IN THE CASE OF:	  

		BOARD DATE:	        27 MAY 2009

		DOCKET NUMBER:  AR20090007427 


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 reconsideration of his request to remove the Officer Evaluation Report (OER) he received for the period 15 June 2002 through 1 June 2003 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 retroactively promoted to colonel and selected for the senior service college (SSC).

2.  The applicant states, in effect, he believes that his rater (a colonel) and his senior rater (SR) (a major general) on the report in question abused their positions and authority by intentionally writing an OER that was and has had a lasting negative impact on his career as evidenced by his non-selection for battalion command, SSC, 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 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.  He goes on to state that he is providing new evidence in the form of reviews and evaluations from relevant personnel regarding the OER in question, which will have a bearing on the Board's decision and illustrates the detriment of the OER and its adverse effects on his career.

3.  The applicant provides a supplemental brief from counsel in support of his request for reconsideration and 18 memorandums of support from active and retired officers ranging in rank from major to major general.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, that the Board reconsider its previous decision to deny the applicant's request.

2.  Counsel states, in effect, that the new clear and convincing evidence submitted with his request for reconsideration establishes that the conclusions of the Board were erroneous when it denied the applicant's previous request.  He goes on to state that the new evidence from knowledgeable personnel provides clear and convincing proof that the OER in question was adverse to the applicant.

3.  Counsel provides a nine-page brief in which he explains his arguments.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080017570 on 29 January 2009.

2.  The applicant was a Regular Army Field Artillery officer who was promoted to the rank of major on 1 March 1998.  His military education includes the Field Artillery Basic Course, the Infantry Officer Advanced Course, the Combined Arms and Service Staff School, the Command and General Staff Officer Course, and the Joint and Combined Warfighting School.  He is a Master Parachutist who is Ranger and Air Assault qualified.  He was serving in the functional area of 43A (Human Resource Management) when he received the contested OER covering the period from 15 June 2002 through 1 June 2003.

3.  On 11 August 2003, the applicant submitted a DA Form 1559-R (IG Action Request) 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.  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.  The applicant was promoted to the rank of lieutenant colonel on 1 December 2003.

4.  The applicant submits a memorandum from the Human Resources Command (HRC) – Alexandria Adjutant General Corps Branch Chief, undated, in which the chief of that branch, the applicant's functional area, opines that the OER in question is a center-of-mass report with a marginal write-up that adversely affected his opportunity for selection for assignment as a battalion commander or division G-1.  Additionally, his nonselection for battalion command/division G-1 all but eliminated him from being competitive for resident SSC selection.  The HRC official does not explain what he deems is a marginal write-up.  It is noted, however, that the branch chief and the applicant had the same dates of rank for promotion to the ranks of major and lieutenant colonel and that they were essentially peers until the branch chief was promoted to the rank of colonel on 1 February 2009.

5.  The remaining memoranda are from third-party officers who served with the applicant before, during, and after the period of the contested report who opine that in their opinion, the contested report does not accurately portray the applicant's performance and potential and served to deny him selection for promotion, command, and schooling.  They all recommend that the contested report be removed from his records and that he receive reconsideration for promotion, command, and schooling.

6.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribes the policies and procedures pertaining to the evaluation reporting system.  It also provides guidance regarding redress programs including commander's inquiries and appeals.  It further 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.

7.  Army Regulation 623-105 contains the policies and procedures pertaining to managing the evaluation redress program.  In pertinent part, it 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 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.


8.  Army Regulation 623-105 provides, in pertinent part, that if the potential assessment is consistent with the majority of officers in that grade, the SR will "X" the "CENTER OF MASS" box.  If the rated officer's potential exceeds that of the majority of officers in that grade, the SR will "X" the "ABOVE CENTER OF MASS" box.  The intent is for the SR to use this box to identify the upper third in each grade.  However, in order to maintain a credible profile, the SR must have less than 50 percent of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a "CENTER OF MASS" label.

9.  DODD 7050.6, dated 20 November 1989, which was reissued on 3 September 1992, covered the Military Whistleblower Protection provisions of Title 10, U.S. Code, section 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.)


10.  Army Regulation 600-8-29 (Officer Promotions) serves as the authority for the conduct of officer selection boards.  It provides, in pertinent part, that selection board members may not record their reasons nor give any reasons for selection or nonselection.  Selections are based on the best qualified to meet the projected needs of the Army.  A Soldier within an announced zone of consideration may write to the President of the selection board inviting attention to any matter he or she feels is important in consideration of his or her records and are considered privileged information and will not be filed in the Official Military Personnel File.

11.  Command and SSC selections are based on specific commands, class dates, and capacities and because the records of those boards are destroyed within 30 days of approval of the boards; comparisons of records cannot be accomplished to determine if an individual would have been selected if considered.  There are not now nor have there ever been Standby Selection or "relook" Boards for command and SSC selections.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has obtained an assessment from his branch chief who opines that the contested report affected the applicant's selection for assignment as a battalion commander or division G1 and subsequently eliminated him from competition for resident SSC, the branch chief does not indicate that the OER is adverse or flawed, nor does he dispute the facts contained in the report.  While he opines that it is a center-of-mass report with a marginal write-up, he does not state what he considers, or what the system considers, a "marginal" write up.  Although he considers the report in question as the culprit of the applicant's   non-selection, he offers no actual evidence or proof to support his position.

2.  While the applicant has provided supporting statements from numerous other officers who served with him and believe that he deserved a "top block" rating, they were not in a position to know the expectations of the rating chain.

3.  Of particular note to the Board is the fact that the applicant has not provided supporting statements from his rater and SR, the persons most familiar with his performance on a daily basis.  The evaluations rendered by those officials were based on daily contact with the applicant and he has failed to show through the evidence of record, or the evidence submitted with his application, that the ratings rendered by those officials were not a true depiction of his performance and potential during the rated period.  Additionally, while not known, it is also possible that the SR's profile may have prevented him from placing the applicant in the top block.  In any event, it appears that the ratings rendered represent the considered opinions and objective judgment of the rating officials at the time.

4.  It is unfortunate that the applicant was not selected for promotion to colonel; however, it is a well known fact that not everyone who is eligible for promotion during a given selection board is selected, because there are normally more persons eligible than there are promotion allocations.  Accordingly, promotion boards are tasked with choosing the best qualified Soldiers to meet the needs of the Army at the time.

5.  The applicant’s contention that the contested OER served as the basis for his nonselection is speculative at best.  It is a well known fact that promotion boards and other selection boards do not reveal the basis for selection or nonselection.  Inasmuch as the Board does not have the luxury of reviewing all of the records that were considered by those boards that did not select the applicant, it must be presumed that he was not deemed the best qualified to meet the needs of the Army when compared to his peers.

6.  The applicant's contention that the contested OER was reprisal against him for submitting a Whistleblower complaint against his rating officials has been noted and appears to lack merit.  In order to constitute reprisal as a Whistleblower, there must be at least one substantiated allegation and the applicant has failed to show that such was the case.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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 to amend the decision of the ABCMR set forth in Docket Number AR20080017570, dated 29 January 2009.



      __________XXX_______________
                 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)                                         AR20090007427



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ABCMR Record of Proceedings (cont)                                         AR20090007427



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