RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        22 May 2007
      DOCKET NUMBER:  AR20070002881


      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. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. Thomas E. O;Shaughnessy       |     |Member               |
|     |Mr. James R. Hastie               |     |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, reconsideration of his earlier
petition to remove an Officer Evaluation Report (OER) covering the period
21 May 2001 through 20 May 2002 from his record; and that he be reinstated
as a lieutenant colonel (LTC) with his original promotion date and date of
rank of 1 July 2002; and that the individuals named in his complaint never
again be allowed to turn an administrative action into a disciplinary
action without a criminal conviction, never again be allowed to tamper with
any officer's OER or downgrade any award or rescind any orders approved by
higher headquarters without a criminal conviction and never be allowed to
repeatedly single out and steer Roman Catholic or older than average
doctors to more difficult assignments after they complete their advanced
course, which could keep them out of command positions and possibly lay the
groundwork for performing abortions on active duty, which is illegal; and
that any career officer who receives a referred OER never again be
humiliated in front of peers and subordinates and be allowed the option of
relocation as soon as the opportunity allows, which will draw attention to
problem assignments.

2.  The applicant states, in effect, that he was the victim of
discrimination by the senior rater (SR) and rater on the 2002 OER in
question and by Army Human Resources Command (HRC) personnel.  He claims he
was called an old man by the Chief of Orthopedics at Fort Riley, Kansas,
who also remarked on the gap between his upper teeth in an attempt to bate
him, but he kept his temper well in check.  He claims he first saw the
referred OER in question on or about 30 May 2002, when he received an
electronic mail (e-mail) message requesting that he come and sign the
report.  He states this was two weeks after his SR and rater had their
going away party, where they joked about OER's at their last hospital staff
meeting.  He states that he requested to speak to his SR and rater about
the referred report, but the secretary told him they were gone.  He refused
to sign the OER until he consulted with Judge Advocate General (JAG)
attorney, but he did request a copy.  He claims that he expressed his
concern about signing the report to a JAG attorney, who advised him not to
sign the report and told him his signature only meant he had received it.
He claims he received a copy of the OER before it was sent forward and
posted it on the Army website with the date of 17 June 2002 entered next to
his SR's and rater's signature blocks.  He claims he has no idea who filled
in the dates nor does he know who used white-out to change the "Yes" to
"No" in the "Mental" block on the front page.  He also has no idea who
added additional negative comments on the back page in a different type-
face.  He claims this OER was sent forward with a statement which the
outgoing DCA helped him prepare.

3.  The applicant further claims the OER was tampered with at HRC as the
"Yes" background was put back in over the white-out in the "Mental" block
on the front page.  This alteration posted on the website seemed to
correspond with his appearance before the promotion board.  He claims he
received no notification of these changes and he is told this is illegal.
He states that the Chief of Orthopedics at Fort Riley during the rating
period was a Roman Catholic like him. He states that noncommissioned
officers (NCOs) told him that he also received a very negative OER from his
SR and rater.  The Chief of Internal Medicine at his next assignment, which
was Fort Stewart, Georgia, was also a Roman Catholic and also received an
unfavorable OER from his SR, while they both served at Fort Leonard Wood,
Missouri, which was prior to the SR coming to Fort Riley.  He believes this
establishes a pattern of religious persecution of those of the Roman
Catholic faith.  He states it would be interesting to see if the physician
that his SR had thrown in jail in Korea was also a Catholic.

4.  The applicant's claims that officer who remarked about him being an old
man was an insider in his previous command and his remarks provided insight
into what his former SR and rater considered important when they gave him
the referred report in question.  He claims his performance had nothing to
do with it as he received absolutely no counseling statements, as attested
to in supporting third-party statements he provides.  He also names
individuals from the promotions branch that he would like included in his
complaint.  He states that one of these officials could be the same person
that who failed to forward a complete the record OER to a promotion board
while he was stationed at
Fort Carson, Colorado, which resulted in the filing of a complaint against
her by another male officer.

5.  The applicant states that while at Fort Stewart, he had the pleasure of
serving with a lieutenant colonel who was a major for only four years
before being promoted.  He states that he has been a major for twelve
years, three times as long, and this is clearly age discrimination.  He
further states that the last podiatrist promoted to lieutenant colonel took
the Voluntary Separation Incentive (VSI) and was not supposed to even be
allowed back in the Army.  He states that he believes that Order Number 259-
001 is a discriminatory order and is therefore illegal.  He requests to be
made whole again by having this order set-aside and by being reinstated as
a lieutenant colonel with his original promotion effective date and date of
rank of 1 July 2002.  He states that he was actually told he was demoted
back to major on 15 November 2002, and that he had to pay back four and
half months of the pay difference.  He states the worst thing was being
kept at the same assignment for another year of abuse after being demoted
in front of his peers and subordinates.

6.  The applicant provides the following documents in support of his
application:  Request for Relief Under The Equal Opportunity Act; Self-
Authored Letter to the Board, dated 18 February 2007; Equal Opportunity
Complaint (DA Form 7279) and associated documents; and Congressional
Inquiry.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003097494, on
15 July 2004.

2.  During its original review of the case, the Board found evidence
confirming the applicant was provided several formal written counseling
statements indicating that he needed to improve his job performance with
explanations on how this could be accomplished.  The Board concluded that
notwithstanding the laudatory comments provided by third-parties, the
applicant had failed to provide compelling evidence that the OER in
question did not represent the honest and fair evaluation by rating
officials during the period covered by the report.  As a result, the Board
concluded it would not be appropriate to remove the contested OER from the
applicant's record.

3.  The contested OER is an annual report that covered the 12 month period
from 21 May 2001 through 20 May 2002, and evaluated the applicant as the
Chief, Podiatry Service for Irwin Army Community Hospital, Fort Riley,
Kansas.  The rater, a lieutenant colonel, placed the applicant in the three
block (Unsatisfactory Performance-Do Not Promote) in Part V (Performance
and Potential Evaluation), and provided his explanatory comments in Part
Vb.  In Part VIIa (Senior Rater-Promotion Potential to Next Higher Grade),
the SR, a lieutenant colonel (promotable), placed the applicant in the
three block (Do Not Promote) and provided comments in Part VIIc.

4.  On 2 December 2002, the applicant appealed the contested OER to the
Officer Special Review Board (OSRB) on the grounds of both administrative
and substantive inaccuracy.

5.  The OSRB contacted the rater and SR on the contested report on 13
January 2003, and both officials remembered the contested report and
indicated the report was solely based on the applicant's poor duty
performance and believed the report to be accurate.

6.  The OSRB concluded there was not sufficient evidence that the contested
OER was inaccurate and did not adequately reflect the applicant's
performance and as a result, should not be amended or deleted.  The OSRB
finally recommended the applicant's appeal be denied.

7.  On 18 July 2003, the applicant was informed that his records were being
referred to Department of the Army (DA) Promotion Review Board (PRB) for
reconsideration of his promotion status.

8.  On 28 February 2003, the PRB convened to consider the applicant's case.
 The PRB summary indicates the applicant's entire Official Military
Personnel File (OMPF) was reviewed, and it was determined the applicant's
behavior was contrary to the leadership values that instill good order and
discipline.  It further indicated that according to the referred OER, the
applicant openly displayed passive aggressive tendencies and lacked the
initiative expected from an officer at his level and was not deserving of
promotion at that time.  The PRB finally recommended the applicant be
removed from the promotion list.

9.  On 15 May 2003, The Office of The Judge Advocate General (OTJAG)/Office
of General Counsel (OGC) found the applicant's PRB legally sufficient.  The
Deputy Chief of Staff G-1 and Assistant Secretary of the Army (Manpower and
Reserve Affairs) recommended approval of the applicant's removal from the
promotion list on 30 May 2003, and the Acting Chief of Staff, Army
recommended approval on 23 June 2003.  On 1 July 2003, the Acting Secretary
of the Army approved the applicant's removal from the promotion list.

10.  On 20 December 2006, the Commander, Great Plains Regional Medical
Command, Fort Sam Houston, Texas, after reviewing the EO complaint
submitted by the applicant, which alleged discrimination by his former
rater and SR, notified the applicant that his compliant was untimely and
that his avenue of redress was to apply to this Board.

11.  On 9 February 2007, in response to a Congressional Inquiry made on
behalf of the applicant, the Army Human Resources Command (AHRC) Chief,
Promotions Branch, informed the Member of Congress that after a review of
the applicant's PRB case file, which included the contested OER, no
evidence was found that support administrative injustices or
discrimination.  It further informed the Member of Congress that the OSRB,
which is comprised of senior Army officers operating in an impartial non-
adversary role, considered the appeal submitted by the applicant and
determined it did not support his contentions with convincing evidence.
Further, the ABCMR, which is comprised of senior DA Civilians and was
established by law to determine the existence of error or injustice,
considered and denied the applicant's request.
12.  Army Regulation 623-105 prescribes the policies and procedures
pertaining to the Officer Evaluation System (OES) and Officer Evaluation
Reporting System (OERS).  It also provides guidance regarding redress
programs including commander inquiries and appeals.

13.  Paragraph 3-57 of the OER regulation provides the basic rule
applicable to modifications of previously submitted reports.  It states, in
pertinent part, that an evaluation report accepted by Headquarters,
Department of the Army (HQDA) and included in the official record of an
officer is presumed to be administratively correct, to have been prepared
by the properly designated rating officials, to represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.  It also states that requests that a report that has been
accepted for filing in an officer’s record be altered, withdrawn, or
replaced with another report will not be honored.

14.  Chapter 6 of the same regulation contains the policies and procedures
pertaining to managing the OER redress program.  Section III contains
guidance on OER appeals and paragraph 6-10 outlines the burden of proof
that must be met to support a successful OER appeal.  It states that the
burden of proof rests with the appellant.  Accordingly, to justify deletion
or amendment of a report, the appellant must produce evidence that
establishes clearly and convincingly that the presumption of regularity
referred to in paragraphs 3-57 should not be applied to the report under
consideration and that action is warranted to correct a material error,
inaccuracy, or injustice.  Clear and convincing evidence must be of a
strong and compelling nature, not merely proof of the possibility of
administrative error or factual inaccuracy.

15.  The doctrine of administrative finality derives from numerous Federal
court cases dealing with similar issues as this one.  It prevents cases and
applications from being perpetually reopened and reexamined.  Once a final
administrative authority reaches a decision approving or ordering an
action, the case is closed.  The power of the official rendering the
decision is exhausted concerning that case and the deciding official can
not reconsider the decision, unless an exception to the doctrine of
administrative finality or other legal authority authorizes reopening the
case.  Title 10 of the Untied States Code, section 629, provides the legal
authority to remove the name of any officer from a list of officers
recommended for promotion to the President.  Executive Order Number 12396,
dated 9 December 1982, further delegated this authority to the Secretary of
Defense, who by memorandum, dated 12 January 1983, further delegated this
authority to the Service Secretaries.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested OER and his resultant
removal from the promotion list by the PRB was the result of discrimination
was carefully considered.  However, there is insufficient evidence to
support his claims.

2.  The evidence of record confirms the OER in question was properly
processed and accepted for filing by DA in accordance with the applicable
regulation.  The applicant has been afforded due process through the
appellate process, which included reviews by the OSRB and this Board, which
both found no clear and compelling evidence to support the applicant's
assertion of discrimination by the rater and SR on the contested report.
Contrary to the applicant's assertions, there is no evidence of record that
supports his allegation of discrimination.  As a result, there remains an
insufficient evidentiary basis to support amendment or removal of this
report from his OMPF.

3.  A thorough and comprehensive review of the newly submitted evidence
provided by the applicant, along with all the facts and circumstances
surrounding the applicant’s removal from the promotion list was also
conducted.  Based on this review, it is concluded that the Acting Secretary
of the Army had before him all the relevant facts and circumstances of this
case at the time he rendered his original decision to remove the applicant
from the promotion list.  This removal decision was accomplished in
accordance with applicable law and regulation and an exception to the
doctrine of administrative finality is not warranted in this case.

4.  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 has failed to
submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__HOF __  __TEO__  __JRH  __  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 and/or amendment of the decision of the
ABCMR set forth in Docket Number AR2003097494, dated 15 July 2004.




                                  _____Hubert O. Fry______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070002881                           |
|SUFFIX                  |                                        |
|RECON                   |AR2003097494  2004/07/15                |
|DATE BOARDED            |2007/05/22                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Schwartz                            |
|ISSUES         1.  193  |111.0000                                |
|ISSUES         1.  330  |134.0200                                |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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