MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  28 November 2000
	DOCKET NUMBER:  AR2000042377

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Wilford A. Hale		Member	
	Mr. John H. Kern		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

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

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  Removal of the officer evaluation reports (OER’s) he received covering the periods 1 May through 31 August 1993 and 1 September 1993 through 6 January 1994, and the relief for cause order issued against him, from his official military personnel file (OMPF).

APPLICANT STATES:  The OER’s are unfair and were improperly issued.  The first OER was focused on late OER submissions for which he had no control, and he could not order soldiers to timely complete the OER’s.  In the second OER he was rated by the wrong rating officer (RO) and in the middle of the rating period he was assigned to another unit with follow-up orders to the Chief of the Army Reserve in support of the North Atlantic Treaty Organization Reserve.  This OER was focused on drill attendance, and since he was transferred he did not have to attend any more drills with the old unit.

The relief for cause order was improperly executed by his battalion commander.  In accordance with policy, the mere presence of late evaluations was not sufficient and substantial justification to constitute his relief for cause.

His battalion commander predetermined his failure since he wanted the applicant out of the unit to make way for another individual.  His commander informed him in May 1993 that he would relieve him for cause effective 1 September 1993 if he did not voluntarily transfer out of the unit.

During his entire military career he never received less than a one or two block performance rating and on many occasions he received one block ratings.

He was never counseled in order to permit him to improve his performance.

He was nominated to receive the national Strom Thurmond Leadership Award for 2000.  Even though he did not win, the nomination reflects his total commitment to his military service.

COUNSEL CONTENDS:  Applicant’s counsel contends the contested OER’s and relief for cause order should be deleted from the applicant’s records.  They state, in effect, the applicant’s OER’s “should be removed from [the applicant’s] official record because they are false, misleading and represent a miscarriage of justice.”  Counsel requests relief be granted and implemented to the applicant, including awarding the applicant his attorney’s fees and all costs incurred in prosecuting this action.  Counsel submits statements from others and other documentation provided by the applicant in support of the request.

Statements submitted on behalf of the applicant were from three fellow unit officers, dated 20 August 1997, 15 October 1997 and 14 April 1998, attesting to his performance and military bearing.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed a Reserve second lieutenant, Engineer Corps, from Marian Military Institute, Alabama, effective 11 May 1985.  He was promoted to first lieutenant effective 21 May 1988.  He was initially assigned to Company D, 464th Engineer Battalion, New York.  Effective 26 June 1989 he was assigned to Company C, 1st Battalion, 320th Regiment, 3rd Brigade, 80th Infantry Division (Training) Fort Belvoir, Virginia.  He was assigned to Headquarters & Headquarters Detachment, 2d Battalion, 317th Regiment, 1st Brigade, 80th Infantry Division (Training), Alexandria, Virginia effective 2 July 1991.

He was promoted to captain effective 20 May 1992.

The first contested OER was completed on 26 September 1993 for his duties of Adjutant.  It was a relief for cause OER for a 4 month period.  The report was referred to the applicant by the senior rater (SR) on 26 September 1993 as an adverse rating, for his acknowledgment and possible rebuttal.  The applicant acknowledged the referral and elected not to make comments on the report.  He wrote short sarcastic comments on the correspondence.

In Part IV of the OER, Performance Evaluation – Professionalism, on a scale of 1 – 5, with 1 the highest rating, the RO rated the applicant with a “3” for demonstrating appropriate knowledge and expertise in assigned tasks, five “2’s” in the areas of motivating, challenging and developing subordinates, performing under physical and mental stress, encouraging candor and frankness in subordinates, clear and concise in written communication, and setting and enforcing high standards, and with “1’s” in the remaining eight areas of competence.  He received two negative comments concerning the need to improve performance regarding follow-through, and failure to have OER’s submitted timely.  There were no positive comments in the professional competence area.

In Part V, Performance and Potential Evaluation, the RO rated him below maximum in both areas.  He was rated in the fourth block for performance as “often failed requirements”, with comments commensurate with the block rating.  And in the fourth block for potential as “other”, with appropriate comments.

In Part VII, Potential Evaluation, the SR rated the applicant in the ninth of nine blocks, below center of mass.  The SR profile is shown as 0/1/0/0/0/0/0/0/1*.  (The * indicates the applicant’s position in the profile.)  The SR’s comments were overwhelmingly negative in support of the relief for cause.

The applicant did not request a Commander’s Inquiry or appeal the contested OER as provided for by pertinent regulations.

The applicant was placed on Active Duty for Training for 14 days at Fort Huachuca, Arizona, effective 18 July 1993.

The applicant was placed on Active Duty Special Work for 7 days at Fort Belvoir, Virginia, effective 1 August 1993.

Effective 6 January 1994 the applicant was transferred to the Reserve Control Group (Reinforcement).  An OER was required.

The second contested OER was completed on 13 February 1994 for his duties of Assistant S-3.  It was a reassignment OER for a 4 month period.  The RO was different than the RO for the first OER, but the SR was the same SR as for the first OER.

In Part IV of this OER, Performance Evaluation – Professionalism, the RO rated the applicant with “3’s” for eight areas, “2’s” in three areas, and with “1’s” in the remaining three areas of competence.  He received two negative comments concerning the need to improve performance regarding follow-through, and failure to have OER’s submitted timely.  There were no comments provided.

In Part V, Performance and Potential Evaluation, the RO rated him below maximum in both areas.  He was rated in the third block for performance as “met requirements”, stating the applicant did not attend any drills during the rated period (“DRILLS SCHEDULED: 18 DRILLS ATTENDED:  0).  And in the second block for potential as “promote with contemporaries”, with the comment showing average potential for further service to the Army.

In Part VII, Potential Evaluation, the SR rated the applicant in the sixth of nine blocks, below center of mass.  The SR profile is shown as 0/1/0/0//1*/0/0/0.  (The * indicates the applicant’s position in the profile.)  The SR’s comments showed his unwillingness to attend drills and that he has departed the unit.

The applicant did not request a Commander’s Inquiry or appeal the contested OER as provided for by pertinent regulations.

Effective 5 December 1996 the applicant was transferred from the Control Group (Reinforcement) to the 463rd Engineer Battalion, Wheeling, West Virginia.

On 9 September 1998 a Reserve policy letter was published concerning the procedures for executing relief for cause actions.

On 14 July 1999 the Director, Personnel Actions and Services, Army Reserve Personnel Command, returned the applicant’s appeal of the contested OER’s due to insufficient evidence and justification.  He was invited to resubmit an appeal and was provided an OER Appeal Checklist for his assistance.

On 23 December 1999 the applicant’s appeal was again returned without action based on the lack of evidence and justification.

The applicant’s OER history shows most of his reports were less than maximum by his RO’s, including a referred academic evaluation report.  Most SR’s rated him well below center of mass.

On 21 November 2000 the analyst in this case was advised by an official of the Total Army Personnel Command Reserve promotions branch that the applicant was considered and selected for promotion to major by the 1999 Reserve Components Selection Board.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  The regulation provides for requesting reconsideration.

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.  The 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.

The regulation specifies that appeals must be submitted within 5 years, with justification necessary for waiver of this requirement.

The regulation provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

Army Regulation 15-185 governs the process of this Board.  This regulation specifies that the Army may not pay attorney’s fees or other expenses incurred by or on behalf of an applicant in connection with an application for correction of military records under Title 10, United States Code, Section 1552.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The applicant is not entitled to removal of the OER’s he received covering the periods 1 May through 31 August 1993 and 1 September 1993 through 
6 January 1994, and the relief for cause order issued against him, from his OMPF.  He has not sufficiently shown error, injustice or inequity for the relief he is requesting.

2.  The applicant’s contentions, and those of counsel, have been noted by the Board; however, they are not supported by the application or evidence of record. The contested reports appear to represent fair, objective and valid appraisals of his demonstrated performance and potential during the periods in question.  
He has not shown that the contested reports contain any serious administrative deficiencies or were not prepared in compliance with applicable regulations and policy.

3.  The applicant did not request a Commander’s Inquiry as provided for by regulation, and his appeals for removal of the reports to Departmental officials lacked the evidence and justification for proper consideration.  The presumption of regularity applies in his case; the burden of proof rests with him to show the OER’s are unjust, unfair or improper and he has not satisfactorily done so.

4.  The reference to Reserve policy concerning relief for cause actions was initiated on 9 September 1998, well after he was relieved for cause.  The relief for cause order referred to by the applicant and counsel is the order that voluntarily transferred the applicant to the Reserve Control Group (Reinforcement) effective 6 January 1994.  The order is a transfer order and not a relief for cause order, and may not be revoked.

5.  The Board notes the subsequent selection of the applicant for promotion to major.  The promotion selection is deemed fortunate for the applicant, but it does not invalidate the contested reports.

6.  It is noted that attorney’s fees or other expenses incurred may not be paid by the Army.

7.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__mp__  ___wh_____  ___jk___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000042377	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001128	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.