BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090003644 


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 that Officer Evaluation Reports (OERs) for the periods ending on 4 May 1989 and 6 August 1989 be removed from his Official Military Personnel File (OMPF).

2.  The applicant states that the OERs do not represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the rated periods.  He indicates that in 1989 he contacted the Army Inspector General (IG) and the Federal Bureau of Investigation (FBI) concerning his senior rater's (SR) possible criminal activity.  In 1990, after the denial of his first 1990 appeal the    U. S. Army Criminal Investigation Command (USACIDC, also known as CID) concluded its investigation into the allegations he had made against his SR and substantiated the allegations of fraud and larceny.  He claims his SR was forced to retire from the U.S. Army Reserve (USAR) in lieu of disciplinary action.  He also contends that in civilian court his SR was found guilty of seven felony offenses and that he was fired, fined, placed on felony probation, forced to surrender his Texas medical license, and subsequently went to prison for related offenses. 

3.  The applicant points out that sworn statements from a colonel and lieutenant colonel are significant in that they were written by key staff officers who were privy to the requirements and expectations of his responsibilities as the unit's Training Officer.  He claims these statements also show a pattern of retaliation by his SR in the form of issuing negative reports to persons who did not go 
along with his requests.  He states that he recently discovered "different sets" of the contested OERs which have significant discrepancies and apparent 
inconsistencies that show serious administrative deficiencies which were not prepared in compliance with applicable regulations and policy.  He points out that a memorandum, dated 12 October 1989, shows a suspense date of 26 October 1989, that he "did not" acknowledge receipt of the OERs, and that his SR signed the OERs before the suspense date.  However, memoranda, dated 23 and
24 October 1989, show he did sign and acknowledge the OERs before the suspense date of 26 October 1989.  He also states that although the OER shows he was "not available for signature" the memoranda clearly show he was available for signature.  He claims that based on the information available now it appears the OERs in his OMPF are not the OERs sent to him for acknowledgement along with the memorandum, dated 12 October 1989.  He claims that his command and SR denied ever having received the memoranda dated 23 and 24 October 1989.

4.  The applicant contends the contested OERs are not the result of substandard performance on his part and there exists no documented records of counseling supporting the negative OERs.  He points out on the other hand, documents such as the Yearly Training Plans (YTP) for 1989/1990 and 1990/1991 clearly support the fact that he was doing his job well during the adverse rating periods.  He claims the Training Section had not passed a Command Readiness Inspection in the previous four years, but in 1989 his Training Section passed the inspection.      

5.  The applicant further states that his SR, whom he identified as a bad officer, is now associated with a history of serious criminal activities in and out of uniform and that his criminal activities sacrificed his integrity, honesty, and character.  He claims his SR's criminal activity should give doubts as to his ability to fairly evaluate subordinates and as to the credibility of the OERs as valid documents.

6.  The applicant provides a letter, dated 8 January 2009, from a Member of Congress; the first page of a CID Report of Investigation, dated 21 December 1990; copies of newspaper articles showing his SR's arrest and conviction;  two sworn statements; copies of the OERs in question; and memoranda, dated
12 October 1989, 23 October 1989, 24 October 1989, 8 March 1989, 31 March 1989, and 2 August 1989 in support of his application.
 
CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 
3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 14 December 1982, the applicant was appointed a U.S. Army Reserve (USAR) commissioned officer, Medical Service Corps, in the rank of first lieutenant.  On 19 December 1986, he was promoted to captain.  On 5 May 1987, the applicant was ordered to active duty in the Active Guard Reserve (AGR) Program for a period of 3 years and was assigned to the 829th Station Hospital, Lubbock, Texas.  

3.  On 3 January 1989, the applicant received a General Officer Memorandum of Reprimand (GOMOR) from the Commanding General (CG), Fifth United States Army (FUSA), Fort Sam Houston, Texas, a lieutenant general.  The CG reprimanded the applicant for refusing to take a lawfully requested chemical test for blood alcohol content on 4 September 1988.  The applicant acknowledged receipt of the GOMOR and his counsel submitted a rebuttal statement on the applicant's behalf.  After the applicant was found not guilty of DWI in a civilian court, the CG, FUSA, after reviewing all matters submitted in appeal, decided to direct that the GOMOR be filed in the applicant's OMPF.  The Department of the Army Suitability Evaluation Board (DASEB), after considering all the evidence submitted by the applicant, which included his not guilty finding, denied his petition to remove the GOMOR from his OMPF.  The DASEB opined that the applicant had a poor record and showed no remorse.  

4.  In February 1989, a DA Form 268 (Report to Suspend Favorable Personnel Actions (Flag)) action was initiated on the applicant subsequent to allegations of rape.  The allegations and evidence were presented to the Lubbock Grand Jury and the case was "no billed" and did not go to trial.  The concurrent Army investigation found that fraternization did not occur between the applicant and a female Soldier and that he had associated with her and others in a bar one Saturday evening after a training assembly.  Later, the female Soldier called him and he visited her apartment.  While this may have been inappropriate conduct, it was not unlawful.  The flag action was subsequently removed.  

5.  The first contested OER is a 12-month annual OER covering the period 5 May 1988 through 4 May 1989.
 

6.  The second contested OER is a 3-month change of duty OER covering the period 5 May 1989 through 6 August 1989.   

7.  The OERs were referred to the applicant for acknowledgement and comment.  The applicant submitted a statement alleging command influence and requested a commander's inquiry (CI).  The investigating officer recommended that the first OER be reconsidered, but found that the version of the second OER was accurate and without command influence.  In a statement provided by the rater, he stated that he was ordered to rewrite the first OER and was afraid that he would be eliminated from the service if he did not comply with the directions given by the SR to write an adverse OER, and in the end revised both OERs upward.  

8.  The applicant appealed the contested OERs to the Officer Special Review Board (OSRB).  The applicant's appeal was based on his contentions that the OERs in question were substantively inaccurate, illegal, incorrect, unjust and untrue, and that they violated regulatory counseling requirements.  The applicant asserted that the SR forced the rater to prepare adverse evaluations and that the OERs were revenge for his having reported the SR to the FBI, CID, and IG for wrongdoing while he was the commander of the 829th Station Hospital.  

9.  The OSRB, after extensively reviewing all the evidence, which included a CI with multiple statements from the rater, determined that what the CI ended up with was a rater who considered the applicant unsuitable for his job, but wrote a good OER anyway, apparently thinking it might preclude himself from being eliminated from the AGR program.  He then rewrote the report to be very adverse when prompted to do so by direct and indirect influence from the SR and he wrote a second adverse OER, but characterized it as being without command influence.  He finally reversed both OERs upward in rating because his own report had not yet been written.  In the opinion of the OSRB, the rater's problem was not so much command influence as self interest and the usual attendant lack of moral courage.

10.  The OSRB considered particularly significant the absence of anything in the rater's statements to the effect that the final versions of the two contested OERs were inaccurate evaluations.  The CI indicated that the overriding factor in all of the interviews conducted was the fact that the applicant was not qualified.  The OSRB finally concluded that the applicant failed to provide clear and convincing evidence to support his contentions that the contested OERs in their final form were inaccurate or unjust, and it finally denied the applicant's appeal.  


11.  On 4 August 1989, the applicant's Acting Commander, Headquarters, Fort Sam Houston, not the SR, notified the applicant that he intended to recommend the applicant be involuntarily released from active duty because of misconduct and substandard performance of duty.  In the removal notification, in addition to citing rater and SR comments in the contested OERs, the Acting Commander cited six other specific incidents of the applicant's failure in the performance of duties to support the substandard duty performance basis for the removal action.  The Acting Commander also cited two specific acts of misconduct, which were the garnishment of the applicant's pay based on his failure to pay child support and the incident for which he received the GOMOR on 3 January 1989.  

12.  On 6 September 1989, the applicant contacted the IG and requested an inquiry into alleged improprieties by the SR.  He was informed on 4 April 1990 that those allegations which came under the purview of the IG could not be substantiated and the remaining allegations were referred to the CID for investigation.  The CID investigation found that of all of the allegations, only one was substantiated.  The SR retired from AGR duty on 31 August 1990.  The U.S. Attorney's office for the Northern District of Texas declined to prosecute the SR.

13.  On 6 March 1990, the Director of the Full Time Support Management Center, Office of the Chief, Army Reserve, notified the applicant that the Chief, Army Reserve, had approved the results of the 17 January 1990 USAR AGR Continuation Board, which after examining the applicant's entire record on an impartial basis, did not recommend the applicant's continuation in the USAR AGR program, and directed the applicant's release from active duty on 9 June 1990.  

14.  A review of the applicant's OER history revealed that none of his SRs had ever evaluated his potential above center of mass.

15.  In support of his claim, the applicant provided the first page of a CID investigation wherein his SR was investigated for allegations of illegal compensation in a matter affecting the Government and acts affecting a personal financial interest incurred during the period 1 July 1988 to 30 November 1989.  He provided several newspaper articles on his SR's arrest and convictions.  

16.  The applicant also provided a statement, dated 22 January 2008, from a retired colonel who was a staff member of the 829th Station Hospital during the period 1988 to 1990.  He contends that his primary area of responsibility was the Supply and Services Section, that in addition to those duties he was responsible for the evaluation and rating of several officers and enlisted personnel assigned to the unit, and that during that period he performed as Acting (Interim) Executive 
Officer for the Army Hospital unit.  He attests that at the direction of the applicant's SR he was ordered to change the applicant's OER and he declined.  He points out that the applicant implemented the Training Management System that was in effect at that time and that as a unit utilizing the Reserve leadership chain they were able to improve the status of their training section.  He states that he assisted and observed the applicant's hard work, that he also worked with the applicant on several training related projects, and that the applicant was able to get the assistance and support of their higher headquarters and the unit began receiving positive results in the applicant's area of responsibility.  He concluded that in his opinion the contested OERs are not reflective of the applicant's performance.  The applicant also provided two statements from his rater at the time in question describing the command climate under which he worked for the applicant's SR. 

17.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an OER will be filed in the performance section of the OMPF.

18.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, stated that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant would produce evidence that established clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 would not be applied to the report under consideration and (2) action was warranted to correct a material error, inaccuracy, or injustice.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and allegations raised in regard to his SR were carefully considered.  However, evidence of record shows the IG considered allegations made by the applicant against his SR and could not substantiate any of those within its purview.  The IG referred the allegations that were not within its purview to the CID and the CID substantiated just one allegation and referred it to civil authorities, who refused to prosecute the SR.


2.  The evidence of record supports the applicant's contention that there are "different sets" of the contested OERs.  Evidence of record shows that although the rater re-wrote the contested OERs, in both instances he revised the ratings upward.  

3.  Even though it appears the SR's work ethics were flawed, that does not necessarily imply that his evaluation of the applicant's future potential was defective.  The OSRB considered particularly significant the absence of anything in the rater's statements to the effect that the final versions of the two contested OERs were inaccurate evaluations.  The OSRB also determined that the contested OERs appeared to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the periods in question.

4.  The contested OERs were prepared by the properly designated rating officials and are properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that it was improperly prepared or filed.  Therefore, there is an insufficient basis for granting the applicant’s requested relief. 

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)                                         AR20090003644



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ABCMR Record of Proceedings (cont)                                         AR20090003644



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