MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 5 June 2003
         DOCKET NUMBER: AR2003089376

         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. Arthur A. Omartian		Chairperson
Ms. Karen A. Heinz		Member
Mr. Thomas B. Redfern		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 Reports (OERs) for the periods 8 July 1997 through 30 September 1997 and 1 October 1997 through 31 January 1998 be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES: That his senior rater (SR), Chief Warrant Officer Three (CW3) C___, was biased and prejudiced against him. The SR based each contested OER on incidents that occurred in the past and not within the rating period. His SR utilized his position to influence Chief Warrant Officer Two (CW2) S___ to affix his signature to documents that were not entirely truthful. These two OERs represent only a 6-month time frame. His records will prove that his military career before this period and following this period was exemplary and above reproach. As supporting evidence, he provides his OER appeal packet, with all enclosures.

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

After having had prior service, including about three and one-half years as an enlisted Criminal Investigation Command (CID) Special Agent, he was appointed a CID warrant officer on 22 June 1995. He was promoted to CW2 on 22 June 1997.

The applicant's OER prior to the first contested OERs was a 6-rated month SR option report. CW3 C___ was the rater; Lieutenant Colonel (LTC) G___ was the SR. In Part IVa(2) (Demonstrates appropriate knowledge and expertise n assigned tasks), his rater gave him a "2" rating (from a high of "1" to a low of "5") with a related comment that he was "Still adapting to supervisory duties and MOS requirements." In Part Vb, his rater rated his performance as "usually exceeded requirements" (out of additional choices of "always exceeded requirements," "met requirements," "often failed requirements," and "usually failed requirements." Rater comments included, "… performed in a satisfactory manner during this reporting period" and were otherwise favorable albeit "lukewarm." In Part Vd, his rater rated his promotion potential as "promote with contemporaries" (out of additional choices of "promote ahead of contemporaries," "do not promote," and "other").

In Part VIIa, of the OER for the period ending 7 July 1997, the SR, gave the applicant a 2-block rating (with a SR profile of 6/4/0/0/0/0/0/0/0). In Part VIIb, SR comments included "…continues to be a team player and supports his fellow soldiers; however, he requires continued training" but were otherwise favorable.

The first contested OER (DA Form 67-8) is a closeout OER for the period 8 July 1997 through 30 September 1997. CW2 S___ is the rater, CW3 C___ is the intermediate rater, and LTC S___ is the SR. In Part IVa(2), his rater gave him a "2" rating. In Part Vb, his rater rated his performance as "usually exceeded requirements." Rater comments included, "…continued to perform in a satisfactory manner during this limited reporting period" and were otherwise favorable albeit "lukewarm." In Part Vd, his rater rated his promotion potential as "promote with contemporaries."

In Part VI of the first contested OER, CW3 C___, the intermediate rater, commented "…has shown improvement in his overall duty performance, and has demonstrated more confidence in accomplishing this unit's mission. He is a team player and willingly makes personal sacrifices to ensure the job gets done and his soldiers are taken care of. As he matures as an officer, …will certainly continue to improve his skills."

In Part VIIa, of the first contested OER, the SR gave the applicant a 2-block rating (with a SR profile of 6/4/0/0/0/0/0/0/0). The SR indicated in this block that he had received a support form. In Part VIIb, SR comments included "…has made admirable contributions to an Economic Crimes Team on a clear upward trend" and were also otherwise favorable albeit "lukewarm."

The first contested OER was referred to the applicant because of the "2" rating in Part IVa(2). The applicant responded by noting that the rater had never had previous occasion to rate junior officers and was unaware that anything less than a "1" rating would have a derogatory impact on an OER (i.e., the generating of a referred OER). The rater was uninformed of the very existence of referred OERs or the reason they were generated. The applicant noted that the rater assumed supervisory duties around July – August 1997 and during the approximately 2-month rating period took 8 days of leave. The applicant did not believe the rater had sufficient time to make an unbiased evaluation of his work ethic, performance, or "appropriate knowledge and expertise."

The second contested OER is a 4-month permanent change of station OER (DA Form 67-9) for the period 1 October 1997 through 31 January 1998. The rating officials were the same as for the first contested OER. In Part IVb.3.2, the rater checked the "no" block for Decision-Making. In Part Va, the rater rated his performance and potential for promotion as "satisfactory performance, promote," (out of additional choices of "outstanding performance, must promote," "unsatisfactory performance, do not promote," and "other"). In Part Vb, comments were generally favorable except for, "…is a hard charger who at times attempts to take on too much responsibility when it would be better to ask for assistance." In Part VI, the intermediate rater's comments included, "…but does not always exercise common sense in his decision making process…"

In Part VIIb of the second contested OER, the SR rated the applicant as "below center of mass, retain" (out of additional choices of "above center of mass," "center of mass," and "below center of mass, do not retain." Comments included, "Although tenacious and meticulous in the conduct of his investigations, he has yet to demonstrate the degree of confidence or display the leadership attributes necessary to guarantee success at the next higher grade. With additional experience and development, he will be ready for promotion and increased responsibilities."

The second contested OER was referred to the applicant. He responded that during the rating period he was in the position of Assistant Economic Crimes Team Chief (a non-existent position) with virtually no one to "lead" nor any "decisions" to make, two deficiencies addressed in the OER. He questioned how an individual can be evaluated on decision-making when he is not in a position to make decisions. He stated that, on 5 December 1997, while he was the duty agent, the military police desk sergeant notified him of an alleged armed robbery. He responded and acted as the duty agent. It was never proven that the incident occurred as was reported. It was later determined that he did not notify the Special Agent in Charge immediately. His rater informed him that this failure was the basis of the rating for questionable decision-making capabilities. It did not appear to him to be equitable to allow the occurrence of a single incident in an entire 3-month period to be the basis for a referred OER.

On 29 January 2003, the applicant appealed the two contested OERs. He stated that there was substantial evidence to believe his rater (CW3 C___) was biased and prejudiced against him and his prejudice wrongly influenced other raters. He stated CW3 C___'s demeanor toward him was reflected in yellow post-it notes that he frequently attached to the applicant's work and he provided miscellaneous examples with his appeal. In addition, he received a letter of commendation from the Louisville, KY Federal Bureau of Investigation office praising his performance in a murder investigation in the middle of the rating period in question.

The applicant may have gotten the OER for the period ending 7 July 1997 confused with the first contested OER. In his appeal, he stated it appeared CW3 C___ dated the block where he (the applicant) should have placed the date, as well as the rater's date block. He also noted that a different font was also utilized to designate the applicant's rank (i.e., "WO1") throughout the OER. It appears one person entered the dates on both OERs; however, "WO1" is entered (in a different font from that used on the rest of the report) only on the OER for the period ending 7 July 1997, not the contested OER.

The applicant alleged that CW3 C___ further influenced and caused CW2 S___ to sign his name to the first contested OER which he knew to be false because CW2 S___ was not physically at Fort Campbell on the dates in question (i.e., the dates covered by the period of the OER). The applicant apparently based this on the fact CW2 S___ apparently did not report to Fort Campbell until 28 July 1997.

The applicant contended that he was never officially counseled, as required by the regulation. He contended the intermediate rater and SR were biased against him because they held against him matters unrelated to the performance of his official duties.

The applicant provided a statement from CW3 Z___, who was assigned to the Fort Campbell CID office from 1995 until February 1997. He stated that the sticky memo was CW3 C___'s main counseling document, and very few were ever of a commendable nature. CW3 Z___ stated that written counseling, good or bad, was never prepared and administered to the rated officers. That affected himself as well as the applicant.

The applicant provided a statement from Mr. F___, who worked with the applicant at Fort Campbell between 1995 and 1996. He stated that both the Special Agent in Charge and the Operations Officer belittled the majority of the agents and support staff in some fashion. CW3 C___ had a bad habit of bad-mouthing others in front of subordinates. Mr. F___ stated he had his own problems with CW3 C___.

The Officer Special Review Board (OSRB) denied the applicant's appeal. In addition to addressing the applicant's other contentions, the OSRB noted that, although the rating period of the first contested OER was under 90 days, Military Personnel Message 97-099 waived the minimum rating period time requirements for transitioning to the new OER system and the closeout OER. As long as the rater had 60 days in the position, he met the requirements to rate under the OER transition exceptions.

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, the version in effect at the time of the applicant's first contested OER, stated in pertinent part that the "period covered" shown on the DA Form 67-8 was the period extending from the date after the "Thru" date of the last report to the date of the event causing the report to be written. The "period covered" and the rating period always ended on the same date (the "Thru" date); however, the beginning date of the rating period might not be the same as that of the "period covered" (the "From" date). The regulation stated that nonrated time would be explained in Part Iq. It also stated that the rated officer's signature in Part II verified the accuracy of the administrative data in Part I and the accuracy of the rating officials.

Army Regulation 623-105, the version in effect at the time of the applicant's first contested OER, also stated that an OER would be referred to the rated officer for acknowledgment and comment for a number of reasons, including any report with a rating of "4" or "5" in any of the 14 attributes in Part IVa or any report with ratings or comments that, in the opinion of the SR, were so derogatory that the report might have an adverse impact on the rated officer's career.

The applicant was released from active duty on 1 March 2003 due to nonselection for permanent promotion.

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. There is no evidence of record to show that CW3 C___ (who was his rater on the two contested OERs, not his SR) was biased and prejudiced against him. There is no evidence of record and the applicant provides none to show that either CW3 C___ or his SR based their ratings on incidents that occurred outside the rating period.

3. The Board has considered the two statements from fellow agents (each of whom stated they worked with the applicant prior to the rating periods involved) provided by the applicant with his OER appeals. The Board notes that both statements reflect that CW3 C___'s actions (i.e., never preparing written counseling to the rated officers and "bad-mouthing" others in front of subordinates) reflect that CW3 C___'s management style, while questionable, was not directly solely against the applicant. The applicant provides no evidence to show CW3 C___ was biased or prejudiced against him.

4. It appears the applicant was under the misapprehension that a "rating period" must cover the same time frame as the "period covered." Since the "Thru" date of the applicant's previous OER was 7 July 1997, the "From" date of the first contested OER was required to begin on 8 July 1997. The fact his rater may not have arrived at Fort Campbell until later in the rating period (as the applicant contends he did not arrive until 28 July 1997) is immaterial. For the closeout OER ending 30 September 1997, as long as the rater had 60 days in the rater position he was eligible to rate the applicant. The Board concludes that there is insufficient evidence to show that the rater was influenced to sign anything "not entirely truthful" regarding the first contested OER or the second contested OER.

5. The Board also notes that the applicant signed the first contested OER in Part II verifying the accuracy of the data in Part I and the rating officials in Part II. There is no evidence to show he questioned the rater's eligibility to rate him at the time. There is no evidence now to show the rater did not have the required 60 days.

6. The Board also notes that the first contested OER is very similar in ratings and comments to the immediately preceding OER and notes that it appears the applicant did not feel obligated to contest that OER by appealing it.

7. 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

__ao___ ___kh___ ___tr___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003089376
SUFFIX
RECON
DATE BOARDED	20030605
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.