PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  29 September 1999                              
	DOCKET NUMBER:   AR1998000011

	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. David E. Weightman .		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. John N. Slone		Member	
	Mr. Curtis W. Barbee		Member	
	Mr. Ted S. Kanamine		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

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 that his officer evaluation report (OER) covering the period 1 October 1997 through 6 February 1998 be removed from his official military personnel file (OMPF).  In effect, he also requests promotion to colonel based on his previous selection.

3.  The applicant states that the OER is substantively and administratively incorrect; that his rater demonstrated religious bias against him; and that the OER is for a short period of time and was prepared by the same rating officer (RO) and senior rater (SR) who previously had given him excellent ratings.  He also states the report was for a short period and improperly justified by alleged incidents occurring outside of the rating period.  In support of the application, he submits a comprehensive statement and numerous statements signed by individuals attesting to his character and performance of duty.

4.  He submits documents signed by four officers who were previously rated by the RO in this case.  They describe the RO as "demanding and controlling" a "mean-spirited, vengeful, vindictive, micro-managing, and intimidating leader" again as "vindictive spirit and vengeful" and "the most vindictive, dour, unapproachable, distant, micromanaging officer I have ever served under."

5.  He submits a 23 September 1998 letter signed by his superior, a colonel serving as the Deputy Chief of Staff for Training, 5th U.S. Army, describing him as having "excellent interpersonal skills, is calm under pressure, demanding of his people yet, at the same time, considerate of their feelings and needs."

6.  He submits a 14 September 1998 memorandum signed by the Deputy Commanding General, 5th U.S. Army describing him as "clearly ahead of his peers in technical and tactical competence as well as in leadership qualities.  He further wrote, "The Army will not be well served by any action that damages this outstanding officer's career based on a highly suspect and extremely aberrant incident in an otherwise outstanding career of service.  Promote this officer now and let him get on with the business of the Army."

7.  He submits his most current OER, ending on 6 February 1999, showing a top rated-center of mass annual report from a colonel (RO) and a lieutenant general (SR).

8.  Counsel supports the contentions of the applicant, but furnishes no evidence beyond that of record.

9.  The applicant was a Distinguished Military Graduate from ROTC and appointed in the Regular Army, Infantry, effective 15 August 1975.  He attained the rank of lieutenant colonel effective 1 August 1992.  He is a graduate of the Naval War College.

10.  The applicant was serving on active duty in the rank of lieutenant colonel 
(P-promotable), as the Assistant Chief of Staff, G3, Southern European Task Force (SETAF), during the period of time in question.  His preceding OER for the period 14 June through 30 September 1997 shows all laudatory remarks by the RO and SR, including "Make him an infantry brigade commander now."  He rated the applicant in the top block-center of mass.

11.  A memorandum dated 10 September 1997 and titled "Performance Counseling", shows that the applicant was counseled by his RO for "talking more than you listen, not listening to directions - or thinking you know priorities better than I do, and getting too involved in specific projects rather than trusting subordinates to do them."  In the 4-page memorandum, the RO stated, in part, that the applicant had failed to treat his subordinates with dignity and respect, had failed to trust and listen to his subordinates, and that this behavior resulted in a climate of fear and low morale.  He alleged that the applicant had cursed, belittled, and pushed a soldier, thrown a chair, threw some books, "blew up" at a captain, and "blast" a major on the telephone.  The RO ended the memorandum stating, in part, "One more incident of a similar nature to those outlined above, and you will have to leave SETAF…."

12.  On 2 February 1998 the RO, in a 5-page memorandum, recommended that the applicant be relieved of his duties based on his performance during a joint training exercise (Agile Lion 98) and the 10 September 1997 memorandum.  The RO cited instances of abusive actions towards other personnel and the inability of the applicant to meet the demands of his job as the basis for the recommendation.  He wrote that he had overheard an officer and an NCO talking in the bathroom about the conditions in the applicant's section, that a captain had told him that the applicant screamed at an individual for being late, and that an officer had told him a sergeant major assigned to the section was "a broken man because of the way you mistreat him."  (The named sergeant major submitted a letter in support of the applicant).

13.  On 16 November 1998 the applicant, stating that he did not have an earlier opportunity, prepared a memorandum for record in which he challenged virtually every statement in the aforementioned 10 September 1997 and 
2 February 1998 memorandums and outlined his version of the cited events.

14.  The contested OER, covering the period 1 October 1997 through 
6 February 1998 is a relief for cause OER.  In Part Va, Performance and Potential Evaluation, the RO, a colonel serving as the Chief of Staff, rated the applicant in Part V a, as “UNSATISFACTORY PERFORMANCE, DO NOT PROMOTE”, and in Part V b, wrote, in part, “Although some indicators existed since a September 1997 counseling, it was his performance and lack of interpersonal skills on a January 1998 JCS exercise [15 days] that drove me to recommend to the CG that he be relieved from duties.”
15.  The SR, a major general serving as the SETAF commander, wrote, in part, that the applicant “has been singularly responsible for increasingly low morale in his section, having verbally abused subordinates to the point they do not respect him and fear continued reprisals.  This, despite specific counseling by the SETAF Chief of Staff and myself that further examples of such conduct would absolutely not be tolerated."  In Part VII a, promotion potential, he rated him as “DO NOT PROMOTE”, and in Part VII b, compared potential, he rated him "BELOW CENTER OF MASS DO NOT RETAIN."

16.  The applicant appealed the contested OER.

17.  On 30 September 1998 the applicant's appeal of the contested OER was denied by the Officer Special Review Board (OSRB).  Further details concerning the contested OER, his unsuccessful OER appeal and the rationale for denying his appeal is set forth in the OSRB Case Summary and need not be reiterated.

18.  Prior to the contested OER, all of the applicant’s evaluations as a lieutenant colonel by his RO’s and SR’s are maximum reports, including the Senior Service College Academic Evaluation Report for the Naval War College.

19.  The applicant was recommended for promotion to colonel for a date on or about 1 April 1998.  His records are now flagged based on the contested OER to prevent him from receiving any favorable personnel actions, i.e. promotion.  His promotion is being held in abeyance and consideration of removal of his name from the promotion list by a promotion review board based on the contested OER.  The flagging action may be closed or terminated by appropriate Departmental officials upon completion or termination of the removal action.

20.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

21. A formal hearing was held on 29 September 1999.  The applicant was in attendance without counsel or witnesses, and participated in the proceedings.
CONCLUSIONS:

1.  With the exception of the contested OER, the applicant’s record of performance and potential is exceptional, from his appointment as an ROTC DMG, and his completion of the Naval War College, to his selection for promotion to colonel.

2.  The Board particularly finds fault with the rating chain’s justification for the evaluation and the accompanying relief for cause of the applicant. The RO provided written counseling for the previous rating period where he rated the applicant in all top blocks.  He uses the same issues in the contested OER, yet provides only questionable and apparently unjustified comments.  The Board believes the SR, who rated the applicant in the previous report as top block-center of mass, may have been unjustly and unfairly swayed by the RO.

3.  The contested OER, as well as all of the available evidence clearly shows that the applicant was relieved of his duties primarily based on reports of his verbal abuse of other personnel.  Conspicuously absent in the records, however, are any written statements, or references to written statements, made by the individuals allegedly abused.  Further, although a prerogative of command, it would seem likely that the described alleged repeated verbal abuse of personnel warranted punishment under the Uniform Code of Military Justice or, at the very least, the issuance of an administrative reprimand, neither of which was imposed.

4.  Although incidents of the applicant verbally admonishing individuals may have occurred, labeling these incidents as verbal abuse is, of course, subject to interpretation.  The applicant was not operating in a vacuum; therefore, his actions and attitude would reasonably have been known throughout the unit.  Statements from numerous officers, warrant officers, noncommissioned officers, and civilian personnel who were serving in SETAF during the period of time in question reflect an entirely different characterization of the applicant than that portrayed in the memorandums and contested OER.  It seems highly unlikely that all of these responsible individuals would tolerate verbal abuse of their peers and subordinates by the applicant or vigorously support the applicant's denial of the characterization of his service at the time.

5.  The applicant has submitted comprehensive and realistic evidence on his own behalf, refuting the rating.  Included with this evidence is a supporting statement from the sergeant major who the RO alleged to be a broken man because of being mistreated by the applicant.

6.  The Board is of the opinion that the applicant has been unjustly punished because of an unfair OER, and the OER has unfairly delayed his promotion.  Therefore, the OER should be removed from his records, his records should no longer be flagged, he should no longer be considered for removal of his name from the promotion list, and he should be promoted with his contemporaries.

7.  In view of the foregoing, the interest of justice would best be served by correcting the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by removing the contested OER, covering the period 1 October 1997 through 6 February 1998, and all documents related thereto, from the OMPF of the individual concerned;

	b.  by placing in his records an appropriate non-prejudicial statement explaining the absence of the aforementioned evaluation report; and

	c.  by showing the promotion review was terminated without action and that the flagging action was closed favorably, and that he was promoted to colonel with his contemporaries.

2.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

Dissent:  Two members (Mr. Samuel A. Crumpler and John N. Slone) dissented to so much of the foregoing as pertains to promotion.  They recommended removal of the contested OER only.  They believe the pending consideration for removal of the applicant’s name from the promotion list should continue to be reviewed until finalized by appropriate Departmental officials.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AC1998000011	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	29 Sep 99	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	131.00	
3.		
4.		
5.		
6.