DOCKET NUMBER:  AR20090004607 


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 his Officer Evaluation Report (OER) for the period covering 30 September 2000 to 2 July 2001 be expunged from his military records.

2.  The applicant states that this OER was in retaliation for his truthful responses to his battalion commander on the unit's readiness and safety.

3.  The applicant provides his counsel's brief in support of application for redress.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the applicant's undeserved OER.

2.  Counsel states that with the applicant's consistent pattern of excellence and outstanding accomplishments, the contested OER is out of character with his record.  Counsel alleges that the applicant's rater was incompetent and used the applicant as a scapegoat to cover his own defects and deficiencies.  Counsel charges that the OER was the applicant's rater's retaliation for the applicant's honest response to the battalion commander.

3.  Counsel summarizes that the applicant did not display a negative attitude, hostility and disloyalty; he did not threaten to sabotage the inspection effort; he did not selfishly focus on his permanent change of station (PCS); and he was not disloyal to his chain of command.  Counsel provides reasons for each response.

4.  Counsel provides six attachments which he lists in his brief to the Board.  Included in those documents are:

   a.  a letter of endorsement for the applicant's OER appeal submitted by a brigadier general.  The general states that he was in the applicant's chain of command when the contested OER was submitted, and that it is his opinion that the applicant's superiors were unfair to the applicant.  The general explains that the applicant's battalion commander (senior rater) expressed grave concerns to him about the applicant's unit being prepared for an exercise during their annual training period.  Due to personality conflicts within this chain of command, communications were not very effective which resulted in the general allowing the battalion commander to relieve the applicant.  The general concludes that the applicant was being truthful in reporting the readiness of his unit at the time and should not have been penalized for the leadership failures of his superiors.
   
   b.  the contested OER which covered the period 30 September 2000 to 2 July 2001.  In that report, his rater ranked the applicant's performance and potential as unsatisfactory, do not promote, and stated that while the applicant was "both tactically and technically proficient, his lack of positive attitude towards mission accomplishment hinders his efforts . . . While to his credit, his efforts were beneficial, he left many assigned task (sic) not completed.  He was dismissive of 
pre-AT [annual training] taskings which I had given him and was instead focused on his and his wife's upcoming PCS [permanent change of station].  I repeatedly had to follow up on taskings or take them on myself in order to ensure success.  [The applicant's] preparation for annual training seemed to focus on failure.  Although he stated that the unit was not ready for AT, he still planned on taking 
9 days of leave just prior to deployment to the exercise.  His negative attitude, hostility, and his sowing of an undercurrent of discontent, undermining the good order and discipline within the organization (sic).  In addition, his attitude and comments to others were both disloyal to myself and the unit."  The applicant's senior rater ranked the applicant as do not promote and stated "I directed [the applicant's] relief for cause for the following reasons:  not completing assigned duties required to prepare for the unit for AT; attempting to not take part in AT and hiding that until shortly before AT; threatening to sabotage the unit's success at AT by threatening to cancel the USAF [U.S. Air Force] transport; and making comments to me that were disloyal to his Company Commander.  [The applicant] also displays a negative attitude in virtually everything he does with the unit and kept displaying it despite counseling with me.  His willful neglect to complete assigned duties, negative attitude, and disloyal characteristics make him unsuitable for increased responsibilities or assignments."  His senior rater placed the applicant below center of mass in his senior rater profile.
   
   c.  a memorandum from the applicant to his battalion commander dated 27 October 2001 requesting that he retain the right to a commander's inquiry and an OER appeal on the contested report.  In his memorandum the applicant made essentially the same contentions that he has made to the Board.
   
   d.  his OER support form.
   
   e.  an e-mail between him and his battalion commander.
   
   f.  a memorandum for record detailing his conversation with the battalion commander.
   
   g.  copies of his performance and commendation portions of his Official Military Personnel File.
   
   h.  ten letters or memoranda supporting the applicant's appeal.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show that he entered active duty as a Reserve officer on 9 June 1989 with 4 years, 11 months, and 22 days prior active service and 3 years, 7 months, and 20 days of prior inactive service.

2.  He was honorably released from active duty in the rank of captain on 26 February 2000.

3.  On 28 September 2001, the applicant was ordered to active duty as a captain in an Active Guard Reserve (AGR) status.

4.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, paragraph:

   a.  1–15, Commander’s Inquiry, states that when it is brought to the attention of a commander that a report rendered by one of his or her subordinates or by a member of one of his or her subordinate commands may be illegal, unjust, or otherwise in violation of this regulation, he or she will look into the matter.  The commander will confine his or her inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with this regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have the authority to direct that an evaluation be changed; he or she may not use command influence to alter the honest evaluation of an officer by a rating official.  However, he or she may provide results of commander’s inquiry to the rating chain.
   b.  6–6, Policies, states that an evaluation report accepted for inclusion in the official record of an officer is presumed to:

   (1) Be administratively correct,

   (2) Have been prepared by the proper rating officials, and

   (3) Represent the considered opinion and objective judgment of rating officials at the time of preparation. 

   c.  6–7, Timeliness, which states that because evaluation reports are used for personnel management decisions, it is important to the Army and the individual officer that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals must be submitted within 5 years of the OER’s completion date on all reports prepared prior to 1 October 1997.  All appeals on reports prepared on the DA Form 67-9 must be submitted within 3 years of the completion date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

   d.  6–10, Burden of Proof and Type of Evidence, states that the burden of proof rests with the appellant.  Accordingly, 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 paragraphs 3-57 and 6-6 should not be applied to the report under consideration and 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.  If the adjudication authority is convinced that an appellant is correct in some or all of his/her assertions, the clear and convincing standard has been met with regard to those assertions.
   
   e.  F-2 of Appendix F states that claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  That practice is referred to as retrospective thinking, or second thoughts, which is prompted by unfavorable personnel actions being taken on the rated officer as a result of the rating.
   
   f.  3–24, Each Report Must Stand Alone, states that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.
DISCUSSION AND CONCLUSIONS:

1.  While the applicant certainly has a record of excellent accomplishments, since an OER stands alone the applicant's accomplishments before and after the contested report are not germane to this case.

2.  The issue to be decided by the Board is whether the assessment by the applicant's rater and senior rater were their considered opinion at the time the OER was prepared.  In this regard, the applicant's rater, his company commander, essentially stated that the applicant did not accomplish the tasks he gave him to prepare the unit for annual training.  The fact that the applicant planned on taking 9 days leave prior to the unit's AT after he stated that the unit was not ready for AT was used as verification of his lack of concern about the unit's readiness for AT.  The applicant's battalion commander stated that he had counseled the applicant about his negative attitude in virtually everything he did with the unit.  The battalion commander also cites the applicant for "his willful neglect to complete assigned duties."

3.  This shows that both the applicant's commander and battalion commander, who were his rater and senior rater, both witnessed the applicant's failure to complete his assigned tasks and his lack of concern about the unit's readiness for AT.  When both the unit and battalion commander state they witnessed such behavior, their assessments of the applicant's performance is hard to refute.

4.  The applicant submits a memorandum dated 27 October 2001 in which he requested to retain the ability to request a commander's inquiry and an OER appeal, but there is no evidence he ever pursued either course of action.

5.  It would appear reasonable that an officer who believed that a relief for cause OER was retaliatory and baseless would pursue every avenue of appeal available in a timely manner.

6.  The memorandum from the general officer in the applicant's chain of command has been carefully considered.  Initially, it must first be considered that the general was not in the applicant's rating chain, and so may not have been aware of the applicant's commander's expectations of him.  As such, the general's statement that he is of the opinion that the applicant's superiors were unfair to him and that any suggestion that he put personal concerns before the unit or failed in his loyalty are not of the weight to overturn an uncontested OER which was accepted and filed in the applicant's OMPF.  At the best, the statement provided by the general would have to be considered retrospective thinking and, therefore, not a basis for deleting or altering the contested OER.

7.  The letters submitted in the applicant’s behalf by other individuals who were not in his rating chain during the time in question do not offer a basis for granting his request.  Those individuals were not in the same vantage point as the applicant’s raters who had the responsibility of measuring his performance and potential.

8.  In the absence of evidence to show that the applicant's rater's and senior rater's assessments of him were untrue and in consideration of the fact that the applicant waited 7 years to appeal his OER, the applicant has failed to provide convincing evidence that the contested OER was not a valid assessment of his performance at the time it was prepared.  As such, there is no basis to grant his request.

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)                                         AR20090004607





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ABCMR Record of Proceedings (cont)                                         AR20090004607



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