IN THE CASE OF:	  

		BOARD DATE:	  29 January 2009

		DOCKET NUMBER:  AR20080017570 


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, that the Officer Evaluation Report (OER) he received for the period 15 June 2002 through 1 June 2003 be removed from his Official Military Personnel File (OMPF), and that his record be submitted to a grade determination board to determine whether or not he should be promoted to colonel (COL).

2.  The applicant states, in effect, he believes the senior rater (SR), a major general (MG), on the report in question abused his position and authority by intentionally writing an OER that was not appealable and that would have a lasting negative impact on his career, as evidenced by his non-selection for battalion command, senior service college, and now promotion to colonel.  He claims the SR's actions were in direct response to his initiating an Inspector General (IG) complaint against his rater, a colonel, who was the Chief of Staff of the organization.  He claims the SR's actions violated his protections outlined in Department of Defense (DOD) Directive (DODD) 7050.6.4.4, and that the SR refused to meet with him to discuss the OER, which was in violation of the Army evaluations regulation.  The applicant states that he refrained from filing an appeal of the report to date because he felt that through continued hard work, he would be promoted regardless of this one OER.  However, he now realizes that this is not the case and he feels he has no other option other than to seek assistance with this injustice.

3.  The applicant provides the 11 exhibits (B-L) identified in the Table of Contents included with his application packet in support of request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's record shows he was appointed a Reserve commissioned officer in the rank of second lieutenant on 1 June 1986.  His promotion record shows he was promoted to first lieutenant on 1 May 1988, to captain on 1 May 1991, to major on 1 March 1998, and to lieutenant colonel (LTC) on 1 December 2003.  It also shows that as of the date of his application to the Board, he remained serving on active duty as an LTC in the Regular Army (RA).

2.  The applicant's OER history as an LTC includes a total of five reports, which includes the contested OER.  On two of these five reports, the applicant was in the center of mass (COM) of the SR profile, this included the report in question and another report on which the SR was a different MG.  On the remaining three reports, the applicant was above center of mass (ACOM) in the SR profile.  On two of these reports the SR was the same brigadier general and on the other the SR was an MG.  Of the three reports senior rated by an MG, the applicant was in the COM on two and ACOM on one.

3.  The contested OER is a change of rater report that covered the period from 15 June 2002 through 1 June 2003 and evaluated the applicant as the Assistant Chief of Staff, G1, of the United States Army Civil Affairs and Psychological Operations Command at Fort Bragg.  The rater, a COL, placed the applicant in the block for Outstanding Performance-Must Promote in Part V (Performance and Potential Evaluation) and provided favorable comments, which included a recommendation for promotion.

4.  In Part VIIa (Senior Rater-Promotion Potential to Next Higher Grade) of the contested report, the SR, an MG, placed the applicant in the block for Best Qualified and provided favorable comments in Part VIIc, which included a recommendation for promotion.  The OER in question was the first the applicant received as an LTC and was a COM report based on the SR's profile.

5.  On 11 August 2003, the applicant submitted an IG general action request (DA Form 1559-R) in which he alleged his rater had treated him differently than his fellow staff officers.  He claims the rater did not give him an equal opportunity to successfully accomplish his duties as a principal staff officer.  On 11 September 2003 he submitted a formal complaint to the IG against the SR alleging the SR discriminated against him.

6.  On 17 November 2004, the IG notified the applicant that after conducting a thorough inquiry into his complaint against his rater, his allegations were not substantiated.

7.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and procedures pertaining to the evaluation reporting system.  It also provides guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-39 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 a rated Soldier 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.  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.

8.  Chapter 6 of the same regulation contains the policies and procedures pertaining to managing the evaluation redress program.  Paragraph 6-7 restates the policy on reports accepted for filing by HQDA that is outlined in 
paragraph 3-39 and Section III contains guidance on evaluation appeals.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It stipulates that the burden of proof rests with the appellant.  Accordingly, in order 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 paragraph 3-39 and paragraph 6-7 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.

9.  Title 10 of the United States Code, section 1034 (10 USC 1034), provides the governing law on Military Whistleblower Protection and contains guidance for correction of records by a board of correction of military records acting under Section 1552 of Title 10 in resolving an application made by a member or former member of the Armed Forces who has alleged a personnel action prohibited as a result of a protected communication.  It states, in pertinent part, that in resolving such an application, a correction board shall review the report of the IG.

10.  DODD 7050.6, dated 20 November 1989, which was reissued on 3 September 1992, covered the Military Whistleblower Protection provisions of 10 USC 1034.  It states, in pertinent part, that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the OER in question should be removed from his OMPF, that his record should be referred to a grade determination board to determine whether or not he should be promoted to COL, and his allegation of reprisal under DODD 7050.6 were carefully considered.  However, there is insufficient evidence to support these claims. 

2.  The evidence of record shows the report in question was a favorable COM report and contained recommendations that the applicant be promoted at the first opportunity by both his rater and SR.  The report is not adverse and there is no reason to believe that the evaluation represents anything other than the considered opinions and objective judgment of the rating officials at the time.

3.  Further, given the report in question is not adverse and based on the applicant's failure to provide clear and compelling evidence to support a conclusion that it was in error or unjust, there is an insufficient evidentiary basis to support its removal from the OMPF or to support the applicant's consideration for promotion to COL by either a grade determination board or special selection board.

4.  The evidence of record also confirms that the applicant's allegations against his rater were not substantiated by the IG.  There is also no response to the IG complaint he lodged against his SR on file in his record and he has failed to provide the IG response.  Therefore, absent a substantiated finding of reprisal through IG investigative channels identified in the governing law and policy, there is also an insufficient evidentiary basis to support a conclusion of reprisal under the Whistleblower Protection Act.


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)                                         AR20080017570



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ABCMR Record of Proceedings (cont)                                         AR20080017570



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