RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            8 November 2005
      DOCKET NUMBER:   AR20050004394


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Stanley Kelley                |     |Chairperson          |
|     |Ms. Diane J. Armstrong            |     |Member               |
|     |Ms. Delia R. Trimble              |     |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, in effect, removal of an Officer Evaluation
Report (OER), covering the period 6 June 2003 through 5 June 2004, from his
Official Military Personnel File (OMPF).

2.  The applicant states, in effect, the OER in question contained
substantive inaccuracies and was biased and unjust.  He claims the
evaluation in question is totally inconsistent with his 22 year record of
service, and the root cause of the problem was a hostile/oppressive working
environment that was condoned by his senior rater (SR).  He claims the SR
threatened to prevent his promotion at all costs.  He further states that
his record is in error or unjust based on the following factors:
impermissible bias/prejudice against Foreign Area Officers (FAOs) in
general and specifically Asian-American FAOs; inexplicable inconsistencies
between his rater and SR on his intellectual capacity; inappropriate rating
basis/insufficient knowledge of his duties and accomplishments/lack of
timely counseling; and an absolutely unprofessional and hostile working
environment that must not be tolerated in today’s military.

3.  The applicant also claims that his predecessor’s commander’s inquiry
clearly revealed the extent and gravity of the problems in J-5 even before
his arrival.  The same unbearably hostile environment continued when he
reported to J-5.  However, his commander’s inquiry was conducted via e-mail
and only persons interviewed were himself, his rater, intermediate rater
(IR), and SR.  He also states that the completely hostile working
environment noted by several witnesses was ignored and the only
substantiated finding was that his chain of command failed to do proper
counseling.  The applicant concludes by indicating that the circumstances
that would result in an officer with a 21 year record of outstanding
service plummeting to the bottom without just cause needs to be thoroughly
investigated.

4.  The applicant provides a complete appeal packet containing all
pertinent statements by past and present supervisors and co-workers who
have sustained knowledge of his performance and capabilities in support of
his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show he is currently serving on active
duty as a lieutenant colonel (LTC).  On 25 June 2004, while serving on
active duty as a LTC assigned to the United States Forces Korea (USFK), the
applicant received
the annual OER in question.  This report covered the period 6 June 2003
through 5 June 2004, and evaluated the applicant as a Political Military
Planning Officer for J5, USFK.

2.  In Part V (Performance and Potential Evaluation-Rater) of the contested
report, the rater (a colonel), placed the applicant in the two block
(satisfactory performance, promote).  The rater’s comments were generally
favorable, but did contain a statement indicating that in his capacity as
the deputy division chief, the applicant encountered new leadership
challenges in dealing with an office composed of joint field grade officers
and civilians; and that he needed more development in this area.  The rater
concluded his comments by stating that the applicant should continue
leadership development and be considered for colonel when eligible.

3.  In Part VI (Intermediate Rater) the applicant’s IR (a colonel)
commented that the applicant was a hard working and dedicated staff
officer.  He further indicated that the applicant had provided adequate
advice on Republic of Korea (ROK) -United States (US) Alliance policy
issues.  He further stated the applicant remained a team player in one of
their most difficult staff positions; however, his ability to lead a group
of joint staff officers was less than satisfactory.  The IR concluded by
stating that with continued development as a FAO, the applicant should be
considered for colonel when eligible.

4.  In Part VIIa (Promotion Potential) the SR (a major general) placed the
applicant in the three block (Do Not Promote).  In Part VIIb (Potential
Compared with Officers Senior Rated in Same Grade), the applicant received
a below center of mass (retain) evaluation.  The supporting comments
indicated the applicant was a pleasant, reserved, and diligent officer
trying in earnest to understand and contribute to political-military issues
involving the ROK-US military alliance.

5.  The SR also stated that the applicant was capable of accomplishing
tasks of a routine nature, but did not have the intellectual ability and
written communication skills to analyze and synthesize in-depth strategic
and operational level issues. He also indicated that the applicant’s
performance did not indicate he had the potential to serve adequately as a
colonel and as a result, he was not recommended for colonel at that time.
The SR concluded his comments by recommending the applicant be assigned to
staff positions at the tactical level that could utilize his experience.


6.  The contested OER was referred to the applicant and he responded to the
referral on 25 June 2004.  In his rebuttal, the applicant outlined specific
issues he had with the contested report and provided an explanation of
those factors.  He finally concluded that he was unfairly evaluated in part
because he was a trained FAO with Asian background who always placed US
interests first, but viewed Koreans as important alliance partners.  He
further stated that within a very hostile working environment, he was not
given the opportunity to fully utilize the FAO skills and insights he was
trained to provide.  He also commented that there was no evidence to
justify how an officer with an outstanding record for 21 years could so
suddenly plummet to the bottom and be accused of lackluster performance.
Therefore, he requested the negative comments be withdrawn from the
contested OER and that his performance be reevaluated with the additional
accomplishments he mentioned, or that the SR recuse himself from evaluating
him.

7.  On 12 November 2004, the applicant appealed the contested OER to the
Officer Special Review Board (OSRB).  In his appeal, the applicant
contended that the OER was substantively inaccurate, biased and unjust.  He
claimed that he was unfairly evaluated and misjudged.  He contended that
the SR’s leadership style created a command environment that was
restrictive, oppressive, and unprofessional.  He also claimed that the SR
had much disdain for US Army officers of Asian ethnicity.

8.  In the processing of the applicant’s appeal, the OSRB contacted the
rater, IR and SR, who all agreed to the release of a paraphrased summary of
their remarks.  The rater stated the applicant was a good officer and he
felt he rendered a fair and honest assessment of the applicant’s
performance and potential as a USFK J5 Political Military Planning Officer.
 The rated indicated he saw no need to amend his rating, and that he was
not influenced by the SR when rendering the report.

9.  The IR comments to the OSRB regarding the applicant’s duty performance
were that the applicant struggled with his responsibilities in J5 policy
and strategy.  He indicated the applicant was a hard worker, but his
ability to provide coherent and well thought out staff actions were
lacking.  The IR indicted the papers the applicant produced were often
poorly written, and even after receiving guidance from the J5, the SR, he
was not normally able to correct them satisfactorily.  The IR states he
gave the applicant specific guidance (identified in the OSRB case summary)
in a January 2004 counseling session.  He concluded by stating that he was
not influenced by the SR when rendering his comments on the applicant’s
performance and potential.

10.  When contacted by the OSRB, the SR said that while the applicant had a
good personality, he lacked the ability to synthesize strategic issues
regarding political military relations between the US and ROK.  The SR
indicated that he rendered a fair, honest, and unbiased evaluation of the
applicant’s performance and potential, and he saw no need to change his
remarks or ratings on the contested report.  The SR stated the applicant
was an excellent translator, but lacked the ability to assess and
articulate key political/military issues at the strategic and operational
levels in an organized manner.

11.  The OSRB case summary confirms the applicant submitted 13 supporting
third-party statements, which all spoke highly of the applicant’s
performance.  The statements provided came from co-workers/former
commanders and a general officer, who all recognized the applicant as an
officer who cares, and conducts himself professionally, diligently and who
worked to produce meaningful results.  However, the OSRB concluded none of
these individuals were in a position to fully understand or appreciate the
expectations of the rating officials for the applicant.  As such, none of
the statements substantiated any evidence that was sufficiently compelling
to overcome the presumption of regularity given an OER that has been
accepted for filing in the OMPF.

12.  The OSRB found all but one of the applicant’s contentions were
unsubstantiated.  It partially substantiated the contention that the rating
chain did not conduct timely counseling, which was determined by the
commander’s inquiry completed in the applicant’s case.  However, the OSRB
noted that by regulation, the failure by the rating chain to comply with
any or all support form requirements will not be the sole grounds for
appeal of an OER.

13.  The OSRB finally concluded that was not sufficiently convincing
evidence that Parts V, VI and VII of the contested OER were inaccurate,
biased and unjust, and therefore, the report should not be deleted.

14.  The applicant provided a commander’s inquiry done on his predecessor
with his application.  This officer was an Asian-American LTC who worked in
the USFK J5 prior to the applicant.  The applicant contends this
commander’s inquiry clearly shows the extent and gravity of the problems in
the J-5 section. The investigation conducted in connection with the
commander’s inquiry completed on the applicant’s predecessor did
substantiate three of the allegations made regarding the rater on the
applicant’s predecessor’s OER, and concluded these findings resulted in a
determination the applicant’s predecessor had a valid OER appeal.  The
rater on the predecessor’s report, whom the allegations were made against,
was a colonel who was not in the applicant’s rating chain on the contested
report.
15.  The applicant also provides a change of rater OER he received for the
period 6 June 2004 through 21 May 2005, which evaluated him as the
Quadrennial Defense Review Team Chief, Office of the Deputy Chief of Staff,

G-3, Department of the Army.  This report was an above center of mass
report with one block ratings in Part V and Part VII.

16.  In addition, the applicant provides a recommendation for promotion
from his rater on the contested report, dated 5 July 2005.  In this
memorandum, the rater indicated that when the applicant worked for him, his
skills as a FAO were superb, and that his language expertise, cultural
insights, and regional knowledge were second to none.  He indicated that in
the contested report, he ranked the applicant as “promote” and he took
these words to mean exactly what they said believing there was no inflation
in the reporting system for Part V.  He states that he originally
recommended a SR center of mass report with a “fully qualified rating”;
however, the SR was more critical of the applicant’s performance of duty
and chose a “below center of mass” and “do not promote” rating.  He further
indicated that he recommended the applicant for the Defense Meritorious
Service Medal for his year of service to USFK, but the SR did not approve
the award.  The rater concluded his recommendation by stating that the
promotion board should consider the contested OER rating period as one year
of a long, successful career, and compare it to the applicant’s recent
success on the Army Staff when reviewing the applicant’s record for
promotion in 2005.

17.  Army Regulation 623-105 prescribes the policies and procedures
pertaining to the Officer Evaluation System (OES) and Officer Evaluation
Reporting System (OERS).  It also provides guidance regarding redress
programs including commander inquiries and appeals.  Paragraph 3-57
provides the basic rule applicable to modifications of previously submitted
reports.  It states, in pertinent part, that an evaluation report accepted
by Headquarters, Department of the Army (HQDA) and included in the official
record of an officer is presumed to be administratively correct, to have
been prepared by the properly designated rating officials, to represent the
considered opinions and objective judgment of the rating officials at the
time of preparation.  It also states that requests that a report that has
been accepted for filing in an officer’s record be altered, withdrawn, or
replaced with another report will not be honored.

18.  Chapter 6 contains the policies and procedures pertaining to managing
the OER redress program.  Section III contains guidance on OER appeals and
paragraph 6-10 outlines the burden of proof that must be met to support a
successful OER appeal.  It states that the burden of proof rests with the
appellant.  Accordingly, to justify deletion or amendment of a report, the
appellant must produce evidence that establishes clearly and convincingly
that the presumption of regularity referred to in paragraphs 3-57 should
not be applied to the report under consideration and that action is
warranted to correct a material error, inaccuracy, or injustice.  Clear and
convincing evidence must be of a strong and compelling nature, not merely
proof of the possibility of administrative error or factual inaccuracy.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the OER in question was inaccurate,
unjust and biased, and the supporting documents he submitted were carefully
considered.  However, there is insufficient evidence to support amendment
or removal of the OER in question.

2.  The applicant’s most recent OER, and promotion recommendation from the
rater on the contested report, were also carefully considered.  However, in
his promotion recommendation, the rater recommended the promotion board
evaluate the contested report in context; however, he makes no comment
indicating the evaluation rendered on the contested report was inaccurate
or unjust.  Further, the applicant’s current OER, while documenting his
outstanding service in the position he was evaluated in, has no direct
bearing on the ratings contained in the contested report.

3.  The commander’s inquiry that was completed on the applicant’s
predecessor, which he claims show how bad the command climate was in the
USFK J5, was also carefully evaluated.  However, the specific substantiated
allegations documented in this investigation were directed at the
predecessor’s rater, who was not in the applicant’s rating chain on the
contested OER.  As a result, the results of this inquiry provide no
specific evidentiary value related to the evaluations rendered by the
rating chain in the applicant’s case.

4.  Further, the OSRB review included interviews with the rater, IR and SR,
who all refuted the applicant’s claim that his report was inaccurate.
These rating officials commented on the fact the applicant was a good
officer, and a hard worker with a good personality.  However, all three
made specific comments regarding the level of his ability to operate in the
environment he was serving in.

5.  The supporting third-party statements provided by the applicant were
also carefully considered.  However, while these statements attest to the
applicant’s excellent duty performance and unlimited potential, none of the
individuals providing the statements were in a position to understand the
perspective and
expectations of the applicant’s rating officials at the time.  Therefore,
they do not provide a sufficient evidentiary basis to conclude the OER in
question was not fair and accurate.

6.  In view of the facts of this case and notwithstanding the applicant’s
claims to the contrary, it appears the evaluations contained on the
contested OER represent the considered opinions and objective judgment of
the rating officials.  As a result, it is concluded that the OER in
question was processed and accepted for filing in the OMPF in accordance
with applicable regulations, and there is insufficient clear and compelling
evidence to overcome the regulatory presumption of regularity, and/or to
remove the contested report from the record at this time.

7.  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 and counsel
have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

___SK __  ___DJA  _  __DRT  _  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.




            ____Stanley Kelley_______
                    CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050004394                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/11/08                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.  193  |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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