MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:  6 March 2001
	DOCKET NUMBER:  AR2000043015

	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:

	Mr. Stanley Kelley		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Mr. Harry B. Oberg		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:  In effect, removal of the Officer Evaluation Report (OER) covering the period 5 January 1995 through 9 June 1995 from his Official Military Personnel File (OMPF), and reconsideration for promotion to lieutenant colonel.

APPLICANT STATES:  The Officer Special Review Board (OSRB) officials failed to address some of the issues that were the basis for his appeal, they also made statements that indicate that they did not adequately review his case, and his concern is how it came to the conclusion that nothing needed to be changed on the OER in question.  The OER is in error due to its apparent inconsistency and erroneous perception of his duty performance while serving in Haiti in support of Operation Uphold Democracy.  He submits copies of his appeal of the OER to the OSRB, and the Case Summary prepared by the OSRB in denial of his appeal, in support of his application.  His appeal of the OER to the OSRB was comprehensive and included his own statements, statements from others, and other documentation, including four pages of a referenced AR 15-6 investigation, not included in his records.

He also submits comments and rebuttal to the OSRB Case Summary alleging investigative and factual flaws, and in support of his own contentions.

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

He was appointed a second lieutenant, Medical Service Corps, in the Regular Army from the Reserve Officers Training Corps, University of New Hampshire, effective 21 May 1983.  He attained the rank of major effective 1 April 1994.  He was rated as a helicopter pilot.

While Commander of the 68th Medical Detachment located at Schofield Barracks, Hawaii, home of the 25th Infantry Division, the applicant’s unit rotated to Haiti in January 1995 in support of Operation Uphold Democracy.

On 16 March 1995 he was given a letter of reprimand by the Task Force Commander for violation of his Multi National Force policy of vehicle movement.  He was advised the letter would be filed locally.  The letter was acknowledged by the applicant but was not provided.

On 20 April 1995 he was advised by memorandum by his group commander of a temporary suspension from his duties as Detachment Commander pending an investigation of allegations of misconduct.  He was also advised that he was a suspect in conduct unbecoming an officer and impediment of an official investigation.  The suspension was terminated upon his relief from those duties on 9 June 1995.

On 22 April 1995 an AR 15-6 investigation was completed and found the applicant had likely violated six Uniformed Code of Military Justice Articles and recommended imposition of an Article 15, a formal reprimand, relief for cause, and a Board of Inquiry for determination of his retention on active duty.  The Articles were 89- Disrespect toward a Superior Commissioned Officer, 90- Willfully Disobeying a Superior Commissioned Officer, 92- Failure to Obey an Order, 93- Cruelty Maltreatment of Subordinates, 133- Conduct Unbecoming an Officer and Gentleman, and 134- Requesting Commission of an Offense.  (A copy of the investigation was not provided.)

On 28 April 1995 the investigation was referred to the applicant.  The referral was acknowledged by the applicant.  He submitted a rebuttal.

On 23 May 1995 the applicant’s commander submitted the investigation and the applicant’s rebuttal to the approving authority and requested permission to remove the applicant from his position as detachment commander.  Legal review on 24 May 1995 concluded legal sufficiency for the actions.

On 8 June 1995 the approving authority approved the relief for cause action.  On 9 June 1995 the applicant was so notified by memorandum by his commander.

The contested OER covering the period 5 January through 9 June 1995 was completed by the rating chain on 6 March 1996.  It was a relief for cause OER for his duties as Commander of an Aeromedical Evacuation Detachment located at Schofield Barracks, Hawaii.  It was referred to him as an adverse report and he submitted rebuttal.  His acknowledgement of the report and comments submitted in rebuttal were placed on the performance portion (P Fiche) of his OMPF.

The rating officer (RO) of the report was a lieutenant colonel serving as the Battalion Commander.  He rated the applicant in Part IVa in Professional Competence with “2’s” for “Performs under physical and mental stress”, “Displays sound judgement” and “Sets and enforces high standards”.  He rated him with “1’s” in the remaining 11 competencies.  (Ratings range from 1 to 5, with 1 the highest rating).  In Part IVb, Professional Ethics, the RO provided two positive and three negative comments.

In Part Vc and d, Performance and Potential Evaluation, the RO rated the applicant in the fourth and third blocks in both areas.  He rated him as “Often Failed Requirements” for Performance, and “Do Not Promote” for Potential For Promotion.  Comments in these areas were positive and negative, including “Although his performance had many bright spots, his personal conduct and performance in numerous incidents while deployed [Operation Uphold Democracy-Haiti], left me no alternative other than to recommend his relief for cause.”, and, “…I do not recommend command of troops or promotion at this point.”
The SR of the report was a colonel serving as the Group Commander.  In Part VII, Potential Evaluation, the SR rated the applicant in the fourth of nine blocks.  The SR profile is shown as 11/15/1/1*/0/0/0/0/0.  (The asterisk (*) indicates the applicant’s position in the profile.)  The SR’s comments were positive and negative, including “Unfortunately, reports of his misconduct from January to March 1995, resulted in an AR 15-6 investigation…revealed what I determined to be an unhealthy command climate … in which he had lost the trust and respect of his subordinates.”  The SR also indicated on the report that a completed DA Form 67-8-1, a rating support form, was received with the report and considered in his evaluation and review.

This SR was the SR of the applicant’s preceding report for the same duties as Detachment Commander, in which the SR gave him a second block center of mass rating with appropriate and positive comments.

The contested OER was initially completed by the rating chain on 29 June 1995. 

The applicant requested a Commander’s Inquiry (CI).

On 10 January 1996 the CI was completed.  The findings showed the report was compliant with no obvious injustices and that there was “…abundant evidence that [applicant] lost the trust and confidence of his superiors and subordinates…”. It also indicated there were several factual assertions in the report that appear unsupported and should be corrected.

On 12 February 1996 the CI and the contested OER were provided to the SR for action.  On 6 March 1996 the RO and SR made corrections to their respective portions of the OER in Parts IVb, Vc, and VIIb (Comments).

The OER was referred to the applicant on 2 April 1996 for his acknowledgment and comment if desired.

In the applicant’s comments in rebuttal to the contested OER, dated 18 April 1996, he stated the report was completely unfair and was an injustice to him and his performance during the rated period.  He stated he was not given ample time to respond to the report, he was not provided the documentation supporting the report, non-promotion and poor performance is not supported by evidence but based on unsubstantiated allegations, access to witnesses was denied, and the legal advisor he received counsel from was not fair or impartial.

On 2 May 1996 the OER was reviewed by proper authority.

On 9 May 1996 the applicant requested reconsideration of his relief for cause.  It was not acted upon.

On 21 May 1996 the applicant requested re-opening the CI.  It was not acted upon.

On 7 April 1997 the applicant was advised by the commander, Personnel Command (PERSCOM) that he was identified to show cause for retention on active duty “because of misconduct, moral or professional dereliction”, based on the contested OER.  He was advised that he may submit resignation in lieu of elimination or submit a rebuttal or declination statement and request appearance before a Board of Inquiry.  He requested a Board of Inquiry appearance.

The Board of Inquiry adjourned on 30 September 1997 and found the applicant “is desirable for further retention in the military service without reassignment.”  On 18 November 1997 he was advised by PERSCOM officials that he would be retained on active duty.

The applicant’s appeal of the contested OER to Departmental Headquarters was received by the OSRB on 8 September 1999.  He included more than 91 documents in support of his appeal.  He specifically contended the non-rated time was incorrect, his rater was not qualified to rate him, he saw his rater only once during the rated period and received no counseling, the rater erred in his rating, and the OER is a misrepresentation of his performance.

On 19 January 2000 OSRB officials denied the OER appeal by Case Summary.  The summary noted the non-duty time was correct, that for relief for cause reports there was no minimum number of days required for SR qualifications, and that his contentions of an inaccurate SR profile rating of potential and inconsistent and erroneous perception of his duty performance during this period was not substantiated. The OSRB opined that the applicant did not provide evidence to delete or amend the OER.  The OSRB further indicated satisfaction that the rating officials exercised their best judgment and rendered a fair and objective evaluation and the applicant received due process throughout the investigative procedures, and that the presumption of regularity is applicable in this case.

The OSRB summarized that there is not sufficiently convincing evidence that the contested OER is inaccurate, unjust, and does not adequately reflect the applicant’s demonstrated performance and potential during the rating period.

The Case Summary indicated the rating officials were not contacted during the investigation, but also indicated the RO confirmed certain facts to the OSRB.

On 20 January 2000 the applicant was notified by memorandum of the OSRB appeal denial.

The applicant’s overall evaluation history, with the exception of the contested OER, shows he received maximum ratings from his RO’s.  His SR evaluation history shows he was rated above and within the center of mass with primarily top blocks.

He has been considered but not selected for promotion to lieutenant colonel.  He was selected for continuation on active duty until eligible for retirement at 20 years of service.

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

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

1.  In view of all of the circumstances in this case, the applicant is not entitled to removal of the OER covering the period 5 January 1995 through 9 June 1995 from his OMPF, or to reconsideration for promotion to lieutenant colonel.  He has not sufficiently shown error, injustice or inequity for the relief he is now requesting.

2.  His contentions have been noted, however, the report appears fair and the Board sees no significant error in this rating.  The applicant has not shown that the contested report of record contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

3.  The applicant’s rights were provided for by regulation.  He received the necessary referrals and considerations, and he submitted comments in rebuttal.  In particular, it appears he received fair and thorough consideration of his appeal by the OSRB.  This Board concurs with the OSRB’s summary and conclusions.  The OSRB summary indication of not contacting the RO, but showing he was contacted is concluded as harmless error.

4.  The Board does not dispute the applicant’s apparent and otherwise excellent record and service, however, it notes that there was abundantly clear reason for his relief for cause at the time and for the resultant OER.  He has not shown otherwise.

5.  Based on the preceding, there is no reason for promotion reconsideration.

6.  The applicant’s comments concerning the OSRB Case Summary have been reviewed by the Board; however, while they argue the case at length pertaining to various points, they do not invalidate the OER or mandate its removal from his record.  He requested and received his due right of investigation and review of the OER and all of his contentions.  A copy of the AR 15-6 investigation was not provided, but it was not invalidated.  A CI was conducted which found that the majority of the applicant’s allegations were not supported, that the applicant had likely violated six Uniformed Code of Military Justice articles, and led to changes of the OER before it was forwarded to his record.  The inquiry appears to have been conducted in earnest and the resultant OER changes timely and in accordance with the results of the inquiry.  A comprehensive OSRB Case Summary was prepared in review of the applicant’s appeal as he requested.  The summary appears to be a thorough and fair consideration of the appeal.  The investigations and reports were referred to the applicant and he submitted comments and rebuttal.  The Board further concludes the applicant received full consideration of his appeal.

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

__sk___  ___el___  ___ho_____  DENY APPLICATION

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

INDEX

CASE ID	AR2000043015	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010306	
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	
2.	131	
3.		
4.		
5.		
6.