MEMORANDUM OF CONSIDERATION


                  IN THE CASE OF:
        


                  BOARD DATE: 4 November 2003
                  DOCKET NUMBER: AR2003090234

         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
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Gail J. Wire		Member
Mr. Antonio Uribe		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: The deletion of an officer evaluation report (OER) from his Official Military Personnel File (OMPF) covering the period from 26 April 1997 to 30 September 1997, amendment of the OER covering the period from 1 October 1997 to 30 April 1998 and promotion reconsideration to the rank of major.

APPLICANT STATES: In a 23-page attachment to his application, that the contested OER's contain errors, are inaccurate and the ratings and comments are unjust. He further states that the OER's are not reflective of his actual duty performance and potential as evidenced by his supporting statements and copies of his daily notes. He also states that the adverse OER was the result of poor command and supervisory climate under both his rater and senior rater (SR) and that he was never counseled, which was contrary to the provisions of the OER Regulation. Furthermore, the report was based on the bias and dislike his rating chain held for him. He further states that an initial face-to-face discussion as required by the OER Regulation was not performed and therefore he is entitled to the relief requested. He goes on to state that the commander's inquiry was insufficient, not thorough and did not recognize that the report was not completed in accordance with the applicable regulation. Additionally, the Officer Special Review Board (OSRB) did not properly discharge its duties because it did not examine several of the grounds for his appeal. It contacted only the members of the rating chain and conducted a very cursory review, which excluded his contention of improper favoritism, poor command and supervisory climate. He also contends that the 18 supporting statements he submits with his application are from numerous individuals who worked with him and were able to observe his leadership and officer skills on a routine basis.

In addition, he requests that the OER covering the period from 1 October 1997 to 30 April 1998 be corrected to reflect in Part Va that he was rated as "Outstanding Performance, Must Promote" and in Part VIIa be changed to "Best Qualified." He also requests that the last two sentences in Part VIIc be deleted.

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

He was commissioned as a United States Army Reserve (USAR) second lieutenant, Signal Corps officer on 31 January 1991. He was promoted to the rank of first lieutenant (1LT) on 11 July 1992 and to the rank of captain in the Signal Corps on 3 November 1994.

The applicant applied for a branch transfer and on 15 August 1996, he was appointed as a USAR 1LT in the Medical Service Corps (MSC) and on 1 September 1997, he was promoted to the rank of captain in the MSC.

On 11 April 1997, the applicant received an annual OER covering the period from 19 March 1996 through 18 March 1997, evaluating him as the chief of an environmental health section of an aeromedical center. In Part IVa, under professional competence, the rater, a lieutenant colonel, gave him "1" ratings in all areas. The supporting comments indicate that the applicant had demonstrated a gradual grasp of knowledge and ability to organize and direct environmental programs. He continued to perform duties while under great personal stress. In Part V, under performance and potential, the rater gave him ratings of "Always exceeded requirements" and "Promote ahead of contemporaries".

In Part VII, the SR placed the applicant in the top block of his SR profile, which was center of mass (COM). The comments by the SR indicate that the applicant is a capable officer who has performed reasonably well throughout the rating period.

On 11 December 1997, the applicant received a closeout OER from the same rating chain, covering the period from 26 April to 30 September 1997, evaluating him again as the chief of the environmental health section.

In Part IVa, under Professional Competence, he received "2" ratings under "Motivates, challenges and develops subordinates", "Displays sound judgment", and "Sets and enforces high standards". He received "1" ratings in the remaining 11 areas. The supporting comments in Part IVb, under Professional Ethics, indicates that the applicant works independently rather than foster team concept and that his problem solving skills require additional development.

In Part Vb, under Performance, the rater gave the applicant a rating of "Usually exceeds requirements". In Part Vc, under comments, the rater indicates that in contrast to his improved technical knowledge, the applicant's officer skills and demonstrated leadership had been inconsistent and aloof. His poorly developed problem solving skills and low tolerance for constructive criticism had led to numerous situations of conflict with subordinates and supervisor. His officer skills must become commensurate with his rank or he will face significant challenges as a leader in today's Army.

In Part Vd, under potential for promotion, the rater gave him a rating of "Promote with contemporaries." The supporting comments indicate that the applicant is an officer whose potential for growth and advancement will be contingent on his ability to further develop officer and leadership skills.

In Part VIIa, under Potential Evaluation, the SR placed the applicant in the second block of his SR profile, which placed the applicant below center of mass on the SR's profile. The SR's comments indicate that the applicant's performance had reflected requisite enthusiasm, dedication and expertise. He should continue to perform at his current level of responsibility to further develop his leadership and technical skills. He possesses untapped potential, which may be realized in time and with additional experience.

The applicant requested a commander's inquiry on 30 October 1997. The commander, a colonel, conducted an inquiry into his most recent performance appraisal and found that there were no factual discrepancies or inadequacies in the performance appraisal and no misconduct by members of the rating chain. Accordingly, the report was to be submitted as written.

The report was considered adverse and as such was referred to the applicant for comment. The applicant acknowledged receipt and submitted a rebuttal to the OER whereas he asserted that he never received face-to-face counseling as required by the regulation, that the OER failed to recognize a number of his accomplishments, that it failed to identify when he had failed to exceed requirements, was vague and inconsistent about his skills and identify no specific episode that demonstrates their truth. He also asserted that the rater's comments were generated from avarice, false information and personality conflict.

The applicant appealed the contested OER to the OSRB on 4 February 2002, contending that the OER contained administrative and substantive errors and several of the ratings were inaccurate. Furthermore, it was an unjust and inaccurate evaluation of his performance and potential and was not consistent with reports rendered before and after the contested report.

In the process of adjudicating the applicant's appeal, the OSRB contacted the rating officials of the contested report. The rater stated that the report was fair and accurate as written, that she had conducted face-to-face counseling and that she had several mentoring sessions with the applicant. Additionally, she had the SR confer with the applicant on several occasions for the purpose of reinforcing her concerns about his leadership and officer skills. The rater also stated that any personality conflict was strictly in the mind of the applicant and that he simply failed to listen, learn and adapt to the many requirements of being a leader.

The SR was contacted by the OSRB and related that the OER was fair, proper and correct. He also stated that the rater was a no nonsense officer who set and enforced high standards and he recalled having several counseling sessions with the applicant at the request of the rater. The SR stated that the rater had hoped that the applicant would be more receptive to suggestions from him on methods to be a successful officer and leader. The SR stated that he intended to rate the applicant below COM and that he was aware of his profile at the time.

After reviewing the evidence in the case the OSRB opined that the applicant had not provided sufficient evidence that clearly and convincingly nullified the presumption of regularity in his case. The OSRB denied his case on 2 October 2002.

The second contested report is a permanent change of station (PCS) OER covering the period from 1 October 1997 to 30 April 1998, rendered by the same rating chain in the same position.

In Part V, under performance and potential, the rater gave the applicant a "Satisfactory Performance – Promote" rating. The supporting comments indicate that he demonstrated increased officer development and self-assurance as a section chief. The last two sentences indicate that he made a substantial effort to improve both his interpersonal skills and leadership abilities with some success. With continued development and refinement of his leadership abilities he should become an outstanding officer. Comments were also provided on his accomplishments during the rated period.

In Part VII, the SR rated him as "Fully Qualified" and placed the applicant in the COM of his SR profile. The supporting comments by the SR indicate that the applicant demonstrated considerable improvement in daily performance during the rating period, that his technical skills have steadily developed as his experience has grown, and he has renewed his commitment to better his leadership skills with noticeable results.

There is no evidence that the applicant has ever appealed this OER to the OSRB.

A review of the supporting third party statements submitted with his application show that the majority of the statements indicate that they have no first hand knowledge of the relationship or expectations between the applicant and his raters, but that their interaction with the applicant was a positive one. The remaining minority serve to attack the applicant's rating chain.

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation. Requests that an accepted OER be altered, withdrawn or replaced will not be honored. An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared. Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports. Each report must stand alone.

That regulation also provides that it is a shared responsibility of the rated officer and the rater to discuss the rated officer's within 30 days of the beginning of the rated period.

Army Regulation 623-105 also provides that the purpose of the commander's inquiry is for commanders to look into alleged errors, injustices, and illegalities in OERs. The primary purpose 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 commander's inquiry will not be used to document differences of opinion between members of the rating chain about an officer's performance and potential. The evaluation system establishes rating chains and normally relies on the opinions of the rating officials.

Furthermore, in regard to appeals of an OER, the regulation provides that failure to comply with any or all support form requirements will not constitute the sole basis for appeal of an OER. This also holds true for claims that information on a support form was not included on the final OER by the rating chain.

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 Board has noted the applicant's contentions that the remarks by his rater are reflective of improper bias towards him and do not accurately reflect his performance and potential and that he had no face-to-face counseling. The Board finds them to be without merit.

3. While the Board understands that each report must stand alone, the Board notes that this was the second OER he received from the same rating chain in the same position and the rating from the SR, which placed him below COM, was the most damaging. The SR has subsequently confirmed that it was his intent to place him below COM on his profile. The Board is convinced that he understood what his rating chain expected of him and he was just as culpable to ensure that his initial counseling took place during the first 30 days of the rating period.

4. Additionally, the Board notes that in separate inquiries by the OSRB, both the rater and the SR were consistent in their assertion that the applicant had been counseled by the rater and that the rater had requested that the SR counsel the applicant, in hopes that he would accept guidance from the SR more readily and demonstrate what both the rater and SR believed was the applicant's true potential. Therefore, it appears that the applicant experienced a down-turn in performance during the rated period, despite efforts by the rating chain to turn him around.

5. This is further supported by the fact that he received a third OER from the same rating chain that noted marked improvements in his performance and potential and had better ratings from the rating officials.

6. The overall pattern of ratings rendered by the rating chain are indicative that they were aware of the applicant's performance and speaks to their objectivity and overall fairness during the individual rating periods.

7. In regards to the last OER he received from the rating chain, the applicant has not exhausted his administrative remedies by appealing to the OSRB; therefore, the Board will not adjudicate that portion of his appeal at this time.

8. While the third party statements applaud the applicant's performance as they saw it, none of those individuals were in a position to understand or know the rating chain’s expectations of the applicant.

9. The Board has also noted the applicant's assertion that the commander's inquiry was not conducted in accordance with the applicable regulation and finds no evidence to suggest that such was the case. While the commander may not have shared with him every detail of his investigation, the Board sees no evidence to suggest that a conspiracy existed to cover up any violations of regulations. In the final analysis, the commander was satisfied that the applicant received the rating he deserved for the rated period.

10. Accordingly, the Board is not convinced that the contested OER is inaccurate, unjust or that it does not reflect the considered judgment of ratings officials during the rated period. Therefore, there is no basis to delete the OER from his OMPF.

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

___fe ___ __gw____ __au____ DENY APPLICATION

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

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INDEX

CASE ID	AR2003090234
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/11/04
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 193	111.0000/OER
2.
3.
4.
5.
6.