MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 9 October 2003
                  DOCKET NUMBER: AR2003084710

         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. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Robert J. Osborn		Member
Ms. Eloise C. Prendergast		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 his Officer Evaluation Report (OER) for the period 5 February 2000 through 4 February 2001 be amended in Part IIIc to delete the last sentence; in Part IVb.3.4. and IVb.3.5. to change the "No" entry to a "Yes" entry; in Part V.b.3 (sic, presumably he means Part Vb) to delete sentences 3 through 10 and sentence 14; and in Part VII.b to change " Below Center of Mass, Retain" to "Center of Mass."

The applicant also requests that his OER for the period 5 February 2001 through 15 May 2001 be amended in Part IIIc to delete the last sentence; in part IVb.3.b to change the "No" entry to a "Yes" entry; in Part V.b.3 (sic, presumably he means Part Vb) to delete sentences 5 and 6; and in Part VIIb to change "Below Center of Mass, Retain" to "Center of Mass."

APPLICANT STATES: That the contested OER is substantively inaccurate and is revealed as negative bias on the part of the rater, Major B___, over an incident which occurred outside the rating period. He provides documents to show how the rater interacted with his subordinates while he served as the Chief of the Preventive Medicine Division (PMD) at General Leonard Wood Army Community Hospital, Fort Leonard Wood, MO from about 1 June 2000 to 31 May 2001. His appeal paperwork will show that he was more of an errand boy (rather than so much of an administrative officer) by the various duties he was randomly tasked to perform and that he had received no counseling or even a position description of what the duties would encompass.

The applicant states that he wishes to rebut what Colonel D___ told the Officer Special Review Board (OSRB); i.e., that "the appellant should have been able to handle both his primary duty as Radiation Protection Officer, and additional duty as Administrative Officer with little or no problem, but was unable to do so." He provides an email from Mr. R___, who is a GS-9 and has had the position of Administrative Officer of the PMD since June 2002. That should prove that serving as an Administrative Officer is a full-time salaried job. He was assigned administrative duties by his rater in a random manner. He was required to sign leaves and passes. He had to present Major H___'s original briefing to the Pre-Command Conference Course Class which is a prime example to show how he was set up for failure.

The applicant believes that his failure to attend a Governing Board meeting on 21 February 2001, which made the rater furious, was the precipitating incident leading to the poor ratings on the contested OER. However, since this single incident occurred after the ending period of the OER, this was in violation of Army Regulation 623-105, paragraph 3-14.

Supporting evidence is as listed on the DD Form 149.

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

He entered active duty on or about 28 June 1998 as a first lieutenant in the Medical Service Corps. He was promoted to Captain on 17 January 2001.

The first contested OER is an annual report for the period 5 February 2000 through 4 February 2001 for 12-rated months. The applicant's principal duty title was Radiation Protection Officer. His rater was Major B___, the Chief, PMD. His senior rater was Lieutenant Colonel S___, the Deputy Commander, Clinical Services. The DA Form 67-9-1 (Officer Evaluation Report Support Form) for this OER is not available.

The last sentence in Part IIIc (Significant Duties and Responsibilities, Refer to Part IVa, DA Form 67-9-1) is, "Serve as the Preventive Medicine Division Administrative Officer."

Part IVb.3.4 (Planning, develops detailed, executable plans that are feasible, acceptable, and suitable) contains the entry, "No." Part IVb.3.5. (Executing, shows tactical proficiency, meets mission standards, and takes care of people/resources) contains the entry, "No."

Part Vb (Performance and Potential Evaluation) contains the comments, "In his job as the Administrative Officer of the Preventive Medicine Division, (applicant) has demonstrated unsatisfactory performance. He has not taken ownership of projects given him by the Chief of Preventive Medicine, nor shown much interest in these projects. He has required much supervision to complete these projects. (applicant) was counseled on these shortcomings on 21 December 2000… and given plenty of opportunity to improve. If his performance had improved after the counseling, it would not have been mentioned. (applicant) failed to pass the APFT and the Army's height/weight standards in June and November 2000. This prevented him from being promoted to CPT at that time. He was also counseled regarding this on the DA Form 4856 dated 21 December 2000."

The last sentence in Part Vb is, "(applicant) has potential for promotion to Major if he learns to take ownership of projects and sees the projects to a speedy completion."

Part VIIb (Potential compared with officers senior rated in same grade (overprinted by DA)) shows the applicant was rated as "Below Center of Mass, Retain" by his senior rater. Comments in Part VIIc include, "(applicant) is extremely competent at addressing the technical aspects of his duties, but needs to focus on developing stronger managerial and leadership skills."

A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)) dated 9 November 2000 shows the applicant had a flag removed effective 16 August 2000 because he passed the Army Physical Fitness Test (APFT). A DA Form 268 dated 25 January 2001 shows he had a flag removed effective 17 January 2001 because he met the height and weight standards. (He was promoted to captain effective 17 January 2001.)

The second contested OER is a change of rater report for the period 5 February 2001 through 15 May 2001 for 3-rated months. The applicant's principal duty title was Radiation Protection Officer. His rater was Major B___. His senior rater Lieutenant Colonel S___. The DA Form 67-9-1 for this OER is not available.

The last sentence in Part IIIc is, "Serve as the Administrative Officer for Preventive Medicine."

Part IVb.3.5. (Executing, shows tactical proficiency, meets mission standards, and takes care of people/resources) contains the entry, "No."

Part Vb contains the comments, "(applicant's) performance as Preventive Medicine Administrative Officer has improved somewhat. (applicant) has taken more interest in projects given him by the Chief, Preventive Medicine, but there is still room for improvement."

Part VIIb shows the applicant was rated as "Below Center of Mass, Retain" by his senior rater. Comments in Part VIIc include, "(applicant) is extremely competent at addressing the technical aspects of his duties, but needs to focus on developing stronger managerial and leadership skills."

Both contested OERs indicate in Part VII that a completed DA Form 67-9-1 was received with the report and considered in the senior rater's evaluation and review. Both OERs indicate in Part IId that they were referred reports and the applicant did not wish to make comments.

The applicant appealed the contested OERs to the OSRB.

The applicant provided a 30 June 2001 supporting statement from Major P___, which states he worked with the applicant over a period of 60 days during the period 1 September 2000 to 31 October 2001 on the development of the organization's fiscal year 2001 strategic plan. He stated that the applicant's performance in that endeavor was superlative.

The applicant provided a 14 September 2001 supporting statement in which the Medical Clerk, Occupational Therapy Clinic, Preventive Medicine Service stated the applicant's rater, who should have audited medical records for telephone consults himself, instructed the applicant to do the audits. She stated the rater was very vocal about not wanting to have or go to meetings and did not want to perform some of the duties of Chief of Preventive Medicine and would assign those duties to other people. She stated that, in the past, the Preventive Medicine Service had not had an administrative officer because "everyone performed his/her duties."

The applicant provided a 2 October 2001 statement from Ms. M___, an occupational health nurse assigned to the Chemical Defense Training Facility. Ms. M___ stated that Major B___ was her supervisor from November 1999 to January 2001. After January 2001, she observed a change in his appearance and techniques in the way he talked and reacted to his staff. He stopped talking to her. She was witness to a February 2001 incident wherein Major B___ stated he considered the applicant to be useless and could not trust him to do anything he asked. Prior to that time, he had only excellent phrases for the applicant.

The applicant provided a 9 October 2001 supporting statement from Second Lieutenant R___ (then Sergeant R___), who stated that he worked with the applicant on the hospital decontamination mission. The applicant and another sergeant had recently conducted a complete inventory of the decontamination shed. The applicant had informed his rater that one of the parts had been borrowed from the local fire department. The applicant's rater then gave him, R___, the mission. Unfortunately, he (R___) had not been informed that one of the parts was borrowed. When the applicant's rater later asked how the set up of the decontamination site went and R___ informed him that it went very well, he was reprimanded for being deceitful because he did not inform the applicant's rater that a part was missing. Included with this supporting statement were several emails between R___ and the applicant's rater, several of which are informal warnings/reprimands to R___ concerning his duties.

The applicant provided two 10 October 2001 supporting statements from Ms. K___-B___, the former Preventive Medicine Secretary. In one, she stated that as far as she knew the applicant did not receive any counseling or guidance on what the regulations were for signing off on passes and leaves. In the other, she stated that Major B___ assumed the position of Chief, PMD around 1 June 2000. She stated that, around the latter part of March [2001], Major B___ decided to implement some changes in location for various members of the division. He told the applicant to move from the basement to the 6th floor. The applicant mentioned he had too much equipment to move. The applicant's move did not take place. Accompanying this second statement was an email, dated 29 March 2001, from Major B___ to the applicant telling him to move from the basement to the 6th floor so he could have some company during the day, a view of the outside, and be more a part of the division.

The applicant provided a 28 October 2001 supporting statement from Lieutenant Colonel L___, Chief, Ambulatory Nursing at the time. She stated that in December 2000 she noted that Captain G___, the Chief, Community Health Nursing, mentioned she had a pass over the Christmas weekend. Upon checking with the leaves clerk, she noticed that Captain G___ had 5 days off one week and 5 days off the next without any of it taken as leave. She informed the applicant's rater that Captain G___ could not have 5 days off in a row without it being taken as leave. To her surprise, the applicant's rater told her he was going to counsel the applicant for signing off on the passes. She informed the rater that if anything Captain G___ should be counseled, that surely a captain has more knowledge regarding Army regulations than a lieutenant. She stated that the rater was adamant that the applicant be counseled. She also stated that the applicant was put in charge of the "competency assessments" for PMD. She stated that was not an appropriate assignment as it was not within his scope of practice or knowledge to develop competencies for the various sections within PMD. That should have been the responsibility of every section chief to oversee. The section chief was the subject matter expert for his/her section, not the radiation protection officer.

The applicant provided a 20 December 2001 supporting statement from Major H___, the applicant's previous rater who became his senior rater when Major B___ was assigned and took over the Occupational Medicine Service of the PMD. He stated that when he served as the PMD (until 1 June 2000) he had no administrative officer. Furthermore, he was not aware of any initial counseling or junior officer development provided to the applicant by Major B___ during the period of the contested OER. Major H___ further stated that Major B___ assigned the applicant the project of giving a preventive medicine briefing to lieutenant colonels attending the Pre-Command Course. That tasking was originally given to him (Major H___), as a clinician. It was neither appropriate to have the applicant (a non-clinician) brief on matters such as upper respiratory illness and anthrax nor was it proper to have a junior officer brief this subject matter to senior leaders.

Accompanying the 20 December 2001 statement was a supporting statement from the facilitator of the Engineer Pre-Command Course, Mr. Z___. Mr. Z___ stated that the applicant, although not the subject matter expert, performed his briefing in a most professional manner. When the applicant was unable to answer a question, he got back with the questioner later with the right answer.

The OSRB could not contact the applicant's rater but the senior rater and a subsequent senior rater were contacted. The senior rater of the contested OERs stated that the applicant was a bright young officer with highly developed scientific skills but he lacked managerial and leadership skills. She stated she stood by the ratings in the OERs because they accurately described his performance during the rating periods.

The OSRB found that there was insufficient convincing evidence that Parts III, IV, V, and VlI of the contested OERs were inaccurate and did not adequately reflect the applicant's performance. His appeal was denied.
Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER. The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 623-105, paragraph 2-9a states that the rated officer must periodically evaluate his or her own performance and, when in doubt, seek the advice of his or her superiors in the rating chain. The rated officer must begin a discussion of his or her duty description and performance objectives with his or her rater within 30 days after beginning each rating period. The rated officer must assess throughout the rating period the validity of his or her objectives. This may result in having to revise and update both objectives and duty description as the situation changes. The rated officer must accurately describe his or her duties on DA Form 67-9-1 at the end of the rating period.

Army Regulation 623-105, paragraph 3-2e, states that rating officials greatly affect a rated officer's performance. 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 performance will be judged. The support form processes are designed specifically to assist in this rating chain responsibility.

Army Regulation 623-105, paragraph 3-4 discusses the OER support form. It states that, at the beginning of the rating period, the support form is used to enhance planning and relate performance to mission through joint rater and rated officer discussion of the duty description and major performance objectives. During the rating period, it is used to encourage performance counseling and the best use of individual talent by continuous communication to update and revise the performance objectives.

Army Regulation 623-105, paragraph 3-6 states that, shortly after assuming duties, the rater will provide the rated officer with copies of his/her support form and the senior rater's support form. Within the first 30 days of the evaluation period, the rated officer will draft his/her support form in preparation for the initial fact-to-face counseling with the rater. The rater officer will discuss duties, responsibilities, and performance objectives with the rater during this initial meeting. The rated officer will maintain a working copy of the support form with duties and objectives throughout the rating period. The rated officer will make additions or deletions to his or her duties and objectives on the working copy as changes occur and will discuss any changes to the working copy of the support form with the rater.

Army Regulation 623-105, paragraph 3-18 states that Part III of the OER provides for the duty description of the rated officer. It is the responsibility of the rating officials to ensure duty description information is factually correct. The duty description is entered in Part II by the rater and is based on the rated officer's entries on the DA Form 67-9-1, if appropriate. As a minimum, the description will include principal duties and significant additional duties.

Army Regulation 623-105, paragraph 3-24 states that each report will be an independent evaluation of the rated officer for a specific rating period. It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident occurred during the period covered must be based on the date of the actual incident or performance.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, 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 applicant requests that two similar sentences, which show he served as the PMD administrative officer, in Part IIIc of both contested OERs be deleted. His DA Form 67-9-1 is not available; however, both OERs indicate that a support form was received with both OERs and considered by the senior rater in making her evaluation.

3. The governing regulation states that the applicant should have begun a discussion of his duty description and performance objectives with his rater within 30 days after beginning each rating period. The applicant should have assessed throughout the rating period the validity of his objectives and revised and updated both objectives and duty description as the situation changed. In the absence of these two support forms, the Board concludes that the applicant, who acknowledges that the administrative officer duties assigned to him by his rater appeared to be a priority with his rater, did discuss those duties with his rater. Therefore, there is insufficient evidence on which to base the deletion of those sentences from his two contested OERs.

4. The applicant requests that the "No" entries in Part IVb.3.4 and Part IVb.3.5 of his OER for the period ending 4 February 2001 and in Part IVb.3.5 of his OER for the period ending 15 May 2001 be changed to "Yes" entries.

5. The Board presumes the applicant contends those "No" entries were made because of his performance of duties as the administrative officer. The fact a civilian currently serves as a full-time administrative officer is insufficient evidence on which to base a change of those entries to "Yes." There is no evidence available upon which the Board can compare those administrative duties given to the applicant to perform and the position description of the current civilian position-holder.

6. The applicant requests that a large portion of the rater's comments in Part V.b of his OER for the period ending 4 February 2001 be removed. It appears the applicant contends that those comments were made primarily because his rater was upset with him for an incident that occurred on 21 February 2001, outside of the rating period for that OER. However, the 21 February 2001 incident itself is not mentioned in the comments and it appears that the rater was referring to incidents (i.e., "projects") which were accomplished or to have been accomplished within the rating period. The comments concerning the applicant's failing to pass the Army Physical Fitness Test and the Army's height/weight standards were factual incidents that occurred within the rating period and were legitimate areas for comment. The Board concludes that there is insufficient evidence on which to determine that an error or injustice occurred by the applicant's rater entering those comments on his OER.

7. The applicant requests that two comments in Part V.b of his OER for the period ending 15 May 2001 be removed. He provides no evidence to show that those comments were not the considered opinion and objective judgment of his rater.

8. The applicant requests that the senior rater potential ratings in Part VII.b of his OER for the period ending 4 February 2001 and of his OER for the period ending 15 May 2001 be changed from " Below Center of Mass, Retain" to "Center of Mass." The Board acknowledges that the senior rater commented that the applicant performed satisfactorily in his duties as the Radiation Protection Officer (but he needed to develop stronger managerial and leadership skills). However, the applicant provides no evidence to show that the "Below Center of Mass, Retain" rating was not the considered opinion and objective judgment of his senior rater regarding the applicant's overall potential.

9. The Board acknowledges that the applicant provides some evidence to show that his rater may not have acted in the best professional manner with his other subordinates. However, the Board concludes that this only shows his rater did not single out the applicant for unfavorable, prejudicial treatment.
10. The Board also notes that the applicant provides some statements which indicate Major B___ did not take over as his rater until June 2001, which would normally indicate that the OER for the period ending 4 February 2001 should not have been for 12 rated months. However, the Board notes that the applicant did sign the OER attesting to the accuracy of the data in Part I (Administrative Data) and he provides no rating scheme to show when Major B___ actually became his rater.

11. 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

__rvo___ __rjo___ _ecp____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084710
SUFFIX
RECON
DATE BOARDED	20031009
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	111.01
2.
3.
4.
5.
6.