PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:           17 November 1999
	DOCKET NUMBER:   AC98-10162
   AR1998014501

	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 H. Keller		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Ted S. Kanamine		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 that an officer evaluation report (OER) covering the period 13 September 1990 through 12 September 1991 be removed from his records.

3.  The applicant states that the senior rater had insufficient time to rate him.  The rater and senior rater changed this report after they had referred a different version to him.  The command failed to provide him the required opportunity to respond to the letter of referral because they sent it to the wrong address via certified mail.  

4.  In a separate statement submitted with his application, the applicant states that while home on emergency leave from Germany, he applied for a compassionate reassignment, was attached to a Reserve unit, the request was approved and he did not return to Germany.  The contested report was referred, but was sent to the wrong address.  When he did not acknowledge it, the OER was processed and included in his official military personnel file (OMPF).  According to the applicant, the unit violated his right to respond to the OER by failing to provide a copy of the report to him by the documented suspense date.  He points out that that the letter of referral wasn’t sent out until 3 weeks into the 30-day suspense, and had his unit sent it to the correct address he would have had a total of 8 days to respond.  He provides a letter from his battalion adjutant that claims he “chose not to respond,” using a certified mail receipt as proof that he received the OER.

5.  The applicant provides two versions of the contested OER, an “original” dated “October 24, 1991” (the Board notes that the senior rater provides the only date on this document), and a second report, the “changed OER,” which is dated 
18 December 1991.  He contends that the rater and senior rater rewrote this OER, changing the administrative data and lowering the evaluation, after he had been referred a different version, a clear violation of the regulation.  He contends that the senior rater signed the original OER on “October 24, 1991,” and the letter of referral on 28 October 1991.  The letter and OER were sent via certified mail on 19 November 1991.  The new OER was signed by the rater and senior rater on 18 December 1991 with the following changes:  Part IVa, “Displays sound judgment,” was changed from 1 to 2; the “from” date under “period covered” was changed from 12 September 1990 to 13 September 1990; Part Vb, “always exceeded requirements” was changed to “usually exceeded requirements;” and Part Vd, “promote ahead of contemporaries” was changed to “promote with contemporaries.”

6.  The applicant states that the senior rater had recently taken command and his assessment, based on 43 days, began with his assumption of command on 
20 June 1991 and ended on 3 August 1991; and that the content of the senior rater’s evaluation is directly linked to his compassionate reassignment.  The senior rater, unaware of his family situation at home, used the evaluation system to punish him, and eventually ruin his career.

7.  The applicant submits numerous documents in support of his request, including:  the Officer Special Review Board (OSRB) case summary on his appeal; his response to the findings thereof; documents relating to his compassionate reassignment; a certified mail receipt; a letter from the US Postal Service defining certified mail procedures; a copy of the “original” contested OER and the “changed” OER which made it to his records; a statement of support from a fellow officer; and other correspondence relating to OERs which he received subsequent to the contested report.

8.  The applicant’s military records show that he was appointed a Reserve commissioned officer in the rank of second lieutenant on 17 December 1988.  He entered active duty on 17 October 1989 and, after competing the officer basic course, was assigned to Germany.

9.  In August 1991, the applicant returned to the United States on emergency leave.  On 5 September 1991, he was attached to the 370th Quartermaster Battalion, Great Falls, Montana, pending compassionate reassignment.  His request for compassionate reassignment was subsequently approved and he never returned to his unit in Germany.

10.  The contested OER is an annual report evaluating the applicant as platoon leader in a military intelligence (MI) company.  The rater (his company commander, a captain) gave the applicant ratings of 1 in part IV, the performance evaluation portion of the OER, except for a “2” rating in block 8.  The rater’s supporting comments in part IV were favorable.  In part V, the performance and potential evaluation portion, the rater checked the “usually exceeds requirements” performance block, and checked the “promote with contemporaries” potential block.  The rater’s supporting comments indicated that the applicant needed to pay more attention to detail in his assigned special emphasis area and to specific instructions regarding taskings; that although mandatory safety training had taken place within the company, not all required documentation was on hand during an annual general inspection; and that personal problems beyond his control weighed heavily on him and caused him at times to lose focus on the job. The remaining comments were otherwise favorable.

11.  The senior rater (the battalion commander, a lieutenant colonel) placed the applicant in the fourth block of part VIIa, the potential evaluation portion of the OER.  (The senior rater potential evaluation of the OER contains nine blocks.  A rated officer’s placement in the top block determines that he possesses greater potential than an officer placed in the second through ninth blocks.)  The supporting comments stated that the applicant was behind his contemporaries in his technical and tactical development, that he had limited potential at the time for command and staff positions, and he highly recommended that the applicant be considered for early separation from the service.  

12.  Although the OER was referred to the applicant on 28 October 1991, he did not respond due to his emergency leave situation.  Based on information furnished by the applicant, it appears that his unit mailed the referred report to the wrong address and he did not receive it.  On 3 December 1991, the OER was forwarded to the servicing personnel office for processing, with a statement that the applicant did not respond to the referred report.

13.  On 29 April 1994 the applicant was informed by the Total Army Personnel Command that he was not selected for retention on active duty by the 1993 Captain Promotion/Retention Selection Board.  The applicant was separated on 15 August 1994 with 4 years, 9 months and 29 days creditable service.

14.  The OSRB received the applicant’s appeal of the subject OER on 
23 October 1997.  The reasons for his appeal were essentially the same as he submitted to this Board.

15.  The OSRB elected to contact the senior rater, who was queried about the date he assumed command of the MI battalion to verify he had sufficient time to serve as a rating official for the applicant.  The senior rater stated that he was reassigned to the battalion on 13 June 1991 and took command on or about 
22 June 1991.  He stated that if he would have needed to be the battalion commander on 1 June 1991 in order to be the applicant’s senior rater, he was not.  He also stated that he was unaware that the applicant did not receive the referred OER because the unit had mailed the report to the wrong address.  He also stated that there were no further discussions regarding changing the evaluation of the applicant between himself and the rater once the OER was referred.

16.  After a thorough review of the appeal evidence submitted by the applicant, the OSRB concluded that he provided sufficiently convincing evidence to warrant amending the report.  However, the OSRB did not believe the evidence supported the removal of the report from the applicant’s OMPF.  The applicant’s appeal was partially approved to delete the senior rater’s portion (part VII) in its entirety and substitute a comment that the senior rater was unable to evaluate the rated officer because he has not been his senior rater for the required number of days.  The report was also administratively corrected to include a nonrated period (the applicant’s emergency leave), and to remove two enclosures (the letter from the battalion adjutant that claims the applicant chose not to respond to the referral, and the certified mail receipt).  He was informed of this decision on 9 February 1998.

17.  Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, for inclusion in the official record of an officer is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be withdrawn will not be honored.  An exception is granted only when the information which was unknown or unverified when the OER was prepared is brought to light or verified that the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time it was prepared.  Paragraph 5-32 also states that an OER is presumed to represent the considered opinions and objective judgment of the rating official(s) at the time of preparation.

18.  Paragraph 9-7 of the regulation states that the burden of proof in any 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 error or inaccuracy is warranted.

19.  Paragraph 4-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated officer with their obligations to the Army.  Rating officials must make fair and honest evaluations of the officer under their supervision.  They are likewise obligated to the Army to be discriminating in their evaluations so that Army selection boards and career managers can make intelligent assignments and career management decisions.

20.  Paragraph 4-27 provides, in pertinent part, that any OER 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 for acknowledgment and comment prior to forwarding to Department of the Army.

21.  Paragraph 3-10 establishes a minimum period of 60 calendar days for the senior rater to serve in that capacity in order to evaluate the rated officer.

CONCLUSIONS:

1.  The senior rater did not meet the minimum qualifications to evaluate the applicant; the Board concurs with the OSRB decision to delete the senior rater portion of the OER.  However, even with the OSRB’s action, the remaining portion of the report completed by the rater contains derogatory comments about the applicant’s performance and potential.

2.  The applicant provided sufficient evidence to show that, through no fault of his own, he did not receive the referred OER and was, thus, denied his due process right to respond to the derogatory comments therein.  The Board, therefore, believes that the entire report should be removed from the applicant’s records.  This action obviates the necessity to address the alleged alteration of the OER by rating officials.

3.  Therefore, in view of the foregoing findings and conclusions, and in the interest of justice and equality, it would be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

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

     a.  by removing the OER ending 12 September 1991 in its entirety from the applicant’s OMPF;

     b.  by declaring the period of the contested report as nonrated time and by placing a non-prejudicial statement in his records to explain the nonrated period of service; and

     c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by the 1993 Captain Promotion/Retention Selection Board.

2.  That 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 be returned to this Board for permanent filing.

BOARD VOTE:  

_CMF___  __JNS___  __TSK__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		CALVIN M. FOWLER______
		        CHAIRPERSON

INDEX

CASE ID	AC98-10162/AR1998014501	
SUFFIX		
RECON		
DATE BOARDED	19991117	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.