RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  26 June 2007
	DOCKET NUMBER:  AR20060010667 


	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.  


Mrs. Catherine C. Mitrano 

Director

Ms. Antoinette Farley

Analyst


The following members, a quorum, were present:


Mr. James E. Anderholm

Chairperson

Mr. Jerome L. Pionk

Member

Ms. Jeanette B. McPherson

Member

	The Board considered the following evidence: 

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the Officer Evaluation Report (OER) covering the period 11 June 2004 through 1 September 2004 [hereafter referred to as the contested report] from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the contested report which contains both substantive and administrative errors is unjust and does not accurately reflect his performance or potential.  The applicant also states that the contested report does not comply with paragraph 3-33(d) of Army Regulation 623-105 (Officer Evaluation System).  

3.  The applicant continues that both the rater and senior rater narratives failed to cite his performance of duty between the time he was removed from his duties and the arrival of his actual relief.  The applicant adds that the contested report can only be issued when a decision is made that the officer has failed in his or her performance of duty.  The applicant states that the rater's narrative in part V of the contested report states he is not capable of rendering an evaluation of the applicant's potential.  

4.  The applicant further states he was not informed of the contested report until two days prior to his final out processing appointment.  The applicant continues that he received two versions of the contested report, which were changed, altered, and not properly referred to him for acknowledgement and comments before being sent to Headquarters, Department of the Army.  The applicant continues that the senior rater failed to cite the reason for the relief except that "I" voluntarily gave up the position due to family reasons. 

5.  The applicant contends that because he chose not to remain in his 
G-4 position based on personal reason, his chain of command conspired to destroy his career through deceit and by tarnishing his military record.  The applicant contends that administrative decisions were made using insufficient evidence and illegal actions by his chain of command.  The applicant concludes that the contested report was not submitted because of his failure to complete his performance of duty during the rated month.  

6.  The applicant provides an eight-page summary of facts with 27 attachments, his contested report appeal and paragraph 3 of Army Regulation 623-105, supporting documentation, Officer Special Review Board (OSRB) Case Summary, Officer Record Brief (ORB), and copies of the current contested report in support of this application.  
CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show he is currently serving on active duty as the Special Assistant to the Commanding General/Deputy Chief of the United States Army Training and Doctrine Command (USATRADOC), Commander's Planning Group, Fort Monroe, Virginia.  

2.  The contested report is identified as a Relief for Cause report for 1 month period.  This report shows the applicant was rated in the position of principal advisor to the Commanding General, Assistant Division Commanders and the Chief of Staff on all logistical matters pertaining to deployment, support, and sustainability. 

3.  On 16 December 2004, the applicant received a contested report for the period 11 June 2004 through 1 September 2004.  This report evaluated the applicant as the Assistant Chief of Staff, G-4, 3rd Infantry Division, assigned to XVIII Airborne Corps, Fort Stewart, Georgia.  

4.  Part IIe (Signature of Rated Officer) of the contested report shows the applicant did not authenticate the report with his signature or date on 16 December 2004.  

5.  Part IId (Referred report, do you wish to make comments) box is marked with an "X" and also indicates that comments are attached.  

6.  Part IVa (Army Values) of the contested report shows that an "X" was placed in all seven "Yes" blocks.  Part IVb (Leader Attributes/Skills/Actions) of the contested report shows that an "X" was placed in each of the "Yes" blocks and that "X" was placed in the "Physical, Technical and Tactical" blocks.  

7.  Part Va (Performance and Potential Evaluation) of the contested report shows the rater placed his "X" in the "Other" block.  Part Vb (Comment on Specific Aspects of Performance) the rater noted that the applicant was selected for the nominative position of G-4 of the 3rd Infantry Division from a slate of highly competitive former battalion commanders.  






8.  The applicant signed into the division and assumed his duties on 18 August 2004.  The applicant subsequently requested to be removed from his duty position as the Assistant Chief of Staff, G-4 due to personal reasons.  The rater states that due to the short period of time the applicant served as the G-4, he cannot assess his potential for promotion, advanced schooling, or increased responsibility.  The rater further states that the applicant should be allowed to continue his career and service in the Army until retirement eligible.  

9.  Part VII (Senior Rater) of the contested report show that the SR placed an "X" in the "Other" block.  

10.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows that the applicant was rated in the "Center of Mass" block.  The SR placed his "X" in the fourth block and is currently the SR for 49 officer(s) in this grade.  The asterisk indicates the applicant's position in the SR profile.  This rating placed the applicant at the center of mass in the SR's profile.  

11.  Part VIIc (Comment on Performance/Potential) of the contested report shows the SR concluded as a result of the applicant's request to be removed from his position as the Division G-4 in the face of our upcoming deployment to Iraq, "I" directed his relief.  The SR further states "the applicant should be allowed to retire after serving the Army in another position."  

12.  Part VIId (List 3 Future Assignments for which this Officer is Best Suited) of the contested report shows the applicant was best suited for assignments as a 
"DA Logistics Staff Officer, Logistics Instructor Command and General Staff College (CGSC), Joint Logistics Staff Officer, and would serve the Army best in OPCF/92."

13.  On 20 October 2004, the rater requested that the applicant acknowledge the contested report for the period 11 June 2004 through 1 November 2004 in accordance with Army Regulation 623-105, paragraph 3-32 and 3-33, with a suspense dated of 30 days. 

14.  On 16 December 2004, both the SR and the rater issued the applicant a change to the contested report previously submitted to him for comments on 20 October 2004 which he returned unsigned.  The modified contested report shows that the date of the report was adjusted to coincide with the date the applicant was relieved of his duties.  The rated period was re-computed, in accordance with AR 623-105, paragraph 3-16c, to reflect the period the applicant was actually in his position as the Division G-4.  The non-rated code of "I" refers to the time between the through date of the applicant's contested report and the date he assumed his duties as G-4.  The time the applicant spent at Fort Stewart after he was relieved of his duties should appear as non-rated time on his next OER.  

15.  Part II, block d was modified to show the profile as a referred report.  The rater's narrative was amended to remove the reference to an action that occurred outside the rating period, and to remove the reference to family.  The senior rater's narrative was amended to comply with the administrative requirements of Army Regulation 623-105, paragraph 3-50c, and to remove the reference to family.  The memorandum adds that the applicant should expect to receive a copy of the amended contested report and referral from the SR under separate cover.  Each rater concluded that the memorandum was for the applicant's information only, and was not part of the contested report or referral process.  
  
16.  On 16 December 2004, the applicant response shows that he questioned the reports legitimacy or legal basis and concluded that it has been issued to him for vindictive reason designed to thwart his prospects of further professional advancement.  The applicant continues that the new contested report has no more legitimacy or legal basis than the original one and one can only conclude that it has been issued to him for vindictive reason designed to thwart his prospects of further professional advancement.  The applicant continues that the new contested report should be set aside on the grounds that it is legally insufficient, fundamentally unjust, and retaliatory in nature.  The applicant did not initial on the acknowledgment memorandum provided by the SR in his memorandum, dated 16 December 2004, as enclosure 1.

17.  The applicant provides a chronological summary of events which occurred between 11 September 2004, and 18 September 2004.  The applicant contends that he accompanied the major general and other members of the 3rd Infantry Division staff on a leader's reconnaissance to Baghdad, Iraq.  The applicant continues during the return trip he had a personal conversation with the Division SJA regarding personal issues concerning his family.  The applicant continues that it was suggested that he approach his SR to discuss his situation about his family. The applicant continues that he was only in the job for a number of weeks, and he had "other options" after fulfilling his duties over many years of service.  The applicant continues that, on 21 September 2004, he sent his request for relief by email to the commanding general and also talked with his rater about assuming a different job at Fort Stewart versus a position at another installation.  The applicant states that he was asked to resubmit his request in a memorandum format.  

18.  The applicant continues that, on 13 October 2004, his rater called him into his office for a second time with a representative from the office of SJA present.  The applicant states that the rater was concerned that he was under extreme stress and should consider seeing "Doc Yxxx," the Division Surgeon.  The applicant continues that on 14 October 2004, he was referred to the Chief of Mental Health, who was accompanied by a civilian practitioner.  

19.  The applicant states that the evaluation concluded that he was being faced with a difficult situation that required a very tough decision to give up a position with the division for which he had been selected.  The applicant states that the OSRB and the Army Inspector General dismissed the results of the evaluation.  The applicant states that he was called into the SR office for the third time and told to relinquish his G-4 position to the former Deputy G-4, to clear his desk, and begin reporting to the Division Headquarters.

20.  The applicant continues that, on 20 October 2004, he met with the major general of his command after receiving the contested report.  The applicant further states that the major general told him that he thought he was suffering from depression and anxiety attacks and he had "pulled the wool over the eyes" of the Mental Health providers.  The applicant continues that he had only been in the job for five weeks and the major general stated the applicant had not failed but quit.

21.  The applicant continues that, on 16 December 2004, the SR issued a memorandum for changes to the contested report, dated 22 November 2004.  The applicant continues that, in January 2005, he submitted a statement in rebuttal to the contested report to the Commander, 3rd Infantry Division, Fort Stewart, Georgia, which resulted in change. 

22.  On 18 January 2005, the applicant's SR responded to his rebuttal regarding the contested report.  The SR stated that, on 16 September 2004, he was returning home with members of his staff from a leader's reconnaissance trip to Kuwait and Iraq in preparation for 3rd Infantry Division's deployment back to Iraq in 2005.  The SR continues that during the deployment he noticed the applicant was withdrawn, distracted, and unengaged.  The SR continues that he asked the applicant what was wrong, he was very emotional, began crying, and was having difficulty sleeping, and was not engaged.  The SR continues that the applicant informed him of the arduous demands of his position and also his personal family matters weighing on him.  



23.  The SR continues that he informed the applicant that he had gone through similar difficulties with members of his own family who were gravely ill while he was in various positions of leadership in his career.  The SR advised the applicant that while he had an opportunity to talk over this with his family, he needed to make a decision within the next few days since they were about to deploy.  The SR stated that the applicant did not talk about any specific details because he was distraught.  The SR continues that on 21 September 2004, he received an email from the applicant requesting to be removed from his position as the G-4 and placed in another assignment. 

24.  On 18 January 2005, the applicant's rater responded to the rebuttal regarding the contested report.  The rater in summary stated that between 11 September 2004 and 18 September 2004, he accompanied the 3rd Infantry Divisions staff on a leadership reconnaissance to Baghdad, Iraq, in advance of the Division's rotation to Iraq in January 2005.  The rater continues that his staff indicated that the applicant was suffering from serious jet lag and was having trouble getting to sleep.  The rater states that he personally observed the applicant out pacing around 2400 hours one night while at Camp Liberty, Iraq.  The rater continues that the applicant stated that he could not sleep and was concerned about his future workload.  

25.  On 23 September 2004, the rater states that the SR forwarded the applicant's email which stated due to personal and family reasons he requested permission to be allowed to explore other options than serving as the Division
G-4.  The rater adds that he called the applicant and asked if he was requesting to be removed from his position and the applicant confirmed he was looking at other positions and perhaps requesting a lateral transfer.  The rater further states that he informed the applicant that he needed to make a decision that was right for himself and his family and directed he formalize his request in the form of a memorandum.  The rater continues that he instructed the applicant to continue to perform his duties as the Division G-4 until a replacement could be found.  

26.  On 25 September 2004, the rater continues that he talked with the applicant in the presence of the SJA for Fort Stewart.  The rater states that he informed the applicant that neither he nor the SR could support this move given the fact he had voluntarily removed himself from a nominated position he had requested.  The rater continues that the applicant became emotional and again reiterated that his requested removal should not damage his chances of being selected for Senior Service College or eventual promotion to Colonel.  


27.  The rater states that it was at this time he suggested the applicant visit the Chief of Mental Health, since he repeatedly denied that giving up a position of importance would in no way jeopardize his career advancement, due to his stressed behavior during the leader's reconnaissance, and continued depression following his return to the command.  

28.  On 30 September 2004, the rater states that he again talked with the applicant and informed him to transition his duties to his G-4 replacement.  The rater continues that he did not inform the applicant that he was relieved, since that decision would be made by the SR.  

29.  On 20 October 2004, the rater talked with the applicant in the presences of the SJA of 3rd Infantry Division.  The Rater stated he informed the applicant that he was being relieved of his duties and presented the applicant the contested report.  The rater continues that the applicant became highly agitated, emotional, very loud, and could not understand why he was being relieved.  The rater continues that the applicant alleged this action would damage him personally and professionally, selection for Senior Service College and eventual promotion to colonel 0-6.  The rater continues that he told the applicant that he could not expect simply to remove himself from a position of enormous responsibility within a Division that was deploying to combat and still expect to be on the "fast track."  The rater continues that after his conversation with the applicant, he had a similar conversation with the SR.

30.  On 13 December 2004, the applicant requested a Commander's Inquiry be initiated to address the applicant's contested report, dated 20 October 2004 in accordance with Army Regulation 623-105, chapter 6.

31.  The rater states that, on 16 December 2004, due to the applicant initial rebuttal comments, and in accordance with AR 623-105, a corrected contested report was re-served.  The rater states that changes were pointed out in a cover memorandum signed by him and the SR.  The rater states that the applicant submitted his comments on 10 January 2005.

32.  On 21 January 2005, the Commander's Inquiry, completed by Lieutenant General Vxxxx, shows that he found no errors, injustices, or illegalities in the applicant's contested report.  Therefore, the Lieutenant General Vxxxx concluded that the OER is fair, accurate, and legally sufficient.  Lieutenant General Vxxxx adds that the applicant a senior field grade officer knowingly accepted a nominative position at one of the most prestigious rapid deployment forces within the Army.  Subsequently, in a time of war, the applicant voluntarily requested to be relieved from his duty position.
33.  On 20 April 2005, the applicant appealed the contested report to the OSRB.  The OSRB case summary addressed each of the applicant's contentions and concluded that there was not sufficiently convincing evidence that the contested report was inaccurate, unjust and does not adequately reflect the applicant's performance and potential.  The OSRB concluded that the report should not be amended or deleted.  The OSRB recommended that the appeal be denied and the appeal be filed in the applicant's restricted fiche.  

34.  The OSRB stated that the applicant had not provided clear and convincing evidence to justify deletion or amendment of the contested report.  The OSRB opined there was no convincing evidence that the rater or SR failed to execute their responsibilities.  The OSRB further opined the rating chain fairly and accurately assessed the applicant's performance and potential and found the applicant's contention that the rater comments failed to recognize his many accomplishments were without merit.

35.  On 30 January 2006, the applicant was notified in writing by the Chief of the Appeals and Corrections Branch of the US Total Army Personnel Command that his records were reviewed and that OSRB determined that the evidence submitted did not justify altering the contested report.

36.  The applicant provides character reference memorandums, letters and emails from former SRs, co-workers, and four General Officers.  The character reference documents make reference to the applicant's leadership, superb performance, a caring officer, conducts himself professionally, his diligence to produce meaningful work results, work ethics and loyalty to the Army. 

37.  The applicant provided a copy of his current OER, for the period during 16 April 2005 through 24 December 2005.  The OER shows that the applicant serves as the Special Assistant to the Commanding General/Deputy Chief of the USATRADOC.  Part VIIa (Senior Rater) of the applicant's OER the rater found that the applicant was the best qualified for promotion potential to the next higher grade.  

38.  Paragraph 3-2h of Army Regulation 635-105 (Officer Evaluation Reporting System) indicate that rating officials must prepare reports that are honest, fair, accurate and complete showing the achievements and failures of the rated officers.  



39.  Paragraph 3-7 of Army Regulation 635-105 sets forth the rater responsibilities.  The rater has the obligation to notify the rated officer under their supervision from the beginning and throughout the rating period on their performance with face-to-face counseling and periodic follow-ups.  The rater is obligated to make a fair and honest evaluation(s) of the rated officer under their supervision.  

40.  Paragraph 3-15 of Section IV (Officer Evaluation Report) of Army Regulation 623-105, states the purpose and use of the form.  Paragraph 3-16 (Part I) of Section IV refers to the administrative data and for identifying the rated officer, the period of the report, and the reason for submitting the report.  

41.  Paragraph 3-33 (Referral process) of AR 623-105 states that if referral is required in paragraph 3-32, the senior rater will place an "X" in the appropriate box in part IIe of the completed report.  The report will then be given to the rated officer for signature and placement of an "X" in the appropriate box in part IIe. The rated officer may comment if he or she believes that the rating or remarks are incorrect.  The comment must be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated officer's referral comments.  Extraneous or voluminous material, material already contained in the officer's file and enclosures or attachments are not normally in the rated officer's best interest; and they, therefore, should be avoided.  Any enclosures or attachments will be withdrawn and returned to the rated officer when the OER is forwarded to the Department of the Army.  

42.  Paragraphs 3-50 (Relief for Cause) of Army Regulation 623-105, that a report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined 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.  

43.  Paragraph 3-50a, section CI, pertains to the potential evaluation in Part Va, DA Form 67-9 (Officer Evaluation Report), must reflect "Do not promote" or "Other".  However, raters who want to make some other recommendation will check "Other" and will explain their recommendation and reasons in view of the action to relieve.  

44.  Paragraphs 5-32 and 9-2 of Army Regulation 623-105, that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed 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.  
45.  Paragraph 9-7 of Army Regulation 623-105 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested report should be removed because it is inaccurate and is not in compliance with Army Regulation 623-105.  

2.  Records show that the applicant applied to the OSRB for removal of the contested report and after a thorough review of the records the OSRB determined that the evidence does not justify altering or withdrawing the report.

3.  The applicant makes numerous allegations regarding the rating officials' lack of objectivity and fairness.  He also contends that conduct by the rating officials on the contested report was unethical and illegal.  The applicant contends that because he chose not to remain in his G-4 position based on personal reason, his chain of command conspired to destroy his career through deceit and by tarnishing his military record.

4.  Although, the applicant has repeatedly made these allegations, there is no evidence in the available records which show that the rating officials lacked fairness, honesty, and impartiality required by Army Regulation 623-105 or that the ratings were not administratively correct; that the contested report was not prepared by the proper rating officials; and the ratings did not represent the considered opinion and objective judgment of rating officials at the time of preparation.

5.  The applicant has not provided clear and compelling evidence which shows that the ratings on the contested report were in error or that they were not considered opinions and objective judgments of the rating officials at the time the report was rendered.  

6.  Therefore, based on the foregoing, there is insufficient evidence to support the applicant's contention that the contested report did not accurately reflect his duties and did not appropriately rate his performance.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_JEA____  __JLP___  _JBM___  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.




		____James E. Anderholm_
		        CHAIRPERSON






INDEX

CASE ID
AR20060010667
SUFFIX

RECON
YYYYMMDD
DATE BOARDED

TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.