PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:            26 August 1999
	DOCKET NUMBER:   AR1999028952

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Samuel Calderon		Member	
	Ms. Barbara J. Ellis		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, in effect, that his Officer Evaluation Report (OER) for the period 961126-970718 be expunged from his record; that any other remedies deemed proper, appropriate, and necessary be made.

3.  That, in effect, the Deputy Chief of Staff for Personnel (DCSPER) Officer  Special Review Board (OSRB) committed the following fatal errors in processing his appeal to his Officer Evaluation Report (OER) for the period 961126-970718: improperly considered that a commander’s inquiry had not been requested by the applicant on the contested report; by its interpretation of the regulatory provisions and the appreciation and analysis of the evidence presented by the appellant, the rater, and the senior rater (SR); and by violating due process by not allowing the applicant to comment on statements given the OSRB by the rater and SR.  The applicant also contends that the rater and SR failed to discharge their responsibilities as rating officials under the pertinent regulatory provisions of Army Regulation (AR) 623-105 and as officers of the United States Army, and finally that the OSRB failed to include in its composition a member of the applicant’s branch, the Judge Advocate General (JAG) Corps.  In support of his case the applicant has submitted a letter of appeal outlining his case which includes 10 exhibits.  The exhibits include the OSRB proceedings and findings, the contested OER, a statement from his rater on the contested report; and six third party statements in support of his application.  

4.  The applicant’s military records show that he was commissioned a 1st Lieutenant in the United States Army Reserve (USAR) on 2 May 1983, and that he served in the Army of the United States (AUS) on active duty from 9 July 1983 to 8 July 1986.  On 2 August 1989, the applicant began his service in the Active Guard and Reserve (AGR) program.  He was promoted to Major/O-4 on 21 May 1991, was selected for the resident command and general staff officers (CGSC) course, and graduated CGSC in December 1992.  

5.  The applicant’s OER history while in the AGR program, prior to the contested report, included six OER’s issued between August 1990 and November 1996.  The SR evaluations on all these reports placed him at or above center of mass (COM).  The first five contained five top block and one second block SR evaluations.  The second block (COM) SR evaluation on the report immediately proceeding the evaluation under review was done by the same SR as the contested report.  

6.  On 18 July 1997, the contested report was referred to the applicant, under the provisions of Paragraphs 4-27 and 5-28, AR 623-105.  The basis for the referral was because the report had a potential evaluation in Part Vd of “Do not Promote” or narrative comments to that effect from a rating official; and because the report had 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.  In addition, Part VII of the contested report contained a four block, below COM, evaluation from the SR and contained the following derogatory comments in the SR’s evaluation of the applicant:  “He is not performing at the O4 level and should not be promoted”.

7.  On 14 August 1997, the applicant responded to the referral action outlined above.  His specific comments in response to the ratings and comments contained in Part V included a list of 13 significant contributions he made during the rating period, in contrast to only two which were included in the report by the rater.  In reference to Part V of the contested OER, the applicant commented that between October 1996 and July 1997 he had only spoken to his rater a total of about 3 hours, and that the rater had indicated in these limited conversations, that his personal and professional relationship with the SR was not very good.  The applicant indicated that he explained to his rater that he also had no personal or professional contact with his SR, and because of this and the low demand for legal services at the Regional Support Group (RSG) at Indianapolis, he had requested a reassignment to another command.  The applicant concluded this portion of his referral response by commenting that, based on the situation with his SR outlined above, that his comments be referred directly to the rater without prior determination by the SR.  His referral response to Part VII of the contested report included eight (8) specific contributions to rebut the SR’s evaluation and comments.  In addition, the applicant stated that it was his belief that the SR evaluation was based on a lack of communication between the rater and SR; a lack of communication between him and the rater; and a lack of communication between him and the SR.  He also referred back to the specific contributions and accomplishments he provided in response to Part V as matters of contention to Part VII of the contested report.

8.  On 3 August 1998, the applicant prepared an appeal to OSRB on the contested report.  In his appeal to the OSRB the applicant contended, in effect, that his Change of Rater (CR) OER covering the period 961126-970718, was substantially inaccurate in that the ratings and some comments were unfounded and unsubstantiated.  He indicated that he was never counseled, coached, or mentored by his rating officials, as required by regulation, and that he was never made aware of any negative aspects of his performance or potential.  On 
16 November 1998, the OSRB received the applicant’s appeal, and on 
10 December 1998, conducted its hearing of the case.  

9.  In his OSRB appeal, the applicant specifically indicated that several entries on the contested OER were inaccurate, paramount among these were the scores given by the rater in Part IV a (Professional Competence).  In the competencies of seeks self improvement and sets and enforces high standards the applicant was awarded a score value of two (2) by his rater; and the rater checked the second block in Part IV b (usually exceeds standards) and d (promote with contemporaries).  In addition, he took strong exception to the Part VII SR evaluation which placed him below COM, in the four block; and he strongly contested the SR’s derogatory comments which stated “he is not performing at the O4 level and should not be promoted.  

10.  As part of its hearing, the OSRB contacted the SR who stated that his evaluation of the applicant on the contested OER was based on the following:  his speaking to the applicant at least once a month, and on occasion several times a month; from input from the rater; from input from commands supported by the applicant; and from input from several other JAG officers on his staff who worked with the applicant.  He also commented that the applicant’s rater was not a good officer and he doubted that he ever counseled or mentored the applicant. 

11.  The applicant’s rater provided a statement in support of the applicant’s appeal in which he indicated that the SR on the contested report did not respect the applicant professionally and did not care for him personally.  He also commented that during his 18 month tenure he was unaware of the SR ever talking to the applicant on more than a couple occasions, and the SR certainly never talked to the applicant  several times a month. 

12.  The OSRB evidence of record also includes several third party statements in support of the applicant’s appeal to his contested report.  The first from the Brigadier General (BG) commander of the RSG, which was the applicant’s unit of assignment and where he was physically located.  The RSG commander stated that he and his unit received stellar legal support from the applicant; that he saw him at least five times per month; and that the evaluations rendered on the applicant by the rater and SR mystified him.  He stated that rater’s comments just did not fit based on the outstanding legal support provided to him and his unit by the applicant.  He also did not understand the SR’s comments the applicant was directed to support units in Indiana (IN) and Illinois (IL) through the 91st  Legal Support Organization (LSO).  He commented that the SR never provided guidance, direction, or encouraged partnership between units in IN and IL or with the 91st LSO; that he actually resented the fact that there was a unit from IN in his organization; and that he did everything he could to eliminate the requirement to provide those units support.  

13.  The Chief of Staff of the RSG provided a statement indicating that the applicant, while being rated by members of the Regional Support Command (RSC), was actually assigned to his unit, and was responsible to provide legal advise to the commander, himself and subordinate units, which he did in an outstanding manner.  He also commented, contrary to the rater and SR comments on the contested report, that the applicant was an enthusiastic participant in the affairs of the command, and was an energetic self-starter when it came to seeking out additional support he might give the command.  
14.  The DCSPER of the RSG provided a statement which stated that he worked with the applicant on a daily basis, on a variety of personnel actions requiring legal review.  He goes on to say that the applicant’s assistance was consistently provided in a timely manner, was thorough in detail, in strict compliance with the regulation; and that the applicant acted as his legal advisor on an investigation which resulted in his receiving accolades from the RSC JAG.  He further comments that RSG lines of supervision were difficult to understand, and that producing an effective rating chain, as defined by regulation was extremely difficult.  He also stated that he attempted, in conjunction with the RSC DCSPER, to develop a rating chain for the RSG which was agreeable to all parties; an effort that met with no success.  He concludes that given this flawed process, and in the absence of an approved and published rating chain, he fully supports the applicant’s appeal.  There is also a statement from the RSG Inspector General who commented the applicant’ always provided his office with outstanding legal support and advise; and from the RSG Staff Chaplain who also attests to the applicant’s outstanding legal support to his section which included establishing a consolidated Chaplain’s fund and serving as a legal advisor to the fund council; and performing as a member of the faculty for the Region V Unit Ministry Team School where he instructed 170 Chaplains on legal matters involving sexual harassment. 

15.  The final third party statement provided in support of the applicant’s appeal comes from the RSC Staff Judge Advocate (SJA) who replaced the SR.  He comments that his observation of the applicant’s performance of duty was that he found him to be a straightforward person with excellent skills as an Army Officer and lawyer.  He also said, in regard to the contested OER, that from his own experience he found that the SR, while serving as the SJA, tended to implement a strategy of isolation and incrimination, “taking the form of career ending evaluations and blackguarding those he deemed unworthy”.  He also commented that banned soldiers were set up for failure by cutting them off from essential information, by not mentoring them, and that the applicant was a member of this group.  Moreover, he stated that the applicant’s rater had himself been marked as worthless by the SR and was too defeated to make a report that would not please the senior rater.  He concludes by indicating that the contested report is not consistent with the applicant’s performance since he became the SR or with his previous OER’s. 

16.  The OSRB opined that there was not sufficiently convincing evidence that Part IV, V, and VII of the contested report were inaccurate or unjust.  The basis for their finding is primarily rooted in their conclusion that counseling takes many forms; formal written statements, informal discussions between the rated officer and rating officials, and verbal guidance on corrections of documents on memos and reports, and formal counseling is nor a regulatory requirement of AR 623-105 (Officer Evaluation Reporting System).  They further concluded that the lack of formal counseling and the minimal quality of counseling by the rater did not constitute a fatal flaw which would invalidate the content of the contested OER because the SR indicated in his communication to the OSRB that he took action to ensure the applicant was counseled.  

17.  The OSRB also opined that the third party statements provided in support of the applicant did not provide sufficient justification for the appeal, primarily because the parties were not in the applicant’s rating chain and could not know the expectations of the rater and SR, and that they were not aware of all the requirements of the applicant’s position because their point of view was limited.  They also noted that the statement provided by the new RSC SR, who replaced the SR on the contested report, spoke to events outside the rating period and that he was not in the applicant’s rating chain at the time of the report.  

18. The applicant states, in effect, the OSRB committed the following fatal errors in processing his appeal to his Officer Evaluation Report (OER) for the period 961126-970718:  improperly considered that a commander’s inquiry had not been requested by the applicant on the contested report; by its interpretation of the regulatory provisions and the appreciation and analysis of the evidence presented by the appellant, the rater, and the senior rater; and by violating due process by not allowing the applicant to comment on statements given the OSRB by the rater and senior rater; and by not having a member of his branch, a Judge Advocate General (JAG) officer, on the appeal board.  

19.  Subsequent to the this evaluation the applicant was selected for promotion to Lieutenant Colonel (LTC)/O-5, and was granted a waiver by the Chief of the Army Reserve for continuation in the AGR program.  However, it does appear that the contested OER may have contributed to his being denied opportunities for professional development.  On 5 January 1999, he was notified that the had not been selected by the calendar year 1999 United States Army Reserve (USAR) Professional Development Education (PDE) Selection Board for PDE opportunities that begin in 1999.

20.  AR 623-105, in effect at the time, provided the policy and procedure for the OER system.  Paragraph 5-32 stated, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation which is referred to as a presumption of regularity.  Chapter 9 provided the policies and procedures for processing OER appeals.  Paragraph 9-7 stated that the burden of proof rests with the applicant; and to justify deletion or amendment of an OER the applicant must produce evidence that clearly and convincingly overcomes the presumption of regularity.  It also says that the clear and convincing test is met if the adjudicator finds that some or all of the applicant’s assertions are correct.

21.  Paragraph 9-7, AR 623-105, in effect, at the time listed the following types of evidence that could be provided to support an appeal of an OER: statements from military personnel officers who know the situation; statements from rating officials; and statements from third parties who have knowledge of the applicant’s performance during the rating period.  It also stated that more weight should be given to third party statements if they are from persons who served in positions affording them good opportunity to observe firsthand the applicant’s performance of duty as well as interaction with rating officials.  

CONCLUSIONS:

1.  Notwithstanding the opinion rendered by the OSRB, this Board concluded that some or all of the applicant’s assertions were true; and that clear and convincing test, required by AR 623-105, to justify deletion of this OER was met in this case. It is also the opinion of this Board that the third party statements, provided in support of the applicant’s appeal to the OSRB, were provided by persons who served in positions which afforded them a good opportunity to observe firsthand the applicant’s performance of duty as well as his interaction with rating officials; thus, the Board, in arriving at its decision, gave these statements of support considerable weight.

2.  Although the applicable regulations require that a report stand alone, a review of the applicant’s OER history in the AGR program clearly shows the applicant has not shown a tendency of being below COM.  This coupled with the applicant’s performance of duty and character, as attested to by his unit commander and other leaders at his unit of assignment, lend further support to the applicant’s contention that the contested report was unjust.  

3.  The evidence of record indicates that the rater did not meet his obligation, as defined in Paragraph 3-6, AR 623-105, to counsel the rated officer throughout the rating period.  Further, the evidence of record raises reasonable doubt that the SR ensured that the applicant was counseled throughout the rating period, as he indicated to the OSRB.

4.  The Board found, given the circumstances of this case, that the applicant’s contention that he was denied professional development opportunities because of the contested report was credible.

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

RECOMMENDATION:

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

	a.  by deleting the change of rater OER issued the individual concerned for the period 26 November 1996 through 18 July 1997;

	b.  by removing from his records all references to the denial of his appeal to the contested report by the OSRB; and 

	c.  by removing all references to his nonselection for PDE opportunities by the calendar year 1999 USAR PDE Selection Board now contained in his OMPF.

2.  That in accordance with paragraph 21e, AR 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:  

__sc____  ___be ___  __slp ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Shirley L. Powell_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999028952	
SUFFIX		
RECON		
DATE BOARDED	1999/08/26	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  193	111.00	
2.		
3.		
4.		
5.		
6.