PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:                9 December 1999 
	DOCKET NUMBER:       AR1999025724

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Thomas D. Howard, Jr.		Member	
	Mr. James P. Steuve		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 his Officer Evaluation Report (OER) for the period 1 June 1995 to 31 May 1996 be corrected or removed from his “Official Military Performance Fiche”.  

3.  The applicant states that he disagrees with the rating of “Usually Exceeded Requirements” in Part Vb (Performance During This Rating Period); the rating of “Promote With Contemporaries” in part Vd (This officers Potential for promotion to the Next Higher Grade Is); the statement “with more experience and knowledge can become” in Part Ve (Comment on Potential); and placement of the Senior Rater (SR) “X” in the second block (“placed in the lower 40% of all Lieutenants senior rated by [his] senior rater).”  

4.  The applicant stated that he made this request because his rater used the OER as a means of retribution; the rater did not give the applicant guidance using performance objectives; the rater’s narrative evaluation does not agree with his block rating; the SR used the OER as a means of retribution; the SR basis for his evaluation, as documented in the Department of the Army (DAIG) Report of Investigation (ROI) is flawed; the SR’s narrative does not agree with his block rating; and the evaluations of the applicant’s performance both before and after the OER in question contradict the OER in question. 

5.  In support of his application, the applicant submitted a memorandum which explains in detail the bases for his request for removal or amendment of the OER in question as follows:

a.  The applicant contends that the rater used the OER in question as retribution.  He states that the rater only counseled him one time and that this counseling “praised [the applicant’s] positive performance.”  He contends that the rater “became biased” against the applicant because the applicant reported misconduct by the rater.  The applicant also notes that he reported these incidents well before he received his OER.  Specifically, he states that he reported the rater’s discrimination against minority officers to the 9th Army Reserve Command (ARCOM) IG; reported an instance of the rater’s abuse to the chain of command; reported to the chain of command and the IG an instance of the rater denying leave to the applicant; reported to the chain of command and the IG an incident with the rater; submitted a Request for Redress under Article 138 of the Uniform Code of Military Justice (UCMJ) to the rater and submitted a Complaint of Wrong under Article 138 of the UCMJ to his chain of command. 

b.  The applicant contends that the rater did not give him guidance using performance objectives or counsel him in accordance with Army regulations.  Specifically, the applicant states that the rater did not provide initial and quarterly performance counseling, but that the one performance counseling rendered by the rater demonstrated that the rater was very familiar with procedures for counseling subordinates.  He also contends that the SR directed the rater to complete a DA Form 67-8-1 (OER Support Form) and the rater failed to comply.  

c.  The applicant contends that the rater’s narrative evaluation does not agree with his “block rating”.  The applicant states that rater gave him “1” ratings (the highest ratings) in Part IVa (Performance Evaluation-Professionalism) and commended his communication skills, enforcement of standards with the unit, military bearing and treatment of unit soldiers.  The rater also states that in Part Vc the rater “extensively outlines [his] accomplishments, but in Part Vb (Performance During This Rating Period) and Part Vd (Officer’s Potential for Promotion to the Next Higher Grade) the rater gave him a “two block (Promote with Contemporaries) which does not correspond to the evaluations in the other portions of the OER in question.  The applicant also notes that he had already been selected for promotion to the next higher grade (captain) 6 months prior to the start date of the OER in question and over a year before the comment by the rater which concluded that the applicant “with more experience and knowledge can become an outstanding officer.”  In conclusion the applicant states that the rater did not indicate any area in which the applicant was deficient in experience or knowledge, yet made the cited statement on potential.

d.  The applicant contends the SR used the OER in question as a means of retribution.  He states that the SR was pleased with his performance until the applicant “reported the [SR’s] wrongdoing and failure to take action to the IG”.  To support this contention the applicant states that the SR awarded him the Army Achievement Medal; the rater and SR gave the applicant their highest evaluation on his first OER; the SR nominated the applicant for the General Douglas MacArthur Leadership Award; the SR awarded the applicant a second Army Achievement Medal; a new rater and the same SR gave the applicant their highest evaluation on his second OER; he received a letter of congratulations from the SR on being the Army Reserve, Pacific, representative in the General Douglas MacArthur Leadership Award Competition; the applicant was selected to be the acting commander for an engineer company; and the applicant received the Meritorious Service Medal for his accomplishments during the period February 1994 to August 1996.  The applicant contends that the SR became “biased” against him because he reported to the IG that the SR refused to process two awards properly; the applicant did not revise a Noncommissioned Officer Evaluation Report (NCOER) as desired by the SR; and the applicant reported the SR’s failure to take action on the rater’s wrongdoing regarding denial of leave.  

e.  The applicant contends that the SR’s basis for evaluation, as stated in the DAIG ROI, is “flawed”.  He contests the SR’s statement to the DAIG that the applicant “was an average performer who demonstrated poor judgement in dealing with a subordinate’s NCOER” by stating that the “evidence indicates the opposite” and then recites information regarding the two awards of the Army Achievement Medal, the high ratings on the applicant’s first two OER’s; the MacArthur Leadership Award, the congratulatory notes for the MacArthur Leadership Award, selection to be the acting company commander, award of the Meritorious Service Medal, receipt of a Memorandum of Appreciation from the post commander of Fort Wainwright, Alaska, and the narrative from the SR’s portion of the OER in question.

f.  The applicant further states that the DAIG Report of Investigation quoted the SR as stating the applicant “demonstrated poor judgement in dealing with a subordinate’s NCOER” and concludes that this is one of two factors which placed him below center of mass on his OER.  The applicant contends that he “used very good judgement” and that he did not alter the NCOER consistent with the SR’s desires.  He further states that the NCO in question was an “incredibly poor performer who did receive a fair evaluation”.  The applicant also contends that the SR knew of the NCO’s poor performance and did not have a basis for giving the applicant a substandard evaluation.

g.  The applicant next addressed the SR’s statement that “the four other Lieutenants that [he] was rated against were in tougher jobs and were performing outstandingly”.  The applicant admits that the other lieutenants “may in fact have performed outstandingly”; however, he contends the SR “is required to evaluate soldiers’ performance relative to each other.”  He states that his performance as documented in “paragraph 8. A. (1)-(14) speaks for itself”.  The applicant further states that the other lieutenants did not receive the MSM nor were they nominated for the MacArthur Leadership award.  He also argues that that, contrary to the SR’s assessment that the other lieutenants were in tougher jobs, he was the only AGR lieutenant assigned to the battalion and therefore would be assigned to the “most difficult position which required full-time attention”.  Secondly, he contends that of the two companies in the battalion his was located 380 miles away from the battalion headquarters which “required a much greater workload to run the unit in every respect”.  Finally he points out that the other lieutenants were not detailed for command.

h.  The applicant contends that the SR’s narrative evaluation does not agree with his block rating and specifically states that the SR’s “narrative evaluation of his performance in block VII b. does not describe the performance of an officer in the lower 40% of all lieutenants that he rated.

i.  The applicant also contends that evaluations of his performance both before and after the OER in question contradict the OER in question.  In support of this contention he states that he received two exemplary OER’s in the same position from two different raters who preceded the rater who rendered the rater portion of the OER in question.  He also states that the next two evaluations after the OER in question were also exemplary and were at a much higher level organization with correspondingly greater responsibilities.  He states that he skipped the standard assignments at battalion, brigade, regional support command and division level and was assigned to engineer command level and he was awarded the MSM and Army Commendation Medal during this assignment.  The applicant contends that these facts provide more evidence that the rater and SR used their evaluation of him as a tool of retribution, not an honest evaluation.  

j.  The applicant states the DAIG Report of Investigation concluded that there was no discrimination against two minority officers who attempted to join the unit to fill two vacant platoon leader positions for two reasons.  First, there was an officer strength cap in place and secondly there were no positions available because Reserve Officer Training Corps (ROTC) cadets were occupying the positions.  The applicant contends that the strength cap went into effect on 6 March 1996 and the officers were turned away in October and November 1995.  The applicant also argues that only one of the platoon leader positions was occupied and the issue of ROTC cadets filling positions is moot anyway because they cannot be placed in a platoon leader position and are placed in a category by themselves on the unit manning roster.  He also contends that the rater and SR were actively recruiting for lieutenants when the two minority officers showed up.  The applicant also states that a white male lieutenant was accepted into one of the two positions within a couple of months after the minority officers were turned away.  Finally, the applicant contends that the fact the two minority officers were not engineers is a moot point because the rater was a Chemical Corps officer and accepting non-aligned officers was standard practice within the Army Reserve as a whole as well as within the battalion.

k.  The applicant states that the fact the rater “was discriminating against two minority officers is central to the entire situation.”  The applicant contends that, until the rater became aware that he was going to report his discrimination, the rater “was well satisfied” with the applicant’s performance.  He further contends that it was not until the applicant reported the misconduct and the SR’s failure to intervene that the rater and SR had problems with the applicant.  The applicant states that no member of the 9th ARCOM or any inspector general ever talked to the two minority lieutenants in question.

l.  The applicant states that the rater in question was recently discharged from the Army Reserve for twice not being selected for promotion to the next higher grade as the result of a General Officer letter of reprimand received while on active duty.  The applicant contends that if the SR had properly screened the rater’s records he would have been aware of the letter of reprimand and “would most likely not have been accepted into the Army Reserve and certainly would not have been allowed to command a unit.” 

m.  In conclusion, the applicant contends that this is “a text book example of a corrupt company commander retaliating against a subordinate for reporting his misconduct.  He also contends that the SR sat “idly by for months allowing the abuses against [the applicant] to continue.”  The applicant states that, as a result of inaction by the SR, he had no choice but to go up the chain of command and to [his] Inspector General to seek assistance.  Consequently, the applicant believes that he is the one punished because he received a “non-competitive” OER which will most likely have an adverse impact on his career.

6.  In support of his application, the applicant submitted 17 enclosures which are listed at the index attached to the application.  All documents submitted with his application were provided to the Board for their deliberations. 

7.  The applicant’s military records show that he was appointed as a Reserve commissioned officer in the Corps of Engineers on 14 May 1988 and entered active duty on 3 January 1989.  He was appointed as a second lieutenant in the Regular Army and served until 31 August 1992 when he was discharged based on his voluntary unqualified resignation.  Records show the applicant was appointed in the rank of first lieutenant (1LT) as a Reserve commissioned officer in the Corps of Engineers effective 23 September 1992.  He was advanced to the rank of captain effective 21 August 1996.  

8.  At the time in question, the applicant was serving in the 813th Engineer Battalion (U.S. Army Reserve) as a 1LT in the Active Guard Reserve (AGR) program in the duty position of “Construction Inspection Officer”.  The OER in question covered the period 1 June 1995 through 31 May 1996.  He received ratings of “1” in all 14 elements of professional competence and positive comments under professional ethics and competence from his rater, a captain.  In Part V (Performance and Potential Evaluation), the rater placed his “X” in the second block (Usually Exceeded Requirements).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant was the acting company commander from 1 June 1995 to 25 August 1995, noted his recognition as 9th ARCOM nominee for the General MacArthur Leadership Award and construction projects at Fort Wainwright, as well as his support of recruiting, control of property, initiation of reports of survey and improvement of the unit newsletter.  In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the second block (Promote with Contemporaries) and stated:  [The applicant] with more experience and knowledge can become an outstanding officer.  He would do very well in a high level staff position.”

9.  In Part VIIa (Potential Evaluation), the SR placed his “X” in the second block and commented the applicant “has done an outstanding job as the senior Full Time Staff Officer in A Company”, noted his tenure as acting commander, recognized the construction projects planned and executed by the applicant, and stated that due to his efforts property accountability is now the “best” in years.  The SR profile for this report showed three officers in the top block and the applicant as one of two in the second block (3/2*/0/0/0/0/0/0/0).  (The asterisk indicates the applicant’s position.)  The OER was not referred by the SR, but could have been because the SR rated the applicant below center of mass (COM).

10.  The applicant’s evaluation history as a lieutenant shows two other OER’s.  In these OER’s, the applicant received ratings of “1” in all 14 elements of professional competence and provided positive comments under professional ethics and competence from two different raters, both captains.  Both raters also placed him in the top block (Always Exceeded Requirements) under Part Vc (Comments on Specific Aspects of the Performance) and in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade).  The same SR evaluated the applicant on these two OER’s, but he was not the same SR for the OER in question.  He rated the applicant in the top block for each report as follows:  (2*/3/4/0/0/0/0/0) and (3*/5/7/1/0/0/0/0/0) with the comments on each report to promote the applicant immediately.

11.  As a captain, the applicant received two OER’s, one on the DA Form 67-8 and one on the new DA Form 67-9.  Each report covers one year of duties as a Facilities/Contract Construction Management Engineer at the 412th Engineer Command.  The rater, a lieutenant colonel, was the same for both OER’s and on the first OER rated him “1” in all 14 elements of professional competence and provided positive comments under professional ethics and competence, placed him in the top blocks for performance and potential with very strong comments in both narratives.  

12.  The SR for the applicant’s first OER as a captain was a colonel who placed the applicant in the top block of SR profile (2*/0/1/0/0/0/0/0/0) with the comment “Promote immediately.”

13.  The applicant’s second OER as a captain was on the DA Form 67-9 which became effective in October 1997.  In Part IV (Performance Evaluation-Professionalism), the rater placed his “X” under “YES” in each of the Army Values.  The rater also placed his “X” in the required blocks under Attributes, under Skills (Competence) and under Actions (Leadership).  In Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with very positive comments on the specific aspects of the applicant’s performance.  In Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade), the SR placed his “X” in the top block (Best Qualified).  This rating placed the applicant “Above Center of Mass” based on a total of two officers rated.  The SR also made strong comments to include “Promote[the applicant] immediately.”
14.  As a result of a complaint to the Department of Defense Inspector General (DODIG) under the Military Whistleblower Protection Act (Title 10, United States Code, Section 1034), the 9th Army Reserve Command Inspector General (9th ARCOM IG) conducted an investigation of the conditions existing in the applicant’s company/battalion during the rating period in question.  The investigation process began January 1997 and was completed in June l997.  The applicant made three allegations:  1) that the applicant received an adverse OER covering the period 1 June 1995 through 31 May 1996 from his rater and SR (the company and battalion commanders respectively) in reprisal for his protected communications with the chain of command and the 9th ARCOM IG;  2) that his company commander cancelled the applicant’s orders to the Environmental Compliance Officer Course in reprisal for the applicant’s protected communications with the chain of command and the 9th ARCOM IG; and  3) that the company commander rendered adverse counseling, abuse and threats in reprisal for the applicant’s protected communications with the chain of command and the 9th ARCOM IG.

15.  In addition to the specific acts of reprisal, The Department of the Army Inspector General (DAIG) also directed the 9th ARCOM IG inquire into the following matters:  1) that the company commander improperly prohibited two minority officers from joining the company because of their race in violation of Army regulation 600-20 (Army Command Policy); and  2) that award nominations submitted by the applicant were improperly disapproved by members of the battalion in violation of Army Regulation 600-8-22 (Military Awards).  The 9th ARCOM IG also inquired into additional matters as follow:  1) the applicant was improperly denied requested leave;  2) that the company commander requested the applicant to certify orders for Active Duty Special Work days related to the change of command inventory which were not performed;  3) that the company commander requested the applicant to sign supply property records without benefit of an inventory; and  4) that the company commander improperly fraternized with an enlisted member.

16.  On 9 March 1998, the DODIG notified the applicant that the allegations related to reprisal were found to be unsubstantiated.  The DODIG concluded that, apart from the applicant’s whistle blowing activities, the command had sufficient reasons to take the adverse actions.

17.  The DODIG also advised the applicant that a number of non-reprisal allegations had been inquired into and that there was no fraudulent intent regarding the approval of training days for the unit inventory, signing for property without benefit of an inventory or that there was improper fraternization.  The allegation of improper disapproval of award nominations was substantiated and the chain of command did not engage in discriminatory practices regarding the exclusion of two minority applicants for positions in the unit.

18.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  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 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.

19. Army Regulation 623-105 provides, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, 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.

20.  Paragraph 4-17 of Army Regulation 623-105 states that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the rating period. 

21.  Army Regulation 15-185, paragraph 21e provides that an application for correction of military records, associated documents, and the decision pertaining thereto will normally be filed in the OMPF of the individual concerned.  In those cases where such action would tend to nullify the relief provided the documents will be returned to the Board for permanent filing.

CONCLUSIONS:

1.  The Board noted all of the applicant’s contentions that the ratings in the OER in question were based on reprisal.  However the Board finds that the applicant has failed to provide sufficient evidence showing the report in question was prepared in reprisal for making protected complaints concerning his rater and SR.  This is also evidenced by the DODIG’s denial of his claim under the Military Whistleblower Protection Act.

2.  The applicant has submitted no evidence of substantive inaccuracy in the contested report from anyone in a vantage point equivalent to that of members of the rating chain.  Although the rater portions of the OER in question appear to represent a fair, objective and valid appraisal of the rated officer’s demonstrated performance during the period in question, the performance portion of the OER completed by the rater is administratively flawed.  Specifically, the rater commented on the rated officer’s performance before the rater assumed command or officially became the rated officer’s rating official.  Additionally the applicant’s selection and recognition for being the 9th ARCOM nominee for the General Douglas MacArthur Leadership Award Competition occurred prior to the beginning date of the OER in question and was properly addressed in the OER for the period 29 August 1994 through 31 May 1995.  It also appears to the Board that the strong word picture in the rater narrative and rater’s evaluation of the rated officer’s performance as “usually exceeds requirements” are inconsistent.  As a result, the preponderance of the rater portion of the OER covering the applicant’s service from 1 June 1995 through 31 May 1996 should be deleted. 

3.  In Part VIIb (Comments) of the contested OER, the SR stated that the applicant “has done an outstanding job”.  However, in Part VIIa (Potential Evaluation) of the contested report, the SR placed the applicant below COM by placing his “X” in the second block, thereby rendering an adverse OER.  The OER in question was not referred as an adverse evaluation.  Therefore, the Board has determined, solely as a matter of equity, that the SR’s placement of his “X” in the second block resulting in a below COM and adverse evaluation is inconsistent with the SR comments in Part VIIb.  As a result, the Board has determined that the OER in question should be amended removing Part VIIa in its entirety. 

4.  In view of the scope of the corrections to the OER in question necessitated by error and in the interest of equity, the Board has determined that entire OER covering the applicant’s performance for the period 29 August 1994 through 31 May 1995 should be removed from all of the applicant’s records and an appropriate explanatory note be placed in the applicant’s Official Military Personnel File.

4.  The Board also concludes that the application to the Board and all related documents should be removed from the applicant’s records.

5. In view of the foregoing findings and conclusions, it would be appropriate 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 the Officer Evaluation Report of the individual concerned completed by Departmental officials covering the period 1 June 1995 (19950601) to 31 May 1996 (19960531).

2.  That an appropriate explanatory note regarding the removal of the OER in question be placed in the applicant’s Official Military Personnel File.

3.  That, in accordance with paragraph 21e of Army Regulation 15-185, 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:  

JHL_____  TDH_____  JPS____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		JoAnn H. Langston_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999025724	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19991209	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	NA	
DISCHARGE AUTHORITY	NA	
DISCHARGE REASON	NA	
BOARD DECISION	GRANT	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	111.01.0001	
2.	111.01.0003	
3.		
4.		
5.		
6.