RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 May 2008
	DOCKET NUMBER:  AR20080004550 


	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, through a court remand, reconsideration of his request to remove the Officer Evaluation Report (OER) for the period 22 October 1990 through 5 March 1991 from his records.

2.  The U. S. District Court for the District of Columbia granted a summary judgment to the Government on the issue of whether the decision of the Army Board for Correction of Military Record (ABCMR) concluding that the applicant’s rater was not disqualified from serving as the applicant’s rater was without substantial evidence or contrary to law.  However, the Court granted judgment to the applicant on the issue of whether the ABCMR’s decision was arbitrary and capricious because it did not address whether the applicant’s OER should have been treated as a relief-for-cause OER and whether, consequently, he was denied due process protections.  

3.  The Court noted that the applicant argued that the contested OER constituted a de facto relief-for-cause OER (and not merely an adverse OER), in which case the Army should have afforded him additional procedural protections that he was denied before the report was finalized.  Because both types of reports are prejudicial to an officer’s career, both must be referred to the rated officer by the senior rater (SR) for acknowledgment and comment before finalization.  

4.  The Court noted that the applicant argued that the contested OER was a covert termination report because (1) it contained a “derogatory narrative, alleging performance failures after counseling was ignored”; (2) it was released the day after the informal EO investigator said the applicant should be “reassigned, and if not possible removed from active duty”; (3) he was not “given a second chance to…rehabilitate the alleged failed performance”; (4) he was reassigned as a result of his alleged failures; (5) the OER attacked his “fitness as an officer”; and (6) his rater “conspired” with his unit’s senior security officer to damage the applicant’s career by “suggest[ing] he was an Israeli government spy, homosexual, sexual pervert, and psychologically unstable.”

5.  The Court noted that the Government maintained that the contested OER was a mere adverse-impact OER.  The OER never stated that the applicant “failed in his “performance of duty”; it stated that he “has excellent potential for higher level staff and promotion,” albeit with supervision; and his rater marked him for “promot[ion] with contemporaries.”  Because the OER was merely adverse, the applicant was only entitled to normal final review by his SR and the notice-and-


comment procedures for referred reports.  Moreover, the applicant enjoyed an additional level of protection when he requested and the Army granted a commander’s inquiry, which ultimately uncovered no serious irregularities or errors.

6.  The Court noted that the applicant argued that the narrative portion of the OER effectuated his rater’s 18 January 1991 written counseling, warning the applicant to “cease and desist, and make amends” or be relieved for cause.  The applicant warned the Court not to be misled into believing he was reassigned because of a personality conflict with his commander – he was reassigned because he, according to his rater, failed to perform his duties.

7.  The Court noted that the Government directed the Court to paragraph 8 of
the discussion section of the ABCMR’s decision and argued that it indicated     the ABCMR “properly considered and interpreted, inter alia, Army Regulation 623-105, establishing the policies and procedures for the OER system.”  The Court’s comment concerning the cited paragraph was, “Such a blunderbuss approach is not the type of agency legal analysis to which a court defers.”  The Court noted that, as demonstrated by the Court’s exposition of the applicant’s argument, the argument that the contested OER should have been characterized as a relief-for-cause report did not appear frivolous.

8.  The Court noted that the Government insisted that because the Army did recognize the contested OER as adverse it afforded the applicant the same protections – formal counseling, review by a superior officer, and opportunity to comment – he would have received had it recognized the OER as a relief-for-cause.  The applicant, however, claimed that he was denied the protection of prior approval of the relief by a general officer.  The applicant further alleged that the contested OER was deficient by not providing for temporary suspension of duties, the identity of the official directing relief, and concurrence or nonconcurrence by the SR.  The ABCMR’s failure to address the consequences of the characterization of the OER rendered its decision arbitrary.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a United States Army Reserve (USAR) second lieutenant on 6 June 1969.  He entered extended active duty on              4 December 1969.  He was honorably released from active duty on 16 April 1973 and was transferred to the USAR Control Group (Reinforcement).  He was promoted to the rank of lieutenant colonel (LTC) on 3 June 1989 as a Military Intelligence officer.

2.  The applicant was ordered to active duty effective 22 October 1990 for         90 days (later extended to 180 days) and assigned to the U. S. Army Special Security Group, Fort Meade, MD, and attached to the U. S. Army Special Security Command at Forces Command (FORSCOM), Fort McPherson, GA, where he performed duties as the Deputy Commander.  

3.  Part IIIc, under principal duty title description, of the contested OER states:

	“As the Individual Mobilization Augmentee (IMA) assigned as Deputy Commander, Special Security Command (SSC) FORSCOM, during Operation Desert Shield/Storm.  Responsible for planning, directing, and supervising operations of the SSC, a battalion level command consisting of…Stations.  Activities include: directing daily operations of the security of SCI; administering SCI billet and access programs; coordinating SSO training; oversight of the FORSCOM SSO inspection program.  Advise the SSC Commander and HQ FORSCOM regarding Reserve Component SSO issues related to Reserve forces.”

4.  On 18 January 1991, the rater gave the applicant a counseling statement regarding conduct that was not in the best interest of order, sound judgment, and good discipline.  He ordered the applicant to cease and desist his behavior immediately.  He also informed the applicant that if his behavior continued, the rater would have no recourse but to terminate his active duty, deny him access to special intelligence, and relieve him for cause.

5.  On 4 March 1991, an informal investigation that had been directed by the SR was completed.  The investigation concluded that the applicant was not experienced in higher level staff work; that several of his actions were inappropriate and reflected negatively on the command; that he became defensive and attributed his rater's counseling to being motivated by professional jealously and ethnic/racial prejudice; that the rater was correct in questioning the applicant's competence and in not trusting him with important actions; that there was no evidence that the rater's counseling concerning the applicant's performance was based on anything other than professional experience and judgment; that the rater had made inappropriate remarks and jokes about the applicant's religious dietary habits (however, they had first been initiated by the applicant and not the rater and were stopped when the applicant brought it to the rater's attention); and that the applicant was not loyal to his commander (rater) and his actions were disruptive to the command.   


6.  The investigating officer also noted that the applicant may have stirred things up and violated the rater's trust and confidence by relaying the details of private conversations back to individual Soldiers.  The applicant also suggested to subordinates that he was better suited to command than was the rater.  The investigating officer also found that the rater had the trust and confidence of his subordinates and most of the subordinates were not aware of any prejudice on the part of the rater.  The investigating officer recommended that the rater be counseled concerning his remarks and that the applicant be reassigned or released from active duty.

7.  On 14 May 1991, the applicant's rater (an LTC) initiated a change of duty OER (the contested report) on the applicant, covering the period 22 October 1990 through 5 March 1991.

8.  In part IVa, under performance evaluation and professionalism, the applicant’s rater gave him a "3" rating under "Displays sound judgment."  In part IVb, under professional ethics, the rater stated that on three occasions the applicant displayed very poor judgment, which resulted in embarrassment to the command.  He also stated that he questioned the applicant's loyalty and integrity due to his actions and comments on at least three occasions.

9.  In part Vb, under performance and potential evaluation, the rater gave the applicant a "Usually Exceeded Requirements" rating and recommended that he be promoted with his contemporaries.  The rater's comments indicated that the applicant’s knowledge of computers and automated data processing was superb and that he was enthusiastic and aggressive.  However, his lack of military experience, tact, and people skills began to manifest itself shortly after his arrival. The rater further stated that in one instance the applicant’s tactless conversation caused the command extreme embarrassment; and on at least three occasions the applicant disclosed privileged information to Soldiers, seriously degrading the morale and esprit de corps of the Soldiers and the command.  These actions seriously affected his (the rater's) impression of the applicant’s loyalty and integrity and the applicant had issued uncoordinated guidance to subordinate elements that resulted in confusion and unnecessary disruption.  He was unable to heed the rater's counseling and guidance and improve his performance and, as a result, he was reassigned to another position.  

10.  In Part Ve, under comments on potential, the rater stated that future active duty (of the applicant) should be carefully coordinated and supervised at the O-6 level or above and that the applicant had excellent potential for higher level staff and promotion, given training and experience.

11.  The applicant’s next OER was for the period 5 March 1991 through 17 May 1991, during which he performed duties as a Senior Intelligence Staff Officer assigned to the Intelligence Operations Division, Plans and Exercise Branch, J2, FORSCOM.  On this OER, he received ratings of “Always Exceeded Requirements,” “Promote Ahead of Contemporaries,” and all comments were highly commendable.

12.  On 25 and 26 August 1991, an EO investigation was conducted into the issues and allegations made by the applicant.  The investigating official found no evidence of personal or institutional discrimination practices involving race or gender being practiced by the rater or another civilian; however, he did substantiate the allegations relating to the rater's negative comments concerning the applicant's dietary habits and the overall insensitivity of the rater’s verbal communication.  The investigating official opined that there was no doubt in his mind that a strong personality conflict and rivalry existed between the rater and the applicant and recommended that the commander (SR) consider that (conflict and rivalry) when completing the applicant's OER.

13.  On 8 October 1991, the SR placed the applicant in the third block of his SR profile, below center of mass.  The SR commented that the applicant, in his zeal to meet the numerous demands, clashed with the commander over operational procedures, management of assigned personnel, and basic command philosophy.  The commander and the applicant were unable to resolve their differences and the applicant was reassigned to a staff duty position.  The SR stated that the applicant was highly motivated and displayed high potential for assignment to positions requiring independent analysis and action.  He recommended that the applicant be promoted with his contemporaries.   

14.  The contested OER was considered adverse and was referred to the applicant for comment by the SR.  The applicant responded to the referred report to the effect that he had previously been rated by the same two officers and was rated outstanding in every respect.  The sole and only variables in the intervening period were his unwillingness or inability to tolerate his commander's anti-Semitic remarks and jokes, together with his rater’s overall insensitivity.  He went on to state that his disloyalty resulted in an official investigation which substantiated the commander's conduct and found that 20 percent of enlisted personnel believed that racial discrimination existed.  As a result, the commander received a written admonition concerning his remarks of an insensitive and inappropriate nature.  He further stated that the report was a reprisal and was illegal and violated the spirit of the regulation.  He requested that a commander's inquiry be conducted and that the period of the report be deemed non-rated.

15.  On 5 March 1992, a commander's inquiry was completed regarding the applicant's allegations that his OER ratings were the result of his (the applicant's) unwillingness or inability to tolerate his rater's anti-Semitic remarks, jokes, and overall insensitivity; that his rater's comments regarding "disloyalty" were the result of a substantiated finding by an official EO investigation which substantiated his allegations; and that the report was illegal because it was done in reprisal for his initiation of an EO complaint.  He further alleged that the rating officials were unqualified to rate him after the EO investigation substantiated his allegations.
 
16.  The investigating officer (a colonel) found that the applicant's allegations could not be substantiated and that the OER was administratively correct.  In a 16 March 1992 letter, the commanding general informed the applicant that a commander's inquiry revealed no error, violation of regulation, or wrongdoing regarding the contested OER.

17.  Army Regulation 623-105, in effect at the time, established the policies and procedures for the OER system.  It provided that an OER accepted for inclusion in the official record of an officer was 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.

18.  Army Regulation 623-105, paragraph 4-27 of the version in effect at the time, listed the types of OERs that would be referred to the rated officer by the SR for acknowledgment and comment before they were sent to Headquarters, Department of the Army (HQDA).  Types of OERs that would be referred included a relief-for-cause reports submitted under the provisions of paragraph    5-18 or any report with negative remarks about the rated officer’s professional ethics in Part IVb.

19.  Army Regulation 623-105, paragraph 5-18 of the version in effect at the time, stated a report was required when an officer was relieved for cause regardless of the rating period involved.  Relief for cause was 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 had failed in his or her performance of duty.  Paragraph 3-13 required that all relief reports be reviewed by the first U. S. Army officer in the chain of command who was senior to the individual directing the relief.

20.  Army Regulation 623-105, paragraph 3-14a stated that all reviewing officials would ensure that: (1)  the rating chains were correct; (2) the evaluations rendered by rating officials were examined and discrepancies were clarified or resolved; (3) all members of the rating chain complied with the regulation; (4) all evaluation reports were submitted on time to HQDA; (5) the communication process between the rater and rated officer had taken place as described in this regulation; and (6) the support form had been properly executed.

21.  Army Regulation 623-105, paragraph 3-14b also stated that, in addition to the above, reviewers of relief reports would: (1) ensure that the narrative portions of the OER contained factual information that fully explained and justified the reason for the relief; (2) verify that any derogatory information on the OER was correct; (3) ensure that the OER was prepared as prescribed by this regulation; (4) ensure that the OER had been returned to the rated officer for comment; and (5) review the relieved officer's referral comments if submitted.

22.  Army Regulation 623-105, paragraph 5-30 of the version in effect at the time, stated commanders were required to look into alleged errors, injustices, and illegalities in OERs.  The commander’s inquiry would be made by a commander in the chain of command above the designated rating officials involved in the allegations.  The procedures could be as formal or informal as the commander thought appropriate.  The commander could also appoint an officer, senior to the designated rating officials, to make the inquiry.  

23.  Army Regulation 600-20 (Army Command Policy), the version in effect at the time, stated action to relieve an officer from any command position would not be taken until after written approval by the first general officer in the chain of command of the officer being relieved was obtained.  If a relief for cause action was contemplated on the basis of an informal investigation under Army Regulation 15-6, the referral and comment procedures of that regulation must have been followed prior to the act of initiating or directing the relief.  That did not preclude a temporary suspension from assigned duties pending completion of the procedural safeguards contained in Army Regulation 15-6.




24.  Army Regulation 600-20 did not (and currently does not) define “command,” but both the version in effect at the time and the current version define “chain of command” as, “The sequence of commanders in an organization who have direct authority and primary responsibility for accomplishing the assigned unit mission while caring for personnel and property in their charge.”

DISCUSSION AND CONCLUSIONS:

1.  It is acknowledged that the regulation defines relief for cause as an early release of an officer from a specific duty, or assignment, directed by a superior authority and based upon a decision that the officer has failed in (his or her) performance of duty.  It is also noted that, on 18 January 1991, the rater gave the applicant a counseling statement regarding conduct that was not in the best interest of order or sound judgment and good discipline and informed the applicant that if his behavior continued he would have no recourse but to terminate the applicant’s active duty service and relieve him for cause.  

2.  It is also noted that the applicant argued to the Court, in part, that he was not “given a second chance to…rehabilitate the alleged failed performance.”  It is not rare for officers to be given a "second chance" by not being officially relieved of their duties in the hopes of their superiors that they will go on to a successful career in another, more suitable, duty position.  The change of duty that resulted in the contested OER gave the applicant that “second chance.”  The “second chance” appears to have succeeded in matching the applicant with a suitable duty position and rater, as his subsequent OER was highly commendable.

3.  Relief-for-cause actions should never be taken lightly, and there is simply insufficient evidence to show that the applicant’s rater believed that the applicant’s shortcomings as a deputy commander or as an officer in the U. S. Army were so irremediable that relieving him for cause would have been an appropriate course of action.  

4.  Even if the contested OER had been a relief-for-cause OER, the applicant erroneously believes that he could not have been relieved without the approval of a general officer.  

5.  Army Regulation 600-20 stated that action to relieve an officer from any command position would not be taken until after written approval by the first general officer in the chain of command of the officer being relieved was obtained.  Army Regulation 600-20 does not define “command,” but it defines “chain of command” as “The sequence of commanders in an organization who have direct authority and primary responsibility for accomplishing the assigned unit mission while caring for personnel and property in their charge.”
6.  The applicant was a deputy commander.  As the contested OER noted, he was responsible for planning, directing, and supervising operations of the SSC.  He advised the SSC commander regarding Reserve Component SSO issues related to Reserve forces.  He was not the commander, and he did not have direct authority for accomplishing the assigned mission of the unit.  The March 1991 informal investigation also indicated that the applicant suggested to subordinates that he was better suited to command than was the rater, indicating that the applicant knew he was not in a command position.

7.  In addition, a commander’s inquiry into the contested OER was conducted at the applicant’s request.  The investigating officer found that the applicant's allegations could not be substantiated and that the report was administratively correct and, in March 1992, the commanding general informed the applicant that the commander's inquiry revealed no error, violation of regulation or wrongdoing regarding the contested OER.  The applicant received the benefit of a general officer reviewing the contested OER.  That was not quite the same as having a general officer approve a relief-for-cause action; but, again, the applicant was not a commander and a general officer would not have been required to approve a relief for cause action on him.

8.  The applicant argued to the Court that the contested OER was deficient by not providing for temporary suspension of duties.  Army Regulation 600-20 provides that a commander may be temporarily suspended from assigned duties pending completion of the procedural safeguards contained in Army Regulation 15-6 and determination if a relief-for-cause action should proceed.  Again, the applicant was not a commander (and the informal investigations conducted in this case were not the result of an Army Regulation 15-6 action).  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX___  __XXX___  __XXX_  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.




      __           XXX____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080004550


11


DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET, 2ND FLOOR
ARLINGTON, VA  22202-4508