IN THE CASE OF:	  

		BOARD DATE: 	       25 June 2009

		DOCKET NUMBER:  AR20080016454 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the Officer Evaluation Report (OER) for the period 20031201-20040622 [hereafter referred to the contested report]; removal of nonreferral documents for the 2005 and 2006 unit vacancy boards; removal of nonselect documentation for the 2007 and 2008 Department of the Army Mandatory Promotion Board for Major; promotion consideration with a date of rank as if promoted by the 27 September 2005 United States Army Reserve Component Unit Vacancy Board; and a letter of nonrated time for the period 20031201-20041127.

2.  The applicant states, in effect, that the contested report was motivated by vindictiveness, prejudice, and unlawful command influence.  The applicant argues that a Commander's Inquiry found that the raters were "pressured" into writing the referred OER and that the report contained a number of administrative errors and substantive regulatory violations.  The applicant further argued that the Officer Special Review Board (OSRB) ignored clear and convincing evidence of wrongdoing and relied entirely on the raters' self-serving statements unsupported by evidence.

3.  The applicant provides a list of 44 exhibits in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show the contested report was a change of rater report for 7 months of rated time while he was serving in the position of International Law Officer.  The contested report shows that the rating officials signed the report on 1 July 2004 and that the applicant refused to sign the report. (The version of the contested report reviewed in this case is the "corrected version" after amendments directed by the OSRB were implemented).  The senior rater's (SR's) organization was indicated as the 415th Civil Affairs Battalion.

2.  Part IIIc (Significant Duties and Responsibilities) contains the entry:
      
      "International law officer in a civil affairs battalion assigned to the 1st Infantry Division in Iraq.  Responsible for providing technical expertise, staff advice and planning assistance to the support command.  Conducts assessments of government resources and systems and determines how these may impact civil-military operations.  Coordinates with administrators and representatives from the Coalition Provisional Authority to support the commander's objectives.  Identifies legal systems, agencies, services, personnel, resources, and laws to determine the effectiveness of legal systems and their impact on civil-military operations."
      
3.  Part IVb (Leader Attributes/Skills/Actions) of the contested report shows that an "X" was placed in each of the "Yes" blocks and that an "X" was placed in the "Interpersonal, Emotional, Technical, Motivating, Assessing, and Learning " blocks. 

4.  Part V (Performance and Potential Evaluation) of the contested report shows the rater placed his "X" in the "Unsatisfactory Performance" block.  In Part Vb (Comment on Specific Aspects of Performance), the rater noted that the applicant was an intellectually gifted officer who possesses a good understanding of government processes which made him a useful asset to the battalion.  The rater further noted that the applicant required some assistance and at times repeated guidance and was eventually removed from an assigned project.   The rater stated that the applicant possesses a disposition to act independently of the chain of command and should not be advanced.  The rater concluded his rating by stating that the applicant was flagged for not being in compliance with the standards of "AR 600-9" and that the applicant was unable to take the Arm Physical Fitness Test (APFT) during the rating period because of his deployment for combat/contingency operations.

5.  Part Vc (Identify any Unique Professional Skills) of the contested report contains no entry. 

6.  Part VII (Senior Rater) of the contested report shows that the SR placed an "X" in the "Do Not Promote" block.  

7.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) of the contested report shows that the applicant was rated in the "Below Center of Mass Do Not Retain" block.

8.  Part VIIc (Comment on Performance/Potential) of the contested report shows the SR noted that the applicant's performance was less than satisfactory.  The SR continued that "Given two high profile tasks, he needed constant supervision and the planning and execution of the division NGO conference would not have been done if it had been left to the applicant.  The SR further stated that the applicant ignored orders to coordinate the effort and was subsequently relieved of his duties and given a letter of reprimand.  The SR also stated that the applicant had difficulty distinguishing the duties of legal assistance to unit Soldiers and providing legal assistance to the command, attempting both simultaneously, clearly stepping outside his assigned duties.  The SR concluded his evaluation by stating, "Given his inability to follow orders and the requirement for constant supervision, do not retain in the United States Army."

9.  Part VIId (List 3 Future Assignments for which this Officer is Best Suited) of the contested report shows the entry "International Law Officer, Battalion Staff Judge Advocate, Civil Affairs Team Legal Officer."

10.  The contested report was referred to the applicant on 22 August 2004 and the applicant did not provide rebuttal comments.  The referral memorandum contained a suspense date of "S:  23 August 2004."

11.  Records show that, on 28 August 2004, the applicant requested a Commander's Inquiry of the contested report and that his request was not processed in a timely manner.  

12.  Evidence further shows that the applicant filed an Inspector General (IG) complaint on 17 June 2005 in which he argued that the Commander failed to complete his inquiry within a timely manner as required by regulation.  The applicant argued that the failure to complete the inquiry in a timely manner caused him not to be selected for a unit vacancy promotion.

13.  On 15 August 2005, the applicant was notified that his complaint was not appropriate for an IG inquiry because he had other means of redress which must be utilized first. His IG complaint was closed without action.

14.  A memorandum, dated 5 November 2005, shows that the applicant failed to respond to the referred contested report by the suspense date of 4 November 2004.

15.  The applicant's records contain a 28 January 2007 memorandum from the Headquarters, 308th Civil Affairs Brigade, which provides the findings of the Commander's Inquiry of the contested report.  (The request was submitted as an Army Regulation 15-6 Investigation but was treated as a request for Commander's Inquiry.)  The Commander found that the applicant was not given the appropriate amount of time to respond to the contested report and that the applicant was denied due process when he submitted numerous requests for a Commander's Inquiry.  The Commander further stated that the applicant requested a Commander's Inquiry in August and December 2004 and in April 2005 and that to date, the inquiry had not been completed.  The inquiry further shows that there was no support form asked for or provided by the applicant to the rating officials.  The report further determined the rater on the contested report was the executive officer of the 415th Civil Affairs Battalion during the mobilization period but was not interacting daily with the applicant.  The report continued that the Headquarters and Headquarters Company Commander was listed on the original rating scheme as the rater.  The Commander that performed the inquiry recommended that the contested report be removed from the applicant's records and that an appropriate nonrated statement be placed in his records.

16.  The applicant's records contain a legal review of the Army Regulation 15-6 Investigation [Commander's Inquiry] which stated that the investigation complies with applicable legal requirements, any errors in the investigation were harmless, there was sufficient evidence to support the findings, and that the investigating officer's recommendations were consistent with his findings.

17.  On 10 July 2007, the OSRB considered the applicant's request for removal of the contested report.  The OSRB, by majority vote, approved partial relief for the contested report.  Specifically, the OSRB made administrative changes to Part IId, Part VIIa, and Part VIIc of the contested report.  The OSRB also determined in a separate but related matter that the applicant's subsequent OER for the period 20040623-20050622 should be amended to show 7 months of rated time instead of 12 months of rated time.

18.  The OSRB determined that the changes made to the applicant's OERs were administrative in nature and as a result, did not warrant promotion reconsideration.  The corrections directed have been made to the contested report and the corrected version is the one discussed within these Proceedings.

19.  The OSRB directly addressed the applicant's contention that the contested report contained an inaccurate rating chain and determined that based on the rating scheme provided and interviews with the rating officials that the rating officials on the contested report were correct as constituted.

20.  The OSRB also addressed the failure of timely completion of the applicant's request for a Commander's Inquiry and determined that, although the applicant submitted his request for a Commander's Inquiry on 28 August 2004 and 7 December 2004, the applicant failed to submit his request to the proper chain of command and also failed to provide a copy of the contested report with his request.  The OSRB further noted that the command initiated an inquiry in late 2006 but the findings and recommendations were never completed.

21.  Additionally, the OSRB determined that the contested report was properly referred to the applicant.  The OSRB specifically addressed the issue of the one-day suspense provided to the applicant by noting that he could have responded by requesting an extension and that he took no action.  The OSRB noted that the applicant was provided the contested report on 1 July 2004 without the proper referral memorandum with a one-day suspense and was again provided the contested report with the proper referral memorandum on 22 August 2004.  The applicant did not provide rebuttal comments on either occasion.  The OSRB further determined that the applicant's failure to take action or respond to the referred OER did not mean that the OER was not properly referred.  

22.  The applicant argues that the OSRB's decision to void only portions of the contested report, as opposed to the entire report for the rating period, was a material legal error and unjust because it was arbitrary, capricious, unsupported by substantial evidence, and contrary to law.

23.  The applicant further argues that the OSRB's decision to ignore the findings of the Commander's Inquiry was a plain legal error.  The applicant contends that the OSRB not only ignored the directive, it did the exact opposite.  The applicant suggests that because the OSRB's findings made no specific reference to the Commander's Inquiry that the OSRB purposely chose to ignore the findings. 

24.  The applicant further argues that his due process rights were violated because his request for a Commander's Inquiry was not conducted in a timely manner and that it took over two years for the completion of the Commander's Inquiry.

25.  The applicant further contends that the OSRB acted arbitrarily, capriciously, and incredulously when it chose not to rely on third party statements during the review of his appeal.  The applicant also contends that the OSRB applied the wrong standard of review and that the evidence provided by him is of sufficient quality and quantity to demand removal of the contested report.


26.  The applicant essentially provided numerous additional arguments to bolster his claim that the OSRB did not properly process his appeal of the contested report including presumption of regularity should not apply, the rater listed was not the applicant's supervisor, the rater misrepresented the APFT data in part IVc, the rater misrepresented the height and weight in part IVc, the one-day suspense for providing referral comments was unreasonable, the referral memorandum was patently false, presumption of regularity should not apply because the contested report suffers from numerous substantive irregularities, the contested report does not rate his primary duty as Judge Advocate, the raters refer to unproven derogatory information, the contested report refers to conduct outside of the rating period, the rating officials failed to comply with the procedures for support forms, rating officials failed to counsel him, and the OSRB illegally changed the subsequent OER.

27.  The applicant submitted a 2-page statement of support for his contested report appeal.  The statement was prepared by a retired Civil Affairs major.  The statement essentially stated that during the period December 2003 through November 2004 the author served as the Headquarters and Headquarters Company Commander for the 415th Civil Affairs Battalion in Iraq.  The author provided positive comments regarding the applicant's overall work and described the applicant as flexible, problem solver, hard worker, dedicated, and professional.  The author continued that he was not the applicant's rater and was not a witness to the discussions, decisions, and other occurrences between the rater and the applicant during the period of the contested report but that he could attest to the planning, hard work, dedication and professionalism of the applicant.

28.  The applicant provided a 25 July 2005 memorandum for the U. S. Army Human Resources Command (HRC) which notified officers identified for consideration by the 2005 U. S. Army Reserve Position Vacancy Board (PVB) for Troop Unit Position.  This memorandum provided instructions and guidance regarding the PVB.  Specific individual names are not shown on the memorandum.

29.  The applicant provided a U. S. Army Reserve (USAR) Unit Vacancy Promotion recommendation, dated 6 April 2005, which shows that the applicant was recommended for promotion to major and that this form was authenticated by his commander.

30.  The applicant provided a 14 April 2005 letter from a LTC C*****l who stated that he could not endorse the applicant's unit vacancy promotion based on the fact that his records contain a referred OER with a "do not promote" substantiated by two officers, rater and SR.

31.  The applicant provided a second letter, dated 23 December 2005, from HRC for the March 2006 PVB consideration.  The applicant also provided a third letter, dated 8 May 2006, from HRC which provided guidance for the September 2006 PVB.

32.  The applicant provided a letter from HRC, dated 5 June 2007, which informed him that he was not selected for promotion by the DA Reserve Components Mandatory Selection Board.  

33.  Paragraph 3-2g and 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.  

34.  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 states that an evaluation report accepted by 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, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

35.  Paragraph 6-10 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's contention that the contested report should be removed from his records and replaced by a letter of nonrated time was carefully considered.

2.  Evidence clearly shows that the applicant's request for a Commander's Inquiry was not handled in accordance with applicable regulation.  However, the absence of a timely Commanders' Inquiry does not change his manner of performance or mitigate the fact that the rating officials provided a less than favorable rating of the applicant in the contested report.  Although the Commander's Inquiry recommended that the contested report be removed based on the fact that it was not processed in a timely manner, the findings did not show that the rating officials provided an inaccurate or unfair assessment of the applicant.  

3.  The applicant's contention regarding the referral of the contested report was also carefully considered.  The applicant was provided the contested report on two occasions and was given the opportunity to provide rebuttal comments which he elected not to provide.  

4.  The applicant has not provided any evidence which shows that the contested report did not show the considered opinions and objective judgment of the rating officials at the time of preparation.  

5.  The applicant's contention that his rating chain was incorrect was not supported by the evidence in this case.  Evidence shows while the Commander's Inquiry determined that the Headquarters and Headquarters Company Commander for the 415th Civil Affairs Battalion was listed on the original rating scheme as the applicant's rater, that Commander stated in his letter of support that he was not the applicant's rater.  Additionally, the evidence shows that the rating scheme provided to the OSRB is the same rating chain as that shown on the contested report 

6.  Absent evidence to show that the actual ratings provided on the contested report were flawed, in error, or factually incorrect there is no basis to grant the relief requested nor is there a basis to provide a letter of nonrated period as requested.

7.  There is no evidence and the applicant has not provided sufficient evidence which shows that the nonreferral documents for the 2005 and 2006 unit vacancy boards were inaccurate or unjust.  Absent such evidence there is no basis to remove these documents from his record.

8.  There is no evidence in the available records and the applicant has not provided sufficient evidence showing that the nonselect documentation for the 2007 and 2008 Department of the Army Mandatory Promotion Board for Major was inaccurate.  The applicant was not among those officers selected for promotion to major and therefore, the nonselection documentation is correct as currently constituted.

9.  The applicant also requested promotion consideration with a date of rank as if promoted by the 27 September 2005 USAR Component Unit Vacancy Board.  There is no basis to grant this relief.  The contested report contained administrative errors which were corrected by the OSRB, but these changes did not warrant promotion reconsideration due to the nature of the changes.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X__  ___X____  ___X____  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.




      _______ _   _X______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080016454



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016454



9


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1