RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 June 2007
      DOCKET NUMBER:  AR20060007519


      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. Gerard W. Schwartz            |     |Acting Director      |
|     |Mr. Luis Almodova                 |     |Senior Analyst       |


      The following members, a quorum, were present:

|     |Ms. Carmen Duncan                 |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Mr. Jeffrey C. Redmann            |     |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 the referred officer evaluation
report (OER) he received for the period 13 May 2001 through 12 May 2002 be
removed from his record.

2.  The applicant states, in effect, that the rater, intermediate rater,
and senior rater portions of the OER are inaccurate, unjust, and not
objective.  He states the referred OER should be removed from his records
because:

      a.  the negative OER reflects an inherent bias against him by members
of the rating chain.  Their comments are a direct reflection of their bias
and are unjust, not objective, and inappropriate.


      b.  the bias against him by members of the rating chain resulted
largely from two events that occurred during the rating period:


            1) his wife, who was pregnant at the time, had a history of
repeated miscarriages and was experiencing life-threatening medical
problems.  The members of his rating chain disapproved of his dedicating
large amounts of time to deal with this family medical crisis.


            2) he experienced a sizeable financial shortfall when
the finance officer failed to pay him the proper amount on both his
combined TDY/PCS (temporary duty/permanent change of station) travel
voucher at the time of his PCS to Germany.


3.  The applicant states, in effect, that he requested that a commander's
inquiry be conducted.  He alludes that one was conducted; however, he
states that his rating chain said the results of the commander's inquiry
supported the negative OER.  A copy of and the results of the commander's
inquiry are not available for the Board's review.

4.  The applicant submitted, in addition to his DD Form 149, Application
for Correction of Military Record, a memorandum of support from his
counsel, a self-authored memorandum outlining his case, and those documents
listed as enclosures on the memorandum he addressed to the Board.

[Note:  The applicant was given the opportunity to respond to the adverse
OER, in the written form.  According to the Officer Special Review Board
(OSRB), he did so; however, a copy of his comments were not provided to
this Board for its review.]
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Applicant's counsel submitted a memorandum of support in which he requests,
in effect, that review of the applicant's request be expedited as the
applicant's career depends on it.  He adds that the applicant filed an
appeal of the subject OER with the personnel command concurrently with his
request for a review by the Army Board for Correction of Military Records
(ABCMR); however, in his experience as a legal assistance officer, he has
seldom seen the personnel command take favorable action with regard to OERs
and Noncommissioned Officer Evaluation Reports (NCOERs).

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Army Reserve for 8
years on 8 September 1987.  On 20 July 1988, the applicant enlisted in the
Regular Army for a period of 5 years for training and assignment in the
military occupational specialty 67V (Observation/Scout Helicopter Repairer)
and for a station of choice assignment to the US Army Europe.

2.  The applicant was honorably discharged on 21 July 1997, in the rank and
pay grade, staff sergeant, E-6, under the provisions of Army Regulation
(AR) 635-200, chapter 16, paragraph 16-1A(1), to accept a commission or
appointment in the Army.  On 22 July 1997, the applicant entered active
duty in the rank and pay grade, warrant officer one, W-1.

3.  At the time the applicant submitted his request for correction of his
military record, he was assigned to the 101st Airborne Division and Fort
Campbell, Fort Campbell, Kentucky.  The applicant remains on active duty
serving in the rank and pay grade, chief warrant officer three, W-3.  The
applicant was promoted to his present pay grade effective date of 1 October
2005.  The applicant was selected for and was integrated into the Regular
Army on 11 November 2005.

4.  The applicant was provided an annual OER for the period 13 May 2001
through 12 May 2002 for his performance of duty as a CH-47D Helicopter
Pilot, with duties of ground safety officer, while he was assigned to
Company F, 159th Aviation Regiment, in Germany.

5.  The applicant received a rating of "No" for the Army Values of Selfless-
Service and Duty in Part IV (Performance Evaluation – Professionalism), of
the DA Form 67-9, Officer Evaluation Report (OER).

6.  The applicant received a rating of "No" for the following Leader
Attributes / Skills / Actions in Part IV b.3. Actions (Leadership):
Decision-Making, Assessing, Building, and Learning, on the OER.

7.  The applicant's rater evaluated his performance during the rating
period and assessed his potential for promotion.  The rater entered an "X"
in the block, "Unsatisfactory Performance, Do Not Promote," in Part V
(Performance and Potential Evaluation), of the OER.

8.  The rater entered the following narrative description of the
applicant's performance in part Vb. (Comments on Specific Aspects of the
Performance and Potential for Promotion), of the OER:

   "Substandard performance by an aviator with great potential.  As listed
   in Part IV.a. and b., [the applicant] has severely lacked the personal
   and professional drive necessary for a chief warrant officer in his
   position.  As evidenced by signed counseling statements, [the applicant]
   has displayed a fleeting desire to accomplish the goals he set for
   himself on his DA Form 67-9-1.  As stated in the bullet comments in Part
   IV.a., [the applicant] has failed to adhere to some of the Army values,
   especially Selfless Service and Duty.  He has shown in several cases to
   have questionable honesty in word, deed, fulfillment of his duties as a
   Ground Safety Officer and Aviator.  This command granted [the
   applicant], as a line pilot, an extension to complete his semi-annual
   requirements because of time spent away from the company.  Additionally,
   he has not shown the desire or initiative for his duties off the
   aircraft.  On several occasions when presented with difficult decisions
   pitting his own personal difficulties versus the needs of the unit and
   other aviators, [the applicant] has chosen the easier wrong over the
   harder right.  [The applicant] has also done little if any mentoring to
   junior and fellow aviators on mission planning.  Because of his
   continued financial problems, [the applicant] has also failed to show
   proper improvement in assessing his personal development.  [The
   applicant] has shown improvement recently but throughout this rating
   period with excessive counseling.  His overall performance has not been
   up to standard."


9.  In Part VI, of the OER, the intermediate rater evaluated the
applicant's performance and described it as follows:

   "[the applicant] has made little contribution to mission accomplishment
   throughout this rating period.  [The applicant] has immense potential
   buried deep inside himself, always falling to the magnitude of his
   family issues.  He has consistently been the aviator behind the power
   curve, failing a Department of Standardization instrument check ride
   administered to a broad band of pilots throughout the company.  [The
   applicant] has been counseled in writing on several occasions and sent
   to every source available to assist in his personal affairs, to no
   avail."

10.  In Part VII (Senior Rater), the senior rater evaluated the applicant's
promotion potential and marked the block, "Do Not Promote," with an "X."
The senior rater reported he senior rated twelve other officers in the
applicant's grade and a DA Form 67-9-1 was received with the report and was
considered in his evaluation and review.

11.  In Item c (Comments on Performance/Potential), in Part VII of the OER,
the senior rater entered the following narrative description of the
applicant's performance and potential:

   "[The applicant's] performance during this rating period was below-
   average.  I believe that he has great potential; however, due to
   his inability to handle his personal affairs, he has repeatedly chosen
   to neglect the Army value of selfless service.  [The applicant's]
   continued lack of selfless-service and loyalty to this highly deployable
   unit has severely increased the workload for the remaining pilots of the
   unit and is weighing very heavily on the morale of the unit.  Unless
   significant changes are made in the way this officer handles his
   personal affairs and professionalism, I do not see a possibility for
   further advancement within the military."

12.  The applicant's potential was rated below the center of mass when
compared to other officers, in the same grade, who were rated by the same
senior rater.

13.  The applicant provided part of a DA Form 4856, Developmental
Counseling Form.  Superimposed on this counseling form is what appears to
be a negotiated work schedule for the applicant to apparently allow him to
get his children off to school and to pick them up following the school
day.  This schedule shows that for the period from 0700 hours to 1630
hours, the applicant was at work 5 hours per day.  The remainder of the
time, the applicant was tending to his children and apparently
participating in physical training.  The schedule is not clear what the
applicant was doing between the hours of 0746 and 0859.

14.  The contents of and the concerns expressed on the DA Form 4856 by
the applicant's counselor are not known because the verbiage is obscured,
whether accidentally or by design, by the work schedule he was provided.
There are some indicator's that the counseling was centered on his
performance of duty, his wife's health, and his financial difficulties.
On the note which is superimposed, a statement which can be logically
translated to be an instruction states, "Finances – Progress, but don't
go behind my back."

15.  The applicant provided translations of three letters received by the
Wuerzburg Medical Activity and initially prepared at the Wuerzburg
University Women's Clinic and Midwife School pertinent to his wife's
medical condition.  These medical translations are dated 15 October 2001,
17 December 2001, and 11 January 2002, respectively.  In the first of
these letters, it was recommended the applicant's wife receive physical
rest to prevent a premature birth.  The examining physician, Dr. F*******,
opined the support of the husband was urgently necessary.  In the second
of these letters, the examining physician, Dr. R***, opined that
hospitalization could be avoided as long as bed rest at home was possible.
 From a medical standpoint, household help for an expected 3 weeks for at
least 8 hours a day was necessary.  In the third such letter, Dr. R***,
opined, the applicant's wife would require household help for possibly 8
weeks for 8 hours a day, as rest at home/bed was necessary.

16.  The applicant provides a copy of a Travel Voucher Summary, dated 16
July 2001.  This summary shows that he had taken an advance in pay in the
amount of $5,312.76.  On 16 July 2001, it was determined that he was due
$48.03, after travel pay and entitlements for himself and five dependents
were calculated and the advance in pay was collected.  A direct deposit was
made to his bank account.

17.  The applicant also provided a second Travel Voucher Summary dated
1 August 2001.  This summary showed the applicant was due additional
permanent change of station funds – per diem for himself and for his family
members and for reimbursable expenses.  A determination was made that he
was due an additional $1,738.00.  A direct deposit was made to his bank
account.

18.  The applicant appealed the OER to the OSRB on 8 February 2005.  His
appeal to OSRB was received on 24 February 2005.  In his appeal to the
OSRB, the applicant contended the OER was substantively inaccurate, unjust,
and not objective.  He alleged the rater, intermediate rater, and senior
rater all based their evaluation on three incidents:  the medical condition
and requirements for
care of his wife; a mistake by finance in the payment of his travel claim,
which he stated resulted in financial hardship; and an erroneous and flawed
aviation check ride in which he failed to attain the standard.  In the
appeal to the OSRB, the applicant contended that the rating chain, having
based their evaluations of his performance and potential on these incidents
and/or circumstances was inherently unfair and did not conform to AR 623-
105 because, the regulation states, "evaluations will normally not be based
on a few isolated minor incidents." In addition, the applicant contended
that the rating chain had compounded their mistakes by not taking his
comments into consideration, after the OER was referred.

19.  The OSRB contacted the rater and senior rater in conjunction with
their review of the OER.  They were informed of the applicant's contentions
and about the need for further information.  Both rating officials agreed
to a release of their paraphrased summary of their comments.

20.  The rater stated he recalled the applicant and generally recalled the
OER which was being appealed.

21.  The senior rater stated he recalled the applicant and the OER which
was being appealed.  He stated he had taken the applicant's comments into
consideration and that he stood by the evaluation of the applicant's
performance as written.  He added that the OER was a valid and accurate
evaluation of the applicant's performance and potential on the date it
was written.  He went on to say the entire chain of command was sensitive
to the applicant's personal situation with regards to his wife's medical
condition and the financial situation incurred by an apparently erroneous
finance underpayment of a travel claim.  The three incidents cited by
the appellant were not the only bases for the OER but were good examples
of the applicant's recurring performance problems and that daily flight
operations were affected by the applicant's situation.  He stated the
applicant was given every opportunity to improve his personal situation.
The counseling provided the applicant, he stated, had not produced the
desired change and the strong words in the OER were in fact necessary to
get his attention.  The senior rater agreed that during the rating
period, the unit was in a very high operational tempo but disagreed with
the assessment the unit was at 122% fill for aviators at the time of
the evaluation.  He added there had been deleterious effects on morale
because of the perception the applicant was not pulling his weight.  The
senior rater summarized his comments by stating he stood by the contested
OER and the tone in which it was written.


22.  The rater stated he recalled the applicant and could generally
recall the subject OER.  He stated he did not recall if he saw the
applicant's comments to the referred OER.  He stated he stood by what he
said in the OER and that it was a valid and accurate evaluation of the
applicant's' performance during the rating period.  He stated he could
generally recall the three incidents the appellant believed the OER was
based on and stated these three incidents were only the bases for the
referred OER.  The rater stated there were in fact several continuing
incidents that the applicant did not remedy, even with assistance, an
agreed to work plan, and continuous counseling.  These reasons formed the
bases for the referred OER because of their continuing nature.  The rater
confirmed that during the rating period, the unit was in a very high
operational tempo and agreed the unit may have been at 122% fill
for pilots; however, the number did not reflect the vast majority of the
pilots were junior warrant officers [WO1s] who needed the guidance and
leadership of more senior pilots such as the applicant.  The rater
summarized his comments by describing substantial improvement in the
applicant's performance in the rating period following the contested OER
and the contributions made by the applicant to the unit and its mission
on its deployment to Iraq.

23.  After reviewing the contents of the officer evaluation report and the
allegations of substantive inaccuracies written into the officer evaluation
report made by the applicant, which he attributed to the rater,
intermediate rater, and the senior rater, the OSRB concluded that the
appellant did not provide, and the OSRB did not find elsewhere, the
necessary evidence to delete or amend the officer evaluation report.

24.  On 30 November 2005, the OSRB notified the applicant that there was
not sufficient convincing evidence that any part of the contested officer
evaluation report was inaccurate, unjust, and not objective and did not
adequately reflect the appellant's performance, and violated Army
Regulation (AR) 623-105.  The applicant's appeal to the OSRB was denied.

25.  The applicant provided a three and a half page memorandum of support
that was provided him by the former company operation officer, a captain.
In his memorandum, he states, he observed the applicant's performance and
was aware of the working relationship he had with members of his rating
chain.  He does not believe the OER the applicant received accurately
reflected his performance during the time frame.  He describes the
applicant as a "workhorse" within the garrison environment.  He observed
the applicant and concluded he was able to complete all tasks assigned to
him while at home station.  He worked diligently to increase his knowledge
as an aviator and carry his work load within the company.  This
information, he adds, can be substantiated by a CW3 C******, who worked in
the safety office with him.
26.  In the memorandum, the former company operation officer lists a chain
of events that he believes created an extremely hostile work environment.
Among these, he states, were that the applicant was assigned a sponsor with
whom he had problems at a previous command.  His sponsor made disparaging
remarks - about his work performance, that he was not a team player and
would choose his welfare over that of others – and, the sponsor apparently
objected to his being required to pick up the applicant's family at the
applicant's insistence at the Frankfurt Airport on a Federal holiday, in
violation of US Army Europe policy.

27.  The former company operation officer states, during the period he
observed the applicant, there were three significant deployments.  The
applicant spoke to his chain of command and had been allowed not to
participate.  As a result, there was a fair amount of ill will among the
applicant's peers during these deployments. This was aggravated by the
complaints initiated by the aviators selected to replace him during the
deployments, both of whom were senior to him.  The decision, he adds, to
attempt to send the applicant, with the severe illness of his wife, to
these deployments represented very poor personnel management and set
up an antagonistic relationship between the applicant and his peers.

28.  The former company operations officer believes the applicant's
decision to support his wife and family resulted in his receiving a poor
evaluation on his OER; however, it is his opinion the OER does not
accurately portray his overall job performance at the time, or his
potential.  He believes the company's priority for mission accomplishment
overwhelmingly consumed the chain of command and resulted in erroneous
conclusions that a Soldier's choosing him Family's welfare was indicative
of a lack of the Army value of selfless service and was detrimental to the
company's ability to accomplish the mission.

29.  The former company operation officer states the missions missed by the
applicant were training missions and peace-keeping missions in the Balkans.
 The nation was not at war and the company stood at 122% in aviator
strength.  These factors, in effect, should have been balanced by the need
for the applicant
to assist his Family of six in their time of need.  In the time of peace,
he states, the highest priority should be given to ensuring the welfare of
our troops.  To place them in the position of choosing between their family
and their career, when there were numerous alternate courses of action, was
characteristic of the inexperienced leadership present in the chain of
command.  The applicant, he believes, was in effect, punished for choosing
his family, by the submission of the OER.


30.  The applicant was provided a memorandum of support by a former section
and platoon leader, a captain, who subsequently was assigned duties of the
battalion adjutant.  In these positions, he states, he observed the
applicant's performance on a regular basis.  During the period covered by
the OER, the applicant underwent some difficult family experiences.
Specifically, his wife suffered from illness and difficulty while carrying
an unborn child.  These circumstances required the applicant to focus
additional time and attention to his family.  This officer strongly
believes the applicant acted in what he felt was the best manner for
supporting his family.  It was his belief the applicant proved to be an
extremely hard working officer.  His character and work ethic were both
truly beyond reproach and he worked to continuously improve his
performance.  This performance, he states is one not accurately captured
within the OER in question.

31.  The applicant was provided an email from CW3 C******, the company
safety officer, encouraging him to appeal the OER.  In January 2005, this
same officer provided the applicant a memorandum of support for the OER
appeal.  In this memorandum, he states, in this position, he observed the
applicant on a regular, first hand basis and gained first hand knowledge of
the working relationship and interaction between the applicant and the
members of his rating chain.  He believes the applicant was a good worker,
successfully completing all tasks that were assigned to him before the next
daybreak, if not sooner.  The applicant, he states, had to take his work
home with him to finish; however, he never failed the safety office or the
safety officer.  He found the applicant to be a hard working aviator.  He
states he understands that during the rating period, the applicant had some
family health issues that interfered with his work; specifically, his wife
was suffering from a serious illness.  With regard to these issues, he felt
like he was treated unfairly by his direct supervisor.  During a period of
family illness, one would naturally expect to receive some type of
assistance from the unit; however, in this case, the command expected him
to take care of everything on his own.  The applicant, in the safety
officer's opinion, was put in the unthinkable position of having to choose
between his military career and the health of his wife.  To save his
career, he would essentially have to abandon his family in a time of great
need.  He, the applicant, chose to stay at the side of the woman he loves
taking the long, hard route.

32.  AR 623-105 establishes the policies and procedures for preparing,
processing, and using the OER.  The regulation also 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.

33.  AR 623-105, paragraph 1-10a states, in part, that performance is
evaluated by considering the results achieved.  The results achieved
consists of the degree to which the rated officer fulfills the duties and
objectives that are assigned to him or her or implied by the duty position
with due regard to efforts made by the rated officer and the results that
could be reasonably expected, given the time and resources.  It states, in
part, that performance is also evaluated by considering how the results are
achieved, which consists of the means used by the rated officer to reach
his or her objectives and his or her use of available resources.

34.  AR 623-105, paragraph 3-2g requires that rating officials prepare
reports that are accurate and as complete as possible within the space
limitations of the form. Evaluations should cover failures as well as
achievements with due regard for the officer’s current grade, experience,
and military schooling.  Evaluations will normally not be based on a few
isolated minor incidents.  Paragraph 3-2h states rating officials must
make honest and fair evaluations of officers.  On the one hand, the
evaluation must give full credit to the rated officer for his or her
achievements and potential.  On the other hand, rating officials are
obligated to the Army to be discriminating in their evaluations so that DA
selection boards and career managers can make intelligent decisions.

35.  AR 623-105, paragraph 1-10.b. states, Potential evaluations are
performance based assessments of the rated officer's ability, compared with
that of his or her contemporaries, which the senior rater rates or will
rate, to perform
in positions of greater responsibilities in higher grades.  Assessments of
potential applies to all officers, regardless of heir opportunity to be
selected for higher positions or grades, and ignores such factors as
impending release from active duty or retirement; this assessment is
continually changing and is reserved for HQDA.

36.  AR 623-105, paragraph 1-15 states, "When it is brought to the
attention of a commander that a report rendered by one of his or her
subordinates or by a member of one of his or her subordinate commanders may
be illegal, unjust, or otherwise in violation of this regulation, he or she
will look into the matter.  The
commander will confine his or her inquiry to matters relating to the
clarity of the report, the facts contained in the report, the compliance of
the report with this regulation, and the conduct of the rated officer and
members of the rating chain."

37.  Paragraph 6-10 of the evaluation regulation contains guidance on the
burden of proof and type of evidence necessary to support an evaluation
appeal.  It states, in pertinent part, that the burden of proof rests with
the appellant, and accordingly, to justify deletion or amendment of a
report, the appellant will produce evidence that establishes clearly and
convincingly that the presumption of regularity referred to in paragraphs 3-
57 and 6-6 of the regulation will not be applied to the report under
consideration.  That action is warranted to correct a material error,
inaccuracy, or injustice; and clear and convincing evidence will 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 is inaccurate,
unjust, and just not objective was carefully considered; however, there is
insufficient evidence to support his claim.  The evidence the applicant
submitted does not adequately support his basic contentions of inaccuracy,
injustice, and a lack of objectivity in the rating process.

2.  By regulation, an evaluation report accepted by Headquarters,
Department of the Army, and included in the official record of an officer
is presumed to, among other things, represent the considered opinions and
objective judgment of the rating officials at the time of preparation.  In
order to justify deletion or amendment of a report, the appellant must
produce evidence that establishes clearly and convincingly that this
presumption of regularity should not be applied to the report under
consideration and that action is warranted to correct a material error,
inaccuracy, or injustice.  The evidence submitted in support of an appeal
must be clear and of a strong and compelling nature.

3.  In the OER the applicant is seeking to have removed from his records,
the rater states the applicant received counseling statements.  Only a
portion of one counseling statement was provided by the officer, and this
one was obscured, either accidentally or by design, and it did not allow
the Board an opportunity to see the subject of the counseling and the
expectations leadership had of the applicant.


4.  In the rater portion of the OER, the rater states that the applicant
displayed a fleeting desire to accomplish those goals he set for himself
on his DA Form 67-9-1; however, a copy of the OER support form was also
not provided for the Board's review.

5.  The applicant states, in effect, that he requested that a commander's
inquiry be conducted.  He alludes that one was conducted; however, he
states that his rating chain said the results of the commander's inquiry
supported the negative OER.  A copy of and the results of the commander's
inquiry are not available for the Board's review; therefore, it is not
possible to determine what conclusion(s) were arrived at by the
investigating officer, if conducted.  It is logical to believe that if an
individual felt he or she had been dealt with unfairly and unjustly and the
resultant OER was not an accurate assessment of his or her performance or
potential, they would have received, kept, and submitted a copy of the
results of the commander's inquiry for review and consideration to whomever
they appealed for justice.

6.  It should be noted the applicant did not provide a copy of the results
of the commander's inquiry either to the OSRB or to this Board for review;
rather, he states that his rating chain said the results of the
commander's inquiry supported the negative OER.  Whether the commander's
inquiry was negative or positive, it appears the applicant would still
have secured a copy for whatever possible future action he felt necessary
to overcome the unfavorable OER.

7.  Despite the applicant's allegation that a commander's inquiry was
conducted; neither the inquiry nor the results are mentioned by any of the
officers who provided him a memorandum of support for his OER appeal.
Having been in a position to have observed the interactions and having
been confided in by the
applicant, it appears reasonable to assume this commander's inquiry would
have been the topic of conversation between the applicant and his fellow
officers and mentioned by at least one of these three individuals in their
memorandum of support whether it reflected positively or negatively
against the applicant.

8.  The statements submitted in support of the applicant are highly
supportive of the applicant.  It is apparent that these officers were in
the proximity of the applicant's place of duty and had an opportunity to
form their own opinion of him and his performance; however, there is
insufficient evidence any of these individuals were in the rating chain
and took part in any of the coaching/counseling or professional
development sessions that were conducted by members of the rating chain
and the applicant.

9.  The statements submitted in support of the applicant were carefully
written and described an individual whose performance was diametrically
opposed to the evaluation and comments made by the rating chain.  The
statements in support of his appeal described him as a "workhorse."  The
rating chain stated he "severely lacked the personal and professional
drive necessary for a chief warrant officer in his position."  The
statements in support of his appeal described an individual who worked
after duty hours to ensure that his obligations to the unit were fully
satisfied.  The rating chain indicated he had received counseling
statements because he only "displayed a fleeting desire to accomplish the
goals he set for himself on his DA Form 67-9-1."  None of his supporters
mentioned the applicant had received counseling statement.  Whether it was
one or many, the applicant did not share these with the Board or the OSRB
to give them a greater appreciation as to what really was going on.  The
company operations officer stated he had tried diligently to increase his
knowledge as an aviator and carry his workload within the company;
however, members of the rating chain stated he had shown neither the
desire nor the initiative for his duties off the aircraft.  As an example,
they cited his reluctance or failure to mentor junior fellow aviators on
mission planning.  None of the supporters mentioned the applicant, as a
line pilot, had required an extension of time to complete his semi-annual
proficiency requirements because of time spent away from the company.
Additionally, none of the applicant's supporters mentioned his financial
difficulties; however, the rating chain, while acknowledging the applicant
had "great/immense potential," also acknowledged that because of his
continued financial problems, he had failed to show proper improvement in
the assessment of his own personal development.

10.  The Travel Voucher Summaries provided by the applicant do not give an
indication that his financial problem(s) developed as a result of an error
in payment
of entitlements due him as a result of his permanent change of station as
he asserts.  It appears the applicant and his family arrived at his new
duty station on
4 July 2001 and all travel entitlements were paid by 1 August 2001.

11.  It is clear from the comment on the partial counseling statement that
the applicant did experience financial problems of sorts and his counselor
(his rater) may have felt that he was not being totally honest by reviewing
the comment made, "Finances – Progress, but don't go behind my back."

12.  The period from 4 July to 1 August 2001 is not an inordinately long
period of time for a Soldier to get perceived financial problems taken care
of.  It appears that the unit and finance officials worked quickly to
resolve any question he might have had with regard to permanent change of
station entitlements and their disbursement.

13.  The narratives provided by the chain of command are uniformly
unfavorable. He, according to the rater and senior rater, had been
counseled and the three incidents the appellant referred to in his
request to the OSRB were only three of several continuing incidents.
These he did not remedy even with assistance from outside sources, an
agreed to work plan, and continuous counseling/coaching from members of
the rating chain.  These reasons formed the bases for the referred OER
because they were of a continuing nature.

14.  From a review of documents submitted with the applicant's request for
action by the ABCMR, it is apparent he selectively omitted or withheld
important document from the Board that would have perhaps allowed the
Board to arrive at a conclusion that the OER was not accurate, was unjust,
and was not objective.  The documents that were withheld included the
results of a commander's inquiry he alleges was conducted and which he
states his chain of command did not give him because in their opinion, it
supported the unfavorable OER.  The applicant only provided a partial copy
of a developmental counseling form and this counseling form was partially
obscured, either by accident or intentionally and denied the Board the
benefit of reviewing the comments made thereon.  At the time the OER was
processed, it was referred to him for his acknowledgement and comments.
The applicant provided comments; however, he also did not provide these to
the Board for its review.  This was learned through review of the OSRB's
OER appeal summary.

15.  The applicant alleges that members of his rating chain disapproved of
his dedicating large amounts of time to deal with this family medical
crisis and did not appreciate the urgency and severity of his pregnant
wife's medical problems. On the contrary, it appears from the evidence the
chain of command tried to balance the applicant's needs and the needs of
the command by giving him the time to tend to his family which included
seeing his children off to school and picking them up after school.  In his
testimony to the inquiry made by the OSRB, the senior rater specifically
stated the entire chain of command was sensitive to the applicant's
personal situation with regards to his wife's medical condition and his
financial situation.  From all indications, the chain of command did
everything it could to balance the needs of the officer, his family, and
the command.

16.  Based on the evidence in this case, the applicant has failed to prove
by a preponderance of the evidence that the OER in question reflects an
inherent bias against him by members of the rating chain, their comments
are a direct reflection of their bias, and is unjust, not objective, and
inappropriate.

17.  The evidence shows that rather than being biased against him members
of the rating chain did what they could to help him through his spouse's
difficult illness/pregnancy.

18.  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.

19.  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 to remove the contested report from the applicant's
record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__MJF___  __CD___  _JCR____  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.




                                  ___Carmen Duncan________
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20060007519                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070607                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111.0000                                |
|2.                      |111.0000.0001                           |
|3.                      |111.0000.0003                           |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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