RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        14 SEPTEMBER 2006
      DOCKET NUMBER:  AR20060004216


      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. Eric Andersen                 |     |Chairperson          |
|     |Ms. Rose Lys                      |     |Member               |
|     |Mr. Richard Murphy                |     |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, that his Officer Evaluation Report
(OER) for the period 1 May 2003 through 17 November 2003 be removed from
his Official Military Personnel File (OMPF).  He further requests all
reference to his removal from the major promotion list and proceeding of
the Promotion Review Board also be removed from his OMPF.  Additionally he
requests promotion to major, backdated with all pay and allowances.

2.  The applicant states, through his counsel, that the sole and exclusive
basis for his removal from the major promotion list was the referred OER.
He maintains that the OER was given to him after his selection for
promotion to major.  The applicant said he made a “submission” to the
Promotion Review Board (PRB) and the Officer Special Review Board (OSRB)
asking that he be promoted and the contested OER be removed from his
record, respectively.  However, both boards denied his request.

3.  The applicant’s counsel states that there were two conclusions reached
by the OSRB:  (1) The applicant did not increase recruit production for his
recruiting station; and (2) the applicant’s leadership style warranted a
relief and consequently the referred OER.  Additionally, the counsel
maintains the rater and senior rater, in their comments to the OSRB, were
untruthful when commenting on production for the Memphis Company.  The
counsel argues that Memphis was not, nor has ever been a lucrative location
for recruiting as suggested by the rater and senior rater.

4.  The counsel states that in 2002 Memphis Company had a mission of 375
recruits, whereas 63 percent of other United States Army Recruiting Command
(USAREC) companies had a greater mission quantitatively.  The counsel
maintains that the mission was a reflection of the perceived capacity of a
region to produce recruits and Memphis only met 70.13 percent of its
mission.

5.  In 2003, the counsel states, Memphis mission was reduced to 310 and
only 220 were recruited which represented 70.13 percent of their mission.
He said 65 percent of the other companies had a higher mission.  However,
in 2004, the mission was increased to 314, but only 154 were recruited for
a 49.4 percent of mission.  In 2005, the mission was increased to 405 with
only 208 being recruited for a 50.37 percent of its mission.

6.  Based upon the Memphis figures, the counsel opines that it was absurd
to suggest as the rater and senior rater had, that Memphis was an easy
place to do business.   “Their comments were patently self serving.”
Furthermore, the counsel maintains that the applicant’s assertion regarding
dependency on African-American recruits in Memphis Company was correct.
The counsel said that after 9/11 African American recruiting in Memphis
Company decreased markedly.  The counsel said the applicant’s senior
rater’s order to increase production in the applicant’s station was
impossible to meet.

7.  The counsel said the applicant found himself in an environment where
recruiting impropriety was rampant.  The counsel maintains that while
others ignored such conduct, the applicant did not tolerate it.  He said
this undoubtedly created issues and some disgruntlement among enlisted
personnel.  The counsel concluded that there exists no reason for the
applicant not to be a major.

8.  The applicant provides statistics for the African American Consumer
Market, documentation of recruiting improprieties, Memorandums of Concern,
DA Form 4856 (Developmental Counseling Form), Commanders Inquiry (CI)
packet, contested OER with allied documents, Report of Investigation with
allied documents, supporting statements, reprimand, and OSRB Case Summary.
He also provides a compact disk of attachments that could not be opened.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s record shows he received a relief for cause evaluation
report for the period 1 May 2003 to 17 November 2003, which rated his
performance as the Company Commander, United States Army Recruiting Company
(USAREC), Memphis, Tennessee.  The report shows the applicant was rated for
5 months with a nonrated code of “Z”.  The rater on the contested report is
listed as a lieutenant colonel, battalion commander and the senior rater is
listed as a colonel, brigade commander.  The report was signed by the rater
and senior rater on 24 May 2004.  This was a referred report.

2.  In part b.3 “Actions (Leadership) Major activities leaders perform;
influencing, operating, and improving)” the rater selected “No” in
Motivating (inspires, motivates, and guides others toward mission
accomplishment).  In part V “Performance and Potential Evaluation” the
rater evaluated the applicant as “Unsatisfactory Performance, Do Not
Promote.”  The rater listed negative comments such as “did not enforce
adherence to required USAREC, Brigade and Battalion standards in his
company and recruiting station.  His company consistently failed to meet
its assigned mission.  He was not able to motivate his station commanders
and recruiters to achieve the consistent results necessary to improve
mission accomplishment.  This combined with poor mission performance,
resulted in low moral, low esprit de corps and low to no desire to succeed
throughout his company.”
3.  The senior rater assessed the applicant as “Below Center of Mass” with
“Do Not Promote.”  He included comments of “I concur with the rater’s
evaluation – it is a fair assessment of the applicant’s performance.  His
company remained in the bottom five of 51 companies in RA and USAR
production for the entire
FY 03.”  The senior rater stated that he directed the applicant’s relief
upon the approval of the Deputy Commanding General East, USAREC, because of
this continual substandard performance.

4.  On 24 May 2004, the contested evaluation report was referred to the
applicant for his acknowledgement.  The applicant signed the memorandum and
indicated that he would be submitting matters on his behalf.

5.  On 3 June 2004, the applicant submitted a rebuttal to his OER.  The
applicant stated that his OER was based on an unfair assessment of his
performance and character as a commander.  He explained that upon assuming
command of the Memphis Recruiting Company, the company was ranked 51st out
of 51 in production within the brigade.  Morale was poor, two Soldiers were
being chaptered, and four Soldiers were retiring.  Discipline and standards
were not being enforced.  The applicant said that during the past 15 months
in command, he chaptered five recruiters out of the Army, relieved two
station commanders who had substantiated recruiter improprieties against
them, gave three Article 15s, and recommended one field grade Article 15.


6.  The applicant stated that there were several factors pertinent to the
company’s production for FY 03.  He said that the 2nd Brigade companies saw
an average of 5.1 percent decrease in RA (Regular Army) production.  Only
18 out of 51 companies had an increase in RA production, in which Memphis
Company was one of them.  The applicant admitted that the decrease in the
African American market affected the top 10 companies of the 2nd Brigade.
However, he maintains that the Memphis Company held the loss of the African
American market down to only a 24 percent decrease compared to 34 percent
for all the other services.

7.  The applicant said that the Memphis Company saw a reduction in strength
during FY03 due to four substantiated recruiter improprieties, four
chapters for misconduct, one chapter in lieu of court martial, three
retirees, four Basic Noncommissioned Officer Course attendees, one Advanced
Noncommissioned Officer Course attendee, four recruiters returned for
Operation Harvest and          one compassionate reassignment within
USAREC.  He continues by expounding on issues which affected the manpower
of the Memphis Company such as the first sergeant being relieved without a
replacement from April 2003 through September 2003.
8.  The applicant stated that to measure performance a reasonable goal must
be based relative to a reference starting point in which to determine
achievement.  He maintains since his company moved from the 51st place for
RA production to the 48th place, while being undermanned with declining
African American market, shows a marked improvement in performance.
Additionally, the applicant said that his OER does not reflect an objective
comparison against the other companies in which a reasonable measure of his
success was defined.

9.  The applicant provided 12 memorandums he authored on his recruiters
concerning serious incidents, loss of confidence, possible recruiting
impropriety, letters of concern, and possible misuse of a government
vehicle.  He also provided e-mails and/or documentation verifying an
Article 15, a Chapter 10, and flagging actions on some of his recruiters.
The documentation and/or emails were dated 1 October 2002 through 29
October 2003.

10.  The statistical data, provided by the applicant, shows the ranking of
recruiting companies in RA volume percent from 2002 to 2005.  The applicant
highlighted Memphis Company and RA volume and stated that the company was
missioned below a certain number which means that it was not “that good of
a place to recruit.”  He argues that this information conflicts with the
statement provided by his senior rater that “Memphis Company is a great
place to put people in the Army.”  He also provided statistical data by
race for the Memphis Company.

11.  The applicant provided copies of his OERs from April 1996 through
November 2003.  These OERs show that the applicant was rated as a Troop
Executive Officer, Class III/V Platoon Leader, Assistant S-4, Brigade
Training Officer, Assistant S-3 (Operations Officer), Aviation Brigade
Plans Officer, Air Cavalry Troop Commander, and Company Commander.  These
12 OERs were all rendered prior to the contested report and shows the
applicant’s performance was consistently rated as “Always Exceeded
Requirements” or “Outstanding Performance – Must Promote” by his raters.
The senior raters assessed the applicant’s promotion for potential as “Best
Qualified.”

12.  Records also show the applicant received an annual OER from the period
    1 May 2002 through 30 April 2003.  The rating officials and the
applicant’s principal duty title were the same as listed on his contested
report.  On this report, the rater assessed the applicant’s performance as
“Outstanding Performance – Must Promote” with supporting comments of “an
excellent performance from a talented combat arms officer.  The applicant
took command when the company was ranked 48th out of 50 in Brigade and
brought it to 28th within the first three months.”  The senior rater
assessed the applicant’s promotion potential as “Best Qualified” with
supporting comments of “the applicant commands in the most difficult and
challenging environment in the Army Recruiting.  He took command of one of
the worst recruiting companies within the 2d Recruiting Brigade and is
beginning to make a positive impact.”  The senior rater listed him as
“Center of Mass” in comparison with the other officers senior rated in the
same grade.

13.  The applicant provided his OER rendered after the contested report
that verifies his “Outstanding Performance” as the Aviation Unit Trainer.
The applicant was rated for 12 months and his senior rater assessed his
promotion potential as “Best Qualified.”

14.  On 7 April 2003, the applicant received a “Memorandum of Concern” from
his senior rater.  The memorandum stated the applicant failed to achieve RA
mission in each of the last three months and failed to achieve his USAR
mission in two of the last three months.  The senior rater said he directed
the applicant to make his mission by 28 March 2003, however; he failed to
achieve that mission and only achieved 4 out of 15, or 27 percent.  The
senior rater said the applicant had more than sufficient resources at his
disposal to accomplish the mission and yet his company finished 49th out of
51 companies in 2nd Brigade.

15.  On 11 August 2003, the applicant received a “Memorandum of Concern”
from his rater.  The memorandum shows a mission analysis of the applicant’s
company.  The rater stated that the applicant failed to achieve his RA
mission in each of the last seven months and failed to achieve the USAR
(United States Army Reserve) mission in six of the last seven months.  The
rater stated that during the last ten months the applicant failed to
produce eleven boxed Recruiting Stations out of thirty opportunities.  The
rater said the applicant’s company had the lowest percentage of mission box
stations within the battalion.

16.  On 3 September 2003, the applicant was counseled by his rater
concerning the results of Recruiting Ship Month August 2003 and Memorandum
of Concern dated 11 August 2003.  The rater stated that the applicant
failed to meet the brigade commander’s directive and provided him
production data showing where his company finished.  The rater said the
applicant’s statistics were unacceptable and will no longer be tolerated.
The rater admitted that although the applicant achieved a portion of the
brigade commander’s directive, he failed to achieve the bottom line.  The
rater stated there was a possibility that the applicant’s inability to meet
mission objectives could result in his relief from command.  The rater
listed a 60 day plan of action for the applicant.  The applicant signed the
counseling statement on 3 September 2003 and initialed the block indicating
that he agreed with the rater’s comments.

17.  On 4 September 2003, the applicant was reprimanded by his senior rater
for failing to move his company from 46th place in production to at least
the top half in production.  The senior rater stated that on or about 31
July 2003, he conducted a Command Leadership Team (CLT) Training Session in
an effort to help him (applicant) develop strategies for improving his
company’s production.  However, in August 2003, the applicant failed to
make any progress in production.  The senior rater stated when he issues a
directive to a subordinate commander, he expects to see results.

18.  On 9 September 2003, a “Memorandum of Concern” was issued to the
applicant concerning his failure to conduct required contacts with persons
in the Delayed Entry Program and the Delayed Training Program.  The rater
stated that he held the applicant responsible for his unit’s Delayed Entry
Program and the Delayed Training Program.

19.  On 20 September 2003, a CI was conducted based on the results of a
Memphis Recruiting Company Sensing Session and Command Climate Survey, in
accordance with the brigade commander’s guidance.  The investigation
pertained to whether or not the applicant engaged in, or condoned acts of
racism and/or sexual harassment.  Twenty-five sworn statements were
submitted by Memphis Company personnel.  The statements provided a detail
account of first hand experience regarding the applicant and “at least one
incident of inappropriate, explicit language toward an individual, comments
which disparage race, disparaging comments of sexually explicit nature
referencing females, seemingly pointless references and questions
concerning race or ethnicity, statements which are stereotyped towards a
race. . . to include socio-economic status and types of jobs specific races
are genetically tailored to perform.”

20.  The investigating officer found the following:  The applicant
frequently made statements which were interpreted as disparaging towards
members of African American descent; the applicant made statements that
could be taken as sexually explicit; the applicant made statements of some
sort to Caucasian recruiters concerning their race, to the effect that if
one was a Caucasian they were treated unfairly; the applicant sexually
harassed a male recruiter in a locker room; and the applicant’s language
and comments were directly responsible for the erosion of morale and the
loss of respect from his subordinates.  Additionally, the investigating
officer determined that the applicant’s actions characterized an oppressive
and hostile work environment.  He said many of the applicant’s


recruiters actively avoided him.  The applicant used his position as
company commander to intimidate and coerce those subordinates who
challenged his inappropriate behavior.  The investigating officer
recommended a course of action concerning the findings contained in the CI
pertaining to the applicant.

21.  On 18 October 2003, the applicant submitted a rebuttal to the
recommendation to relieve him from command of the Memphis Recruiting
Company.  The applicant provided the same information as contained in his
rebuttal to his relief for cause OER.  In addition, he provided facts that
he believed were relevant to racial and demographic questions within the
company. He said that there were a lot of things about himself which are
not perfect but, “I am not and never will be a racist in any way shape or
form.”  The applicant admitted that some Soldiers would interpret his
questions about the race of prospects as racist, but he maintains that
those questions were asked to determine market penetration.  He said he
believed the questions asked in the Command Climate Survey were asked in
such a manner that the respondents were led to an answer that could be
interpreted as racist.  To substantiate his claim, he provided a chart
which outlined the recruiting year, total contracts, African American
market versus that of the Hispanic and White market and the percent of
market shares.

22.  On 3 December 2003, the applicant submitted a 14 page memorandum
appealing his relief of command and requested reinstatement as the
commander of Memphis Recruiting Company.  He stated that in addition to his
rebuttal, he based his appeal request on Noncommissioned Officers’
impropriety, Command Climate Survey and Investigation, and brigade
commander bias.  He provided a chronological listing of the events he
stated that led up to his relief.

23.  On 4 May 2004, a CI was completed regarding the relief for cause OER
on the applicant.  The CI determined whether an unjust evaluation report
was rendered by the applicant’s rating chain.  The basis for the CI was a
request from the applicant citing that the OER rendered by his rater and
senior rater lacked objectivity, fairness, and a just and true evaluation.
The investigating officer said the applicant’s memo alleges that the
battalion commander and brigade commander did not evaluate him properly by
taking into account the context of the state of the company when he
(applicant) assumed command.

24.  The CI found the evidence gathered during the course of the
investigation did not support the applicant’s claim that the report was
untrue, unfair, or unjust.  The only exception noted was the statement made
by the senior rater that the applicant was “never committed to the tough
mission of recruiting.”  The investigating officer said the production
review conducted by the Headquarters USAREC G-2, clearly indicated, that
despite some major improvements in Gross RA Mission accomplishment during
the applicant’s tenure, when compared with all other companies in the
battalion, the relief for substandard performance was warranted.

25.  On 17 May 2004, the commanding general approved the findings of the CI
and recommended that the senior rater’s comment concerning the applicant
“was never committed to the tough mission of recruiting” be omitted from
the OER.  Additionally, the commanding general stated that an
administrative error was found in Part I, item j “rated months” and it
should be corrected to read “5”.

26.  The applicant provided six supporting statements from fellow co-
workers, and friends.  One of his co-workers stated the Memphis Company was
probably the hardest command in the Army.  He explained that of the two
commanders prior to the applicant, one had been relieved for adultery and
the second commander suffered a broken back during his command and was
unable to effectively command the company from his office.  He said the
company was consistently one of the worst in USAREC.  The company had the
highest percentage of recruiter misconduct, the most “zero rollers,” the
highest quantity of recruiters off-production, and lacked leadership and
professionalism.  The co-worker expounded on the applicant’s contributions
during his tenure.  He stated in his personal opinion, the problem with the
Memphis Company were deep rooted and required a significant amount of time,
leadership, and the necessary removal of many of the station commanders.

27.  The supporting statements from his friends also expounded on his
characteristics.  His friend from the Lewisville Recruiting Company
acknowledged that he has known the applicant for 8 years or more and stated
that the applicant was not a racist.  The Chief, G-3 Aviation Branch,
stated the applicant was a kind and considerate friend that never looked at
him as being a black man.  The supporting letters all relay tidbits of
information about the applicant in an effort to show that he was not a
racist and socialized with individuals regardless of their ethnicity on a
regular basis.

28.  On 5 January 2005, the applicant appealed his OER through the OSRB
citing that the rating officials did not take into consideration
significant factors that contributed to his unit’s poor performance.  The
OSRB noted that two CIs were requested and completed.  The board stated
that according to the documentation and information obtained in the case,
the applicant was relieved of command because his company consistently
failed to meet its assigned mission and his inappropriate remarks to his
Soldiers impacted on the unit’s morale and performance.  The board stated
that an unfavorable Command Climate Survey conducted in August 2003 raised
concerns related to inappropriate racial and sexual comments made by the
applicant.

29.  The OSRB contacted the rater and senior rater in May 2005.  The rater
said the applicant had difficulty understanding the recruiting mission and
the brigade commander was not pleased with the manner the applicant was
running his company.  The rater said, while not a racist, the applicant’s
inappropriate racial and sexual comments in front of Soldiers impacted
negatively on morale and the unit’s inability to perform.  The senior rater
was quoted as saying that even though the unit performed poorly in terms of
meeting its recruiting mission, it was the applicant’s leadership style,
racial and sexual remarks, in front of the troops that led to his relief.

30.  The OSRB denied the applicant’s appeal citing that there was no
substantial evidence to overcome the presumption of regularity.  The OSRB
said that other than the applicant’s self-authored statement, he provided
no supporting evidence that morale, discipline, integrity, or productivity
improved as a result of his actions. The board opined that contrary to the
applicant’s belief, a Command Climate Survey and a subsequent CI showed
that morale was generally poor as a result of the applicant’s leadership
style and comments that were perceived to be racially offensive.

31.  On 1 September 2005, a memorandum from the Chief, Promotions Branch,
Human Resources Command, stated that the applicant’s records were referred
to a Department of the Army PRB.  The Secretary of the Army decided to
remove the applicant’s name from the promotion list.

32.  Army Regulation 623-105 (Officer Evaluation Reporting System)
establishes the policies and procedures for the OER system.  Paragraph 3-24
of the regulation states that each report will be an independent evaluation
of the rated officer for a specific rating period.  It will not refer to
prior or subsequent reports.

33.  Paragraph 3-50, of the same regulation, 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.

34.  Paragraphs 3-57 and 6-6 provides that an OER accepted by Headquarters,
Department of the Army, 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, and to represent the considered
opinion and objective judgment of the rating officials at the time of
preparation.
35.  Additionally, paragraph 6-10 of that regulation states that the burden
of proof in an appeal of an OER rests with the applicant.  Accordingly, to
justify deletion or amendment of an OER under the regulation, the applicant
must produce evidence that clearly and convincingly overcomes the
presumptions referred to above and that action to correct an apparent
material error or inaccuracy is warranted.

36.  Army Regulation 600-8-29 (Officer Promotion) states, in pertinent
part, that Headquarters, Department of the Army, will continuously review
promotion lists to ensure that no officer is promoted where there is cause
to believe that he or she is mentally, physically, morally, or
professionally unqualified to perform the duties of the higher grade.  An
officer may be referred to a PRB for a referred OER.  Additionally, the
regulation states that the PRB's recommendation is only advisory to the
Secretary of the Army.  In cases involving promotion to the grade of
colonel or below, the board's report will be forwarded to the Secretary of
the Army who, on behalf of the President, may remove from the promotion
list the name of the officer, in a grade above second lieutenant, retain
the officer on the promotion list, return the report to the Deputy Chief of
Staff, G-1, or direct other appropriate action.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows that one month prior to the new rating period in
     April 2003, the applicant received a memorandum of concern from his
senior rater addressing his (applicant) failure to meet RA and USAR
mission.  In August 2003, he received a memorandum of concern from his
rater for failure to meet USAR and RA mission for the past six/seven months
respectively.  On 3 September 2003, the applicant was counseled on his
failure to meet mission objectives and advised that his (applicant)
inability to meet mission objectives could result in his relief from
command.  The applicant agreed with the counseling statement and offered no
rebuttal or explanation concerning his inability to achieve mission
objectives.  The applicant was also reprimanded and received another
memorandum of concern in September 2003 concerning production and failure
to conduct required contacts for the Delayed Entry Program and the Delayed
Training Program.

2.  On the contested OER, the rater stated that the applicant’s company
consistently failed to meet its assigned mission.  He said the applicant
was not able to motivate his station commanders and recruiters to achieve
the consistent results necessary to improve mission accomplishment.  This
combined with poor mission performance, resulted in low morale, low esprit
de corps, and low to no desire to succeed throughout his company.  The
senior rater stated that the applicant’s company remained in the bottom
five of 51 companies in RA and USAR production for the entire FY03.
Therefore, the senior rater said that he directed the applicant’s relief
because of this continual substandard performance

3.  On 4 May 2004, the CI found that the evidence gathered did not support
the applicant’s claim that the report was untrue, unfair, or unjust.  The
only exception noted was the statement made by the senior rater that the
applicant was “never committed to the tough mission of recruiting.”  The CI
determined that the production review conducted by the Headquarters, USAREC
G-2, clearly indicated that despite some major improvements in Gross RA
Mission accomplishment, when compared with all other companies in the
battalion, the relief for substandard performance was warranted.

4.  On 5 January 2005, the applicant appealed his OER through the OSRB
citing that the rating officials did not take into consideration
significant factors that contributed to his unit’s poor performance.  The
OSRB contacted the rater and senior rater.  The rater said, while not a
racist, the applicant’s inappropriate racial and sexual comments in front
of Soldiers impacted negatively on morale and the unit’s inability to
perform.  The senior rater was quoted as saying that even though the unit
performed poorly in terms of meeting its recruiting mission, it was the
applicant’s leadership style, racial and sexual remarks, in front of the
troops that led to his relief.  The OSRB denied the applicant’s appeal and
opined that there was no substantial evidence to overcome the presumption
of regularity.  The OSRB said that other than the applicant’s self authored
statement, he has provided no supporting evidence that morale, discipline
integrity, or productivity improved as a result of his actions.

5.  In his appeal to this Board, the applicant’s counsel argues that the
senior rater’s order to increase production in the applicant’s station was
impossible to meet.  The counsel justified this statement by pointing out
allegations of recruiter impropriety in the applicant’s company and the
decline of the African American market.  The counsel maintains that these
issues interfered with the applicant achieving his objective.  The counsel
alludes that the rater and senior rater did not take these issues into
consideration and therefore, the applicant’s OER was unfair and unjust.

6.  Records show that the applicant was rated for 12 months, prior to the
beginning date of the contested report, by the same rating officials in the
same duty position and received an “Outstanding” OER.  Although each report
is an independent evaluation of an individual’s performance during a
specific rating period, the previous report states that the applicant “took
command when the company was ranked 48th out of 50 in Brigade and brought
it to 28th within the first three months.”  This shows that the applicant
was not “new” to the difficulties in commanding the Memphis Company and
should have been aware of the rater’s and senior rater’s expectations.
Additionally, he was counseled a month prior to the new rating period and
several times in August and September concerning his failure to meet
mission objectives and the consequences of his continual failure.  He was
also given the opportunity to voice any concerns or issues he encountered
on the counseling statement dated 3 September 2003, but initialed the block
indicating that he agreed with the rater’s comments.

7.  There is no issue concerning whether or not the applicant is a racist.
In fact, the CI and the rating officials stated that the applicant was not
a racist, but made inappropriate racial and sexual comments that impacted
negatively on the morale of the unit.  The third party statements from the
applicant’s friends and co-workers do not address the inappropriate
comments and therefore, provide no evidence to substantiate the applicant’s
claim that the contested report was unfair or unjust.

8.  There is no evidence, nor has the applicant provided any to show that
the contested report was not a fair, objective and valid appraisal of his
demonstrated performance and potential during the period in question.
Therefore, there is no basis to delete the contested report.   Since there
is no basis to remove the contested report from the applicant's OMPF, there
is likewise no basis to grant his request for promotion to major, backdated
with all pay and allowances, and removal of the proceedings of the
Promotion Review Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__EA ___  __RL____  ___RM __  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.




                                  ______Eric Andersen________
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060004216                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20060914                                |
|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.       |134.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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