PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           19 April 2000                   
	DOCKET NUMBER:   AR2000039077

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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 he be reinstated in the Army Reserve with the restoration of all rights, privileges, and property; and that the officer evaluation reports (OER) for the period 1 June 1987 through 31 May 1988, and 1 June 1988 through 31 May 1989, be expunged from his record.  

3.  On behalf of the applicant, counsel alleges that the contested reports failed to provide a factual account of the applicant’s career specialty.  He enclosed a statement from a Reserve officer who worked with the applicant, in which that person stated that the applicant did motivate, challenge, and develop subordinates, and had a very good relationship with his subordinates, in contrast to the ratings given by the applicant’s rating officials, and the remarks by the applicant’s senior rater.  Counsel states that the OER for the period 1 June 1987 failed to meet the criteria contained in the OER regulation, in that it was based on a few isolated incidents, and did not focus on significant duty accomplishments and potential.  

4.  Counsel provides a statement from another Reserve officer who stated that the applicant strictly enforced regulations, adding to the tension between the applicant and his rater.  Counsel states that the contested report represented a punitive measure rather than a fair assessment of the applicant’s accomplishments.  Counsel states that the applicant’s rating officials were concerned that the applicant might be disruptive and sought a different means of having the applicant removed from the unit.  The report was a means of ensuring an end to the applicant’s career.  Counsel includes a statement from another Reserve officer, who indicated that the applicant’s leadership style was “straight laced”, which sometimes offended both peers and superiors.  The applicant tried to enforce standards, but was met with constant resistance by the senior officers in his rating chain. 

5.  Counsel states that the contested report for the period 1 June 1987 through 31 May 1988 violated the provisions of the regulation in that comments on potential were placed in the wrong portion of the OER, and that the rater made comments referring to events that had not occurred, e.g., “His efforts to increase his language proficiency will make him a more effective officer during RCODT exercises.”  Counsel states that the provisions of the regulation limits comments only to events that occurred during the rating period.

6.  Counsel states that the senior rater used unverified derogatory information in the OER for the period 1 June 1988 through 31 May 1989, and only theorized about the applicant’s ability to get along with subordinate personnel, and failed to provide details on how the applicant failed to effectively communicate with NCOs.
The rater, at no time, alleged or indicated that the applicant was incapable of communicating with subordinate personnel.  The rater violated the provisions of the regulation when he commented on the applicant’s potential in the incorrect portion of the OER.
7.  Counsel states that the contested reports were adverse and career damaging and should have been referred to the applicant for his response.  The applicant was not afforded the opportunity to comment on those reports.  Counsel states that the senior rater improperly interpreted the guidelines contained in the OER regulation.  Counsel states that any evaluation report which contains a below center of mass (BCOM) rating would have an adverse impact on the rated officer’s career.  The failure to refer demonstrated that the senior rater made a mistake.  Counsel states that the two reports were written, not as an assessment of the applicant’s duty performance, but as a means to end the applicant’s career.  The reports defy the spirit of the regulation. 

8.  Included herein is a copy of the 8 December 1993 Board decision to deny the applicant’s request for promotion to lieutenant colonel under the criteria of the 1992 USAR selection board.  This memorandum is included with the applicant’s application.

9.  Incorporated herein by reference are military records of the                            17 September 1997 Board determination that the applicant’s request to be reinstated in the Army Reserve, and to expunge the two contested OERs, was not submitted within the time required, and that it would not be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law (COPY ATTACHED).     

10.  On 18 August 1998 the United States District Court for the District of Columbia dismissed the applicant’s case, without prejudice, based on counsels’ agreement that the case be remanded to this Board for a hearing on an expedited basis.

11.  Both of the contested reports show that the rater commented on the applicant’s potential in part Vc of the reports instead of Ve as required by the regulation.  The rater’s remarks in Part Vc of the report ending on 31 May 1988 refer to events that had not occurred, i.e., “He is familiar with CIVIL AFFAIRS concepts and principals who can be a great asset to the successful accomplishment of the unit’s mission.”

12.  The senior rater’s profile on both of the contested reports are unavailable; consequently, the center of mass on both those reports is unknown.  There is no information as to whether the applicant appealed the contested reports. 

13.  Paragraph 4-21 of AR 623-105 pertains to unproven derogatory information and states in pertinent part that no reference will be made to an incomplete investigation (formal or informal) concerning an officer.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the OER to HQDA.  This restriction is intended to prevent unverified derogatory information being included in evaluation reports.

14.  Paragraph 4-27 concerns referred reports and states in pertinent part, that any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career, will be referred to the rated officer by the senior rater for acknowledgement and comment before being sent to HQDA, or the Army Reserve Personnel Center, in this particular case.  It directs that certain types of reports must be referred to the rated officer by the senior rater, e.g., relief for cause, a report with negative comments about the rated officer’s professional ethics, any report with a rating of 4 or 5 in any of the 14 attributes in part Iva, any report with a senior rater potential evaluation in one of the bottoms three blocks in part VIIa, etc. 

CONCLUSIONS:

1.  There is no regulatory requirement to provide a factual account of the applicant’s career specialty on the OER.  The report ending on 31 May 1988 lists the applicant’s duties and responsibilities.  The duties and responsibilities of the rated officer in the report ending on 31 May 1989 were not detailed as required by the regulation, and as noted by counsel.  However, this in itself is no reason to invalidate the report.       
 
2.  The third party statements concerning the applicant’s relationship with his subordinates and his leadership style are noted by the Board.  However, the Board must rely on the experience and judgment of those senior officers who are in the best position to observe the applicant’s performance of duty.  There is no evidence, nor has the applicant or counsel submitted any, to show that the ratings on either of the contested reports were meant to be punitive or were meant to end the applicant’s career.  There is no evidence, nor has the applicant or counsel submitted any, to show that the reports were unfair or unjust; or that they did not represent the considered judgment and opinion of the rater and the senior rater.  The senior rater did not use unverified derogatory information in preparing his portion of the report ending in May 1989, but rendered his considered opinion of the applicant’s performance.  

3.  The Board notes that the applicant’s rater did refer to events, that in effect had not occurred; and that he did remark on the applicant’s potential in the wrong portion of the reports.   

4.  Neither of the contested reports are good.  Although the number of “2” ratings in Part IVa of the reports and the rater’s comments on his performance and potential for promotion on both the reports, do not require referral to the 
applicant, at least not in accordance with the strict rules contained in the regulation, the report could have been referred based on those ratings and comments alone, had the senior rater desired to do so.  However, the applicant’s placements in the potential evaluation blocks (5th from the top and 6th from the top) in the senior rater’s portion of the reports, and the senior rater’s comment on the report ending in May 1989, “[The applicant] appears to be incapable of establishing effective communications or rapport with the NCO’s or enlisted personnel of this command,” are clearly adverse.  The Board thus agrees with counsel that the reports warranted referral to the applicant for acknowledgment and comment.  Consequently, in all fairness to the applicant, and in the interest of justice, it would be appropriate to expunge both evaluation reports from his official military personnel file and a non-prejudicial comment be added to his file to explain the non-rated time.

5.  The applicant was assigned to the Retired Reserve because of his nonselection for retention.  There is no evidence, nor has the applicant or counsel submitted any, to show that this action was unfair or unjust.  Therefore, his request for reinstatement to the Army Reserve is denied.

6.  Nonetheless, while the Board cannot determine with any degree of certainty the effect the reports had on his non-selection for promotion to the rank of lieutenant colonel, the deletion of the contested evaluation reports constitutes a material change in his record.  Therefore, he should also receive promotion reconsideration to the rank of lieutenant colonel by all appropriate special promotion selection boards under the criteria of the boards which failed to select him for promotion. 
 
7.  In the event that he is selected for promotion, he will be given the appropriate date of rank commensurate with his selection, with entitlement to all back pay and allowances.  He should then apply to this Board for reconsideration of his request to be reinstated in the Army Reserve and the restoration of all rights, privileges, and property.

8.  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 expunging from the applicant’s official military personnel file the officer evaluation reports for the period 1 June 1987 through 31 May 1988, and    1 June 1988 through 31 May 1989; and by placing his records before a duly constituted special selection board for promotion reconsideration under the criteria of the boards that failed to select him for promotion to lieutenant colonel.

2.  In the event that he is selected for promotion, he will be given the appropriate date of rank commensurate with his selection, with entitlement to all back pay and allowances.  He should then apply to this Board for reconsideration of his request to be reinstated in the Army Reserve with the restoration of all rights, privileges, and property.  

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

BOARD VOTE:  

___eja___  ___vbc__  ___jph__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000039077	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000419	
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.  193	110.03	
2.	111.00	
3.		
4.		
5.		
6.