PROCEEDINGS

	IN THE CASE OF:   

	BOARD DATE:             27 January 1999                 
	DOCKET NUMBER:    AR1998012660

	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.  The following members, a quorum, were present:

	Mr. James E. Vick                   	Chairperson
	Mr. Calvin M. Fowler               	Member
	Ms. Irene N. Wheelwright         	Member
	Ms. Margaret K. Patterson       	Member
	Mr. John H. Kern                      	Member

	Also present, without vote, were:

	Mr. Loren G. Harrell        	Director
	Mrs. Nancy Amos                     Analyst

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

	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 correction of his military records by invalidating and removing his Officer Evaluation Report (OER) covering the rating period 1 October 1993 – 6 June 1994.  He states that he believes the entire report is tainted with comments about one isolated episode whereby he was accused of assaulting his subordinate.  The OER was completed prior to the final review of the investigation of that episode, when the Staff Judge Advocate determined that the conclusions of the investigation were not supported by the facts.

3.  The applicant’s counsel contends the applicant’s actions did not meet the legal definition of “assault.”  The investigating officer failed to conduct a full, fair, complete and impartial investigation of the allegations because he “gave the command what they wanted.”  Legal reviews at several levels concluded the findings were not supported by the evidence and that no action should be taken on the matter.  A final injustice was committed when the OER was not referred to the applicant for rebuttal.

4.  The applicant initially entered on active duty on 25 September 1972 as a second lieutenant in the Adjutant General Corps.  He was released from active duty on          24 September 1974 and transferred to the U. S. Army Reserve.  On 8 September 1986, he was ordered to active duty as a Captain in the Chaplain Corps.  On               1 October 1992, he was promoted to Major.

5.  On 25 April 1994, an investigation into an incident wherein it was alleged the applicant assaulted, by pushing from his office, his subordinate was completed.  The investigating officer found the applicant did commit an assault consummated by battery and recommended he receive a general officer letter of reprimand.  

6.  On 26 April 1994, the applicant’s commander and rater recommended he be given a general officer memorandum of reprimand.

7.  The contested OER, a change of rater report, for the period 1 October 1993 through 6 June 1994 was completed on 7 June 1994.  In part IVa, the rater gave him a “2” rating for “performs under physical and mental stress,” one negative comment in part IVb, the last sentence in part Vc was negative, and a potential rating of “promote with contemporaries.”  His senior rater gave him a second block potential rating and two negative comments in part VII.  The OER was not referred to the applicant.

8.  Sometime after the OER was completed, the Deputy Corps Commander of V Corps conducted a complete legal and factual review of the incident, determined that the conclusions brought forth in the investigation were not supported by the facts and recommended the Corps Commander return the investigation/inquiry without action.  The Corps Commander agreed with that recommendation and directed that it be accomplished.

9.  The applicant appealed the OER.  The Officer Special Review Board (OSRB) denied the appeal, concluding there was insufficient convincing evidence that parts IV, V and VII of the contested OER were inaccurate, unjust or did not adequately reflect his performance/potential.

10.  The rater has provided a statement that had he received accurate information prior to evaluating his performance, the applicant would have received the highest rating in all categories.

11.  The applicant had been rated as all “1s” in part IVa on all OERs previous to and subsequent to the contested report.  His senior rater profiles have been (* indicates applicant’s rating):

	OER ending 10 July 1987:  1 / 2* / 1 / 0…0
	OER ending 26 June 1988:  7* / 9 / 2 / 0…0
	OER ending 17 June 1989:  2 / 17* / 7 / 0…0
	OER ending 16 December 1989:  0 / 0 / 2* / 0 / 1 / 0…0
	Advanced Course Academic Evaluation Report:  exceeded course standards
OER ending 31 December 1990:  1* / 0…0
OER ending 20 December 1991:  1* / 0…0
OER ending 30 September 1992:  2* / 0…0
OER ending 30 September 1993:  0 / 1* / 0…0 (same rater/senior rater as contested report)
Contested report:  0 / 4* / 0…0
OER ending 6 June 1995:  3* / 2 / 0…0
OER ending 6 June 1996:  21* / 4 / 0…0
OER ending 7 June 1997:  11* / 2 / 0…0

12.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also 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.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

13.  That regulation provides that while the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.

14.  A formal hearing was granted in the applicant’s case on 27 January 1999.  He attended with counsel.  He testified under oath and further requested reconsideration for promotion to lieutenant colonel by a special selection board.

CONCLUSIONS  

1.  Based on the evidence of record it appears that the enlisted soldier involved had had prior similar problems with at least one other chaplain and that this incident was overblown.  Rather than assaulting the enlisted soldier, the applicant, more in a pastoral manner, placed his hands on the soldier in order to calm him down and escort him out of the chaplain’s office.

2. There may have been undue command influence, especially from the applicant’s senior rater, in the investigation of the incident.  A legal review at the lowest level determined that there was no evidence to support a finding of misconduct or inappropriate behavior, much less “assault.”  This review was ignored and the investigation was forwarded to higher channels.  The OER was then completed and the rating officials entered comments on it clearly referring to this incident.  V Corps, the higher command, then conducted a thorough administrative and legal review and determined the findings were not supported by the evidence and that no action should be taken.  

3.  In view of the circumstances in this case to include the testimony provided by the applicant and notwithstanding the opinions expressed by the OSRB in its case summary, the Board is satisfied that the evidence adequately shows that the contested OER does not represent a fair, objective and valid appraisal of the applicant’s performance and potential during the period in question.

4.  In view of the foregoing findings and conclusions, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION: 

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

     a.  expunging the OER ending 6 June 1994 from the Official Military Personnel               
File of the individual concerned;

     b.  removing from his records the memoranda prepared by the Total Army Personnel Command indicating the denial of his appeal of the contested OER and any other documents pertaining to the denial of his appeal; 

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

     d.  submitting his records, as thus corrected, to the appropriate special selection                    
board(s) for promotion reconsideration.
2.  That if not selected under the criteria established for the first promotion board which nonselected him, his records should continue to be submitted to duly constituted special selection boards convened under the appropriate promotion criteria of the boards that nonselected him until he is either selected for promotion or has been afforded all appropriate promotion reconsideration to which he is entitled as a result of this corrective action.

3.  That if he is selected for promotion, he should be promoted with an appropriate date of rank, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

DISSENT:  One member (Ms. Patterson) dissents from the foregoing conclusions and recommendation as she is of the opinion that the applicant has not shown to her satisfaction that an “inappropriate response” (the wording on the OER) did not occur and that the OER is not an accurate reflection of his performance of duties.  Therefore, she recommends his application be denied in its entirety.

					James E. Vick
				                                                              
	CHAIRPERSON

INDEX

CASE ID	AR1998012660	
SUFFIX		
RECON		
DATE BOARDED	19990127	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.