PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           22 March 2001                   
	DOCKET NUMBER:   AR2000043535

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 the Officer Evaluation Report (OER) for the rating period ending 1 July 1995 be expunged from her records.

3.  The applicant states that she believes the signature of the senior rater (SR) had been forged.  On 16 January 1996, her SR informed her that she had never signed nor even seen an OER on her.  The applicant’s counsel states that the applicant has exhausted all her administrative remedies.  The Army Reserve Personnel Command (AR-PERSCOM) returned her appeal without action.

4.  The applicant’s military records are not available.  Information contained herein was obtained from alternate sources.

5.  On 3 January 1995, the applicant was in the U. S. Army Reserve (USAR) when she was voluntarily ordered to active duty special work (ADSW) for a period of 137 days (later extended to 179 days).  She was assigned to duty with the Department of Justice, U. S. Attorney’s Office New York/New Jersey High Intensity Drug Trafficking Area as an intelligence analyst.

6.  The applicant was released from active duty on 1 July 1995.  A 6-month relief from ADSW OER was prepared.  A GM-14 from the U. S. Attorney’s Office was her rater and a Senior Executive Service (SES) from the U. S. Attorney’s Office was her SR.  Apparently two versions of the OER were prepared.  One version, which the applicant signed, contains numerous 2 and two 3 ratings in Part IV.  In Part Vb, the rater rated her performance as “usually exceeded requirements.”  In Part Vd, the rater rated her potential as “promote with contemporaries.”  Although the SR signed the available copy of this version, there are no SR comments in Part VIIb.  

7.  A second version of the OER was not signed by the applicant.  Part IV contains numerous 2 ratings but no 3 ratings.  In Part Vb, the rater rated her performance as “always exceeded requirements” and in Part Vd rated her potential as “promote ahead of contemporaries.”  There are SR comments in Part VII.

8.  In 1999, the applicant applied to the Board to expunge the contested OER.  Her application was returned without action as she had not exhausted all         her administrative remedies (she had not submitted an OER appeal to            AR-PERSCOM).

9.  The applicant submitted an appeal to AR-PERSCOM, which returned her appeal on 3 March 2000 due to insufficient evidence.  AR-PERSCOM, in refuting one of the applicant’s contention, that a non-Department of Defense (DOD) 
individual should not have been designated her SR, quoted Army Regulation 635-105, chapter 3-11.3a (sic) as stating that any member of the SES is authorized to serve as a SR.  The applicant’s SR’s position in the SES authorized her to act as a SR.  

10.  In the processing of this case, an advisory opinion was obtained from the Officer Special Review Board (OSRB).  The OSRB concurred with the assessment made by AR-PERSCOM on 2 March 2000.  OSRB refuted one of the applicant’s counsel’s contentions that “an OER of an Army officer evaluated outside the Army must be submitted to Army authorities for a supplemental review” and that a supplementary review of the OER was not done.  The OSRB verified with AR-PERSCOM that, even though the supplementary review was not noted at the bottom of the OER, the review had been completed before the contested OER was entered into the applicant’s official record.  The OSRB directed AR-PERSCOM to reinitiate the supplementary review and attach the noted statement to the contested OER.

11.  A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  She again contended that the SR’s signature was forged.  No one from her rating chain or AR-PERSCOM would give her a supporting statement.  She did provide a statement from Lieutenant Colonel (LTC) C___ who was assigned to the New York/New Jersey High Intensity Drug Trafficking Area for much of the same rating period as the applicant and who was originally designated as the applicant’s rater.  LTC C___ corroborated the applicant’s contention that the SR never met either himself or the applicant and had “absolutely no knowledge of us, our work, nor that she had been assigned as our senior rater.”  He also questioned how the applicant could be rated on her relationships with subordinates when she had no subordinates.

12.  Army Regulation 623-105 sets policies and procedures for the Officer Evaluation Reporting System.  Paragraph 3-11a(1) of the version in effect at the time (as does paragraph 2-6a(1) of the current version) states that the SR must be an officer of the U. S. Armed Forces or an employee of DOD.  Paragraph      3-11a(3) prescribes the minimum grade of a SR and states that any member of the SES may be a SR.  Paragraph 3-12 describes the responsibilities of the SR.  Paragraph 3-12f states that the SR will ensure that all reports both the SR and his or her subordinates write are complete and provide a realistic evaluation.  Paragraph 3-13 states that in most instances, the SR will accomplish the final rating chain review.  This paragraph and paragraph 5-31 state that if the SR is not an Army officer and no U. S. Army officer is available above the SR in the chain of command, the OER will be sent to Headquarters, Department of the Army for a supplementary review.

13.  Chapter 7 of Army Regulation 623-105 concerned unique instructions for the USAR. Paragraph 7-2b(2)(f) stated that the Commanding General, Army Reserve Personnel Command (ARPERCEN, predecessor to AR-PERSCOM) would clarify policies, grant exceptions to policies, or formulate new policies as the need arose.  Paragraph 7-7c(1) stated that exceptions to the minimum grades for SRs would be granted only in the most unusual circumstances.  Each exception must have been approved in writing prior to the beginning of the rating period.  The SR would state in Part VIIb the authority to act as senior rater and attach a copy of the document granting the exception to the report.

14.  An analyst with the Board discussed the pertinent paragraphs in Army Regulation 623-105 with the OER policy branch at the U. S. Total Army Personnel Command (PERSCOM).  PERSCOM confirmed that paragraph         3-11a(1) is the overriding regulatory authority governing designation of SRs.  A SR must be a DOD employee.  Paragraph 3-11a(3) applies only if the SR is a DOD SES.  Paragraphs 3-13 and 5-31 apply only if the SR is not an Army officer but is an employee of DOD.  The OER policy branch at the Office of the Chief, Army Reserve (OCAR) confirmed that the same rules for designating SRs apply to both active Army and USAR officers.  OCAR stated that before someone outside DOD can be designated a SR, OCAR must grant an exception to policy.  If an exception is not granted, OCAR designates the most logical military officer to serve as the SR.  OCAR stated they had no record to show that an exception to policy was requested or granted in the applicant’s case.

15.  OCAR OER policy branch further stated that, when the SR has been designated as an exception to policy, the SR must state in Part VII the authority that allows him or her to act as the SR

CONCLUSIONS:

1.  Army Regulation 623-105, paragraph 3-11a(1) states that a rated officer’s SR must be a DOD employee.  The applicant’s SR was not a DOD employee; she was a Department of Justice employee.  Exceptions can be made but they must be made in advance of designating the SR.  If an exception is not granted, the OER must be forwarded to Headquarters, Department of the Army.  Specifically, in this case, OCAR would have designated the most logical military officer to serve as the SR.  

2.  The Board notes that the SR made no entry in Part VIIb of the contested OER stating what authority granted her the exception to policy to act as the applicant’s SR.  Army Regulation 623-105, paragraph 7-7c(1) specifically requires such an entry only in regards to when the minimum grade requirement is not met.  However, OCAR’s statement that this entry is also required when an exception to the DOD employee policy is granted is reasonable since this requirement overrides even the minimum grade requirement.  

3.  In addition to the above, the overall reliability of the OER is questionable.  The applicant makes serious, albeit unproven, allegations about the SR’s signature on the OER being a forgery.  She has provided a statement from a fellow Reservist who worked in the same office for most of the same rating period who corroborated her contention that the SR had “absolutely no knowledge of us, our work, nor that she had been assigned as our senior rater.”

4.  The Board concludes that the applicant’s OER is untrustworthy and should be expunged from her records in the interest of justice.

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.  expunging the OER for the period ending 1 July 1995 and all related documents from the applicant’s Official Military Personnel File and that an appropriate nonprejudicial statement explaining the absence of the OER be placed in her records; and

     b.  returning to the Board for permanent filing, in accordance with Army Regulation 15-185, the proceedings of the Board and all documents related to this appeal following completion of the administrative corrections directed herein.

BOARD VOTE:  

__slp___  __jpi___  __rks___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Shirley L. Powell
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043535	
SUFFIX		
RECON		
DATE BOARDED	20010322	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.