RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        3 NOVEMBER 2005
      DOCKET NUMBER:  AR20050011697


      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             |
|     |Ms. Rene' R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Thomas Howard                 |     |Chairperson          |
|     |Mr. John Infante                  |     |Member               |
|     |Ms. Carmen Duncan                 |     |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 1 October 1998 through 4 April 1999 be replaced with a copy (draft)
he provides in his application.  He also requests reevaluation for
promotion to the grade of lieutenant colonel.

2.  The applicant states, in effect, that the senior rater (SR) was not
authorized to be placed on his OER.  He explains that his SR inserted
himself into his rating scheme after his OER had been completed by his
previously designated SR.  He maintains that his SR's actions were
prohibited by Army Regulation 623-105.  He argues that the Officer Special
Review Board's (OSRB) decision to deny his appeal was based on Army
Regulation 600-20, which was the wrong regulation to use in this case.

3.  The applicant provides the contested OER, draft copy of the OER, the
OSRB's Case Summary, his self authored statement, and supporting memorandum
from the Assistant Division Commander.

CONSIDERATION OF EVIDENCE:

1.  In May 1999 the applicant received a change of rater evaluation report
for the period 1 October 1998 through 4 April 1999 which rated his
performance as an Assistant Professor of Military Science with duty at
Hampton University, Hampton, Virginia.  The SR on the contested report is
listed as the brigade commander.  The statement "I do not meet minimum
qualification to senior rate" appears in part VII, "Senior Rater" on the
applicant’s OER.

2.  The "draft" OER contains the same information as the contested report
with the exception of the SR's portion.  Comments and ratings by a
different SR are listed in part VII of the draft report.  The SR on the
draft report rates the applicant as "Best Qualified" and marks him "Above
Center Mass" with supporting comments.

3.  The applicant appealed his case through the OSRB and the Board denied
his appeal.  The OSRB stated that the "draft" OER was signed and dated
         11 May 1999 and was hand carried to Human Resources Command (HRC)
OER Branch for inclusion into the applicant's file.  However, the OER
Branch Chief said the OER needed to be redone with the new SR because the
original SR was suspended from command on or about 12 March 1999.
Therefore, he could not render the report.

4.  The OSRB maintains that the OER branch policy considers a complete OER
as one that has been through the entire system and placed in the officer's
official record.  The OSRB quoted Army Regulation 600-20, Command Policy,
paragraph 2-17, which prohibits officers under a temporary suspension from
rendering personnel evaluations.  The OSRB concluded that the contested OER
was processed correctly by the appropriate rating officials in accordance
with Army Regulation 623-105, Officer Evaluation Reporting System,
paragraph 2-20, loss of rating chain member.

5.  In the applicant's memorandum dated 9 March 2000, he argues the
validity of the OSRB's decision.  He believes that the regulation governing
command policy is invalid when referring to the duties of a senior rater.
He maintains that his original SR could render reports until he was
relieved of SR duties, not suspended from command duties.  The applicant
uses the fact that the original SR was rated for the entire rating period,
up until the date of relief, with no nonrated codes to substantiate his
claim.  He quotes paragraph 3-50, in the evaluation regulation as stating
when an officer is suspended from duties pending investigation every effort
should be made to retain the established rating chain until the
investigation is resolved.

6.  The applicant admitted that his rating officials sought guidance from
the OER Branch, HRC, on whether or not the SR could render an evaluation
while suspended.  Their response was that the SR could not render an
evaluation while in a suspended status.  The applicant disagrees with their
answer and argues that the statement provided by the Division Chief of
Evaluations Office Policy and their guidance to the new SR was in violation
of the evaluation regulation.  The applicant believes that the draft report
should be accepted because the report was completed and signed on 11 May
1999, prior to the SR being officially relieved.

7.  In the applicant's self-authored memorandum to HRC dated 16 June 2005,
he paraphrases an email he received from his SR.  According to the
applicant, the SR stated the following:  The SR met with the OER Division
Chief about the time the original SR was relieved.  He cannot recall the
exact date.  Prior to the meeting he had with the OER Division Chief, the
SR understood that the original SR could still senior rate officers during
his temporary suspension.  During the meeting, he received instructions to
remove the original SR from those OERs that had thru dates after the date
the original SR was suspended.  Based on this information, the applicant
believes it confirms that the SR could not have signed his OER on 11 May
1999 because he did not think he was the SR until on or about 21 May 1999.

8.  The supporting statement dated 16 June 2005, provided by the Assistant
Division Commander, disagrees with the findings of OSRB.  He states that he
believes the outcome of the applicant's case should be determined by the
rating scheme in effect on 11 May 1999.  He states that "A decision made on
or about 21 May 1999 does not change the fact and I believe not affect an
OER completed on 11 May 1999." The Commander supports the applicant's
contention that the evaluation regulation does not prohibit a SR under
temporary suspension from rendering personnel evaluations.

9.  Evidence of records shows that an investigating officer was appointed
on       3 March 1999 to conduct an AR 15-6 investigation on the
applicant's original SR. The investigation was completed on 8 April 1999
and the SR was relieved and received a relief for cause evaluation.  The
evaluation confirms that the original SR was relieved on 21 May 1999.  The
relief for cause evaluation on the original SR is for 11 months from 18
June 1998 through 21 May 1999, with no nonrated codes listed.

10.  Army Regulation 623-105, paragraph 2-20 states that special rules
apply when a rating chain member is unable to render an evaluation of the
rated officer.  These situations occur when a rating official dies, is
declared missing, is relieved, or becomes mentally or physically
incapacitated to such an extent that he or she is unable to submit an
accurate evaluation.  When a rating official is relieved or determined to
be incapacitated, he or she will not be permitted to evaluate his or her
subordinate.  This restriction also applies to reports with "Thru" dates
prior to the relief or incapacitation of the rating official but not yet
completed.

11.  Army Regulation 623-105 Paragraph 3-50, defines a relief for cause as
an early release of an officer from a specific duty or assignment directed
by superior authority and based on a decision that the officer has failed
in his or her performance of duty.  If for whatever reasons, the relief
does not occur on the date the officer is removed from his or her duty
position responsibilities, the period of time between the removal and the
relief will be nonrated time included in the period of the relief report.
The report will be rendered by the published rating chain at the time of
the relief; no other report will be due during this nonrated period.  When
an officer is suspended from duties pending investigation every effort
should be made to retain the established rating chain until the
investigation is resolved.

12.  Army Regulation 623-105 states that an evaluation report accepted for
inclusion in the official record of an officer is presumed to be
administratively correct, have been prepared by the proper rating
officials, and represent the considered opinion and objective judgment of
rating officials at the time of preparation.

13.  Army Regulation 623-105 also states that the officer evaluation report
Redress Program, which includes Commander’s Inquiries, appeals to the OSRB
and petitions to this Board, protects the Army's interests and ensures
fairness to the officer.  At the same time, it avoids impugning the
integrity or judgment of the rating officials without sufficient cause.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that the applicant's original SR was suspended on or
about 12 March 1999 and subsequently relieved on 21 May 1999.  The
applicant's rating officials sought guidance from the OER Policy Branch
that informed them that the original SR was ineligible to render
evaluations while in a suspended status.

2.  The applicant appealed to the OSRB and the Board denied his appeal
agreeing with OER Policy Branch decision that the original SR was
ineligible to render a report while in a suspended status.  The OSRB
maintains that the contested report was processed correctly with the
correct rating officials and therefore, they denied the applicant's appeal.

3.  The applicant again argues that his original SR could render the
evaluation report until he was relieved from SR duties and not suspended.
He provides a statement from Assistant Division Commander that agrees with
his interpretation of the regulation.  The applicant also uses the fact
that his original SR's report lists no nonrated time to substantiate his
contention.

4.  Suspension is defined as the temporary removal of an officer from
his/her duty position pending a final decision on an adjudicated issue.
The regulation is very clear that the period of suspension be shown as
nonrated time.  This time is considered nonrated for both the rated
officer, as well as the person he rates. The fact that the applicant's SR's
OER does not list the time he was suspended as nonrated time is not
sufficient evidence to conclude he (SR) should have been allowed to rater
the applicant.  It is only evidence that the SR's report may contain an
error.

5.  Additionally, the applicant argues that his original SR was suspended
from command duties and not SR duties and therefore can render the report.
This Board acknowledges that the original SR could not be suspended from
command duties without being suspended as the SR.  The applicant's draft
report lists his original SR's position as "Brigade Commander."  Therefore
the suspension of command duties and SR duties are synonymous.

6.  It is unfortunate that the applicant received an above center mass
evaluation from his original SR that was disallowed based on the SR's
suspended status.  However, this is a part of the checks and balances in
the system to protect the rights of the rated Soldier.  One could argue
that a rating official, in a suspended status, who is allowed to render an
evaluation on a subordinate, was not fair and objective in their assessment
based on the rating official's "disheartenment" with the system.  To
preclude this type of situation from occurring, the regulation has
prohibited a suspended rating official from rendering an evaluation.

7.  While the applicant may not agree with the decision of the OSRB and the
OER Policy Branch to allow the contested report to remain in his official
military personnel file (OMPF), there is no evidence which confirms that
the report was issued in error or that it was unjust.  In view of the fact
that there is no basis to replace the evaluation report with the draft
report, there is no basis to grant the applicant’s request for promotion
reconsideration.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_TH  ____  __JI ____  __CD ___  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.





                                  _____Thomas Howard_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050011697                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051103                                |
|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.       |111.00                                  |
|2.                      |131.00                                  |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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