PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:         3 December 1998      
	DOCKET NUMBER:   AC98-10135

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. John H. Kern		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records
	Exhibit B - Military Personnel Records (including advisory opinion, 
	if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, removal from her official military personnel file (OMPF) of the officer evaluation report (OER) for the period 
16 September 1992 through 6 April 1993, reinstatement as a Chief Warrant Officer Two (CW2), removal of her failures of selection to the rank of Chief Warrant Officer Three (CW3), consideration for promotion to CW3, and restoration of all rights, privileges, and property.  

3.  The applicant states that the contested OER contains numerous administrative errors, including the date she supposedly signed the report, the designated specialty indicated on the report, the primary military occupational specialty (PMOS) and the number of rated months.  Her OER support form was never returned to her.  She states that the OER [an adverse report] was not referred to her for acknowledgement and comment as required by Army Regulation 623-105, paragraph 4-27.  She states that her assignment as a supply officer, a duty outside of her MOS, had not been coordinated with DA as required by regulations.  She states that an initial face to face counseling with her rater was not conducted within the required 30 days as required by regulations.  Her OER was substantially inaccurate with regard to the personnel she supervised.  She had never been counseled by either her rater or senior rater concerning any perceived performance deficiencies during the rating period, and had never had an one on one conversation with her senior rater.  She states that the senior rater narrative was in conflict with the narrative of her rater, and that the comment made by her senior rater in which she voiced her displeasure about being assigned to Walter Reed Army Medical Center (WRAMC) never happened.

4.  Counsel elaborates on the applicant’s statements, saying that the administrative, procedural, and substantive errors are material and cumulative and so significant as to call into question the accuracy of the report.  Counsel states that the OER was never referred to her.  He echoes her complaints concerning the administrative and procedural errors, and also states that because her senior rater was not an Army officer, an additional review of the OER by an Army officer was required by regulations, and this was not done.  Counsel states that the OER was substantially inaccurate concerning a statement made by the senior rater in his narrative, and substantially inaccurate to the extent of the personnel she supervised.  Counsel states that the OER was prejudicial to her promotion opportunity and the OER must be expunged from her OMPF and she must be afforded the opportunity to be considered for promotion. He states that she should be reinstated as a CW2 from her current enlisted status. 

5.  The applicant’s military records show that she entered on active duty in June 1981, served over eight years as an enlisted soldier and was discharged on 
11 June 1989 as a Staff Sergeant E-6 and ordered to active duty as a warrant officer.  She received numerous awards including the Army Commendation Medal, the Army Achievement Medal, two awards of the Army Good Conduct Medal, and two awards of the NCO Professional Development Ribbon.  She completed various military educational courses to include the Advance Biomedical Equipment Course, Polygram X-ray System Course, the Primary Leadership Development Course, and the Warrant Officer Candidate School.

6.  She served in various locations and assignments as a warrant officer, to include Fort Meade, Maryland, WRAMC, Korea, and Fort Sill, Oklahoma.  She was promoted to CW2 on 12 June 1991.

7.  The contested OER shows that she was rated as a supply officer for 6 months, while assigned to Headquarters Company at the WRAMC.  That report shows that the date she signed the report was after the dates her rater and senior rater signed the report.  It also shows [mistakenly] that she was assigned in one of her designated specialties.

8.  In the 14 items concerning professional competence in Part IV of the report, the applicant’s rater gave her 1’s in eleven of those items, and 2’s in the other three (performs under physical and mental stress, is adaptable to changing situations, and possesses military bearing and appearance).  Additionally, he stated that her profile did not adversely affect her performance, that she was adaptable to change, and on most occasions her military bearing was outstanding, among other remarks.  Her rater stated that she usually exceeded requirements and should be promoted with contemporaries.  

9.  The applicant’s senior rater, a DA civilian, stated that she could perform her duties in an outstanding manner, however on several occasions she had voiced her displeasure with her assignment, which had a negative effect on her performance.  He stated that she had difficulty taking ownership for her actions, but had the potential to overcome this difficulty with additional training.  He rated her in the fourth block from the top in Part VIIa (Potential Evaluation) of that report (center of mass because she was the only officer he rated). 

10.  There is no indication that the report was reviewed by an Army officer, nor that it was referred to the applicant for comment. 

11.  On 20 February 1996 a physical evaluation board (PEB) determined that she was fit for active military service.  She concurred and on 7 March 1996 the findings of that board were approved by the Total Army Personnel Command.

12.  On 23 January 1998 the applicant appealed the evaluation report because of administrative and substantive error as cited in her request to this Board.  She included with her appeal a copy of pages from AR 623-105, paragraphs of which were highlighted to substantiate her appeal; a copy of pages from AR 611-112 to show that her MOS of 670A was that of a health services maintenance technician, and that the MOS for a supply systems technician, i.e., supply officer, was 920B, a MOS which she did not have.  She provides a copy of a DA Pamphlet to buttress her argument.  She provides a copy of her OER support form which she initialed showing that a face to face discussion of her duties, responsibilities, etc., took place between her and her rater on 9 November 1991, and that her duty title was that of a supply officer in MOS 670A.  She provides a copy of her accomplishments during the rating period, to include a copy of civilian performance plans which she says that she revised.  She includes correspondence from four individuals who support her in her appeal.

13.  On 18 February 1998 the DCSPER Officer Special Review Board previewed her OER appeal and stated that the applicant had failed to provide evidence to warrant consideration by that board.  The applicant’s appeal was returned to the Total Army Personnel Command (PERSCOM) Appeals and Corrections Branch to determine the administrative contention of her appeal as to whether or not she could receive an evaluation outside of her MOS.  

14.  On 27 February 1988 the PERSCOM Appeals and Corrections Branch Chief notified the applicant that her claim of administrative error was reviewed by the Medical Service Corps Branch.  An official of that branch stated that technically the applicant was working outside of her MOS; however, because she attended the Medical Logistics Management Course she was fully capable to work in this position [supply officer] in her assignment at the WRAMC.  He stated that because of the overlapping duties between medical maintenance and supply, commanders routinely use soldiers with MOS 670A as supply officers.  He stated that her duty as a supply officer was within the scope of her duties and did not disadvantage her.  The PERSCOM official stated that the other administrative errors, i.e., designated specialties, PMOS, months of rated period, had been corrected. 

15.  The applicant was relieved from active duty on 28 February 1998 in the rank of CW2 at Fitzsimons Army Medical Center in Aurora, Colorado because of her failure of selection for promotion.  Her DD Form 214 shows she had received two awards of the Meritorious Service Medal and four awards of the Army Commendation Medal, among others.  She completed the Medical Logistics Management Course in 1991, the Warrant Officer Entry Course and the Maintenance Officer Course in 1989, the Contracting Officer Course in 1989, the Health Services Maintenance Technician Course in 1989 and the Medical Facilities Management Course in 1996.  Her specialty was that of a medical equipment maintenance officer, MOS 670A.  She had over 16 years of active service and received separation pay in the amount of $53,819.28.  

16.  Army Regulation 623-105 sets policies and procedures for the officer evaluation reporting system.  Paragraph 3-13b(2) states in effect, that if the senior rater is not a U.S. Army officer , an additional review will be conducted by the first U.S. Army officer above the senior rater in the chain of command. This officer will be designated by the commander establishing the rating chain and identified in the published rating chain.  When such a review is conducted, an enclosure [to the OER] shown in figure 3-2 [of that regulation] must be used.

17.  Paragraph 4-7 concerns the OER Support Form (DA Form 67-8-1) and states in effect, that the rater will have a face-to-face discussion with the rated officer concerning duties, responsibilities, etc., within the first 30 days of the rating period.  Comments are optional, except to explain the delay of the discussion.

18.  Paragraph 4-27 concerns referred reports and states in pertinent part, that any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career, will be referred to the rated officer by the senior rater for  acknowledgement and comment before being sent  to HQDA.

19.  Paragraph 6-2 provides for evaluation considerations for warrant officers and states, in pertinent part, that warrant officers because of their technical orientation are qualified to supervise only those people in technical occupations similar to their own.  Additionally, warrant officers should not be evaluated on their potential to fill positions of responsibility outside their specialties.  They must be assigned principal duties in only their primary or additional MOS.  HQDA must approve an exception. 

CONCLUSIONS:

1.  The Board notes the applicant’s contention that she was working outside of her MOS and was supervising personnel, i.e., supply personnel, not of her specialty.  However, the opinion put forward by a member of her branch, that her duty as a supply officer was within the scope of her duties and did not disadvantage her, since those duties were routinely performed by other warrant officers with her MOS, is considered a valid argument.  Furthermore, the applicant at the time of her discussion with her rater, albeit more than 30 days after the beginning of the rating period, did not take umbrage with her duty as a supply officer (outside her MOS), nor the duties and responsibilities of a supply officer listed on her support form.  She herself listed various performance  objectives in the supply field, and at the end of the rating period listed her accomplishments while performing duties and responsibilities as a supply officer. The OER, which she signed, clearly indicated duties and responsibilities of a supply officer.  The Board notes that the applicant did not protest this OER until almost five years after the ending date of the report, and only then because she was a two time passover for promotion to CW3.

2.   Nonetheless, the procedural errors in this report cannot be ignored.  Her senior rater was a civilian.  The report required review by an Army officer.  This did not happen. This lack of review, not necessarily intentional, removed a procedural safeguard built into the evaluation reporting system.  Furthermore, it is the considered opinion of this Board that the senior rater’s comments would have and did have an adverse impact on her career.  The report should have been referred to her.  This also did not happen. 

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the contested OER and all documents related thereto from her OMPF.

2.  That, following administrative implementation of the foregoing, her record be submitted to duly constituted special selection boards, and if selected for promotion, her release from active duty on 28 February 1998 be declared null and void and of no force or effect; that she be reinstated in the Army on 
28 February 1998 with the rank of CW2,  promoted, and assigned an appropriate date of rank.  All rights, privileges, and property, to include back pay and allowances should then be restored to her. 
3.  That should she be selected for promotion and reinstated to duty as a warrant officer, the $53,819.28 that she received in separation pay be reimbursed to the government.

BOARD VOTE:  

__jns___  ___ew  _  __rwa___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON