RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           23 February 2005
      DOCKET NUMBER:  AR20040002510


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Ms. Marla J. Troup                |     |Member               |
|     |Mr. Peter B. Fisher               |     |Member               |

      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 his officer evaluation report (OER) for the
period  5 October 1990 through 5 March 1991 be removed from his Official
Military Personnel File (OMPF).

2.  The applicant states that the Officer Special Review Board (OSRB) erred
in its decision to deny his appeal.  He has learned that during and after
the appeal process the Under Secretary of the Army for Manpower and Reserve
Affairs was fired from her position for inconsistent decisions in which his
OER was reviewed.  Not only was she fired from her position but others were
as well.  She was then serving as the principal administrative officer
fired for gross improprieties involving such offices as the OSRB.

3.  The applicant states that the contested OER was without doubt a
derogatory report and required the Senior Rater (SR) to refer it.  The SR
has stated that he knew at the time he should have referred the OER and
even had a referral letter drafted but did not send it.  He also stated
that if it had been referred, the matter would have been corrected at that
time.  Both the rater and the SR have stated they were wrong in using
inaccurate information that was provided by a rival officer (Lieutenant
Colonel (LTC) F___), not in the rating chain or even in a battlefield
supervisory position.  Truthful and accurate information sent to the rater
by the battlefield supervisor through LTC F___ never reached the rater or
SR as stated in his OER appeal.

4.  The applicant states that the OSRB erred when it equated rating
officials who were misled by subordinates to rating officials described in
Army Regulation  623-105, paragraph 5-32 (6) (statements that rating
officials underestimated the rated officer or did not intend to rate him as
they did and request the rating be revised).

5.  The applicant provides a U. S. Army Security Assistance Training
Management Organization, Fort Bragg, NC memorandum dated 15 May      1995;
a letter of congratulations (on his selection for promotion to LTC) dated
24 September 1990 from the Commandant, Academy of Health Sciences, U. S.
Army, Fort Sam Houston, TX and one from the Chief, Medical Service Corps
(MSC) Branch; a memorandum dated 11 March 1991 from Captain A___, Military
Personnel Officer, with a draft OER referral letter attached; a DA Form 638
(Recommendation for Award) with narrative and citation for award of the
Bronze Star Medal; a certificate from the Saudi Arabian National Guard
Modernization Program dated 13 April 1991; a Certificate of Retirement; and
a Certificate of Appreciation upon Retirement.

6.  The applicant also provides his DD Form 214 (Certificate of Release or
Discharge from Active Duty); a letter of gratitude dated 23 February 1991;
an approved award of the Saudi Arabia "Battle Medal" dated 17 November
1992; the contested OER; his Officer Record Brief dated 12 April 1995; what
appears to be a partial OSRB Case Summary dated 5 August 1992; a fax
transmittal header sheet dated 13 February 1995; an undated, 7-paragraph
chronology from an unknown source; and a 2-page chronology (from 13 April
1992 through 4 May 1995) from an unknown source.

7.  The applicant also provides a letter from the rater of the contested
OER, dated 1 February 1995; an undated request for the applicant's
extension past mandatory release date signed by Major General C___; a
letter from the SR of the contested OER, dated 24 May 1995; a memorandum
for record, subject:  OER Input for (the applicant), from LTC F___, dated 4
March 1991; an undated note from the rater of the contested OER to the SR;
an undated statement of the applicant; and a copy of his 1995 OER appeal
packet.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which
occurred on 30 June 1995.  The application submitted in this case is dated
31 May 2004.

2.  Title 10, U.S. Code, Section 1552(b), provides that applications for
correction of military records must be filed within 3 years after discovery
of the alleged error or injustice.  This provision of law allows the Army
Board for Correction of Military Records (ABCMR) to excuse failure to file
within the 3-year statute of limitation if the ABCMR determines that it
would be in the interest of justice to do so.  In this case, the ABCMR will
conduct a review of the merits of the case to determine if it would be in
the interest of justice to excuse the applicant’s failure to timely file.

3.  After having had prior service, the applicant entered active duty as a
second lieutenant in the MSC on 12 July 1974.  He was promoted to major on
1 August 1986.  Around September 1990, as a promotable major, he was
accepted to fill a security assistance mobile training team requirement in
support of the Office of the Program Manager – Saudi Arabian National Guard
(OPM – SANG), in the Kingdom of Saudi Arabia.

4.  On 23 February 1991, the applicant received a letter from the Saudi
Medical Services Director in Eastern Province thanking him for the efforts
and endeavors he extended in support of the Medical Services in the Eastern
Province especially during the current crisis (i.e., Operation Desert
Storm).

5.  The contested OER is a 3-rated month (administratively amended by the
OSRB in 1992 to read 5-rated months) change of rater report for the period
       5 October 1990 through 5 March 1991.  Colonel W___ was his rater and
Brigadier General T___ was his SR.  The applicant signed the OER in Part II
(Authentication) on 5 March 1991.  Part VIIb indicates that the applicant
provided a support form with the OER.

6.  The applicant received a "2" in Part IV (Performance Evaluation –
Professionalism), subpart a1 (Possess capacity to acquire knowledge/grasp
concepts) (with possible ratings from a high of "1" to a low of "5").  A
related comment ("Specific guidance was repeatedly required for him to
complete missions") was made in Part IVa2.

7.  The rater rated the applicant's performance in Part Vb as "Usually
exceeded requirements" (with a possible top rating of "Always exceeded
requirements").  No negative comments were made in Part Vc (Comments on
Specific Aspects of Duty Performance).  The rater rated his potential for
promotion in Part Vd as "Promote with contemporaries" (with a possible top
rating of "Promote ahead of contemporaries").  He commented in Part Ve
(Comment on Potential), "(the applicant) would excel in an aeromedical
evacuation element."

8.  The SR rated the applicant's potential as below center of mass
(8/5/6/*2/0/0/0/0/0, where * equals the applicant's rating).  The SR's
comments were lukewarm but he made no negative comments.

9.  Input for the contested OER had been provided in a memorandum for
record (MFR) by LTC F___, Chief, Field Operations Branch.  The MFR
indicated the applicant had been assigned to the Office of the Assistant
Program Manager (Medical), Medical Management Division, Field Operations
Branch, serving as a Medical Operations Officer.  LTC F___ indicated that
the applicant had to be continually given an unusual amount of specific
guidance in order for him to complete missions and that he demonstrated
little initiative in accordance with officers of his grade and experience.


10.  LTC F___ commented on specific aspects of the applicant's duty
performance (used almost word-for-word by the rater in Part Vc).  He
indicated the applicant's potential for promotion to the next higher grade
was "Promote with contemporaries" with the comment, "Assign to aeromedical
evacuation element."

11.  On 10 March 1991, the applicant's rater recommended the Medical
Management Division's staff for award of the Bronze Star Medal.  In the
evidence provided by the applicant, the applicant was listed as one of 12
individuals to receive the award.
12.  The contested OER was reviewed by the personnel officer on 11 March
1991 and he prepared a memorandum for the SR.  The personnel officer
informed the SR that the OER did not require referral for the front side
numbers or the backside box checks.  The personnel officer noted that the
one comment in Part IVa concerning specific guidance being repeatedly
required "might be considered derogatory and would require you to refer the
report."  The personnel officer apparently included a draft referral
memorandum for the SR's use.

13.  An undated note apparently from the rater to the SR stated, "Recommend
rater portion stand as is."

14.  On 13 April 1991, the applicant was given a Saudi Arabian National
Guard Modernization Program certificate in special recognition of
extraordinary services and support.

15.  Around July 1991, the applicant was selected by the MSC LTC Selection
Board as an alternate command selectee.

16.  On 17 November 1992, the applicant, along with about 50 others, was
authorized to accept and wear the Saudi Arabia "Battle Medal."

17.  The applicant appealed the contested OER in 1992 based on substantive
inaccuracy.  He stated that far from requiring "specific guidance" to
"complete missions," as a newly-arrived officer he was attempting to find
out the minimum information required for him to successfully complete his
mission from his rater, who had been in country for over 1 1/2 years.
Additionally, his SR placed him in the bottom ten percent of all majors he
had senior rated.  He contended that his SR should have known that any
report which placed an officer in the bottom ten percent would have
impacted on his career and the OER should have been referred.  He contended
that neither the rater's nor the SR's narrative comments supported their
block ratings.  He contended that the fact he was awarded the Meritorious
Service Medal while his teammate was awarded the Bronze Star Medal showed
the prejudice towards him on the part of his rating chain (also the fact
his teammate was awarded the Combat Medical Badge while he was not).

18.  The OSRB denied the applicant's appeal in August 1992.  The complete
OSRB Case Summary is not available.

19.  The applicant again appealed the contested OER in 1995.  He stated
that he learned that a rival officer, who was not in his rating chain, gave
a disparaging memorandum about him to his rater and misled his rater about
his duty performance.  The downgrade was carried forward by his SR who did
not know his situation and did not know of the conflicting advice and
commands under which he operated.

20.  With his 1995 appeal, the applicant provided a 29 October 1994
memorandum from the SR of the contested OER.  The SR stated that he
reviewed the rater's 7 July 1994 letter to the president of the appeal
board (not available), talked to the applicant, and had extensive
conversations with Doctor A___, whom the applicant was supporting during
the Gulf War.  The SR stated that, after considering all of the above
factors, he concluded that his evaluation did not accurately reflect the
applicant's performance or potential.  The conflicting guidance the
applicant was provided in a combat situation by multiple sources not in his
direct chain of command was not apparent to him when he signed the OER.
Based on the information now available, the SR would have rated the
applicant's potential higher and would have used different verbiage.

21.  The SR also provided a memorandum dated 24 May 1995 for the
applicant's OER appeal.  In this memorandum, he stated that he had time to
search his personal files and found documents not available to him at the
time of applicant's 1992 appeal.  He acknowledged that he discussed the
contested OER with the rater and he asked the rater to consider his rating
carefully.  He received the note from the rater recommending the rated
portion remain as written.  The SR subsequently received his personnel
officer's review and recommendation.  Based on the rater's note, the SR
elected to complete his portion of the OER and did not refer it to the
applicant.  The SR stated that, in retrospect, he should have immediately
referred the OER to the applicant.

22.  The SR also stated in the 24 May 1995 memorandum that he discovered
the 4 March 1991 memorandum from LTC F___.  He had not seen this memorandum
when he prepared the contested OER; however, the rater quoted substantially
all of the memorandum when he wrote the applicant's OER.  The rater
reiterated, in a 2 May 1995 memorandum, that he relied on LTC F___'s
information to draft the applicant's OER.  The SR stated that he can now
see that the memorandum presented a biased, single source perspective
regarding the applicant's performance and potential.

23.  The applicant's rater from the contested OER provided a memorandum
dated 1 February 1995.  The rater stated that he made the OER acting on
information given to him by another officer not in the applicant's chain of
command.  Based on the disparaging information given to him in LTC F___'s
memorandum, he downgraded the applicant's rating.  The rater stated that he
was concerned that he was misled by that information.  The applicant was
not given an opportunity to respond to the information.  The rater has
discovered that the applicant received conflicting guidance concerning his
duties and missions.
24.  The applicant provided a letter from Doctor Abdulaziz A___, who stated
he worked with the applicant during the period of the contested OER on a
daily basis and the applicant provided outstanding assistance and support
to their mission.  He also stated that he met with the applicant's rater on
two occasions and relayed his great pleasure with the performance of the
applicant.

25.  The applicant provided a memorandum, dated 2 March 1994, from LTC
Cab___.  LTC Cab___ stated that he was the applicant's first line
supervisor.  He (LTC Cab___) received limited but specific guidance from
his (LTC Cab___'s) rater and SR regarding the applicant's duties.  The
applicant performed his duties in a most outstanding manner.  The applicant
received little or no guidance from his own rater; LTC Cab___ was tasked by
his (LTC Cab___'s) rater to achieve that function.  The applicant received
his primary guidance from LTC Cab___ and from Doctor Abdulaziz A___.  LTC
Cab___ contested the rating scheme at the onset of Desert Shield and the
rating scheme was changed after the applicant departed.  LTC Cab___
expressed his opinion of the applicant's performance as dynamic in his
final written evaluation of the applicant to his rater and to LTC F___.

26.  The applicant provided a memorandum, dated 8 February 1995, from LTC
C___, a co-worker of the applicant also assigned to the Field Operations
Branch. LTC C___ stated that to his knowledge all field grade officers
assigned or attached to OPM-SANG were rated by their division chief (the
rater on the contested OER) even though they were organized into branches
subordinate to the divisions.  LTC C___ stated that there appeared to be
some animosity between the applicant and LTC F___.

27.  On or about 30 March 1995, the OSRB denied the applicant's appeal.

28.  On 1 July 1995, the applicant retired as a result of being selected
for early retirement.

29.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing, and using the OER.  The version in effect at the
time provided that an OER accepted for inclusion in the official record of
an officer was presumed to be administratively correct, to have been
prepared by the proper rating officials, and to have represented the
considered opinion and objective judgment of the rating officials at the
time of preparation.

30.  Army Regulation 623-105, in pertinent part, stated that the rater was
normally the immediate supervisor of the rated officer.

31.  Army Regulation 623-105, in pertinent part, stated that the SR would
use all reasonable means to become familiar with the rated officer's
performance.  When practical, the following means would be used:  (1)
personal contact; (2) records and reports; (3) the rater's evaluation of
the rated officer given on the OER; and (4) the information given by the
rated officer and the rater on the support form.

32.  Army Regulation 623-105, in pertinent part, stated that, among other
mandatory reasons, an OER with a SR potential evaluation in one of the
bottom three blocks in Part VIIa or any report with ratings or comments
that, in the opinion of the SR, were so derogatory that the report could
have an adverse impact on the rated officer's career would be referred to
the rated officer for acknowledgment and comment.

33.  Army Regulation 623-105 stated that the burden of proof in appealing
an OER rested with the applicant.  Accordingly, to justify deletion or
amendment of a report, the applicant must have produced evidence that
clearly and convincingly nullified the presumption of regularity.  Clear
and convincing evidence must have been of a strong and compelling nature,
not merely proof of the possibility of administrative error or factual
inaccuracy.

34.  Army Regulation 623-105 stated that statements from rating officials
often reflected retrospective thinking prompted by an appellant's
nonselection or other unfavorable personnel action claimed to be the sole
result of the contested report.  As a result, claims by rating officials
that they did not intend to evaluate as they did would not, alone, serve as
the basis of altering or withdrawing an OER.  Rating officials could,
however, provide statements of support contending the discovery of new
information that would have resulted in an improved evaluation had it been
known at the time of report preparation.  Such statements must have
described what the new information consisted of, when and how it was
discovered, why it was reportedly unknown at the time of report
preparation, and the logical impact it may have had on the contested OER
had it been known at the time the OER was originally prepared.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's apparent allegation that the "firing" of the Under
Secretary of the Army for Manpower and Reserve Affairs played a role in the
OSRB's decisions to deny his OER appeals is not substantiated by any
evidence provided by him.

2.  The contested OER did not fit into a category that required referral to
the applicant.  The SR's block check may have placed him in the bottom ten
percent of all majors the SR had senior rated; however, the SR did not rate
him in one of the bottom three blocks in Part VIIa.

3.  One comment in Part IV may have fit the category of "any report with
ratings or comments that, in the opinion of the SR, were so derogatory that
the report may have an adverse impact on the rated officer's career would
be referred to the rated officer for acknowledgment and comment."  However,
a referral in this case was optional, depending on the opinion of the SR.

4.  The SR stated in 1995 that he had received his personnel officer's
review and recommendation and had talked to the rater.  However, the SR
still elected to complete his portion of the OER and not refer it to the
applicant, a decision within regulatory guidelines.  It appears that at the
time the SR did not believe the OER would adversely impact on the
applicant's career.  In retrospect, it may have been the contested OER that
led to the applicant's selection for early retirement in 1995.  However, in
early 1991 the drawdown was not yet being implemented. The SR's statement
that, in retrospect, he should have immediately referred the OER to the
applicant appears to be, indeed, retrospective thinking.

5.  The Board notes the SR stated in the applicant's 1995 OER appeal that
conflicting guidance was provided to the applicant in a combat situation by
multiple sources not in his direct chain of command.  The rater had stated
that he discovered the applicant received conflicting guidance concerning
his duties and missions.  The applicant stated in his 1995 appeal that the
SR did not know his situation and did not know of the conflicting advice
and commands under which he operated.

6.  However, the Board also notes LTC Cab___'s statement that indicated he
had received limited but specific guidance from his (LTC Cab___'s) rater
and SR regarding the applicant's duties and that he (LTC Cab___) was tasked
to achieve that function.  If LTC Cab___ was tasked to provide the
applicant guidance concerning his duties, then LTC Cab___'s statement
appears to contradict the statements about the applicant receiving
conflicting guidance.

7.  The SR stated in the applicant's 1995 OER appeal that he could "now see
that [LTC F___'s] memorandum presented a biased, single source perspective
regarding the applicant's performance and potential."  However, the
contested OER indicated that the applicant provided a support form with the
OER.  Thus, the SR had a dual source perspective on the applicant's
performance and potential and could compare LTC F___'s memorandum with the
support form.  The presumption is made that he made his ratings based at
least partially on that comparison.

8.  The applicant's rater stated in the 1995 OER appeal that he relied on
LTC F___'s memorandum in preparing the contested OER.  However, Doctor
Abdulaziz A___ had stated that he met the applicant's rater on two
occasions and relayed his great pleasure with the performance of the
applicant.  The Board presumes the rater considered LTC F___'s memorandum
in light of the comments made by Doctor Abdulaziz A___ and prepared his
ratings accordingly.

9.  LTC Cab___ appears to have been in LTC F___'s chain of command (when he
stated he "expressed his opinion of the applicant's performance as dynamic
in his final written evaluation of the applicant to his rater and to LTC
F___").  Yet, LTC Cab___ made no reference to any animosity between the
applicant and LTC F___.

10.  The applicant's rater was a full colonel and his SR was a brigadier
general.  The Board presumes their ratings to have represented their
considered opinion and objective judgment at the time of the contested
OER's preparation.  The later statements from his rating officials are
insufficient evidence to overcome the reasonable belief that they are based
on retrospective thinking.

11.  Records show the applicant should have discovered the alleged error or
injustice now under consideration on 1 July 1995; therefore, the time for
the applicant to file a request for correction of any error or injustice
expired on         30 June 1998.  However, the applicant did not file
within the 3-year statute of limitations and has not provided a compelling
explanation or evidence to show that it would be in the interest of justice
to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__hof___  __mjt___  __pbf___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence
provided which shows that it would be in the interest of justice to excuse
the applicant's failure to timely file this application within the 3-year
statute of limitations prescribed by law.  Therefore, there is insufficient
basis to waive the statute of limitations for timely filing or for
correction of the records of the individual concerned.




            ___Hubert O. Fry______
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040002510                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20050223                                |
|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.                      |                                        |


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