RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE: 1 MAY 2008	  
	DOCKET NUMBER:  AR20070015907 


	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.




Director



Analyst

      The following members, a quorum, were present:




Chairperson



Member



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 removal of the Officer Evaluation Report (OER) covering the period 1 February 2004 through 31 January 2005 (hereafter referred to as the contested report) from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the contested report contains administrative and substantive errors.  His report is not in compliance with Army Regulation 623-105 (Officer Evaluation Reporting System), because it is filled with false, inaccurate, and derogatory statements.  Also, the contested report he received by mail was different than the one filed in his OMPF.

3.  He states his rater did not have the minimum time of 90 days to evaluate him and no initial counseling was ever done.  His rater and senior rater were part of the battalion before he deployed to Bagram, Afghanistan.  The rater arrived in Bagram, Afghanistan on 19 April 2004 and departed on 26 April 2004 to Kandahar, Afghanistan.  He states, in effect, he was medically evacuated out of Bagram, Afghanistan on 12 June 2004 to Landstuhl, Germany and was further assigned to the Army Reserve Medical Hold Company in Fort Polk, Louisiana.

4.  He continues the contested report should have never been prepared as an annual report, because he was a patient in a Medical Hold Company until he retired on 2 June 2005.  In addition, some administrative and substantive errors were identified.  These include the fact that the rater did not use the appropriate codes for rated and non-rated months and the reason for submission, and the report contained unproven derogatory statements.  He received a Letter of Reprimand from his Battalion Commander within 1 month into his tour for a minor incident between the Headquarters and Supply Company Commander and himself.  He believes the contested report was a personal attack against him and an attempt to hurt his career by generating a referred report.

5.  The applicant provides a copy of a personal statement and 16 enclosures that includes the contested report, five prior OERs, separation document (DD Form 214), medical history, discharge orders, fragmentary order, sworn statement, eight memoranda, a medical evaluation and physical evaluation board proceedings, an OER appeal and supporting documentation in support of this application.





CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel record shows he entered active duty as an Army National Guard officer in the rank of a warrant officer two, on 1 July 1999. He was honorably released from active duty and transferred to Headquarters Service Company (HSC), 528th Engineer Battalion (Combat Heavy),  
225th Engineer Group on 29 February 2004, due to the unit's mobilization in support of Operation Enduring Freedom.  

2.  The medical history the applicant submitted shows that between 7 June  
2004 and 8 June 2004, the applicant was seen by a medical officer in Bagram, Afghanistan for numbness in both hands, pain in his neck, right and left shoulders, and lower back pain.  The medical officer recommended that the applicant be further evaluated by a neurologist at Landsthul Regional Medical Center (LRMC), Germany.

3.  Fragmentary Order Number 12 undated shows that authority was delegated to the Battalion S1 to replicate command actions on behalf of the commander.  On 8 June 2004, the Battalion S1 approved the evacuation request for the applicant to depart the area of operation for his trip to LRMC, Germany.  While at LRMC, Germany the applicant was evaluated and arrangements were made for further medical processing at his home unit based at Fort Polk, Louisiana. 

4.  An AF Form 3899 (Aeromedical Evaluation Patient Record) shows that on  
14 June 2004, the applicant was prepared for a flight back to his home unit base, at Fort Polk, Louisiana for further medical evaluation.  Effective 28 June 2004, the applicant was manifested and flew back to Louisiana and was attached to Company B, 4013th U.S. Army Garrison Support Unit, Fort Polk, Louisiana.  He was then further assigned to Detachment 3, 643rd Area Support Group (ASG), Fort Polk, Louisiana.

5.  U.S. Army Human Resources Command Orders Number A-08-407857 dated 5 August 2004, shows the applicant was assigned to U.S. Army Garrison Support Unit, Fort Polk to participate in a Reserve Component Medical Holdover Medical Retention Processing Program for completion of medical care and treatment for 240 days ending on 1 April 2005.  





6.  The record shows the applicant received the contested report at home by certified mail.  He also received his final OER for the period 1 February  
2005 through 21 May 2005.  It is noted that the comments in the final OER were identical to the contested report.  On 7 September 2005, the applicant submitted a commander's inquiry concerning both OERs.  There is no record of what action was taken on these requests.

7.  The applicant was honorably released from active duty on 31 May 2005 and placed on Temporary Disability Retired List (TDRL) on 1 June 2005.  On  
28 September 2007, he was removed from the TDRL and was permanently retired.

8.  The applicant submitted an OER appeal based on the contested report. However, the Officer Special Review Board returned the appeal without action because the applicant had already retired.

9.  Part IId (This is a referred report, do you wish to make comments?) of the contested report shows that while an “X” was placed in the referred report box, neither the “Yes” nor “No” blocks were selected to indicate whether the applicant wished to make comments.

10.  Part IIe (Signature of Rated Officer) of the contested report shows the entry "unavailable for signature."

11.  Part IVa (Army Values) of the contested report shows that an "X" was placed in all seven "Yes" blocks, which indicate the applicant's contribution to the Army Values.

12.  Part IVb (Leader Attributes/Skills/Actions) of the contested report shows that an "X" was placed in each of the "NO" blocks for Items b.1. “Mental,” 
b.2.2 “Interpersonal,” b.2.3. “Technical,” b.3.3 “Motivating,” b.3.5 "Executing," and b.3.8 "Building."  It is noted that the same leader attributes/skills/actions were listed on the applicant's final OER.

13.  Part V (Performance and Potential Evaluation) of the contested report shows the rater placed his "X" in the "Unsatisfactory Performance, Do Not Promote" block.  In Part Vb (Comment on Specific Aspects of Performance), the rater assessed the applicant’s performance to be inadequate.  The rater addressed all blocks in IVb that he placed a “NO” in.  The rater continued that the applicant demonstrated a lack of technical proficiency necessary to make the property transfer and accountability of the battalion's assets fluid and understandable, and failed to assist in the movement of equipment and property to Kandahar, Afghanistan.  The rater continued that the applicant failed to inform his chain of command regarding his medical condition, and he referred himself to Bagram Medical Facility and subsequently departed a combat theater to return to Fort Polk, Louisiana. 

14.  Part VII (Senior Rater) of the contested report shows that the senior rater placed an "X" in the "Do Not Promote" block.   An "X" was placed in the "Yes" block to indicate that the senior rater received the rater's OER support form (DA Form 67-9-1.

15.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows that the entry "No Box Check."

16.  Part VIIc (Comment on Performance/Potential) of the contested report shows the senior rater's comments addressed the applicant's need for improvement in teaching, mentoring, and supervising.  His senior rater said the applicant's abilities were overshadowed by his negative attitude; he displayed little ability to work with other staff officers and noncommissioned officers; and he departed the area of operation without providing direction or guidance regarding unit property.  The senior rater concluded that the applicant was incapacitated due to injury during part of the rating period.

17.  The memoranda dated 28/29 April 2004 shows that a proper change of hand receipt holder and command inventory were accomplished in accordance with Department of the Army Pamphlet 710-2-1 (Inventory Management) and Army Regulation 725-5 (Requisition, Receipt, and Issue System).

18.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  It provides that rating officials must prepare reports that are honest, fair, and accurate and complete showing the achievements and failures of the rated officers.  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.  Paragraph 3-20b(2) states that the rater must make comments on specific aspects of performance and potential in Part Vb.  Comments should be specific and address, as appropriate, the officer’s potential for promotion, military and civilian schooling, specific assignment (both in terms of level of organization and level of responsibility), and command. 



19.  Army Regulation 623-105, paragraph 3-24 states that each OER must stand alone and will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports and will not remark on performance or incidents occurring before or after the period covered. 

20.  Army Regulation 623-105, paragraph 3-41 states that a change of duty OER is mandatory when the rated officer has a change of principal duty, even though the rater remains the same.  This paragraph is used for all reassignments, to include permanent change of station and separation from active duty.  As an exception, retirement reports of less than one year will be rendered at the option of the rater or senior rater or when requested by the rated officer.

21.  Army Regulation 623-105, paragraph 3-42 states that an annual OER is mandatory on completion of one calendar year of duty following the "Thru" date of the last report submitted under the provisions of this regulation.  If one year has elapsed and the rated officer has not performed the same duty under the same rater for 90 calendar days, a report will not be submitted until the  
90-day requirement is met.  An annual OER will not be submitted if the rated officer is in a patient detachment, in a transient status, or confinement as of the "Thru" date.  Table 3-4 lists codes and reasons for nonrated periods of which code P is listed as patient (including convalescent leave).

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his contested report for the period 1 February 2004 through 31 January 2005 be removed from his OMPF.

2.  By regulation and based on the evidence submitted, the applicant should have never been given the contested or his final OER.  He was a patient who was placed in a patient detachment.  Time spent as a patient is not ratable and OER's are not given to officers in a patient status. 

3.  Since the applicant was erroneously given the contested OER, the other errors alleged by the applicant are not pertinent to the case.

4.  As such, the applicant is entitled to correction of his record to completely remove the contested report for the period 1 February 2004 through 31 January 2005 and the final OER for the period 1 February 2005 through 21 May 2005.




BOARD VOTE:

__X____  __X____  ___X_____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by completely removing the contested report for the period 1 February 2004 through 31 January 2005 and the final OER for period 1 February 2005 through 21 May 2005.




      __________X____________
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20070015907



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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
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