PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            19 January 2000                  
	DOCKET NUMBER:   AR1999024010

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor Jr.		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Mr. John P. Infante 		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 a 9-month change of rater Officer Evaluation Report (OER) for the period 930202 – 931104 be voided and replaced with a corrected version of the report.  He also requests that his corrected file be placed before a lieutenant colonel promotion board for reconsideration for promotion.

3.  The applicant states, in effect, that the subject OER was fraudulently prepared by his rater’s successor and does not reflect the true rater’s evaluation of his performance.  He contends that his rater, who retired, left a signed, blank OER form (DA Form 67-8) and a draft copy of his OER containing laudable comments about his performance.  The rater’s successor then prepared the subject OER, changing the laudable comments to negative ones.  He further contends that this fraudulent, negative OER caused his nonselection to the rank of lieutenant colonel.

The applicant submitted voluminous documentation in support of his application. Please refer to the list of supporting documentation attached to this Proceedings.

4.  The applicant’s counsel (Veterans of Foreign Wars of the United States) reviewed his file (COPY ATTACHED) and opined that there were irregularities in the preparation of the subject OER and that the report contains substantive inaccuracies.  Counsel requests that the Board approve the applicant’s request.

5.  The applicant’s military records show that he is a major who has served with the Army National Guard (ARNG) and US Army Reserve (USAR).  He received the subject OER while serving as an instructor in the Command and General Staff Officers Course (CGSOC), 5033rd United States Army Reserve Forces School (USARFS), Lansing, Michigan.  The OER was for a 9-month period and was rendered upon the retirement of his rater, the Director of Officer Courses.  It questioned his capacity to acquire knowledge and gain concepts, display sound judgment, and deliver clear and concise written communications [he received a rating of 2 in these areas in Part IVa].  Under performance and potential (Part V), he was rated as merely having met requirements [Block 3 of Part IVb] and it was recommended that he be promoted along with his contemporaries [Block 2 of Part IVd].  The senior rater placed him in Block 3 of his rating profile (one of 14 ratings in that block), with 8 officers above him and none below him [this is a center of mass rating].  The rater’s narrative comments were uncomplimentary.

6.  The applicant did not receive a copy of the subject OER for almost 1 year.  When he did, he had already received an OER for the period 931105-940503 from his rater’s successor, who was changing assignments to become the Personnel Officer for the USARFS.  The new Director of Officer Courses alerted the applicant to a possible problem with the subject OER when his predecessor made verbal comments to him about the applicant’s abilities that were strikingly similar to the written comments on the subject OER.  The new Director of Officer Courses contacted the rater for the subject OER and asked whether he had made the comments on the report.  The rater stated that those were not his comments, that he had been complimentary of the applicant’s duty performance. The applicant was notified and accused his rater’s successor of having altered the OER by changing the rater’s input for the report.  He requested a commander’s inquiry into the matter.

7.  The commander’s inquiry found that when the rater departed, he left draft comments that were complimentary in nature and a signed, blank DA Form 67-8 to be completed by the unit personnel section.  Because the unit personnel section had implemented computer-generated OERs, the signed, blank OER was allegedly not used.  Instead, the OER was prepared on a computer and the rater and the unit Personnel NCO met in a restaurant parking lot midway between the rater’s home and the unit for the purpose of signing the OER.  When asked if he had signed a negative OER in the parking lot, the rater stated that he did not read the computer-generated OER he was given to sign at the restaurant, but he assumed that it contained his positive draft comments.  The inquiry, however, found that, regardless of what it said, the computer-generated report was not submitted to HQDA for inclusion in the applicant’s OMPF.  The report in the applicant’s OMPF bears the US Government Printing Office label on the back of the form, suggesting that the signed, blank OER was, in fact, used; there is no US Government Printing Office label on computer-generated DA Forms 67-8.

8.  The applicant asked for a commander’s inquiry into the preparation of his OER.  The inquiry concluded that the OER was not properly produced or processed and that it was possible that the rater’s comments and ratings had been changed by persons unknown.  A revised OER was completed and submitted to ARPERCEN for inclusion in the applicant’s OMPF.  This revised OER could not be accepted by ARPERCEN and the applicant was advised to file an OER appeal.

9.  The applicant appealed to the OSRB, forwarding the results of the commander’s inquiry.  The OSRB, in a case summary dated 7 October 1996 (COPY ATTACHED), opined that the rater had “. . . clearly failed to execute his responsibility . . . ” in completing the OER, but denied the applicant’s request to have the OER corrected stating that he had not presented sufficient proof to overcome the presumption that an OER accepted by HQDA was correctly completed.

10.  Army Regulation 623-105 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, and included in the official record of an officer, is presumed to be administratively correct, 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.

CONCLUSIONS:

1.  The rater of the subject OER stated that, upon his retirement, he provided laudatory draft comments and a signed, blank DA Form 67-8 to the unit personnel section in order to provide the applicant with a change of rater OER.  The Personnel NCO stated that the signed, blank OER was not used in favor of a computer-generated OER, but the report that ultimately was filed in the applicant’s OMPF appears to be the US Government Printing Office signed, blank OER with derogatory comments rather than the laudatory draft comments provided by the rater.  The rater stated that the comments and ratings on the subject OER were not the comments and ratings that he submitted.

2.  A commander’s inquiry could not determine how the subject report came to be prepared, but established the signed, blank OER form was used and that derogatory comments were substituted for the rater’s laudatory draft comments.  The OSRB opined that the applicant had not overcome the presumption of regularity ascribed to a report accepted by HQDA and included in an officer’s OMPF.

3.  The OSRB’s opinion notwithstanding, it appears to this Board that the subject OER was improperly prepared and does not represent the rater’s opinion of the applicant’s duty performance during the rating period.

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

RECOMMENDATION:

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

a.  deleting the subject OER, and all related documents, from the OMPF of the individual concerned and declaring the period as nonrated time;

	b.  inserting a suitable statement in the OMPF of the individual concerned to explain that the period of the subject OER is considered nonrated time; and

	c.  submitting the corrected records of the individual concerned to a standby promotion board for reconsideration for promotion to the rank of lieutenant colonel.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

_RVO___  __CLG___  __JPI___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_RAYMOND V. O’CONNOR JR._
		        CHAIRPERSON

LIST OF SUPPORTING DOCUMENTATION

The applicant submitted the following supporting documentation with his application:

1.	Letter to the Board, dated 30 June 1999.
2.	Letter to Army Review Board Agency – St. Louis (ARBA – St. Louis),
dated 29 March 1999 [appears twice].
3.	Copy of ARPERSCOM memo, dated 1 June 1999, subject:  Consideration for Lieutenant Colonel (with Addendum).
4.	Copy of newspaper article entitled “America’s our republic, if we can keep it”, written by applicant and appearing in the 17 January 1999 Muskegan (MI) Chronicle.
5.	Copy of applicant’s 1-page curriculum vitae.
6.	Copy of applicant’s memo for Cdr, ARPERCEN, dated 23 September 1997, subject:  Officer Evaluation Report Appeal—resubmission of Appeal.
7.	Copy of applicant’s memo for record, dated 23 September 1997, subject: SAB.
8.	Copy of ARPERCEN memo for applicant, dated 21 October 1996, subject: Appeal of OER.
9.	Copy of sworn statement of applicant’s rater, dated 7 October 1997.
10.	Copy of letter from ODCSPER (HQDA) to applicant, dated 16 January 1997, concerning Privacy Act request of applicant.
11.	Copy of DCSPER Officer Special Review Board (OSRB) Case Summary of applicant’s OER appeal, dated 7 October 1996.
12.	Copy of applicant’s memo for Cdr, ARPERCEN, date stamped 21 March 1996 and 3 Nov 1997, subject:  Evaluation Report Appeal.
13.	Copy of applicant’s rater’s letter to Cdr ARPERSCOM, dated 3 January 1996, subject:  Appeal of OER—[Applicant].
14.	Copy of subject OER with typed corrections made [appears twice].
15.	Copy of applicant’s rater’s letter to Cdr, 5033rd USARFS, dated 25 June 1995, requesting corrections to applicant’s OER.
16.	Copy of subject OER with handwritten corrections indicated.
17.	Copy of HQ, 5033rd USARFS Command Sergeant Major’s memo, dated 22 December 1995, subject:  Memorandum of Understanding – OER [applicant].
18.	Copy of 5033rd USARFS Director of Officer Courses memo for record, dated 29 January 1996, subject:  [Applicant] fraudulent/Altered In Error OER, [appears three times].
19.	Copy of 5033rd USARFS School Administrator’s memo for record, dated 14 April 1996, subject:  OER.
20.	Copy of 5033rd USARFS Commandant’s memo for Cdr, ARPERCEN, dated 30 April 1996, subject:  Commander’s Inquiry.
21.	Copy of handwritten statement of 5033d USARFS PSNCO, dated 25 April 1996.
22.	Copy of statement from applicant’s rater, dated 29 April 1996, concerning a meeting with [PSNCO] to sign OER.
23.	Copy of applicant’s rater’s successor’s statement, date stamped 3 Nov 1997,concerning his recollection of the processing of subject OER.
24.	Copy of ARPERCEN memo for Cdr 123rd ARCOM USAR Center, dated 7 September 1994, subject:  Correction of Evaluation Report.
25.	Copy of document with suspense date of 22 October 1994, subject:  Correction of Evaluation Report.
26.	Copy of DA Form 2823, Sworn Statement, made by applicant’s rater, dated 10 April 1996.
27.	Copy of applicant’s letter to [superior], dated 30 August 1995, concerning subject OER appeal.
28.	Copy of applicant’s memo for Cdr, ARPERCEN, date stamped 14 September 1995, subject:  Evaluation Report Appeal, with receipt for certified mail attached.
29.	Copy of ARPERCEN memo for applicant, dated 20 September 1995, subject:  Appeal of OER, returning his appeal for insufficient evidence.
30.	Copy of applicant’s memo to Cdr, ARPERCEN, date stamped 20 February 1996, subject:  Evaluation Report Appeal.
31.	Copy of applicant’s memo for 84th Division IG, dated 19 February 1996, subject:  two Fraudulent and Abusive OER’s, with 931105-940503 OER attached.
32.	Copy of 84th Division IG letter to applicant, dated 29 February 1996, informing him of the OER appeals process.
33.	Copy of applicant’s memo for Cdr, PESCOM (sic), dated 18 March 1996, subject:  request for Commanders Inquiry on Fraudulent OER.
34.	Copy of applicant’s rater’s letter to Cdr, 5033rd USARFS, dated 25 June 1995, requesting corrections to subject OER and attaching the subject OER and items 13, 14 (twice), 16 (twice), 17, 18, 24, and 25.
35.	Copy of ARPERCEN memo for applicant, dated 8 April 1996, subject:  Evaluation Report Appeal, acknowledging receipt of applicant’s appeal.
36.	Copy of item 23, with items 19, 22, and 26 attached.
37.	Duplicate copy of item 21.
38.	Copy of item 20 with attachments of 84th Division IG letter to applicant, dated 19 September 1996 concerning applicant’s request for assitance, and applicant’s memo for 84th Division Commander, dated 12 September 1996, subject:  Fraudulent OER That I Can NOT Get Corrected Thru System.
39.	Copy of ARPERCEN memo for applicant, dated 16 May 1996, subject:  OER Appeal, informing applicant that his request ahs been forwarded to the DCSPER OSRB.
40.	Copy of ARPERCEN memo for applicant, dated 21 October 1996, subject: Appeal of OER, announcing DCSPER OSRB decision.  Also attached is a ODCSPER letter to applicant, dated 16 January 1997, concerning the applicant’s 18 December 1996 Privacy Act request and forwarding item 11.

INDEX

CASE ID	AR1999024010	
SUFFIX		
RECON		
DATE BOARDED	20000119	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY	DASA	
ISSUES         1.	111.0005.0000	
2.	111.0100	
3.	111.0100.0006	
4.	111.0100.0007	
5.	111.0100.0011	
6.