PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           19 May 1999                  
	DOCKET NUMBER:   AR1999024232

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Robert G. Hinkle		Member	
	Mr. Roger W. Able		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 the Officer Evaluation Report (OER) he was given for the period covering 3 August 1995 through 2 August 1996 be deleted in its entirety. 

3.  He states that the comments made on his OER were the result of prejudice and bias against him by his rater and senior rater.  He contends that he was a superb dentist and did excellent work, and that his senior rater only rated him as he did because he was prejudiced against woman and minorities, never having had to work with them before.  He also charges that his senior rater made a racially inflammatory remark to him.  As for the remarks made by his rater (a female minority officer), he contends that she was in a precarious position, trying to give him a fair evaluation while not contradicting his senior rater, who was her rater.  When questioned why she rated him as she did, she responded that it was because he did not follow her directive to “lay low, do your job, be seen and not heard”, that he “did not recognize [his] position as a minority and a junior grade dentist.”  He points out that his rater stated that he was an excellent dentist and hard worker.

4.  In support of his application he submits statements from a military dependent who professes to having heard the applicant’s senior rater make the racially inflammatory remark to him and from the dental clinic’s first sergeant who states that the applicant’s senior rater had made comments that had “strong racial undertones” and opined that he had “a total disrespect for people of color.”  He also submits numerous statements from individuals who attest to his professional competency and his ability to get things done.  In several of these statements comments were made about their witnessing the applicant’s senior rater publicly berating him for his errors, real and imagined.

5.  The applicant's military records show that he was ordered to active duty to fulfill an active duty service obligation on 25 July 1993 in the rank of captain, his rank being established by equivalent service computed on his completion of dental school and the award of a doctorate in dentistry.

6.  His first two OER’s depict him as an outstanding officer who willingly accepted additional duty assignments, and named the several projects he had worked on.  However, his second OER was referred due to his exceeding the Army weight control standards during that rating period.  

7.  He was then given an OER for the period covering 3 August 1994 to 2 August 1995.  In that report his rater named several additional duties the applicant had been responsible for during that rating period and stated that “He works to coordinate his responsibilities with time management during his busy schedule.”  His rater gave him the highest rating for performance during that rating period, but gave him only the second highest rating, “Promote with contemporaries” for his potential.  His senior rater stated, in part, that “He possesses all of the technical requisites necessary to progress and become an exceptional practitioner, if the effort is put forth” and “He should be considered for the MTOE side of military dentistry and for the Officer’s Advanced Course, should he consider the military as a career.”  His senior rater placed him in the second block of his profile, which was below his center of mass.

8.  His following OER was for the period covering 3 August 1995 to 2 August 1996).  On the Professional Competence portion of that rating his rater assigned him “2’s” for “Displays sound judgement” and “Is adaptable to changing situations.”  (On a scale of 1 to 5 where 1 is the best rating).  His rater again named several additional duties the applicant had been responsible for during that rating period and gave him only the second highest rating, “Promote with contemporaries” for his potential, but downgraded his rating for his performance, giving him only the second highest rating, “Usually exceeded requirements.”  His senior rater placed him in the third block of his profile, which was again below his center of mass.  His senior rater stated [The applicant] possesses the requisite professional credentials and abilities to develop into an excellent practitioner.  His transition into a military practice has not been without difficulty.  He has expressed little desire to specialize and may be best served by private practice.  My center of mass is the second block.”

9.  On 16 November 1998 the Officer Special Review Board (OSRB) considered the applicant’s request to delete two OER’s in their entirety.  The OSRB contacted the rater of the applicant’s second contested OER, a female minority officer, who stated that the applicant was transferred from one dental clinic to their clinic because he had been accused of sexually harassing a civilian employee.  The senior rater knew about the circumstances surrounding the applicant’s assignment, and resented him all the more because he was forced to lose a young white male officer whom he favored.  She stated that the senior rater was accustomed to working with senior white males and had a hard time adjusting to women and minorities.

10.  The OSRB then contacted the applicant’s senior rater who provided the OSRB documentation showing that he and the applicant’s raters counseled him on at least 23 occasions on time management, patient complaints on harsh treatment, unauthorized absences, improper use of the chain of command, failure to meet suspense’s, failure to follow clinic sign out policy, blatant disregard of regulations and resistance to authority, explanation that it was inappropriate to conduct personal business on duty time, explanation of on call responsibilities of dentist on duty, excessive requests for time off, and how to prepare for entry into specialization training.  The senior rater stated that while the applicant was very friendly, polite and outgoing, he always tried to do as little as possible in the clinic and to get as much time off as possible for his personal interests which consisted of working on cars, weight lifting and playing with his computer.  His senior rater continued that while it was normal for the applicant to be away from duty at least three times a week, he always had an excuse which made the absence someone else’s fault.  The senior rater denied ever having made any racial remark to the applicant.

11. The OSRB then contacted the dental activity commander for whom the senior rater worked.  He confirmed that the senior rater counseled the applicant on numerous occasions, and that he had attended some of those counseling sessions.  He stated that his impression was that while the applicant was an adequate clinical dentist, he would not accept rules nor could he accept the need to be accountable for his time.  He stated that it was his opinion that the senior rater was not racially prejudiced toward the applicant or any other minority group, that the senior rater had two other minority officers who worked for him who had never complained about him.

12.  The OSRB contacted the deputy dental activity commander who opined that the senior rater was very unprofessional when he publicly counseled his officers, but he did that to all of his junior officers, it was his leadership style.  However, he stated that he felt that the applicant got more than his share of counseling.

13.  The OSRB contacted the commander of the regional dental command who stated that based on a concern expressed by an officer who worked in the clinic with the rater, he made inquiries into the relationship between the applicant and his senior rater.  He was told that the applicant constantly complained and was having difficulty with his senior rater because the senior rater was a taskmaster who insisted that all dentist put in a full duty day and account for their time.  He continued that the applicant had requested to meet with him due to his concerns over receiving a weak OER and his fear that he would receive another bad OER in the future.  The regional commander thought the meeting fairly unusual because the applicant had gone several levels above his supervisor and had brought his wife to the meeting.  The regional commander stated that at no time did the applicant allege that he was being discriminated against.  The regional commander then visited the clinic to determine first hand whether the applicant’s concerns on mistreatment had any validity.  He was told by all the staff, both the applicant’s senior rater’s subordinate dentists and his superiors, that the senior rater was a tough taskmaster but was fair to all his staff.  When specifically questioned about the applicant, the staff responded that he was having performance problems but was being treated fairly.  This included the applicant’s rater, a female minority officer.

14.  The OSRB concluded that the applicant’s senior rater was focused on production; he demanded total accountability of duty time; he counseled the applicant in public using confrontational and inflammatory terms; he openly expressed dissatisfaction with the applicant’s duty performance, unaccounted for time away from duty and frequent requests for time off; and had a strong opinion of what junior officers should do to be successful in the Dental Corps.  The OSRB concluded that two unsupported statements alleging racial discrimination, in conjunction with the fact that the applicant did not allege racial discrimination when he had his meeting with the regional commander, does not provide clear and compelling evidence to substantiate the contention.  However, the OSRB also concluded that the evidence shows that the senior rater knew of the circumstances surrounding the applicant’s reassignment to his clinic, he viewed the applicant with suspicion because of the allegations that had been made against him, he tracked the applicant’s duty time in great detail and, when the applicant made a mistake, the senior rater’s negative opinion was reinforced.  The senior rater viewed his primary job and responsibility as one where he had to ensure production.  Extra duties that took dentists away from clinical duties harmed his ability to complete the mission.  The applicant complicated the situation and reinforced the senior rater’s negative opinion by frequently requesting time off to conduct personal business or to perform extra duties.  The applicant also displayed a tendency to circumvent the rating chain each time he did not get what he wanted.

15.  The OSRB found that while the evidence did not support the applicant’s request to have both reports deleted, it did indicate that the senior rater block check and portions of the narrative comments in each report were both misleading, inaccurate, unnecessarily negative and unjust.  As a result of those findings, the OSRB altered the OER for the period ending 2 August 1995 by deleting the senior rater profile and by deleting two narrative comments.  The OSRB altered the OER for the period ending 2 August 1996 by deleting two narrative comments.

CONCLUSIONS:

1.  While the applicant has claimed that his ratings were based on racial prejudice, and has submitted statements which would appear to support that allegation, the evidence of record contradicts that contention.  It appears that the applicant’s senior rater was a hard task master who was very confrontational with his subordinates.  If the applicant had made his allegations at the time the allegedly objectionable behavior occurred and not after he had been passed over for promotion, his allegations could have been considered through appropriate channels.  The applicant had several opportunities to raise these allegations through various channels but did not do so.

2.  It is noted that there is no indication that the senior rater gave adverse OER’s to the other minority officers he senior rated nor is there any indication that any complaints have been filed against him for racial slurs or other discriminatory behavior.  

3.  However, the OSRB has opined that the applicant did not have a fair chance with his senior rater because his senior rater knew about the circumstances surrounding his reassignment.  The evidence of record supports that finding.  Based on that mindset, the OER was so tainted by the senior rater that the removal of portions of the report by the OSRB still does not render the OER an accurate document which portrays the applicant’s performance and potential.  As such, it is unfair to the applicant to leave any portion of the OER in his file.

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

RECOMMENDATION:

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

a.  deleting the OER of the individual concerned for the period covering 3 August 1995 through 2 August 1996 in its entirety; and

b.  giving him promotion reconsideration to the rank of major.

BOARD VOTE:  

_jns_____  rgh_____  _rwa____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_John N. Slone_____________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999024232	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990519	
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.		
2.		
3.		
4.		
5.		
6.