complaint against his unit commander stating that he was the victim of racial discrimination. An investigation was conducted under the provisions of Army Regulation 15-6. The investigation did not substantiate the applicant's allegation of racial discrimination. The applicant acknowledged notification of the results of his EO complaint on 27 October 1999.

The subject OER was rendered on the applicant's performance as a missile system technician. In Part IVb, Leader Attributes/Skills/Actions, the rater indicated that the applicant did not possess the requisite interpersonal skills, that his communicating abilities and team building abilities were lacking. In Part Va,

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Performance and Potential Evaluation, the rater characterized the applicant's performance as merely "satisfactory." Specific comments in Part Vb (Comments), were derogatory, stating:

Despite [applicant's] accomplishments in the way of maintenance, he has difficulty communicating with soldiers of all ranks. During three separate sensing sessions with either myself or the Battalion Commander, [Applicant] was recognized as one of the reasons for the low morale in the battery. In addition, [applicant] struggles with understanding and following commander's guidance and intent. [Applicant] was counseled repeatedly by myself and the Battalion Commander for his difficulty in following commander's guidance and for his poor interpersonal skills. Still, he failed to change his behavior. [Applicant's] strength lies in the area of his technical competence. He should be placed in technically demanding staff positions, not troop leading assignments.

On 16 January 2001, the applicant appealed the OER. He stated the basis of his appeal was substantive inaccuracies. He cited Parts IV b.2, b.3 and the derogatory comments in Parts V a. and b. as the portions of the report with which he was in disagreement. He stated that the OER was filed at Headquarters, Department of the Army (HQDA) a year after the due date and without his signature. He requested that the entire report be removed from his record.

The Officer Special Review Board (OSRB) denied the applicant’s petition on 19 September 2001 stating that there was insufficient evidence to amend or delete the OER. The OSRB stated that the presumption of regularity referred to in paragraphs 5-57 and 6-6, Army Regulation 623-105 was not overcome (i.e., that an OER accepted at HQDA is presumed accurate and correct). The OSRB concluded that there was not sufficiently convincing evidence that the OER was substantively inaccurate, the report should not be amended, and promotion reconsideration was not an issue. The appeal correspondence was filed on the applicant’s restricted fiche.

In the processing of this case, the OSRB Case Summary detailing the methodology utilized by the OSRB to deny the applicant’s petition was obtained. The summary noted that the rater, senior rater, and brigade commander were contacted and each agreed to release of a paraphrased summary of his/her comments to the applicant if requested under the Freedom of Information Act/Privacy Act. The rater, senior rater, and brigade commander were contacted on 6 September 2001 and responded with the following comments:

a. The rater said the applicant earned the ratings he received. The rater added that the unit received a call from the Office of The Inspector General 6 months after the OER was completed because that office was looking into processing irregularities.

b. The senior rater said the unit did not properly refer and process the OER. The applicant had been reassigned to a unit 1 hour away and would not travel the distance to sign his OER. Once he realized the applicant was not coming to sign the OER, the senior rater instructed his executive officer to process the OER; but it was not processed until 9 months later. He states that the unit did not handle the referral process well, which accounts for why there is no referral memorandum on the applicant’s fiche.

c. The brigade commander said that he had personally counseled the applicant several times on his shortcomings during the rating period and then, again, when the applicant came to see him after the OER was written. The applicant requested that the brigade commander initiate a commander’s inquiry, which he refused to do because he saw no grounds to initiate one in this particular situation. He thought the report was accurate. He also stated that he did not recall anything with respect to processing a referral, but the senior rater would have accomplished that action.

The OSRB concluded that there was not sufficiently convincing evidence that the OER was substantively inaccurate and recommended that the report not be amended.

Army Regulation 623-105 establishes the policies and procedures for the OER system. It notes that it is the responsibility of the senior rater to evaluate a rated officer’s potential relative to his or her contemporaries. His or her evaluation is based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide) the relative potential of such a sample will approximate a bell shaped normal distribution pattern. At the time, the regulation also provided the opportunity for senior raters to refer adverse reports to rated officers when, in the opinion of the senior rater, the report contained ratings or comments which were so derogatory that the report may have an adverse impact on the rated officer’s career.

The applicant has not been selected for promotion to the grade of CW3.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. 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.
2. The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question. Therefore, there is no basis for removing it from his OMPF.

3. The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy. Also, there is no evidence to support the applicant’s contention that his OER resulted from his filing an EO complaint against his rater.

4. The applicant has submitted no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

5. Since there is no basis to grant the portion of his request pertaining to removing the contested evaluation report, there is likewise no basis to grant the remaining request for promotion reconsideration.

6. 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

___aao__ __tbr___ __kah___ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2002079661
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.0005
2.	131.1100
3.
4.
5.
6.