IN THE CASE OF:	  

		BOARD DATE:	    27 April 2010

		DOCKET NUMBER:  AR20090014969 


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 his referred DA Form 67-8 (Officer Evaluation Report (OER)) for the period 1 April 1997 through 31 March 1998 [hereafter referred to as the contested OER] be removed from his official military personnel file (OMPF) or moved to the restricted section of his OMPF.

2.  The applicant states the contested OER is inaccurate and unjust as a result of a personality conflict between him and his rater.  He states the OER comments do not reflect the awards he earned, but rather demonstrate the existence of a personality conflict that even his senior rater (SR) recognized was an issue regarding his rater.

3.  The applicant provides a 4-page petition statement with 20 enclosures.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant in the U.S. Army Reserve on 19 September 1986.  He was ordered to active duty in the Active Guard Reserve (AGR) Program effective 6 August 1990 in the grade of first lieutenant.  He was promoted to captain effective 17 September 1993.

2.  The contested OER was an annual report for a period of 12 months and the applicant was in the position of commander of a construction support engineer company.

3.  The applicant's rater was a lieutenant colonel in the position of battalion commander.  His senior rater (SR) was a brigadier general in the position of deputy commanding general.

4.  Part IVa (Professional Competence) of the contested OER shows (on a scale of 1-5, 1 being the highest) the applicant received a rating of "2" in:

* number 1 (Possesses capacity to acquire knowledge/grasp concepts)
* number 2 (Demonstrates appropriate knowledge and expertise in assigned tasks)
* number 8 (Displays sound judgment)
* number 10 (Is adaptable to changing situations)

5.  The applicant received a rating of "1" in all other elements of Part IVa of the contested OER.

6.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the Usually Exceeded Requirements block.

7.  In Part Vc (Comment on Specific Aspects of the Performance) the rater noted the applicant was a capable officer who worked toward the continued improvement of his unit.  The rater also noted the applicant had to be redirected several times to ensure he was focusing on the correct areas.  The rater noted the applicant's company was found to have major discrepancies during the company's first command inspection.  Small improvements were noted on a re-inspection and subsequent inspections were scheduled.

8.  The rater stated the applicant began planning the movement of his equipment from Yakima Training Center to Spokane, WA.  The rater noted he observed and counseled the applicant during the rating period and found that he did not provide adequate guidance or manage his full-time force as well as could be done.  The rater found the applicant did not fully understand how to properly employ his unit, nor did he challenge his Soldiers to their fullest extent.  The rater concluded the applicant was one of his two weakest commanders in Idaho.

9.  In Part Vd (This Officer's Potential for Promotion to the Next Higher Grade is) the rater placed an "X" in the Promote with Contemporaries block.  In Part Ve (Comment on Potential) the rater noted the applicant should be assigned to an assistant staff position and he required additional education to develop him for a primary battalion staff position.

10.  In Part VIIb (Comments) the SR states that the applicant's performance placed him in the lower half of his peer group.  The SR stated he provided performance counseling to the applicant on what is required to be successful in the next period.  The SR stated the applicant should be retained in the AGR Program and promoted to major with his contemporaries.  The SR noted that future assignments for the applicant should be to technical engineer roles and as a battalion maintenance officer.

11.  On 7 August 1998, the contested OER was referred to the applicant for acknowledgement due to negative comments in the rater performance evaluation and narrative.

12.  On 2 September 1998, the applicant submitted comments to the contested OER.  He stated his SR believed there was a personality conflict between the applicant and his rater.  He stated the SR counseled him and directed that he and his rater talk and resolve their personality differences.  He stated he met with his rater on 25 July 1998 and requested guidance on how to meet his expectations and achieve success under his command.

13.  In response to his evaluation in Part IVa1, 2, 8, and 10 of the contested OER, the applicant stated the rater assumed he didn't realize that because of limited equipment he would have to move an echelon and therefore didn't know how to employ his company.

14.  In response to comments in Part Vc of the contested OER, the applicant stated none of his stated performance objectives and contributions on his OER support form for the rating period were mentioned in the OER.  He stated the statement referring to his having to be redirected several times to ensure he was focusing on the correct areas was based on counseling he received from his rater.  He stated this guidance seemed to be a normal part of the mentoring process and was not indicated to be otherwise.

15.  In response to comments on the command inspection, the applicant stated he was verbally notified in April 1997 the inspection would probably be in September 1997, but he wasn't officially notified until July 1997, less than 60 days from the inspection date.  He stated the inspection identified shortcomings and he requested assistance to address some of the discrepancies in September 1997 and March 1998, but they were denied.  He stated a re-inspection of his unit reduced the number of individual unsatisfactory tasks from approximately 135 to 38.

16.  In response to comments on the planning and movement of his company, the applicant stated that despite his mission being changed or cancelled more than three times, unclear guidance, and little external support, he moved over 55 percent of his unit in February-March 1998.  He stated he successfully planned, coordinated, and executed all necessary actions related to the fielding and new equipment training of his crushing, screening, and washing plant.  He also successfully planned and coordinated his detachment's move and inactivation with little external support.  He stated all missions, including construction projects, planned and directed during the rating period were completed successfully.

17.  On 29 March 1999, the applicant's commander (rater) recommended him for award of the Army Commendation Medal.  The applicant was awarded the Army Commendation Medal on 1 May 1999 for meritorious service from 27 July 1996 to 17 April 1999.

18.  On 9 May 1999, the applicant's rater responded to a commander's inquiry on the applicant's contested report.  The rater stated he met with the applicant on nine different occasions and spoke with him on the telephone at least twice monthly.  The rater stated he discussed with the applicant how his company would move between job sites and the use of echelon movement of the company from the current site to the future operating site.  At the time the rater felt that the applicant understood how to use the doctrine and incorporate it into his tactical standing operating procedure.

19.  The rater stated the applicant continued to work against his guidance for moving his company and although the applicant had briefed both his plan and timetables, it appeared that he was not following his plan.  This became clear in March 1998 when the 70th Regional Support Command (RSC) became concerned the plant would not be established and certified in accordance with the 70th RSC commander's plan.  The rater stated that without direct intervention by himself and his staff, the project would not have met the 70th RSC commander's goal.

20.  The rater stated the applicant was directed to develop and implement a plan to return selected Soldiers back to their parent units and it took several attempts to get this plan finalized.  It took a great deal of coaching on the part of the rater's executive officer to finalize the plan and have it approved by the RSC.

21.  The rater stated the applicant's company received an unsatisfactory evaluation in mobilization, supply management, and individual training during their command inspection in September 1997.  During a re-inspection in January 1998 there was little improvement made in these areas.  The rater stated it took the applicant failing two inspections before deciding to properly manage these areas and make the required improvements, passing a re-inspection in April 1998.

22.  The rater found the applicant did not evenly distribute work among his full-time work force.  The end result of his poor management technique was the failure of the command inspection, critical information about the unit's upcoming move being compartmentalized, improper use of the first sergeant, and the applicant working much longer hours than his staff.

23.  The rater stated when he compared the applicant's performance with that of his peers, all of whom are troop program unit (TPU) commanders, his performance was far inferior to them.  The rater felt the applicant, as an AGR officer and a commander, should have been the best commander in the task force because he was present in the unit 5 days a week, where his peers were TPU commanders and had to balance their civilian jobs and families against the needs of their commands.  As a full-time commander, it was his job to lead and properly mange his unit, striving for continued improvement and success.  The rater considered the applicant's performance to be below average and a great disappointment.

24.  On 12 May 1999, the applicant received an annual OER for the period 1 April 1998 to 31 March 1999.  His rater was the same lieutenant colonel in the position of battalion commander.  However, his SR was a colonel in the position of deputy commanding general.

25.  The rater stated in Part Vb that the applicant's last year in command had proved to be his strongest yet.  He stated the applicant's unit was 200 percent better than when he took command.  The SR stated the applicant prepared an excellent construction directive; however, his leadership ability to successfully implement the plan with clear, concise leadership direction needed improvement. 
The SR stated the applicant tries to do it all himself.  He was mentored on the art of delegation and during this rating period he made substantial improvement in this area.

26.  On 10 August 2000, the applicant was promoted to major with an effective date and date of rank (DOR) of 19 July 2000.

27.  On 27 March 2001, the applicant submitted a 12-page appeal of the contested OER with 16 enclosures (including four third party statements).  He requested the contested OER and his original rebuttal be removed from his OMPF.  As an alternative, he requested removal of his rebuttal, the "2" ratings in Part Iva; one comment in Part IVb; and all comments in Parts Vb, Vc, Vd, and in Parts VIIa and VIIb.

28.  On 15 February 2002, the Deputy Chief of Staff for Personnel (DCSPER), Special Review Board, determined that the evidence provided by the applicant did not justify altering or withdrawing the contested OER.  DCSPER stated his appeal did not provide sufficient evidence of a clear and convincing nature for the board to consider.  DCSPER stated an entry of an appeal denial by the board would only serve to highlight further the contested OER in his OMPF.

29.  The applicant was promoted to lieutenant colonel with an effective date and DOR of 7 December 2006.

30.  The applicant submitted statements from nine individuals, including one colonel, two lieutenant colonels, one warrant officer, three enlisted Soldiers, and two civilians in support of his appeal.  However, none of these individuals were in his rating chain.

31.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, stated that performance evaluations are assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.

32.  Army Regulation 623-105 stated that evaluation reports accepted for inclusion in the official record of a Soldier were presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  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 or 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.  The burden of proof rests with the appellant.

33.  Army Regulation 623-105 stated a personality conflict between the appellant and a rating official does not constitute grounds for relief.  It must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

34.  Army Regulation 623-105 stated that the SR makes an assessment of the rated officer's overall potential in comparison with all other officers of the same grade the SR has senior rated or has currently in his or her SR population.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from his OMPF or moved to the restricted section of his OMPF.

2.  The applicant contends his SR believed there was a personality conflict between the applicant and his rater.  However, the SR's comments on the contested report do not reflect this and he did not submit any evidence to support his contention.  In fact, the SR stated he provided performance counseling to the applicant on what is required to be successful in the next period.

3.  The commander's inquiry clearly established the contested OER was neither inaccurate, lacking objectivity, unsubstantiated, nor unfair.

4.  The applicant received a better evaluation on his next OER prepared by the same rater.  His rater also recommended him for the award of the Army Commendation Medal.  However, this merely shows the applicant was able to overcome any shortcomings identified in the contested OER and does not show the contested OER is in error.  The period covered by the Army Commendation Medal covers an almost 3-year period whereas the contested OER only covers a 1-year period.

5.  The applicant's SR on the OER for the period 1 April 1998 to 31 March 1999 indicated that although the applicant made substantial improvement, he still needed further improvement on his leadership ability.  Therefore, his deficiencies noted in the contested OER were not inaccurate or unsubstantiated.

6.  The DCSPER Special Review Board notified the applicant his appeal did not provide sufficient evidence of a clear and convincing nature for the board to consider.  DCSPER determined a denial of his appeal would only further highlight the contested OER in his OMPF.

7.  The applicant has been promoted twice, to major and lieutenant colonel, since the period of the contested OER.  Therefore, there is no evidence that an error or injustice has occurred as a result of the contested OER.

8.  The nine statements submitted in support of the applicant's appeal were noted.  However, these individuals were not in his rating chain and were not responsible for evaluation of the applicant.  Therefore, they would not be aware of the tasks or requirements placed on the applicant by his rater.

9.  Based on the foregoing, there is no evidence and the applicant has not provided compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect his performance or potential.

10.  The applicant has failed to provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OER.  Therefore, the contested OER is correct as constituted and the applicant has failed to meet the burden of proof to justify removal of the contested OER or to move it to the restricted section of his OMPF.

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)                                         AR20090014969



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ABCMR Record of Proceedings (cont)                                         AR20090014969



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