RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           2 November 2004
      DOCKET NUMBER:   AR2004105798


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Mr. Robert Duecaster              |     |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 May 1998 through 10 January 1999 be expunged from his records.

2.  The applicant states that the Department of the Army Inspector General
(DAIG) substantiated that the senior rater (SR) improperly rendered an
adverse OER in an act of reprisal for his protected communication in
violation of the Whistleblower Protection Act.  The DAIG also substantiated
that his rater improperly failed to counsel him and provide him with a copy
of his (the rater's) support form in violation of the regulation.

3.  The applicant provides the contested OER; a DAIG letter dated 8 August
2003; a DAIG letter dated 19 August 2003; a U. S. Army Human Resources
Command letter dated 14 July 2004; the contested OER as modified; and a
memorandum, Subject:  OER Referral, dated 22 May 2003.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the U. S. Army Reserve (USAR) on
 15 May 1977.  He entered active duty in an Active Guard Reserve (AGR)
status around May 1987.  He was promoted to lieutenant colonel (LTC) in the
Medical Service Corps on 5 May 1998.

2.  The contested OER is an 8-rated month change of rater report for the
period  5 May 1998 through 10 January 1999.  The applicant's principal duty
title was operations officer of the 176th Medical Group, Armed Forces
Reserve Center, Los Alamitos, CA.

3.  In Part V of the contested OER, the applicant's rater rated his
performance as "Satisfactory Performance, Promote."  (The highest possible
rating was "Outstanding Performance, Must Promote.")  His rater made no
derogatory comments.  One sentence did note, "Although his performance was
satisfactory, his newness to the role as an Operations Officer was
apparent."

4.  In Part VII of the contested OER, the applicant's SR rated his
promotion potential as "Do Not Promote" and rated his potential as compared
with officers senior rated in the same grade as "Below Center of Mass
Retain."  The SR noted the applicant was a dedicated and loyal officer but
made several derogatory comments concerning his ability to perform the
duties of an operations officer.

5.  The contested OER indicates it was referred to the applicant.  The
applicant's comments/rebuttal to the referral, if any, are not available.
6.  By letter to the U. S. Army Reserve Personnel Command dated 22 May
2003, the applicant contended his SR intended to take retribution against
him for having advised him that certain activities in which he participated
had created perceptions of an improper relationship.  He also believed the
rater's evaluation was the result of coercive influence by the SR.  He
stated the rater told him privately that "…I didn't want to do this but I
was told to…"

7.  The applicant's 22 May 2003 letter led to a U. S. Army Reserve Command
Inspector General Office investigation; however, the investigation was
turned over to the DAIG in June 2002.  By letter dated 8 August 2003, the
DAIG informed the applicant that the allegation the SR improperly rendered
an adverse OER in reprisal for the applicant's protected communication in
violation of the Whistleblower Protection Act was substantiated.  Two other
findings were substantiated – that the SR failed to ensure the rater
properly counseled the applicant and failed to ensure the rater provided
the applicant with a copy of his (the rater's) support form in violation of
the regulation and that the rater improperly failed to counsel the
applicant and provide the applicant a copy of his (the rater's) support
form.  One allegation – that the rater improperly rendered an adverse OER
in reprisal for the applicant's protected communication in violation of the
Whistleblower Protection Act – was not substantiated.

8.  Page 7 of the DAIG Report of Investigation notes that the applicant
testified he did not believe the rater reprised against him because the
rater's rating was neutral and the rater respected his work ethic.  The
applicant was not aware of the rater ever mentioning the term "reprisal" in
regards to the OER.

9.  On 15 March 2004, the applicant appealed the OER to the Officer Special
Review Board (OSRB).  The OSRB contacted the applicant's rater.  The rater
informed the OSRB that, while the SR did question the rater on why his
portion of the contested OER was not more negative, the rater said the SR
did not influence his rating and that it was totally objective.  The rater
did acknowledge that there was no formal performance counseling from
himself or the SR during the rating period.

10.  Based on the DAIG's findings that the SR reprised against the
applicant, the OSRB determined that the SR's portion of the contested OER
should be deleted in its entirety.  The OSRB found insufficient evidence to
warrant deleting the entire OER.  The OER was so amended.

11.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing and using the OER.  The regulation 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.

12.  Army Regulation 623-105, paragraph 3-5 states that the support form
communication process is characterized by initial and follow-up face-to-
face counselings between the rater and the rated officer.  Paragraph 3-7
states that, shortly after the rated officer assumes duties, the rater will
provide him or her with copies of the most recent rater and SR support
forms.  By doing this, the rater ensures the rated officer has the
necessary input from his or her chain of command to properly determine and
prioritize responsibilities and performance objectives.

13.  Department of Defense (DOD) Directive Number 7050.6 covers the
Military Whistleblower Protection provisions (Title 10, U. S. Code, section
1034).  The directive indicates that it is DOD policy that no person shall
restrict a member of the Armed Forces from lawfully communicating with a
Member of Congress, an IG, or a member of a DOD audit, inspection,
investigation or law enforcement organization; that members of the Armed
Forces shall be free from reprisal for making or preparing to make lawful
communications to a Member of Congress, an IG, or a member of a DOD audit,
inspection, investigation, or law enforcement organization; and that no
employee or member of the Armed Forces may take or threaten to take an
unfavorable personnel action, or withhold or threaten to withhold a
favorable personnel action, in reprisal against any member of the Armed
Forces for making or preparing a lawful communication to a Member of
Congress, an IG, or a member of a DOD audit, inspection, investigation, or
law enforcement organization.  The directive was reissued on 12 August 1995
to include specific other complaints as protected communications and expand
the scope of persons and activities to whom a protected communication could
be made.

DISCUSSION AND CONCLUSIONS:

1.  The DAIG substantiated the allegation that the applicant's SR
improperly rendered an adverse OER in reprisal for the applicant's
protected communication.  As a result of this finding, the OSRB deleted the
SR portion of the contested OER.

2.  The DAIG did not substantiate that the applicant's rater improperly
rendered an adverse OER in reprisal for the applicant's protected
communication.  The DAIG Report of Investigation noted that the applicant
testified he did not believe his rater reprised against him.

3.  It is acknowledged that the DAIG substantiated allegations that the
rater and SR failed to provide the applicant with copies of their support
forms and that the rater failed to counsel him.  However, the rater rated
his performance as satisfactory.  There is no evidence to show that the
lack of counselings or the lack of having his rating officials' support
forms, as opposed to other factors (such as being a newly-promoted LTC and
being in a new position), resulted in that rating rather than a rating of
"Outstanding Performance, Must Promote."

4.  The regulation states that clear and convincing evidence must be of a
strong and compelling nature and not merely proof of the possibility of
administrative error or factual inaccuracy.  There is insufficient
compelling evidence that the lack of counselings and lack of the rating
official's support forms were the sole reasons behind the rater rating the
applicant's performance as he did.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__mkp___  __jrs___  __rd____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




            ___Margaret K. Patterson
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20040005798                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20041102                                |
|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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