IN THE CASE OF:	  

		BOARD DATE:	  17 January 2012

		DOCKET NUMBER:  AR20110021783 


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 a consent for a voluntary remand that the Board reconsider his previous requests to remove the officer evaluation report (OER) for the period of 1 July 1988 through 28 February 1989, that his nonselection for Active Guard Reserve (AGR) continuation be set aside, that he be reinstated to active duty with all due back pay and allowances until he meets the eligibility criteria for an active duty retirement, and consideration by a special selection board (SSB) for promotion to the pay grade of O-7.

2.  The applicant states, in effect, the Board should find the contested report was derogatory within the meaning of Army Regulation 623-105 (Officer Evaluation Reporting System), paragraph 4-27(i) and should be removed from his Official Military Personnel File (OMPF) due to the failure to properly refer the report to him prior to sending it to the Department of the Army for processing.  He goes on to state that he should be reinstated to the AGR Program with entitlement to all back pay and allowances because the contested report served as the basis for his selection for non-retention for continued AGR service by the July 1992 Officer Continuation Board.

3.  The applicant provides copies of his previous applications and supporting documents submitted to the Board.

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 AR20050014360 on 15 June 2006, Docket Number AR2001057776 on 25 September 2001 and Docket Number AC93-05037 on 26 May 1993.

2.  On 9 January 1984, while serving as a U.S. Army Reserve (USAR) lieutenant colonel (LTC), he was ordered to active duty in an AGR status for duty at the Office of the Deputy Chief of Staff for Operations, The Pentagon.

3.  The applicant’s OER history as an AGR officer is as follows:

	a.  8 January 1985, while performing duties as Chief, Programs Branch, Mobilization Division, Office of the Deputy Chief of Staff for Operations, Pentagon.  In Part IV (Professional Competence), he received all "1"s (the highest rating) in the 14 areas of professional competence.  His rater rated his performance as "always exceeded requirements" and his potential as "promote ahead of contemporaries."  His senior rater (SR) rated his potential as 5/*11/3/0/0/0/0/0/0 (* indicates applicant’s rating).

	b.  8 January 1986, while performing duties as Chief, Programs Branch, Mobilization Division, Office of the Deputy Chief of Staff for Operations, The Pentagon.  In Part IV, he received all "1"s in the 14 areas of professional competence.  His rater rated his performance as "always exceeded requirements" and his potential as "promote ahead of contemporaries."  His SR rated his potential as *2/0/2/0/0/0/0/0/0.

	c.  13 July 1986, while performing duties as Chief, Programs Branch, Mobilization Division, Office of the Deputy Chief of Staff for Operations, Pentagon.  In Part IV, he received all 1s in the 14 areas of professional competence.  His rater rated his performance as "always exceeded requirements" and his potential as "promote ahead of contemporaries."  His SR rated his potential as *5/5/2/0/0/0/0/0/0.

	d.  13 July 1987, while performing duties as Operations Research/Systems Analyst, Office of the Secretary of Defense, Pentagon.  In Part IV, he received all "1"s in the 14 areas of professional competence.  His rater rated his performance as "always exceeded requirements" and his potential as "promote ahead of contemporaries."  His SR rated his potential as *1/0/0/0/0/0/0/0/0.

	e.  (On 14 March 1988, the applicant was promoted to COL.)

	f.  10 July 1988, while performing duties as Operations Research/Systems Analyst, Office of the Secretary of Defense, Pentagon.  In Part IV, he received all "1"s in the 14 areas of professional competence.  His rater rated his performance as "always exceeded requirements" and his potential as "promote ahead of contemporaries."  His SR rated his potential as *2/0/0/0/0/0/0/0/0.

4.  In the contested OER, for the period 11 July 1988 through 28 February 1989, the applicant performed duties as Chief, CMO, OCAR.  The OER was apparently dated by the applicant on 11 September 1990 and by his rater on 18 September 1990.  The date the SR signed it is illegible.  In Part IV12 (Possesses military bearing and appearance), he received a 2 rating with a related comment in Part IVb of "Constantly works at maintaining military bearing and has made improvements."  His rater rated his performance as "usually exceeded requirements."

5.  Rater comments in the contested OER included "…has done a fine job as the Chief of this Agency's Construction Management Office…His efforts…have led to an improved flow of information and greater communications and coordination within the Army Reserve facilities community."  Rater comments concerning his potential were "…has demonstrated the potential for continued service to the Army Reserve.  He is also a good soldier who should be considered for assignment as a full time ARCOM or MACOM staff officer.  He has also demonstrated the potential to perform the duties of a DA or OSD action officer."

6.  SR comments in the contested OER included "…is an effective officer whose construction management office has done a good job in a very difficult and demanding operational area that clearly required dedication to produce results…efforts to improve the level of coordination…have been particularly commendable…is an asset to the Army Reserve and should be assigned to an appropriate position at the MUSARC or MACOM level where his talents may be best utilized."

7.  The SR rated the applicant's potential on the contested OER as 46/78/69/*24/3/0/0/0/0.

8.  The applicant was subsequently reassigned to the Army Reserve Personnel Center (ARPERCEN) and received an OER for the period ending 28 February 1990 while performing duties as Director, Resource Management, ARPERCEN.  In Part IV, he received all "1"s in the 14 areas of professional competence, with a 

comment in Part IVe (Maintains appropriate level of physical fitness) of "profile 8904."  His rater rated his performance as "always exceeded requirements" and his potential as "promote with contemporaries."  His SR did not meet the time-in-position requirement to rate him.

9.  Subsequent to the OER for the period ending 28 February 1990, the applicant received three more OERs, all adverse.

10.  By memorandum, dated 28 February 1992, the ARPERCEN informed the applicant that a review of his records determined his records should be referred to a Department of the Army Active Duty Board (DAADB) for consideration for involuntary release from active duty.

11.  The applicant appealed the contested OER and the three subsequent adverse OERs to the Officer Special Review Board (OSRB).  By endorsement, dated 8 June 1992, the OSRB informed the ARPERCEN that the latter three OERs (but not the contested OER) had been successfully appealed.

12.  By endorsement, dated 23 June 1992, the U.S. Total Army Personnel Command informed the Office of the Chief of Army Reserve (OCAR), Full Time Support Management Center that the DAADB case pertaining to the applicant was being returned without consideration as the basis for the action no longer existed.  The applicant had successfully appealed the OERs in question.

13.  By letter, dated 22 September 1992, OCAR, Full Time Support Management Center, St. Louis, MO informed the applicant that the Chief, Army Reserve (CAR) had approved the results of the USAR AGR Officer/Sergeant Major Continuation Board that convened on 22 July 1992.  He was informed the board had examined his entire record on an impartial basis and did not recommend his continuation in the USAR AGR Program and he would be released from active duty no later than 4 January 1993.  His contributions to the USAR AGR Program were greatly appreciated and it was hoped he would remain in an active Reserve status.

14.  On 4 January 1993, the applicant was released from active duty and he was transferred to the USAR Control Group (Reinforcement).  He completed 14 years and 26 days of creditable active service.

15.  By letter, dated 4 January 1993, the Department of the Army Inspector General (DAIG) also informed the applicant that his request for an investigation into alleged acts of reprisal, retribution, and harassment could not be favorably considered.  The DAIG had previously looked at his complaint and informed him 

in a 20 November 1992 letter of his right to appeal to the ABCMR.  The Department of Defense IG (DODIG) had also considered his concerns and advised him of the same option in a 25 November 1992 letter.  The DAIG letter also informed him that they determined the 1992 AGR Continuation Board considered him at the proper time in the 5-year cycle specified by regulation.  Furthermore, there was no evidence to suggest the board considered anything pertaining to him except that authorized by the governing regulation.

16.  On 7 July 1997, the applicant again appealed the contested OER to the OSRB based on the findings of the DAIG and by letter dated 18 November 1998, the applicant was informed that the OSRB determined the evidence he submitted did not justify altering or withdrawing the contested OER.

17.  A comparison of the contested OER with the applicable regulatory guidelines (criteria) that qualify for both referred reports and relief for cause reports failed to show any qualifying criteria on the contested report that would qualify it as an adverse report under regulatory criteria at the time it was submitted to the Department of the Army.

18.  On 17 July 2003 he was transferred to the AUS Retired List in the rank of colonel.  He had 30 qualifying years of service for retirement.

19.  Army Regulation 140-30 (Active Duty in Support of the USAR and AGR Management Program), paragraph 3-6, states that at a minimum, the CAR will convene a DA continuation board to review the records of AGR officers for continuation beyond the initial 3-year tour and at 5-year intervals beyond that (i.e., accessed in 1984, considered in 1987, again in 1992, etc).  Continuation boards will evaluate the officer's quality of performance and potential for future AGR service to determine whether the officer should be continued in the AGR program.

20.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing, and using the OER.  The regulation provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity and action is warranted to correct an apparent material error or inaccuracy.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.
21.  Army Regulation 623-105, paragraph 4-27 of the version in effect at the time, listed the types of OERs that would be referred to the rated officer by the SR for acknowledgment and comment before they were sent to HQDA.  Types of OERs that would be referred included a relief for cause report submitted under the provisions of paragraph 5-18; any report with an SR potential evaluation in one of the bottom three blocks in Part VIIa; or any report with ratings or comments that, in the opinion of the SR (emphasis added), are so derogatory that the report may have an adverse impact on the rated officer's career.

22.  Army Regulation 623-105, paragraph 5-18 of the version in effect at the time, stated that a report was required when an officer was relieved for cause regardless of the rating period involved.  Relief for cause was defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer had failed in his or her performance of duty.  Paragraph 3-13 required that all relief reports be reviewed by the first U.S. Army officer in the chain of command who was senior to the individual directing the relief.

23.  Army Regulation 623-105, paragraph 3-14a of the version in effect at the time stated that all reviewing officials would ensure that:

	(1)  the rating chains were correct;

	(2)  the evaluations rendered by rating officials were examined and discrepancies were clarified or resolved;

	(3)  all members of the rating chain complied with the regulation;

	(4)  all evaluation reports were submitted on time to HQDA;

	(5)  the communication process between the rater and rated officer had taken place as described in this regulation;

	(6)  the support form had been properly executed;

	(7)  comments on the support form are consistent with the evaluations; and

	(8)  the support form is returned to the rated officer after the SR has completed his or her evaluation.

24.  Army Regulation 623-105, paragraph 3-14b also stated that, in addition to the above, reviewers of relief reports would:

	(1)  ensure that the narrative portions of the OER contained factual information that fully explained and justified the reason for the relief;

	(2)  verify that any derogatory information on the OER was correct;

	(3)  ensure that the OER was prepared as prescribed by this regulation;

	(4)  ensure that the OER had been returned to the rated officer for comment; and

	(5)  review the relieved officer's referral comments, if submitted.

25.  Army Regulation 623-105, paragraph 4-16, of the version in effect at the time, stated that the SR's evaluation is made by comparing the rated officer's potential with all other officers of the same grade.  His or her evaluation was based on the premise that in a representative sample of 100 officers of the same grade grouping (Army-Wide), the relative potential of such a sample would approximate a bell-shaped normal distribution pattern.  SR comments would address the potential evaluation in most cases; however, they could address performance.  Anything unusual about the report will also be noted in his comments.

26.  Army Regulation 623-105, paragraph 5-28, of the version in effect at the time, stated that when referral was required, the SR would refer the completed OER in writing to the rated officer for acknowledgement and comment before sending to HQDA.  The rated officer's comments did not constitute an appeal or a request for commander's inquiry.  If the SR decided that the comments provided significant new facts about the rated officer's performance and that they could affect the rated officer's evaluation, he or she could refer them to the other rating officials.  They, in turn, could reconsider their evaluations.  The SR would not pressure or influence them.  SRs would try to refer reports to the rated officer prior to his or her departure.  Acknowledgment(s) and comments would be forwarded to HQDA.

27.  Army Regulation 623-105, paragraph 5-29, of the version in effect at the time, stated that if the relief of a rated officer was directed by the SR, the first
U.S. Army officer in the chain of command or supervision above the individual directing the relief would review the report.  If the SR found that the report was 

unclear, contained errors of fact, or was otherwise in violation of this regulation, he or she would return the report to the rating official indicating what was wrong.  The reviewer would avoid all statements and actions that could influence or alter an honest evaluation by the rating officials.  If the rating officials disagreed with the reviewer concerning the need for changes in the report the reviewer would indicate objections to the report by adding an enclosure to the OER.  When indicating objections, the reviewer was restricted to the issues listed in paragraph 3-14b.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested report was a derogatory report within the meaning of Army Regulation 623-105, paragraph 4-27(i) has been noted and appears to lack merit.  A review of that paragraph failed to show that the contested OER met any of the criteria necessary to justify referral of the report.

2.  The applicant’s contention that the contested OER should be removed from his OMPF because it should have been referred to him before being forwarded to HQDA has also been noted and found to lack merit.

3.  The applicant’s contention that the contested OER served as the basis for his non-retention for continued AGR service by the 22 July 1992 Officer Continuation Board has also been noted.  However, like most selection boards, the Board does not have access to and the applicant’s records do not contain the reasons for an individual’s selection or non-selection.  Therefore, absent any evidence to indicate such, the applicant’s contention is speculative at best.

4.  While the contested report did not meet the criteria necessary to refer the report to the applicant, there is no provision in the applicable regulation that provides the failure to refer a report constitutes grounds to remove the report from official records, unless the report is deemed to be substantively inaccurate or unjust on appeal.

5.  Additionally, the fact that a report has not been referred to the rated officer does not necessarily render the report inaccurate or unjust and it does not have any bearing on the right to appeal a report.  In fact, an officer can appeal any report if he or she does so in a timely manner and has sufficient evidence to support his or her appeal.

6.  It is noted that that the SR placed the applicant in the fourth block under Part VIIIa (Potential Evaluation); however, until the report was processed at HQDA 

and the SR’s profile was imposed (overlayed), it was not known that the applicant was placed below the center of mass of the SR’s profile.  Such placement in the SR’s profile does not qualify for referral; therefore, his report was properly processed.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20050014360, dated 15 June 2006.



      __________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)                                         AR20110021783



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