RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 March 2007
      DOCKET NUMBER:  AR20060010350


      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      |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. David K. Haasenritter         |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |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 reconsideration of his earlier request to purge
from his records Officer Evaluation Reports (OERs) for the period 3 April
2001 through
28 October 2001 and 10 May 2002 through 29 October 2002.  He also requests
that his records be corrected to show that he attended the Military
Intelligence (MI) Advanced Career Course (ACC) from May 2001 to October
2002 and the Training Management Course from 9 December 2001 to 20 December
2002; that he attended advanced training for the MI ACC from 12 November
2003 through January 2004; that he received a center-of-mass (COM) OER for
the period
30 October 2002 through 27 April 2003 and an above COM OER for the period
28 April 2003 through 17 March 2004; that the Board draw inferences that
the missing Board of Inquiry (BOI) transcript pages contain statements in
his favor; that the two BOIs and all related materials be purged from his
records; that he be retroactively reinstated on active duty with all pay,
allowances, and benefits from 17 March 2004; that evidence of his discharge
from the Active Guard Reserve (AGR) program and the Army be removed from
his records; that his good standing in the U. S. Army Reserve (USAR) be
reflected; that he be retroactively reinstated into his civilian technician
position with Civil Affairs and Psychological Operations Command, Arden
Hills, MN; and that he be returned to a position that corrects the damage
and inequities done to him.

2.  In regard to his OER for the period ending 28 October 2001, the
applicant states Army Regulation (AR) 623-105, paragraph 1-10a requires an
OER to address:  results achieved; efforts made by the rated officer; the
results that could be reasonably expected given the time and resources; the
means used by the rated officer to achieve objectives; and the rated
officer’s use of time and resources to get the job done.  In violation of
AR 623-105, paragraph 3-2e – h, his rater did not observe his performance,
did not give him professional development for the tasks assigned, did not
include documented achievements, limited rating comments to performance for
about two months of the five-month rating period, and failed to render an
objective report based on his overall performance.

3.  The applicant states he was approved for attendance at the MI ACC.
Major (MAJ) C___ cancelled that course after he spoke to the applicant’s ex-
spouse and to other (unidentified) people about him (the applicant).  He
(the applicant) was going through a bitter divorce.  His ex-spouse had
alleged that he abused prescription drugs, so he made a medical appointment
at MAJ C___’s order.  In October 2001, he was examined and got a clean bill
of health.  The command then sent him for psychiatric examinations.  The
Inspector General (IG) found that emergency health evaluation to be
illegal.

4.  The applicant states his weekend drilling Reserve rater, MAJ G___, did
not know his performance.  He saw MAJ G___ one weekday when they briefed
the Group Command, and maybe a second time during the entire rating period.
 They spoke on the telephone once or twice during the rating period as
well.  He did speak to the senior rater (SR) by telephone regularly.  After
the first four months, the SR told him he had done a good job.  Also, his
DA Form 67-9-1 (OER Support Form), which listed his achievements, was never
signed and returned to him.  The regulation was again violated, because his
achievements were never mentioned in his OER for the period ending 28
October 2001.  He never received feedback from either the rater or the SR.
He did not receive any developmental counseling statements.  The result was
an inaccurate and incomplete statement of performance, and a prejudicial
and adverse OER not based on the entirety of his performance.

5.  The applicant states that, after receiving the OER on 22 February 2002,
he requested a Commander’s Inquiry and a transfer out of the unit.  He
heard that MAJ C___ told the Group that the applicant chose leave instead
of professional development, which was false.  He took leave only after his
school was cancelled.  He asked for a transfer because he feared for his
career and because MAJ C___ was acting illegally.  MAJ C___ did not process
his transfer request for more than eight months, affecting his ability to
move forward.

6.  The applicant states that, after being denied the transfer, he again
submitted a request to attend the MI ACC.  He also asked to attend the
Training Management Course.  MAJ C___ continued to fail to process his
requests for school.

7.  The applicant states he received a COM rating on the OER for the period
ending 9 May 2002.  His rater was MAJ G___ and his SR was MAJ D___.
However, MAJ G___ told the IG that he did not then know that the applicant
had reported misconduct of another officer.  When he (his rater) learned of
the March 2002 IG complaint, the applicant’s performance ratings were
[changed to] less than COM.

8.  In regard to the OER for the period ending 29 October 2002, the
applicant states his rater and SR were aware of the IG report during this
rating period.  His rater was MAJ P___ and his SR was Lieutenant Colonel
(LTC) D___.  A 27 April 2002 IG letter addressed to him was mailed to his
ex-spouse.  His ex-spouse shared the contents of the IG letter with MAJ
C___.  On 7 May 2002, MAJ D___ emailed Colonel (COL) L___ and mentioned the
IG letter received by the applicant’s ex-spouse and what it supposedly
said, and he requested the applicant be given a psychiatric evaluation.
COL L___ denied that request based on the mere words of an estranged spouse
alone.
9.  The applicant states he was not counseled for his alleged performance
deficiencies in May, June, July, or August 2002, in violation of the
regulation.  The counseling he did receive was designed to get him to quit.
 He agrees he should have determined a way to defuse or handle a
personality conflict with a Chief Warrant Officer with whom he was having
friction.  However, this OER did not fairly or fully rate his performance
for the entire period, nor was it based on his achievements.

10.  The applicant states the SR made the comment in the OER that ”based on
the information received from the IG” (emphasis in the original) and the AR
15-6 officer, the applicant was being removed from his position for cause.
The applicant stated an OER may not be based improperly on IG information
concerning complaints of wrongdoing.  The IG information was also used
illegally to remove him for cause.  He was twice detailed for 180 days,
which violated AR 140-30, paragraph 5-9a.  He was not given an opportunity
for true rehabilitation as required by the mandate and intent of the
regulation.  The detail left control of him with the same unit [he was
having problems with].

11.  The applicant states his detailed unit tried to submit OERs on him;
however, the 99th Regional Support Command (RSC) (also referred to as the
99th Regional Readiness Command (RRC); the term 99th RSC will be used
hereafter in this Record of Proceedings) prohibited the unit from making
any such submissions.  Thus, for 15 months he was denied excellent to
outstanding OERs, a very serious injustice to him and in violation of the
regulation.  An OER was mandatory because there was a change of rater.  His
detailed unit recommended him for a transfer from his command in order to
fix the improper detail and provide him with a legitimate opportunity to
prove himself in the Army.  The 99th RSC rejected that recommendation.  His
detailed unit’s commander, COL K___, stated that if his details to her unit
were actually intended “For Rehabilitative Purposes,” then the objective of
those details had been achieved.

12.  The applicant states Major General (MG) K___ wanted to use IG
materials to bring charges against him.  The IG officially refused to allow
IG investigative materials to be used for disciplinary purposes but leaked
the materials, which were used in a later BOI.  COL K___ testified at the
first BOI that the applicant had achieved rehabilitation and she never
would have agreed to a BOI if she had been his commander.  This part of the
BOI transcript is missing.  The Chief, Army Reserve, said that the error
was harmless and that the leaks of IG records were inadvertent.  The
applicant believes his statutory rights were violated.

13.  The applicant states his attorneys were told the September 2003 BOI
results were vacated; however, he never received reinstatement into the
Army.  He continued to lose pay and career opportunities.  A second BOI was
scheduled.  A DD Form 214 (Certificate of Release or Discharge from Active
Duty) was issued on 15 March 2004 and he was discharged from the AGR
program.  This DD Form 214 indicates the authority for his discharge was a
BOI.  However, the results of the BOI were vacated and therefore he was
separated illegally.

14.  A second BOI was held in October 2004.  Again, the recorder introduced
IG records and argued from the leaked IG records to the BOI.  That BOI
concluded he should be discharged with a general under honorable conditions
discharge.  He received an honorable discharge on 25 March 2005.  On 14
July 2005, he received notice of his right to appeal his removal from the
civilian job to the Merit Systems Protection Board (MSPB).  The Army
represented to the MSPB that he had not maintained his Reserve status,
which was a condition of employment.  The Administrative Judge stayed the
MSPB matter a year to allow the Army to resolve the military aspects of
this matter as the MSPB did not have jurisdiction.

15.  The applicant provides the 18 documents listed as Exhibits A-1 through
A-5; B-1 through B-5; C; D-1 through D-6, and E-1 through E-2 on an
attached Table of Exhibits.  Exhibits B-1 and E-2 are pages 1, 2, and 8 of
a 99th RSC IG preliminary analysis/inquiry.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case (regarding
the contested OERs) by the Army Board for Correction of Military Records
(ABCMR) in Docket Number AR2003094055 on 1 July 2004.

2.  After having had prior enlisted service, the applicant entered active
duty as a USAR commissioned officer on 27 September 1993.  He was promoted
to first lieutenant on 27 September 1995.

3.  In July 1997, the applicant was given a memorandum of reprimand.  The
memorandum of reprimand stated he was formally reprimanded for his repeated
failure to be at his appointed place of duty between 29 May 1997 and 5 June
1997; for reports that he had been belligerent and disrespectful towards
his company commander on numerous occasions; for willfully disobeying his
commander’s orders; and for failing to accomplish assigned tasks.  The
applicant provided a lengthy rebuttal.  On 6 September 1997, the Commanding
General, 25th Infantry Division directed the memorandum of reprimand be
filed in the applicant’s Official Military Personnel File (OMPF).

4.  On 10 February 1998, the applicant was released from active duty as a
result of non-selection for permanent promotion.

5.  Effective 18 March 2001, the applicant was ordered to active duty in an
AGR status for an initial 3-year period.  He was assigned to Headquarters
and Headquarters Company, 323d MI Battalion, Fort Meade, MD.

6.  On 20 March 2001, the applicant was promoted to captain.

7.  The first contested OER is a 7-rated month change of rater OER for the
period 3 April 2001 through 28 October 2001, during which period the
applicant performed duties as an assistant battalion S-3 (Operations).  In
Part IVb (Leader Attributes/Skills/Actions), his rater checked “NO” in the
areas of Physical, Conceptual, and Interpersonal.  In Part V, his rater
gave him an “Unsatisfactory performance, do not promote” rating.  Rater
comments included that the applicant performed a few tasks to standard, but
overall his performance was extremely substandard; on several occasions he
failed to display sound judgment and maturity; he was unloyal (sic) lacked
flexibility, and constantly looked for obstacles to success; he was
adversarial and had a very condescending tone when dealing with both senior
and junior personnel; and he failed the Army Physical Fitness Test (APFT).

8.  In Part VII of the first contested OER, the SR gave the applicant a “Do
not promote” rating and a below COM, do not retain comparison rating.  SR
comments included that the applicant’s performance of duty was at best
adequate but he demonstrated a lack of judgment and leadership; he had been
counseled about his unprofessional conduct, disrespectful tone of language,
and poor interpersonal skills, and other members of the staff complained
about those same issues; and his behavior started an “us against them”
atmosphere between the staff and the commanders.

9.  The applicant received a 6-rated month change of rater OER for the
period  29 October 2001 through 9 May 2002, during which period the
applicant performed duties as an assistant battalion S-3.  The rater
checked all “YES” areas in Part IVb.  In Part V, his rater gave him a
“Satisfactory performance, promote” rating.  The rater made some negative
comments.  In Part VII, the SR gave the applicant a “Fully qualified”
rating and a COM rating.  The SR made some negative comments.

10.  On 6 September 2002, the applicant made a complaint to the DAIG
alleging reprisal against him for submitting a request for a commander’s
inquiry on         22 February 2002 to the Group Commander, in which he
alleged misconduct by his (redacted).

11.  The second contested OER is a 6-rated month relief-for-cause OER for
the period 10 May 2002 through 29 October 2002, during which period the
applicant performed duties as a plans officer, S-3.  His rater checked
mostly “NO” blocks in the areas of Army Values (Part IVa) and in Part IVb.
In Part V, his rater gave him an “Unsatisfactory performance, do not
promote” rating.  Rater comments were all negative and included noting
“…claims to Army doctors that his chain of command wanted to bind and kill
him led an Army psychologist to recommend an emergency mental health/fit
for duty evaluation.…”

12.  In Part VII of the second contested OER, the SR gave the applicant a
“Do not promote” rating and a below COM, do not retain comparison rating.
SR comments were all negative.

13.  On 29 October 2002, the applicant made an allegation of an improper
Mental Health Evaluation in reprisal for communications with the IG to
(redacted).

14.  By memorandum dated 29 October 2002, the 99th RSC approved a 179-day
detail for the applicant, for the period 30 October 2002 through 27 April
2003 for rehabilitative purposes, to the 5115th Garrison Support Unit at
Fort Meade, MD.  The memorandum noted that the detail was for over 90 days
in length and would require that an evaluation report be rendered.  MAJ
L___ was the rater, LTC G___ was the SR, and letter input was to be
provided by Mr. J___, the applicant’s detailed supervisor.

15.  By memorandum dated 24 January 2003, the 99th RSC IG forwarded,
through channels to the DAIG, a Whistleblower IG Preliminary
Analysis/Inquiry (conducted on behalf of the DAIG) concerning the
applicant’s 6 September 2002 and 29 October 2002 complaints.

16.  The 24 January 2003 memorandum indicated the applicant had been
counseled on his performance and conduct on 3 August 2001 (twice),
      21 November 2001 (twice), 15 January 2002, 3 September 2002 (three
times),    4 October 2002, and 18 October 2002.  It indicated an individual
testified that the applicant could not attend the Career Course because he
was flagged for APFT [failure] and [failure to maintain] weight [standards]
and because his personnel management officer told him he could not attend
the course during his initial AGR tour.

17.  The 99th RSC IG concluded that the allegations that the applicant was
reprised against in violation of the Whistleblower Act were not
substantiated.  The 99th RSC IG concluded that the allegation that the
applicant was improperly referred for a mental health evaluation was also
unsubstantiated.  The DAIG apparently later reversed the findings of the
99th RSC IG regarding the second allegation and found that the complaint
the applicant was improperly referred for a mental health evaluation was
substantiated.

18.  The record indicates the applicant had a suspension of favorable
actions (flag) imposed on 8 February 2003.  The Whistleblower IG
Preliminary Analysis/Inquiry also indicated an individual testified to the
IG in December 2002 that the applicant could not attend the Career Course
because he was flagged for APFT [failure] and [failure to maintain] weight
[standards].

19.  On 17 March 2003, the applicant appealed the two contested OERs with
the U. S. Army Reserve Personnel Command (AR-PERSCOM).  His appeals were
denied.

20.  On 12 April 2003, the 99th RSC requested permission from the DAIG to
use certain IG records for adverse action against the applicant.  On 12 May
2003, the DAIG denied that permission.

21.  On 8 May 2003, the 99th RSC requested partial reconsideration of the
DAIG’s decision denying the use of IG records.  The DAIG’s response to this
request is not available.

22.  By memorandum dated 13 May 2003, the 99th RSC approved another detail
for the applicant, for the period 13 May through 7 November 2003, for
rehabilitative purposes.  This memorandum also noted that an evaluation
report was to be rendered, with the same rating officials as indicated on
the 29 October 2002 memorandum.

23.  Mr. J___ prepared four memorandums (dated 6 December 2002, 6 January
2003, 20 February 2003, and 31 March 2003) providing letter input regarding
the applicant’s performance during his detail.

24.  The applicant provided an email from COL K___ to MG K___, dated
    23 January 2004.  This email indicates a BOI was held on 20/21
September 2003.  It indicates MG K___ signed the DA Form 1574 (Report of
Proceedings) on 13 December 2003, outside of the 30-calendar days after the
BOI’s adjournment as provided for in AR 600-8-24.  After expressing her
concerns about the treatment of the applicant by his command, COL K___
noted that she was of the opinion that the applicant’s problems at the 323d
MI were the result of conflicts with MAJ C___.  She stated the applicant
had an otherwise exemplary military career before joining the 323d and
performed in an outstanding manner while detailed to the 5115th Garrison
Support Unit.  The aberrations that occurred at the 323d MI were wholly
unlike his actions at any other time in his career.

25.  By memorandum dated 1 March 2004, the applicant was notified that he
would be released from active duty no later than 90 days from receipt of
this notification or at the expiration of his initial tour, whichever was
later, due to having a nonwaivable disqualification during his initial AGR
tour.  The disqualification was Rule H, Table 2-6, AR 135-18, which
prohibited his placement on indefinite status in the AGR program.  The
applicant acknowledged receipt of the notification on 2 March 2004.

26.  On 1 March 2004, MG K___ gave the applicant a general officer
memorandum of reprimand (GOMOR).  The GOMOR noted that the applicant was
flagged because of the involuntary separation proceedings [initiated in
September 2003] and that his security clearance access was suspended and
was not reinstated.  Yet, the applicant requested an advanced course on
      15 October 2003.  He misled personnel at USAHRC and ignored their
direction.  As a result, he went to Fort Huachuca for an extended period of
time.  MG K___ reprimanded the applicant for his blatant disregard of
regulatory guidance concerning administrative separations, flagging
actions, and security clearance access.

27.  The applicant rebutted, in part, that the GOMOR failed to state what
regulatory guidance concerning flagging actions he disregarded, and it was
unclear why he was being reprimanded for [a] disregard of security
clearance access as he did not have access to any classified materials.  He
stated that, when he received orders for training, he attended that
training.

28.  MG K___ directed the 1 March 2004 GOMOR to be filed in the applicant’s
OMPF.

29.  On 17 March 2004, the applicant was released from active duty after
completing 3 years of active duty and was transferred to the USAR Control
Group (Reinforcement).  The narrative reason for separation was listed as
Non-retention on active duty, and the separation authority was listed as AR
600-8-24, paragraph 2-31 or 2-27.

30.  The applicant provided an email from Lieutenant General (LTG) H___,
dated 14 October 2004.  This email informed the applicant that LTG H___
understood that the first BOI, conducted by the 99th RSC, was never
finalized because the applicant was released from active duty prior to the
board’s completion.  LTG H___ stated the second BOI was mandated by the U.
S. Army Human Resources Command – St. Louis (USAHRC – STL).

31.  A U. S. Army Human Resources Command – St. Louis letter to the
applicant, dated 24 March 2005, informed him a BOI recently considered him
for involuntary separation.  The findings and recommendations of the BOI
were approved and he would be discharged from the USAR and issued an
Honorable Conditions Discharge.  Orders dated 25 March 2005 show the
applicant was discharged from the USAR with an Honorable Discharge.  The
BOI is not available.

32.  By letter dated 9 May 2005, the U. S. Army Reserve Command (USARC)
Office of the IG informed the applicant that a review of the 99th RSC’s BOI
held in September 2003 revealed errors were made in the timely submission
of documents pertaining to the BOI.  However, the errors did not impact on
his ability to be heard and to protect his rights at the BOI.  The USARC
IG’s review concluded he was not separated from the AGR program as a result
of the BOI, but rather as a result of a separate administrative action.

33.  By letter dated 14 February 2006, the DAIG informed the Department of
Defense IG (DODIG) that the applicant’s allegations of reprisal were not
substantiated; however, the allegation of an improper referral for an
emergency Mental Health Evaluation against the applicant’s commander was
substantiate.

34.  By letter dated 5 May 2006, the DODIG informed the DAIG that it had
reviewed the DAIG’s report of investigation into the applicant’s
allegations of whistleblower reprisal.  The DODIG agreed that responsible
management officials did not reprise against the applicant for making
protected communications.  The DODIG also agreed with the DAIG’s conclusion
that the applicant’s commander did not follow the procedural requirements
of Department of Defense Directive 6490.1 (Mental Health Evaluations of
Members of the Armed Forces) and Department of Defense Instruction 6490.4
(Requirements for Mental Health Evaluations of Members of the Armed Forces)
when referring him for an emergency mental health evaluation on 18 October
2002.  The DODIG recommended that LTC D___ be counseled regarding the
requirements.

35.  The DODIG also reviewed the applicant’s suspension of his security
clearance, even though he did not allege that the suspension was an act of
reprisal.  Based on the evidence, the DODIG determined that his suspension
was in response to his substandard performance and not in reprisal for his
protected communications.

36.  DOD Directive Number 7050.6 covers the Military Whistleblower
Protection provisions (Title 10, U. S. Code, section 1034).  The directive
states it is DOD policy that no person shall restrict a member of the Armed
Forces from lawfully communicating with a Member of Congress, an IG, or a
member of a DOD audit, inspection, investigation, or law enforcement
organization; that members of the Armed Forces shall be free from reprisal
for making or preparing to make lawful communications to a Member of
Congress, an IG, or a member of a DOD audit, inspection, investigation, or
law enforcement organization; and that no employee or member of the Armed
Forces may take or threaten to take an unfavorable personnel action, or
withhold or threaten to withhold a favorable personnel action, in reprisal
against any member of the Armed Forces for making or preparing a lawful
communication to a Member of Congress, an IG, or a member of a DOD audit,
inspection, investigation, or law enforcement organization.

37.  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.

38.  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.

39.  AR 623-105, paragraph 2-11 states the rater will assess the
performance of the rated officer, using all reasonable means.  These
include (1) personal contact; (2) records and reports; and (3) the
information provided by the rated officer on the support form.

40.  AR 623-105, paragraph 3-2e states rating officials must ensure that
the rated officer thoroughly understands the organization, its mission, his
or her role in support of the mission, and all of the standards by which
his or her performance will be judged.  The support form processes are
designed specifically to assist in the rating chain responsibility.
Paragraph 3-2f states rating officials must use all opportunities to
observe and gather information on the rated officer’s performance.

41.  AR 623-105, paragraph 3-2g states rating officials must 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.

42.  AR 623-105, Table 3-2 states officers placed on special duty for 90
days or more require a change of duty OER by the special duty supervisor.

43.  AR 623-105, paragraph 3-27 states no reference will be made to an
incomplete investigation concerning an officer.  While the fact that an
officer is under investigation or trial may not be mentioned in an OER
until the investigation or trial is completed, this does not preclude the
rating chain’s use of verified derogatory information.

44.  AR 135-18 (The Active Guard Reserve (AGR) Program), Rule H, Table 2-6
states an officer who was, or should have been, as determined by the Chief,
National Guard Bureau or the Chief, Army Reserve, under a current
suspension of favorable personnel action (flagged) per AR 600-8-2 has a
nonwaivable disqualification for subsequent duty in the AGR program.

45.  AR 135-18 states AGR Soldiers will be stabilized during the initial
period of duty in the AGR program, except for the needs of the Service.
Those individuals who are qualified for continuation in the AGR program
must have opportunities for continuing education.

46.  AR 140-30 (Active Duty in Support of the United States Army Reserve
(USAR) and Active Guard Reserve (AGR) Management Program), paragraph    5-
9a states no detail may be for more than 180 days or for more than a
cumulative total of 180 days within a 1-year period.  Soldiers will not be
given consecutive details, to either the same or different duty
requirements, if the detail will cause the Soldier to exceed the 180-day
maximum for the 1-year period.

47.  AR 600-8-24 (Officer Transfers and Discharges), paragraph 2-17 of the
version in effect at the time, provided the rules for processing
involuntary release from active duty due to nonselection of voluntary
indefinite status or AGR continuation.  An AGR officer on an initial period
of duty would be separated from active duty 90 calendar days after
notification of continuation board action of nonselection or at the end of
the initial period of duty, whichever was later.

48.  AR 600-8-2 (Suspension of Favorable Personnel Actions (Flags)) states
a flag prohibits certain listed personnel actions, including attendance at
civil or military schooling.  It also prohibits reassignment, unless the
reassignment is deemed necessary for the maintenance of discipline, morale,
and unit order.

49.  DA Pamphlet 351-4 (U. S. Army Formal Schools Catalog) states
attendance at the MI Officer Advanced Course (now Advanced Career Course)
requires a top secret clearance with sensitive compartmented information
(SCI) access.

50.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) states Proceedings of BOIs will be filed in the OMPF only when
attached as an enclosure to an adverse action in cases where it is
essential to clarify the action taken or when the action results in the
discharge of an enlisted member.

51.  Army Regulation 140-315 (Employment and Utilization of U. S. Army
Reserve Military Technicians) states civilian employment in the Military
Technician program is subject to the provisions of Title 5, U. S. Code, as
implemented by the Office of Personnel Management (OPM) and DA regulations
on civilian personnel.  It also states that, effective 1 September 1970,
military membership in a USAR unit is required for permanent appointment as
a military technician.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that AR 623-105, paragraph 1-10a requires an
OER to address the results achieved, i.e., efforts made by the rated
officer and the results that could be reasonably expected given the time
and resources; how the results are achieved, i.e., the means used by the
rated officer to achieve objectives and the rated officer’s use of time and
resources to get the job done.

2.  However, paragraph 1-10a only states, in part, that performance is
evaluated by considering the results achieved, which 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 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.

3.  The applicant contended that AR 623-105, paragraph 3-2e – h, was
violated when his rater did not observe his performance, did not give him
professional development for the tasks assigned, did not include documented
achievements, limited rating comments to performance for about two months
of the five-month rating period, and failed to render an objective report
based on his overall performance.

4.  However, AR 623-105, paragraph 2-11 understands that raters may not
always be in a position to personally observe the rated officer’s
performance.  “Impersonal” records and reports are also legitimately used
by raters to assess the rated officer’s performance.  The 99th RSC IG
report indicated the applicant had been counseled concerning his
performance a number of times.  The first contested OER noted that he had
performed a few tasks to standard.  There is no evidence to show the rating
officials’ evaluation of the applicant’s performance in the two contested
OERs was not the considered opinion and objective judgment of those rating
officials at the time of preparation.

5.  The applicant contended that he was approved for attendance at the MI
ACC and that MAJ C___ cancelled that course after he spoke to the
applicant’s
ex-spouse and to other (unidentified) people about him (the applicant).

6.  However, the 99th RSC IG report indicated an individual testified that
the applicant could not attend the Career Course because he was flagged for
APFT [failure] and [failure to maintain] weight [standards].  This is in
conformance with AR 600-8-2, which prohibits attendance at military schools
while flagged for weight control.  The 99th RSC IG report also indicated
that the applicant’s personnel management officer told him he could not
attend the course during his initial AGR tour.  This is in conformance with
AR 135-18, which states AGR Soldiers will be stabilized during the initial
period of duty in the AGR program, except for the needs of the Service, and
only those individuals who are qualified for continuation in the AGR
program may have opportunities for continuing education.

7.  The applicant contended that he received a COM rating on the OER for
the period ending 9 May 2002, but when his rater learned of the March 2002
IG complaint, the applicant’s performance ratings were [changed to] less
than COM. The applicant did not specifically request that the OER with the
period ending      9 May 2002 be considered for removal from his records.
However, it is noted that this OER shows he received a COM rating.
8.  The applicant contended the SR made the comment in the second contested
OER, ”based on the information received from the IG”; and he also contended
an OER may not be based improperly on IG information concerning complaints
of wrongdoing.  It cannot be determined how the applicant meant the
emphasized phrase to be understood.  The phrase itself is not in the
contested OER.

9.  The applicant contended the IG information was also used illegally to
remove him for cause.  However, as the 99th RSC IG, DAIG, and DODIG all
found that the allegation the applicant was reprised against in violation
of the Whistleblower Act was not substantiated, the only conclusion is that
he was properly “removed for cause” for valid reasons.

10.  The applicant contended he was twice detailed for 180 days, which
violated AR 140-30, paragraph 5-9a.  This appears to be a valid contention.
 However, it appears it was done for his benefit, pending the conclusion of
the 99th RSC IG investigation concerning allegations he made against his
chain of command.  Also, it appears his unit was deployed and he was non-
deployable.  Therefore, it appears that the applicant was not harmed by
this contravention of the regulatory guidance.

11.  The applicant contended his detailed unit tried to submit OERs on him;
however, the 99th RSC prohibited the unit from making any such submissions.
 This appears to be a valid contention.  Not only does AR 623-105 state
officers placed on special duty for 90 days or more require a change of
duty OER by the special duty supervisor, but the memorandums regarding the
details themselves noted that an OER would be rendered.

12.  Based upon the evidence of violations of AR 140-30, it would be
equitable to place Mr. J___’s four memorandums (dated 6 December 2002, 6
January 2003, 20 February 2003, and 31 March 2003) providing letter input
regarding the applicant’s performance during his detail in the performance
section of his OMPF in lieu of the OERs he would have received if he had
been properly rated in accordance with AR 623-105, as an exception to
policy.

13.  Notwithstanding the above, it is too speculative to presume that the
applicant “was denied excellent to outstanding OERs” for 15 months.  It is
also unlikely that two good OERs would have offset the two contested,
adverse OERs (three adverse OERs, if the OER for the period ending 9 May
2002 is considered) in determining his retention in the AGR program or in
the USAR.

14.  The applicant contended COL K___, the commander of his detailed unit,
testified at the first BOI that she never would have agreed to a BOI if she
had been his commander.  It is also noted that COL K___ stated, in her 23
January 2004 email, that the applicant had an otherwise exemplary military
career before joining the 323d MI.  Contrary to her statement, the
applicant received a memorandum of reprimand in 1997, while he was on
active duty, for many of the same aspects of his behavior that were noted
in the contested OERs.

15.  The applicant contended that a favorable part of the [first] BOI
transcript is missing.  Since it appears the first BOI was vacated, then
this is a harmless error. In addition, according to regulatory guidance
Proceedings of BOIs are not filed in an officer’s OMPF.  The applicant
provides no evidence to show why his BOI proceedings should have been an
exception to the rule.

16.  The applicant contended the September 2003 BOI results were vacated;
however, he never received reinstatement into the Army [in the AGR
program].  It appears he was properly not reinstated into the AGR program.
He was not selected for, nor was he eligible for, continuation in the AGR
program.  However, he remained in the AGR program for the duration of his
full 3-year initial AGR tour.  His DD Form 214 for the period ending 15
March 2004 does not indicate the authority for his separation was a BOI.
It properly indicates the reason and authority for his separation as Non-
retention on active duty, and the separation authority was listed as AR 600-
8-24, paragraph 2-31 or 2-27 (specifically, paragraph 2-27, which provided
the rules for processing involuntary release from active duty due to
nonselection of AGR continuation).

17.  The applicant contended that, at the second BOI in October 2004, the
recorder again introduced IG records and argued from the leaked IG records
to the BOI.  However, that BOI is not available and the applicant provides
insufficient evidence to show this happened or to show that the BOI would
not have recommended his separation based upon his OERs for the periods
ending 28 October 2001 and 9 May 2002 and also based upon his flags for
APFT failure and failure to maintain weight standards.

18.  As there is insufficient evidence to show the applicant was improperly
discharged from the USAR, it follows that there is also insufficient
evidence to show he should be reinstated in his civilian (i.e., military)
technician position.  In addition, issues relating to his military
technician status fall under the purview of OPM.  This Board has no
jurisdiction in this matter.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__kan___  __dkh___  __lmd___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by placing Mr. J___’s four memorandums (dated 6
December 2002, 6 January 2003, 20 February 2003, and 31 March 2003)
providing letter input regarding the applicant’s performance during his
detail in the performance section of his OMPF in lieu of the OERs he would
have received if he had been properly rated in accordance with AR 623-105,
as an exception to policy.

2.  As regards to the applicant's following request for correction of his
records, the evidence presented does not demonstrate the existence of a
probable error or injustice to show that he attended the MI ACC, the
Training Management Course, and advanced training for the MI ACC; that he
received a COM OER for the period 30 October 2002 through 27 April 2003 and
an above COM OER for the period 28 April 2003 through 17 March 2004; that
the Board drew inferences that the missing BOI transcript pages contain
statements in his favor; that the two BOIs and all related materials be
purged from his records; that he be retroactively reinstated on active duty
with all pay, allowances, and benefits from 17 March 2004; that evidence of
his discharge from the AGR program and the Army be removed from his
records; that his good standing in the USAR be reflected; that he be
retroactively reinstated into his civilian technician position; and that he
be returned to a position that corrects the damage and inequities done to
him.  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.

3.  As regards the applicant's request for reconsideration of his request
to purge from his records the OERs for the periods 3 April 2001 through 28
October 2001 and 10 May 2002 through 29 October 2002, 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
to amend the decisions of the ABCMR set forth in Docket Number AR2003094055
dated 1 July 2004.




                                  __Kathleen A. Newman__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060010350                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20070320                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Shatzer                             |
|ISSUES         1.       |111.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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