PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 March 2000
	DOCKET NUMBER:   AR2000035696

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. Calvin M. Fowler		Member	
	Mr. Thomas D. Howard		Member	
	Mr. Raymond V. O’Connor		Member	
	Mr. Kenneth L. Wright		Member	

	The applicant requests correction of military records as stated in the application to the Board and as restated herein. 

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

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, the deletion of the senior rater (SR) rating on an officer evaluation report (OER) ending 3 June 1996, removal of all documents associated with his appeal from his Official Military Personnel File (OMPF) and promotion reconsideration to the rank of lieutenant colonel (LTC). 

3.  The applicant states, in effect, that his senior rater (SR) unjustly placed him below center of mass (COM) on his profile and failed to refer the report to him as an adverse report.  He further states that the report covering the period from 4 June 1995 to 3 June 1996 does not accurately reflect his performance and potential and that he was never counseled in regards to a downturn in performance.  He continues by stating that his SR only visited him once in Rwanda (from Fort Bragg) for a 4-hour period; therefore, his observations are not based on first hand knowledge.  However, the SR gave him a letter of appreciation and an award for the same issues he used to give him a below COM rating.  He also states that his rater’s assessment is based on daily first hand observations and are diametrically opposed to the SR’s.  As a result of the OER, he contends that he has been nonselected for promotion on three occasions.  He goes on to state that the Army has invested a lot in his training and a review of his records will show that he has never been a below COM officer.  He contends that the Officer Special Review Board (OSRB) also erred by not properly considering the third party statements as well as statements from his rater when adjudicating his appeal.  Although he was able to show that he was correct in some of his assertions, the OSRB held him to a higher standard than that required of the regulation when they denied his appeal.  In support of his application he submits a supporting statement from his rater and approximately 18 other third party supporting statements.  Additionally, he submits a statement his SR sent to the promotion board indicating that it was not his intent to prevent his promotion to LTC but to prevent his selection for battalion command.  He also submits the results of a commander’s inquiry that he requested and suggests that its conduct was flawed.

4.  The applicant’s military records show that he was commissioned as a Regular Army second lieutenant on 20 December 1980.  He remained on active duty and was promoted to the rank of major on 1 December 1992.

5.  On 27 June 1995 the applicant received an annual OER (Tab B) covering the period from 4 June 1995 to 3 June 1996 evaluating him as the commander of an African oriented Special Forces Operational Detachment Bravo.  The rater (a LTC and battalion commander) gave the applicant maximum ratings under performance and potential and commented that his potential was truly unlimited and that he should be selected for promotion and battalion command. 

6.  The SR (a colonel and group commander) placed the applicant in the second block of Part VIIa, under Potential evaluation which placed the applicant below COM in the SR’s profile.  There were 18 officers in the top block and four officers in the second block, of which the applicant was one.  The supporting comments indicate, in effect, that the applicant was a competent company commander and should be selected for promotion to LTC.  The report was not considered adverse and as such was not referred to the applicant.

7.  On 15 July 1996, about 2 weeks after rendering the contested OER,  the SR submitted a memorandum of clarification (Tab C) to the Fiscal Year (FY) 1997 LTC Promotion Selection Board in which he explained that it was not his intent to hinder the applicant’s promotion to the rank of LTC, but simply to convey that he did not believe the applicant should command a special forces battalion.

8.  On 3 September 1996 the applicant requested that a commander’s inquiry be conducted to look into the fairness of the OER he received.  The commander’s inquiry determined that no error, injustice, or illegality existed (Tab D).

9.  The applicant submitted an appeal to the OSRB on 29 November 1996 citing essentially the same issues as he has cited to this Board.  The OSRB opined that the applicant had failed to submit evidence that clearly and convincingly overcomes the presumption that the OER did not represent the considered opinion and objective judgement of the rating officials.  The OSRB denied his appeal Tab E).

10.  The applicant was subsequently twice nonselected for promotion to the rank of LTC but was afforded selective continuation until he reached retirement eligibility (Tab F).

11.  At the formal hearing, the applicant and his three witnesses, the rater (now a colonel) of the contested OER, his (the applicant’s) sergeant major (SGM) at the time of the contested OER, and his current rater (a colonel) presented testimony to reiterate the evidence already submitted and provided slides to explain the relationship that existed in his rating chain.  He provided testimony to the effect that the mission in Rwanda was a hastily assembled humanitarian mission in an environment that was tenuous at best.  He further indicated that when he tried to remove members (subordinates) of his team who violated the rules of engagement, his subordinates engaged the support of embassy officials to subvert his authority, to make it appear that the incident never occurred and created a perceived embarrassment to his SR in the form of a damaging message downplaying/denying that the incident had occurred.  He further testified with the assistance of his witnesses that at no time was his performance substandard, that he was considered the top company commander to emulate/beat, and that his SR at no time counseled him on substandard performance.  His rater at the time also testified that the applicant had done an excellent job under the circumstances, that he has the utmost respect for his abilities and performance, that he wrote the SR’s portion of the OER and that the SR changed the report without conferring with him.  He also stated that he confronted the SR after he discovered that the applicant had been reflected as a below COM officer and is convinced that the SR intentionally depicted the applicant as a substandard officer because he was embarrassed.  His current rater stated that the applicant is an excellent officer with unique abilities not possessed by many officers and that he has been trying to right the injustice done to the applicant for several years to no avail.  

13.  The Board reviewed the applicant’s OER history and determined that the contested OER was in essence an anomaly when compared to his other reports. The applicant has consistently been rated either above COM or COM.  The Board also notes that he has consistently excelled in all courses he has attended.

14.  Army Regulation 623-105, in effect at the time, serves as the authority for the preparation and submission of OERs.  It provides in pertinent part, 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.  The burden of proof in an appeal of an OER rests with the applicant.

CONCLUSIONS:

1.  After reviewing the evidence of record and hearing the testimony submitted by the applicant and his witnesses, the Board finds that the applicant’s rater and SGM were privy to the expectations of the SR and were in a position to observe his performance and potential during the period of the contested OER. 

2.  The Board also finds that the SR, by virtue of maintaining a top block COM profile, was aware that by placing the applicant in the second block, would depict him as a substandard officer and would have an adverse effect on the applicant’s career.  Accordingly, he should have referred the OER to the applicant but unjustly failed to do so. 

3.  Given the testimony of his witnesses and the evidence of record, the Board finds that the SR portion of the contested OER does not accurately reflect the applicant’s demonstrated potential during the period in question and therefore should be deleted.

4.  Likewise, the documents related to his appeals of the contested OER should also be removed from his OMPF.  While the Board cannot determine whether the contested OER was the resultant cause of his nonselection for promotion to the rank of LTC, the directed correction constitutes a material error that warrants promotion reconsideration to the rank of LTC by a special selection board for all boards that viewed the contested OER.

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:

a.  by deleting the SR portion of the OER ending on 3 June 1996;

		b.  by removing from his records all documents relating to the denial of his appeal of the contested OER, and

		c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by all boards that viewed the contested OER and nonselected him for promotion to LTC.

		d.  in the event that he is selected for promotion he will be given the appropriate date of rank and effective date that he would have received had the error not occurred, with entitlement to all back pay and allowances. 

2.  That in accordance with paragraph 21e, 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 the Board for permanent filing.  

DISSENT:  One member (Mr. Howard) was not convinced that the applicant had shown to his satisfaction that one below COM report (the contested OER) was the resultant cause of his nonselection for promotion to LTC and voted to deny relief.

		____JoAnn H. Langston____
		        CHAIRPERSON

INDEX

CASE ID	AR2000035696	
SUFFIX		
RECON		
DATE BOARDED	2000/03/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  198	111.0100/delete sr portion	
2.  311	131.0100/stab for ltc	
3.		
4.		
5.		
6.