RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 02 DECEMBER 2003
         DOCKET NUMBER: AR2003091048


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Melvin H. Meyer		Member
Mr. Patrick H. McGann, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE :

1. The applicant requests that the award of the Army Commendation Medal (ARCOM) that he received for the period 13 June 1998 through 3 June 2000 be changed to show that he received the Meritorious Service Medal (MSM) for that period of service. He also requests that his records be submitted to a special selection board (SSB) for promotion consideration to major under the FY 01 and FY 02 promotion criteria; and if promoted, he receive all back pay and allowances and credit for time in grade for pay, promotion, and retirement purposes.

2. The applicant made no statement, but deferred to counsel.

3. The applicant provided documents as depicted herein.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE :

1. Counsel requests parallel those of the applicant's.

2. Counsel states that the Total Army Personnel Command (PERSCOM) corrected the applicant's Officer Evaluation Report (OER); however, the Officer Special Review Board (ORSB) refused to submit his records before a SSB. This refusal was erroneous. The applicant's service as a commander was worthy of award of the MSM; however, because of his rater's bias, he was awarded only the ARCOM.

•         The applicant served as a company commander for 16 months and received two OERs during that period. He was awarded an ARCOM for his service. He was nonselected for promotion by the FY 01 and FY 02 major competitive category promotion boards.

•         The applicant challenged the accuracy of the record that was before the promotion board and asked for SSB consideration. On 17 October 2002 he asked PERSCOM to correct his OER for the period 17 June 1999 through 25 May 2000 to show that it was for an 11 month period, not the 9 month period shown. The period was changed to 9 months after the applicant signed the report. PERSCOM corrected the error.

•         The OSRB denied the applicant's request for SSB consideration, concluding that it was a minor administrative error, and stating that the applicant was in the above the zone (AZ) [promotion] category when the error occurred. The applicant was in the primary zone (PZ). The error applied to his promotion eligibility while he was in both the PZ and AZ promotion categories. The applicant so notified the OSRB, to no avail. Clearly, however, the length of service in command would have a greater impact upon in-zone versus above the zone considerations, given the higher promotion rates for Soldiers in the PZ. The length of time in command is not a minor administrative error.

•         The ORSB did not mention that the applicant was negligent [in failing to discover the error] when it denied his initial request for consideration; but did so in its corrected denial of his request. The applicant had no reason to carefully review a document he had previous carefully reviewed and had found flawless. The error was more likely to be caught by a promotion board comparing dates, indicating that the applicant was negligent.

•         The applicant's rater was biased and tried every possible way to discredit him. A proposed OER for the period in question, compared against the actual report, reflects the rater's bias. Upon reading the proposed report, the applicant complained to his senior rater, which resulted in the actual report being prepared. The applicant submitted a statement indicating that his rater intended to do harm to him.

•         The applicant pointed out that his company received an Army award of maintenance excellence, which was a direct result of his duty performance, meriting an award of the MSM, not an award of the ARCOM. The applicant's request for the award of the MSM was denied. The applicant's senior rater advised the OSRB that he believed that the OER would result in the applicant's promotion, and requested that the applicant's records be submitted before a SSB.

•         There is no doubt that the rater attempted to harm the applicant's career; however, the senior rater blocked this attempt by disallowing a biased OER. Although it is unknown why the months served in command were altered, it is known that the ARCOM was not reflective of the applicant's performance and that the rater got away with that subterfuge.

3. Counsel, and applicant, provide documents as indicated below.

CONSIDERATION OF EVIDENCE:

1. The applicant is an active duty Transportation Corps captain. He had service as an enlisted man on active duty in the Navy from 18 June 1984 through 25 August 1985. He enlisted in the Army for 8 years on 24 August 1987 and was commissioned a second lieutenant in the Reserves on 16 December 1989. He entered on active duty on 22 April 1991.
2. The applicant's awards include the Air Assault Badge; three awards of the Army Achievement Medal; four awards of the ARCOM, to include the one in which he is contesting; the Joint Service Commendation Medal; and the Defense Meritorious Service Medal for the period 6 November 2001 through 16 May 2003.

3. The applicant was promoted to captain on 1 January 1995. He completed the combined logistics officer advanced course in February 1996. In November 2001 he completed a basic Arabic course at the Defense Language Institute at Monterey, California. In March 2002 he completed the Staff Process Course of the Combined Arms and Services Staff School.

4. The applicant's official military personnel file (OMPF) includes seven OERs while serving as a captain, beginning in June 1984 and continuing through May 2000, to include the two reports he submits with his request. His rating officials for the most part indicated that he should be immediately promoted to major and selected for command and general staff college, or recommended that he be promoted and selected. For instance, the senior rater on the report ending on 15 August 1997 indicated that he was the best company grade officer in the battalion and should be promoted below the zone; his senior rater for the period ending on 12 June 1998 recommended selection for company command, promotion to major and command and general staff college. All seven reports were center of mass reports.

5. The applicant's OER for the 5 month period ending on 16 June 1999, while serving as company commander of the 57th Transportation Company at Fort Drum, New York, shows that he received laudatory ratings and comments from his rater, his battalion commander, LTC Sch; and his senior rater, his DISCOM (Division Support Command) commander, Col Sh.

6. The applicant's OER for the 11 month period ending on 25 May 2000, while serving in the same position [as noted immediately above], shows that he received laudatory ratings and comments from his rater, his new battalion commander, LTC Jue, and from his senior rater, the above mentioned DISCOM commander. His senior rater stated: "Top COM [center of mass] of all officers I senior rate; best and most truck mission executions of two truck companies. … Assign him immediately to a FAO [Foreign Area Officer] assignment to build his qualifications for that career field, and send him to Advanced Civil Schooling. He will be a super FAO. Definitely select for resident Command and General Staff College. Promote to Major below the zone. Outstanding potential." That report shows that it was corrected by PERSCOM, to reflect an 11 month rating period, on 10 September 2002.

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7. The [proposed] report for the 11 month period noted above, which counsel indicates was the report initially proposed by the applicant's rater, is nearly identical to the above report, except for the comments by the applicant's senior rater: "CPT [the applicant] did a great job a company commander. The high reenlistment rate in his unit exemplifies this. … I could always count on his unit for outstanding mission support … CPT [the applicant] possess outstanding potential to perform Foreign Area Officer (FAO) duties at the field grade level. Assign him immediately to a FAO assignment to build his qualifications for that career field, and send him to Advanced Civil Schooling. He will do well. Select for Command and General Staff College. Promote to Major now."

8. The applicant was awarded the Army Commendation Medal for exceptionally meritorious achievement for the period 13 June 1998 to 3 June 2000. The award certificate was signed by his DISCOM commander, Col Sh.

9. In a 14 March 2001 memorandum to the commander of the 10th Division Support Command, the applicant requested reconsideration of his award, contending that he should receive the MSM. He stated that his OER senior rater comments reflect an award of the MSM; however, such a request for that award was not submitted, an award which he earned and merited. He extolled his accomplishments, stated that his rater, LTC Jue intentionally recommended that he receive an ARCOM, due to his personal dislike of himself, that LTC Jue refused to give him credit where credit was due, and even insisted on presenting him with the ARCOM in front the company, further trying to humiliate him. He noted that his company had received an Army award for maintenance excellence for FY 2000, which was a direct result of his efforts and leadership.

10. In an 18 April 2001 response, the new DISCOM commander, Col H, stated that she could not upgrade his ARCOM. She stated that she had reviewed his allegations against LTC Jue and could find no evidence to support them. She went on to say that Col Sh was in a position of authority whereby he could have recommended an upgrade to a MSM. He did not do so; therefore she deferred to his judgment. She stated that she had no reason to second-guess his decision.

11. In a 4 September 2002 memorandum to PERSOM, the applicant appealed the OER for the period ending on 25 May 2000, stating that he was a CY91 officer and was also a two time non-select to major. He stated that the period of the report was 11 rated months, but was altered to 9 rated months after he signed the report. That report, along with his first command OER of 5 rated months went before both the FY01 and FY02 major's board. The erroneous 9 rated months, plus the first 5-month command OER indicated to the promotion board [that he had] 14 rated months in command, which was below the Army/PERSCOM recommendation of 15 company command rated months to be competitive at the major's promotion board. He had, in fact, 16 months of rated company command time.
12. On 11 September 2002 PERSCOM informed him that action had been taken to amend the OER as he had requested.

13. On 4 September 2002 PERSCOM notified the applicant that he was not selected for promotion; however, was selected for continuation in his present grade and could continue to serve on active duty for a 3-year period. The applicant elected to remain on active duty as a result of his selective continuation.

14. In a 17 October 2002 memorandum to PERSCOM the applicant in effect requested that his records be submitted before a SSB for consideration for promotion to major under the FY01 and FY02 promotion criteria, citing the above mentioned erroneous command time information on his OER, stating that the erroneous information highlighted to the promotion boards a disconnect between the command time documented on his ORB (Officer Record Brief) (16 months) and the command time documented on the two command OERs (14 months); that the erroneous OER highlighted to the promotion boards an error between the thru dates that totaled 11 months and the rated months block that had a "9" typed in; and that the erroneous OER documented to the promotion boards that he signed an erroneous OER.

15. In a 10 October 2002 letter to this Board, the applicant's former senior rater, Col Sh, stated that he had discussed the writing of the OER with his peers at Fort Drum and the Transportation Branch at PERSCOM, and that it was his intent to provide an OER that would support his promotion to major. If he had thought his intent would not be met with the OER as written, then he would have written and "blocked" it differently. He stated that his administrative section marked his OER command time block after the applicant left, changing it from 11 to 9, but not notifying the applicant so that his ORB was annotated correctly. In addition, the code for his non-rated time should have been entered. He stated that he released the applicant from command at 16 months because he had performed all requirements and that further growth in his leadership abilities was unnecessary. He would not have released him from company command with his laudatory comments, if he had not had an outstanding company command. He requested that the applicant's file be considered by a SSB.

16. In a 27 January 2003 memorandum to PERSCOM Promotions Branch, the OSRB stated that promotion reconsideration was not warranted, stating that it was an individual's responsibility to review his ORB and OMPF before the board [promotion selection board] convenes and to notify in writing of possible administrative deficiencies in them. The OSRB also stated that the number of rated months is a minor administrative change, which did not result in a change to the quality of the applicant's OMPF; therefore, there was no material error. The OSRB noted that although the applicant stated that the PERSCOM/Army recommended 15 months of command in order to be competitive for promotion to major, the OSRB knows of no such recommendation as a matter of policy; and a review of the board members' instructions shows no time requirement for command.

17. Army Regulation 600-8-22 provides the policy, criteria, and administrative instructions concerning individual military decorations, and states in pertinent part that the decision to award an individual a decoration and to decision as to which award in appropriate are both subjective decisions made by the commander having award approval authority. A commander in the grade of colonel has the authority to award an Army Commendation Medal. A commander in the grade of major general has the authority to award a Meritorious Service Medal. The award should reflect both the individual's level of responsibility and his manner of performance. The degree to which an individual's achievement or service enhanced the readiness or effectiveness of his organization will be the predominant factor. No individual is automatically entitled to an award upon departure from an assignment. Awards presented in conjunction with a permanent change of station will be limited to exceptional cases. No preconditions for an award may be established such as, for example, when soldiers are informed in advance that attainment of specific goals will result in the automatic award of a given decoration. Military decorations will not be used as prizes in contests.

18. Army Regulation 600-8-29 provides for SSB to consider or reconsider officers for promotion when HQSDA discovers that an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; the board that considered an officer from in or above the promotion zone did not have before it some material information. An officer will not be considered or reconsidered for promotion by an SSB when an administrative error was immaterial, or the officer, in exercising reasonable diligence could have discovered and corrected the error in the ORB or OMPF.

19. The FY 01 major competitive category promotion board convened on 17 April 2001 to consider officers for promotion to major. The primary zone of consideration was those officers with a date of rank from 2 October 1994 through 1 October 1995. The applicant was in the PZ.

20. The FY 02 major competitive category promotion board convened on 16 April 2001 to consider officers for promotion to major. The above zone of consideration was those officers with a date of rank of 1 October 1995 and earlier. The applicant was in the AZ.

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DISCUSSION AND CONCLUSIONS:

1. The applicant's DISCOM commander, the award approval authority for award of the ARCOM, determined that the applicant should receive the ARCOM for his meritorious achievement, an altogether subjective decision on his part, likely based upon a recommendation made by the applicant's rater, his battalion commander, and on his own judgment. The DISCOM commander could have recommended an upgrade as indicated in his new DISCOM commander's response to the applicant's request. That he did not do so indicates that he felt that an award of the ARCOM was indicative of the applicant's achievements during the period of the award. Notwithstanding counsel's arguments, there is no evidence to suggest otherwise; nor is there any evidence to show that the applicant's battalion commander was biased, thus affecting the award given.

2. The applicant's statements and counsel's contentions that the applicant's battalion commander, his rater, was biased is not supported by any available evidence. The inference that a proposed rating by the applicant's senior rater, although complimentary, but not as flattering as the actual rating given, was authored by the applicant's rater in order to harm or discredit the applicant, is not supported by any evidence offered. Even if the proposed rating was authored by the applicant's rater, that in itself does not suppose prejudice on the part of the applicant's rater, nor an attempt to harm or discredit the applicant, but would be his opinion as voiced to the applicant's senior rater. The applicant's rater, in his portion of the evaluation report, stated that the applicant's performance was outstanding – must promote, and, "CPT [the applicant] is ready now for immediate assignment as a Foreign Area Officer (FAO). He has outstanding potential to perform at the highest staff levels within that career field. Promote him to major and send him immediately to Advance Civil Schooling in support of FAO designation, and select him for Command and General Staff College."

3. Neither the applicant nor counsel has provided evidence to indicate that the rated months, "9," as shown on the applicant's evaluation report ending on 25 May 2000, and as reviewed by the FY 01 and FY 02 major competitive category promotion boards, caused him not to be promoted to major. They have not shown that the information on that report is material error warranting consideration by a special selection board.

4. Neither the applicant nor counsel has submitted probative evidence or a convincing argument in support of his request.


BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

___FNE _ __MHM _ __PHM__ DENY APPLICATION

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.





                  ____Fred N. Eichorn_____
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091048
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20031202
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	107.00
2.	131.00
3.
4.
5.
6.