PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:                              
	DOCKET NUMBER:   AC9810491

	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	
	M .		Analyst	

  The following members, a quorum, were present:

	Mr. 		Chairperson	
	Mr. 		Member	
	Mr. 		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 removal or correction of his Officer Evaluation Report (OER) for the period 25 January 1994 to 13 July 1994.  (Promotion consideration is not an issue as he was promoted to Major 1 October 1996.)

3.  The applicant states the senior rater’s statements in parts VIIa and VIIb did not reflect his actual performance for that period.  The Officer Special Review Board (OSRB) partially granted his first appeal by deleting part Vc of this OER.  He submitted a second appeal to further bolster his request to delete or correct the senior rater’s portion, but it was returned without action.

4.  The applicant’s military records show that, after having prior enlisted service, he was appointed as a second lieutenant in the U. S. Army Reserve on             26 January 1983.  He was voluntarily ordered to active duty in an Active Guard/Reserve status on 26 August 1990 and was assigned to the 246th Quartermaster Battalion, Puerto Rico.  He served six months in Southwest Asia in 1991 and returned to the 246th Quartermaster Battalion.

5.  The contested OER is a permanent change of station report for a 6-month period.  The applicant was a Captain at the time.  In part IVa, Professional Competence, the rater gave the applicant nine 1s, four 2s and one 3 (1 being to the highest degree; 5 to the lowest degree) in the 14 areas rated.  One of his comments in part IVb was “Need improvement in this (motivates, challenges and develops subordinates) area.”  His performance was rated as “met requirements” and his potential as “promote with contemporaries.”

6.  The senior rater gave him a 3-block (below center of mass) potential rating.  His comments consisted of two sentences – “…showed problems on organization and his priorities during later months were driven by his personal needs…recommended to attend OAC immediately and C3 ASAP.”

7.  The applicant appealed this OER in December 1995 (SEE ATTACHED).  The applicant had provided supporting statements.  All of the statements provided a picture of the applicant as a highly competent officer who served with not-so-competent peers and superiors who tended to blame him for their own inadequacies, particularly for the unit’s poor performance during its annual training.  Several of the individuals made concrete statements that the rating officials were racially biased and were going to use the OER to “get” the applicant.  One individual overheard the rater say that “…he was going to f___ the career of … because that f___ing Captain did not like him;” and “we have to do something about those blacks.”  Another individual overheard a discussion from the battalion commander stating that he was going to get that S.O.B. (referring to the applicant).  One individual alluded to the appellant being of the “…wrong skin color…” as an influencing factor if not the source of his problems.
8.  The OSRB found that this suggested racial bias was not the “clear and convincing evidence of a strong and compelling nature” necessary to overcome the presumption of regularity which would justify deletion of the OER.  However, as a separate action the OSRB referred the issue to the Army Reserve Personnel Center (ARPERCEN) Equal Opportunity Office for action as a separate action.  (Conversation with the Army Reserve Personnel Command on 20 October 1998 indicated they had no record of this action in their files.)

9.  The OSRB did find that the rater failed to render an objective evaluation of the applicant’s performance in part Vc and ordered that section of the OER deleted.  It found insufficient evidence that the rest of the OER was unjust or substantively inaccurate.  

10.  The applicant resubmitted his appeal on 3 June 1996 based upon substantive inaccuracy.  His appeal was returned to him without action.

11.  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.  For a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period.  

CONCLUSIONS:

1.  The applicant appealed the contested OER based upon substantive inaccuracy on the part of both the rater and the senior rater.  The OSRB partially approved his appeal and deleted part Vc, rater comments on specific aspects of performance.  

2.  Based upon suggested racial bias noted in some of the third party statements, the OSRB referred that issue to the ARPERCEN Equal Opportunity Office; however, that office has no record of acting on or receiving such an action.

3.  The OSRB recognized that there was a possibility of an improper racial bias in the evaluations of the rating officials but determined that there was no “clear and convincing evidence of a strong and compelling nature” to convince the OSRB that it was in fact an influencing factor.  Notwithstanding the OSRB’s determination, this Board feels that the third party statements do show there was such a bias on the part of the raters and that it did influence how they rendered their evaluations.  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 or potential by either the rater or senior rater during the period in question.

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

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing from the Official Military Personnel File of the individual concerned the Officer Evaluation Report covering the period 25 January 1994 through 13 July 1994.

2.  That an appropriate nonprejudicial statement explaining the absence of the aforementioned evaluation report be placed in his records.

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

BOARD VOTE:  

________  ________  ________  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON