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ARMY | BCMR | CY2003 | 2003088782C070403

Original file (2003088782C070403.rtf) Auto-classification: Denied

MEMORANDUM OF CONSIDERATION

         IN THE CASE OF:


         BOARD DATE: 4 September 2003
         DOCKET NUMBER: AR2003088782

         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
	Ms. Lee Tinsley		Analyst

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.	Chairperson
	Ms. Barbara J. Ellis	Member
	Mr. Frank C. Jones	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)

APPLICANT REQUESTS: Removal of an Officer Evaluation Report (OER) covering the period 6 March 2000 to 5 March 2001 [hereafter referred to as the contested OER] from his Official Military Personnel File (OMPF). He also requests that he be granted non-rated time for the period of this OER.

APPLICANT STATES : That the referred OER is unjustified, unsubstantiated, inaccurate, and without merit. He contends the OER was rendered by his chain of command to cover-up the injustices committed against another officer and that he received this OER as a result of defending this officer. He also contends within the contested OER, serious allegations are made in regard to his mental health and his personal conduct as an officer. He also stated that a Commander’s Inquiry (CI) into the contested OER found in his favor. The applicant also notes that his OER was changed to make it justifiable and rendered 2 months after the end of the rated period in an attempt to deny the applicant his promotion to Major. He believes that he was given a written counseling statement
30 days after the rated period in order to “show cause” for the adverse OER.

In support of his application, the applicant submitted a Memorandum for the Commander, U.S. Army Reserve Personnel Command (AR-PERSCOM) Evaluation Report Appeal; a copy of the contested OER; a Memorandum for the Senior Rater (Re-Referral); a DA Form 4856 (Developmental Counseling Form), dated 6 April 2001; CI Summary; a Memorandum from the Employee Assistance Specialist (EAS), dated 17 January 2002; his diploma from the Command and General Staff College; a letter of Commendation addressed to his rater, dated 6 July 2000; and two letters of Appreciation, dated
8 January 2001 and 19 July 2001.

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

The applicant enlisted on 26 March 1982 in the United States Army Reserve (USAR). He served a period of enlisted service from 26 March 1982 to
21 January 1985. He then reenlisted on 22 January 1985 in the USAR in accordance with Army Regulation 145-1 and was commissioned as a second lieutenant on 8 May 1987. The applicant began serving in the Active Guard/Reserve Program on 2 December 1987. He is currently serving on active duty as a major in the in the Active Guard/Reserve Program.

Records show that the applicant was assigned to Headquarters and Headquarters Company, AR-PERSCOM, St. Louis, Missouri, in the rank of captain, during the period of the contested OER.

The contested OER was an annual report that covered nine months of rated time for the applicant’s duties as a Career Management Officer responsible for providing personnel management support to over 3,000 USAR Ordnance Corps Officers worldwide.

The rater was the lieutenant colonel serving in the position of Chief, Combat Service Support Division, AR-PERSCOM, and the senior rater was the colonel serving in the position of Director, Officer Personnel Management Division, AR-PERSCOM.

Entries on the contested OER (DA Form 67-9) show in Part IV (Performance Evaluation-Professionalism) that the rater marked “NO” in blocks a2 (Integrity), a4 (Loyalty), and a5 (Respect). The rater also placed his “X” under “NO” in Part IV under the section for Leader Attributes/Skills/Actions, in blocks b1.1 (Mental), b1.3 (Emotional), b2.2 (Interpersonal), b3.1 (Communicating), b3.2 (Decision Making), b3.3 (Motivating), b3.7 (Developing), and b3.8 (Building).

Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the second block (Satisfactory Performance). There is no entry in Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses).

In Part VIIa (Evaluate the Rated Officer’s Promotion Potential to the next Higher Grade), the Senior Rater (SR) placed his “X” in the third block (Do Not Promote).
The Senior Rater’s evaluation resulted in placing the applicant at “below center of mass-do not retain”.

The rater and senior rater both signed their portions of the contested OER on
11 May 2001. The contested OER was a referred OER.

Part IIe (Signature of Rated Officer) shows that the applicant signed the contested OER on 11 May 2001, which authenticated the administrative portion of the OER and indicated that he had seen the completed OER. He also indicated in Part IId that he wished to make comments and that they were attached. The contested OER, with attachments, was forwarded to Headquarters Department of the Army officials and was profiled on 11 April 2002 and entered on the applicant’s OMPF.

The applicant was considered by the Fiscal Year 2001 Promotion Selection Board considering captains for promotion to major. The contested OER was in the promotion file considered by the promotion selection board. The applicant was among those recommended for promotion and he was promoted to major on 1 August 2001.

The applicant’s OER history shows he received a total of nine OERs as a captain; four on DA Form 67-8 and five (including the contested OER) on DA Form 67-9, which became effective in October 1997.

In the four OERs completed on DA Form 67-8, the applicant received ratings of “1” in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence from two different raters. Under Part Vb (Performance During This Rating Period), both raters placed him in the top block (Always Exceeded Requirements). Under Part Vc (Comments on Specific Aspects of the Performance), both raters made positive comments on his performance and listed his achievements. Both raters, in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), also placed the applicant in the top block (Promote Ahead of Contemporaries) and stated in Part Ve (Comment on Potential) that the applicant was competitive for promotion to major.

The same SR on all four DA Form 67-8 reports evaluated the applicant. The ratings are as follows with asterisks indicating the applicant’s position on the SR’s profile: (3/9*/0/0/0/0/0/0/0), (6*/9/0/0/0/0/0/0/0), (9*/14/0/0/0/0/0/0/0), and (13*/16/1/2/0/1/0/0/0).

All of the OERs (excluding the contested OER) on DA Form 67-9 show in Part IV (Performance Evaluation-Professionalism) that the raters placed their “X” under “Yes” for all of the blocks in the Attributes, Skills and Actions categories.

In Part V (Performance and Potential Evaluation), all raters placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on specific aspects of the applicant’s performance.

Under Part VII (Senior Rater) on four of the DA Form 67-9, not including the contested OER, the SRs placed their “X” in the top block (Best Qualified) in VIIa (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade). The applicant was senior rated by four different SRs with one in the grade of
GS-13, two in the grade of lieutenant colonel and one in the grade of colonel.
The senior rater evaluations resulted in “center of mass” (COM) on all four reports surrounding the contested OER.

The applicant appealed the contested OER on 23 July 2002 to the Deputy Chief of Staff, G-1, Officer Special Review Board (OSRB). The OSRB did not receive the appeal until 21 August 2002.

The OSRB case summary identified the appeal as the first appeal of a 9-month, Annual Officer Evaluation Report for the period 6 March 2000 through
5 March 2001 while the applicant was assigned as a Career Management Officer, HHC, AR-PERSCOM, St. Louis, Missouri and that he requested a CI.

The "Discussion" portion of the OSRB case summary addressed the applicant's contentions as follows:

a. The OER was referred and the applicant provided a rebuttal.

b. A CI was requested and conducted with the resulting conclusions:

                  --That a 6 April 2001 counseling session cited on the contested OER occurred outside the rating period. The OSRB noted this reference to the
6 April 2001 counseling session was deleted from the OER prior to its final processing.

                  --That on 9 April 2001 the applicant told his senior rater that “he was tired of all these beatings” and concluded that this occurred outside the rating period and therefore should not be included in the SR’s portion of the OER.

                  --That the applicant had a personality conflict with his rater.

                  --That prior to and after the contested OER, the applicant received outstanding evaluations.

         c. The CI recommended that the contested OER be deleted.

The “Discussion” portion of the OSRB case summary also addressed the applicant's contention that the OER is administratively and substantively inaccurate and unjust, and specifically, that the rating officials’ assessments were in reprisal for defending another officer.

The OSRB case summary concluded that the applicant's contention that the contested report is substantively inaccurate, unjust and does not adequately portray the applicant’s demonstrated performance and potential is not proven.

Specifically, the OSRB case summary noted that the officer who conducted the CI affirms that the applicant did intervene on behalf of another officer; however, he provides no evidence to show that this incident resulted in an unfair assessment, which must be proven in order to meet the standard for a successful appeal.

In regard to applicant's contention that the CI concluded that the contested OER is “unjust, unwarranted and unsubstantiated,” the OSRB concluded that the CI does not support the applicant’s contentions conclusively. The OSRB noted that the CI does conclude the applicant “appeared” to have “fallen out of favor with his rating chain” and that the CI recommended, “correcting the injustice.” However, the CI does not specify what the injustice was or cite the evidence of the injustice. The OSRB noted that there is no evidence provided that shows the rater failed to render a fair and accurate assessment. Therefore the OSRB determined that the applicant’s contentions were unproven.
The OSRB noted that the OER system does not provide a provision for “personality conflicts” to serve as the basis for a successful appeal unless it is proven that the conflict resulted in an unjust assessment. The OSRB concluded that neither the CI nor the applicant provided evidence to show that the personality conflict resulted in an inaccurate or unjust report. The OSRB noted that such evidence would have to show that the applicant did not deserve the referred report.

The OSRB noted the comment by the officer who conducted the CI that he believed that the rating officials “were out to get the applicant” and he based his beliefs on a “feeling” that he had. The OSRB opined that the commander may have violated the guiding principles in Army Regulation 623-105, paragraph 6-4, when he claimed there was an “injustice” done to the applicant but provided no supporting evidence.

The OSRB noted that Army Regulation 623-105, paragraph 6-4 states in part, that the CI will not be used to document differences of opinion between members of the rating chain and the individual conducting the CI concerning the investigated officer’s performance and potential.

The OSRB also noted that the commander only received evidence from the applicant and did not have any “outside” evidence to support or prove that an injustice had been committed.

The OSRB notes that the memorandum from the EAS indicates that the rater’s assessment of the applicant having personal problems that affected his performance was valid, therefore opines that the commander’s failure to look past the applicant’s version of events brings the CI conclusions into question.

The OSRB case summary indicates that the OER was corrected when an event that occurred outside the rating period was discovered in the rater’s narrative.

The OSRB opined that the rating officials met the regulatory guidance and that the rated officer received a completed support form that was considered by the rating officials. A complete support form indicates that counseling occurred and the applicant does not dispute this.

The OSRB noted that the rating officials stated that they counseled the applicant “numerous times” for an “out-of-control temper” in which the CI does not contradict.

The OSRB noted the applicant signed the contested OER validating the rating chain and that he had seen the report in its entirety. The OER was referred to the applicant who provided a rebuttal, but did not raise the contention that the assessment was the result of reprisal.

The OSRB concluded that the applicant did not provide and the OSRB did not find elsewhere the necessary evidence to delete or amend the contested report.

Army Regulation (AR) 623-105 (Officer Evaluation Reporting System) establishes the procedures and polices for the OER system.

Paragraph 1-8b(3)(b) of Army Regulation 623-105 states in order to ensure that sound personnel management decisions can be made and that an officer’s potential can be fully developed, evaluation reports must be accurate and complete. Each report must be a comprehensive appraisal of an officer’s abilities, weaknesses, and potential. Reports that are either incomplete or fail to provide a realistic and objective evaluation make it difficult to determine an officer’s true potential.

Paragraph 1-10a of Army Regulation 623-105 states performance evaluations are assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps. Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.

Paragraph 3-2g and h of Army Regulation 623-105 state that rating officials must prepare reports that are accurate and as complete as possible within the space limitations of the form. This responsibility is vital to the long-range success of the Army’s mission. With due regard for the officer’s current grade, experience, and military schooling, evaluations should cover failures as well as achievements. However, evaluations will normally not be based on a few isolated minor incidents. Rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army. Rating officials must make honest and fair evaluations of officers under their supervision. On the one hand, this evaluation must give full credit to the rated officer for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.

Paragraph 3-24a of Army Regulation 623-105 states that each report will be an independent evaluation of the rated officer for a specific rating period. It will not refer to prior or subsequent reports. 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; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

Paragraph 3-32 of Army Regulation 623-105 states in part, referred reports will be given to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters Department of the Army. Any report with negative remarks about the rated officer’s Values or Leader Attributes/Skills/Actions in rating official’s narrative evaluation(s) will be referred to the rated officer for acknowledgment and comment. Any report with a performance and potential evaluation in Part Va of “Unsatisfactory performance, Do not promote” or narrative comments to that effect from any rating official. Any report with a senior rater promotion potential evaluation of “Do not Promote” in Part VIIa or narrative comments to that effect from the senior rating official.

Paragraph 1-15 of Army Regulation 623-105 provides that a rated officer may request a CI. A CI may be conducted in cases where it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a CI is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.

Paragraphs 6-8b and f of Army Regulation 623-105 states in part, that appeals are screened by the reviewing officials to separate claims of administrative error from claims of inaccuracy or injustice of a substantive nature. PERSCOM, ARPERCEN, or the NGB resolve claims of administrative error. Claims of substantive inaccuracy or injustice are sent through the officer’s career management division for adjudication by the Deputy Chief of Staff, G-1, Officer Special Review Board. If the appeal is denied, an applicant may seek new or additional evidence and submit a new appeal, or may submit an appeal to the next agency in the Army’s redress system, the Army Board for Correction of Military Records (ABCMR).

Army Regulation 623-105, paragraph 6-10d states in part, for a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions affording them good opportunity to observe, firsthand, the applicant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements should include specific details of events and/or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a CI may provide support for an appeal request.

Paragraph 6-10a(2)b of Army Regulation 623-105 provides that the presumption of regularity must be clear and convincing evidence of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an applicant is correct in some or all of his assertions, the clear and convincing standard has been met with regard to those assertions. The applicant has not met these standards with the evidence submitted to this Board.

Paragraph 6-12b(2) states, in part, the basis for the applicant’s belief that the rating officials were not objective or had an erroneous perception of the applicant’s performance. Note that a personality conflict between the applicant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. (Emphasis added)

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

1. The Board considered the applicant’s request for removal of the contested OER and for the contested period to be annotated as non-rated time.

2. The Board considered the applicant's contentions that the contested OER was unjustified, unsubstantiated, inaccurate, and without merit and noted the following:

         a. Notwithstanding the applicant's contentions, he authenticated Part II of the contested OER indicating the administrative data was correct and that he had seen the OER. Under the governing regulation, administrative data includes the identity of the rated officer, the period of the report, and the reason for submitting the report.

         b. The applicant also placed his "X" in block IId indicating that he would provide comment in response to this referred OER. He provided comments, which were considered by the SR.

         c. Although the entire CI is not available, the Board noted a CI was conducted which essentially concluded that the personality conflict with the rater caused the adverse OER [the contested OER] and that it [the contested OER] should be removed if appealed.

         d. The applicant appealed the contested OER to the OSRB. However, the OSRB, contrary to the findings of the CI, concluded that there was no evidence provided that shows the rater failed to render a fair and accurate assessment. The OSRB denied the applicant's appeal because the applicant did not provide and the OSRB did not find elsewhere the necessary evidence to delete or amend the contested report.

3. Based on the foregoing, this Board concluded:

         a. The contested OER properly covered the rated period of the applicant's service.

         b. The applicant exercised his rights in regard to submission of comments in response to a referred OER.

         c. The applicant exercised his rights to a CI.

         d. The applicant exercised his right to appeal the contested OER.

         e. The applicant's rights have been observed throughout the referral, CI and appeal processes.

4. Based on all of the foregoing, the Board has determined that the applicant has exercised his rights in regard to the contested OER; however, it is apparent that he disagrees with the decisions resulting from the appeal process. The Board finds that the applicant’s disagreement with the decisions of the SR, the OSRB and Department of the Army officials who filed the contested OER is not a basis to conclude that the contested OER is unjustified, unsubstantiated, inaccurate, and without merit.

5. The Board noted the applicant's contention that his adverse OER was tendered to cover up injustices done to another officer whom he defended.

a. However, the applicant provided only self-authored statements and one sworn statement, which he made during a commander’s inquiry initiated by the officer he claims to have defended.

b. The applicant provided no third party statements from persons who had knowledge of the applicant’s performance during the rating period or had the opportunity to observe, firsthand, the applicant’s interactions with rating officials.

c. The applicant also does not provide a statement supporting his contentions from the officer whom he purportedly defended.

6. The Board reviewed the applicable provisions of Army Regulation 623-105 that govern the procedures and policies for the preparation and processing of officer evaluation reports for officers on active duty. Based on this review, the Board determined that the contested report was correct as constituted and properly filed by the Department of the Army officials.

7. Based on all the foregoing, the Board concluded that the applicant failed to meet the burden of proof to justify deletion of the contested OER. Therefore, there is no basis to show the period covered by the contested OER as non-rated time.

8. In order to justify the 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.

9. 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

ro be fj DENY APPLICATION

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

INDEX

CASE ID	AR2003088782
SUFFIX
RECON
DATE BOARDED	20030904
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193	Efficiency/Effectiveness Reporting System
2.
3.
4.
5.
6.

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ARMY | BCMR | CY2003 | 2003088782C070403

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