MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 March 2002                   
	DOCKET NUMBER:   AR2001062441

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Shirley L. Powell		Chairperson	
	Mr. Stanley Kelley		Member	
	Mr. Elzey J. Arledge, Jr.		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:  That his Officer Evaluation Report (OER) for the period 1 April through 30 August 1997 be expunged from his records; that all references to his failure to be selected for promotion to colonel, O-6 in which the contested OER was present in his record be removed; and that his records be reconsidered for promotion to colonel by a Special Selection Board (SSB).

APPLICANT STATES:  The applicant defers to counsel.

The Board notes that throughout the supporting documentation provided with this case and the Officer Special Review Board (OSRB) case summary, the abbreviations “NYARNG” (New York Army National Guard) and NYANG” (New York Air National Guard) are used.  It cannot be determined if these abbreviations are meant to mean New York Army National Guard in all cases, if there might be a typographical error in some cases, or if NYANG is meant to mean New York Air National Guard in some cases.  The analyst has used the abbreviation as used in the documentation and noted as “sic” when unsure of the proper meaning of the abbreviation.

COUNSEL CONTENDS:

The contested OER was not signed by the rater until more than 100 days after the “Thru” date and not signed by the senior rater (SR) until more than 6 months after the “Thru” date.  The OER contained some negative comments and was not referred to him for rebuttal as required.  In May 1998, the NYARNG (sic) Adjutant General, Major General (MG) F___, returned his request for a Commander’s Inquiry without action because his rating officials failed to complete the OER in a timely manner and so deprived him of the opportunity to have a Commander’s Inquiry.  During this same period, his rater prepared a Letter of Reprimand (LOR) which referred to the results of an Army Regulation (AR) 15-6 investigation; however, the investigation was not listed as an attachment to the LOR and had never been referred to the applicant.  Moreover, the LOR was never delivered to the applicant for rebuttal as required.  However, it was provided to his new commanding general.  

The applicant requested MG F___ take action concerning his OER.  MG F___ then directed that an inquiry be made into the allegations of error and violations of regulation in order to facilitate an appeal of the OER.  Armed with the findings and conclusions of the investigation he ordered, MG F___ communicated to the National Guard Bureau (NGB) that he believed the applicant suffered an injustice, requested the NGB remove the report from the NGB record and authorize removal of the OER copy from the NYARNG records, and requested the applicant’s records be submitted to an SSB.  The NGB denied the request for remedial action and indicated the applicant should appeal the OER to the OSRB. The applicant appealed the OER but the OSRB denied the appeal.  No analysis of the issues raised was provided.  MG F___ had conducted a thorough investigation into the applicant’s allegations.  MG F___ concluded that an LOR was prepared on the applicant by the rater, that the procedural requirements for an LOR had not been complied with, and that it was not filed in his Military Personnel Records Jacket or Official Military Personnel File (OMPF).  More importantly, MG F___ determined that regulatory provisions were violated because, prior to issuing the LOR, the investigation was not referred to the applicant but the LOR was sent to the applicant’s new commanding general along with a letter indicating the LOR had been issued following the conduct of an AR 15-6 investigation, “thereby inferring that a properly completed inquiry had found the applicant culpable.”  The objective facts contained within the paper trail record clearly support the conclusions of MG F___.

There is an additional error relating to the SR portion of the OER that would have been timely disclosed had the OER been processed in accordance with the regulation.  When the SR was shown the OER by the applicant, the SR was shocked to learn that the markings and narrative he directed be placed on the OER by administrative personnel had been changed without his authority.  The SR noted that he directed the applicant receive a “top block” above center of mass evaluation and that more than half of the narrative comments he had provided had been omitted and those actually included on the form had been truncated.  Finally, the regulation prohibits reference to “incomplete investigations (formal or informal)” concerning an officer.  The evidence is clear and convincing that the AR 15-6 investigation was the factual predicate for the LOR and adverse narrative comments in the OER and that the investigation and LOR had not been processed to completion.  

The record shows that with the contested OER in his records, the applicant was offered only a one-year retention by the 1998 Selective Retention Board where such boards routinely offer two-year extensions.  

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

After having had prior enlisted service in the ARNG, he was commissioned a second lieutenant in the ARNG on 14 July 1972.  He was promoted to lieutenant colonel on 4 November 1994.

The contested OER is a 5-month change of duty report for the period 1 April through 30 August 1997 in which the applicant was rated as a battalion commander.  The applicant signed the OER on 20 September 1997.  The rater signed it on 19 December 1997.  The SR signed it on 16 March 1998.  The OER contains five “2” ratings in Part IVa (“1” is to the highest degree) in the categories of demonstrates appropriate knowledge and expertise in assigned tasks; motivates, challenges and develops subordinates; performs under physical and mental stress; displays sound judgment; and sets and enforces high standards.  In Part Vb, his rater rated his performance as “usually exceeded requirements.”  Comments included “This unit did not meet its strength goals during the rating period; the climate established did not result in the gain or retention of soldiers…During AT-97 supply accountability was questionable; twenty seven 105MM fuses were lost…”  In Part Vd, his rater rated his promotion potential as “promoted with contemporaries.”  In Part VIIa, his SR gave him a 2-block rating (35/38/6/5/0/0/0/0/0).  In Part VIIb, his SR provided two comments, noting that the applicant’s outstanding leadership and dynamic personality brought his battalion to high levels of readiness in a short time and that he had the potential to command a brigade or division artillery (both O-6 positions).

The applicant had the same rater and SR on his previous OER for the period      1 April 1996 – 31 March 1997.  On the previous OER, he received all “1” ratings in Part IVa, an “always exceeded requirements” rating in Part Vb, and a rating of “promote ahead of contemporaries” in part Vd.  His SR gave him a 1-block rating in Part VIIa (26/34/6/5/0/0/0/0/0) and had commented in Part VIIb that the applicant was an outstanding commander who had the capability to be a general officer and should be promoted immediately.

An LOR dated 25 October 1997 was sent to the applicant through the Commanding General, 42d Infantry Division by the applicant’s brigade commander (who was also the applicant’s rater on the contested OER).  The LOR stated that the loss and subsequent recovery of lost artillery fuses involved several failures within the applicant’s command.  The applicant’s unit failed to maintain proper accountability of ammunition and the applicant personally signed a blank DA Form 5811-R (Certificate – Lost or Damaged Class 5 Ammunition Items) which was subsequently filled out by members of his command.  The applicant was not even aware of the loss until he was contacted by him, the brigade commander.  The LOR does not indicate that it was provided to the applicant for comment or what disposition was made of the LOR. 

On 17 April 1998, the applicant requested a Commander’s Inquiry.  By memorandum dated 14 May 1998, MG F___ informed the applicant that his request for a Commander’s Inquiry could not be entertained as the regulation required that the inquiry be forwarded to Headquarters, Department of the Army (HQDA) not later than 120 days after the “Thru” date of the OER and, unfortunately, his OER was not completed by his rater and SR in a timely manner.  

By memorandum dated 14 January 1999, the applicant was notified that he had been considered for but not selected for promotion to colonel.  

By letter dated 6 March 1999, the applicant requested MG F___ conduct an investigation into the circumstances surrounding the contested OER.  

By memorandum dated 9 March 2000, the applicant was notified that he had been considered for but not selected for promotion to colonel. 

Apparently, a Commander’s Inquiry was conducted by the State of New York, Division of Military and Naval Affairs, Inspector General’s office (MNIG).  By memorandum dated 23 March 2000, the State of New York, Division of Military and Naval Affairs Acting Chief of Staff referenced MNIG memo dated 20 October 1999.  This memo is not available to the Board.  The Acting Chief of Staff stated that the memo indicated the contested OER was improper and contained inaccurate or untrue statements.  It indicated the OER was not submitted in a timely manner.  It indicated the MNIG did not examine documents or personnel regarding the AR 15-6 inquiry and so it was not appropriate for the MNIG to make a factual assessment of that inquiry.  The Acting Chief of Staff, however, stated that a reference on an OER requires first hand knowledge of the incident being investigated and the applicant’s rater did not have first hand knowledge of the subject matter of the AR 15-6 inquiry.  The MNIG indicated the applicant received an LOR and determined that no such LOR was in his files and did not go before a selective retention board or promotion board.  The Acting Chief of Staff, however, stated the LOR was defective.  The Chief of Staff’s office determined that the applicant was improperly informed that a Commander’s Inquiry could not be conducted because there is no regulatory bar to a Commander’s Inquiry 120 days after the OER close-out date.  The Acting Chief of Staff recommended MG F___ take action to request the Chief, NGB expurgate the OER since it was administratively defective and an injustice would arise if an exception was not granted.  

By memorandum dated 24 March 2000, MG F___ requested NGB return the contested OER to the State of New York, Division of Military and Naval Affairs, direct its removal from NGB microfiche records, authorize its removal from the NYARNG records, and give the applicant nonrated time for the period of the OER.  He based his request upon the Commander’s Inquiry into the failure of an AR 15-6 investigating officer to refer an inquiry to the applicant for comment, the submission of an LOR based on that incomplete inquiry, and an OER which discusses the subject matter of the inadequate investigation.  He also requested the applicant’s records be submitted to an SSB for promotion reconsideration to colonel.  

By memorandum dated 5 May 2000, the Chief, NGB informed MG F___ that the relief requested could not be granted.  The applicant was advised that he must appeal to the OSRB.  

The OSRB received the applicant’s OER appeal on 21 June 2000.  The OSRB reviewed the Report of Proceedings by Investigating Officer/Board of Officers, DA Form 1574, obtained from the 27th Infantry Brigade, NYANG (sic).  The AR 15-6 investigation was reviewed and determined to be sufficient and properly conducted in accordance with AR 15-6.  The applicant was not named as a respondent.  The investigating officer had spoken to the battalion executive officer, the Assistant S-3, the S-4 non-commissioned officer, and other brigade personnel.  The findings confirmed that 29 (sic) fuses were lost due to a lack of accountability procedures, that the applicant signed the DA Form 5811-R believing the fuses had been lost during training, and that a thorough search of the training area was not conducted when the fuses were initially discovered missing.

The OSRB reviewed the MNIG Review dated 20 October 1999.  Regarding the LOR, the MNIG concluded, “Although (this) document is entitled Letter of Reprimand (LOR), it is merely a statement of performance.  The MNIG has reviewed the appellant’s (OMPF) and has determined no such (LOR) is on file…(The LOR) did not hinder Due Process because it did not go before the SRB or DA Promotion Board.”  Regarding the applicant’s contention that he received an untimely and inappropriate OER, the MNIG noted that the OER was late and due to this lateness the applicant was denied a Commander’s Inquiry.  The MNIG noted the purpose of the Commander’s Inquiry is to provide a greater degree of command involvement and to correct errors before they become a matter of permanent record.  The MNIG clarified that due process may be afforded through the appeal process and was suggested to the applicant as a course of action.  The MNIG noted that it was highly probable the outcome of the AR 15-6 investigation did not influence the OER since the rater had first hand knowledge of the incident being investigated.

The MNIG could not make a factual assessment as to any defects in the AR 15-6 investigation since it did not see the actual document.  

The MNIG concluded that the applicant was removed from the Brigade Command list but only as a result of NYARNG Regulation 611-7 which states officers must have 3 years time in grade remaining as of the date the board convened as a requirement to be selected for brigade commander.  The board met 27 May 1998; the applicant’s mandatory release date was 31 July 2000. 

The MNIG concluded that information was insufficient to comment on whether the applicant had been the subject of reprisal.  

The OSRB reviewed a Staff Judge Advocate (SJA) Memorandum dated            24 March 2000 which was a response/opinion from the NYARNG SJA to MG F___ on requesting remedial action be taken by the Chief, NGB on behalf of the applicant.  The SJA memorandum stated that the request for remedial action was not legally objectionable; however, the SJA further stated that MG F___ should be aware of some inconsistencies in the documentation supporting the action.  Specifically, the basic request stated the MNIG found the applicant suffered an injustice as a result of the LOR whereas the MNIG Review in fact concluded that the LOR was merely a “statement of performance” that was never filed in the applicant’s OMPF and further concluded that the LOR did not hinder due process.  The author of the SJA memorandum concluded that MG F___ should be made aware that the original action taken by the rater was legally sufficient and supportable.

The OSRB contacted the rater on 28 June 2000.  The rater indicated that he placed great emphasis on property accountability, strength management, and readiness.  He personally counseled his subordinate commanders on these priorities on a regular basis.  He did not consider the applicant strong in property accountability and stated there were other indicators of this besides the missing fuse incident.  Regarding the comment on strength status, the rater felt the applicant did not make any effort to build a relationship with the strength manager which the rater felt was the key to turning the situation around.  The rater acknowledged that the OER was regrettably late but it was a widespread problem within his brigade and within the NYANG (sic) and he worked to minimize the problem.  The rater indicated that the missing fuses had been brought to his attention by the Directorate of Logistics at Fort Drum, NY and not through the AR 15-6 investigation.

The OSRB contacted the SR on 28 June 2000.  The SR stated that he placed great emphasis on training, strength management, and readiness.  He did not totally agree with the rater’s “tough” assessment of the applicant on the contested OER.  He stated that the facts stated in the rater’s portion of the contested OER were correct.  He stated that he wrote his own comments for the SR narrative and the rater did not provide any draft comments.  The SR acknowledged that OER lateness was a big problem in the NYANG (sic) but he could not elaborate on this specific case.  He did not believe the rating should have been referred as it did not meet the criteria identified in the regulation.    

On 27 July 2000, the SR provided additional written statements to the OSRB.  He stated that, because he believed the brigade commander had unfairly focused on one event that the applicant rectified with swiftness and competence, he intended to write much more than his normal between two and four highly praiseworthy sentences.  He was shocked to find out that his comments were severely abbreviated and his box rating was downgraded.  He had no explanation why only two sentences of his written comments were inserted in the OER except that the rater had a habit of submitting OERs late which severely restricted the time available for executing his responsibilities as SR.  

On 27 July 2000, the OSRB contacted MG F___ to clarify his memorandum and to resolve the apparent disparities between his letter and the MNIG and SJA Reviews.  MG F___ stated that at the time he signed the memorandum, he had been briefed by his Acting Chief of Staff on the MNIG Review and the SJA Review but he had not read the documents himself.  He was under the distinct impression that the MNIG was consistent with his memorandum and that the SJA had concurred with the action.  MG F___ stated, “Today was the first time I have seen the MNIG and (SJA) reviews.  I would never have signed that letter if I had known that it was not consistent with their viewpoints…I am preparing a rescission to my memorandum today.”  MG F___ stated that he had no further information that would indicate the report, as written, was either inaccurate or unjust.

The OSRB noted that the OER was not submitted in a timely manner but there was no evidence to show the rating officials intentionally withheld the report or attempted to deny the applicant redress.  The OSRB noted that the initial response to the applicant’s request for a Commander’s Inquiry was correct because the report had already been forwarded to HQDA and placed in his official records.  The OSRB noted that the MNIG and SJA Reviews concluded that due process was not denied.  The OSRB noted that the applicant’s contention that the contested OER made reference to facts obtained only from a defective AR 15-6 inquiry was unproven.  The OSRB determined that the contention the rater sent the LOR to the applicant’s gaining commander, which, given that it was defective and improper, could have impaired his future relationship with the applicant’s new commanding general was unsubstantiated and lacked merit.  Further, both the MNIG and SJA Reviews of this issue concluded that although the letter was titled “reprimand,” it was in fact “merely a statement of performance.”  The OSRB denied the applicant’s appeal.

AR 623-105 (the version effective 30 April 1992 was in force at the time) establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper 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 appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

AR 623-105, paragraph 4-11c(5) states that each rating official signs and dates the report before sending it to the next rating official of HQDA.  Their signatures verify all entries on the form at the time of their respective signatures.  Paragraph 4-21d states that any verified derogatory information may be entered on an OER. While the fact that an officer is under investigation may not be mentioned in an OER until the investigation is completed, this does not preclude the rating chain’s use of verified derogatory information.  Paragraph 4-27 states that, among other reasons, any report with ratings or comments that in the opinion of the SR 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 SR for comment.  Paragraph    5-30 states 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 injustices after the OER is accepted at HQDA.  However, in these after-the-fact cases this paragraph is not intended to be a substitute for the appeals process.  

AR 623-105, paragraph 5-32 states that an OER accepted by HQDA and included in the official record of an officer is presumed to represent the  considered opinions and objective judgment of the rating officials at the time of preparation.  Requests that an accepted report be altered or withdrawn will not be honored.  Statements from rating officials that they did not intend to rate him or her as they did or claiming administrative oversight will not be used to alter or withdraw a report.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.  Paragraph 8-5 states that State adjutants general and commanders will ensure that completed reports arrive at the ARNG Personnel Center not later than 120 calendar days after the “Thru” date of the report due to the importance of the OER to many personnel actions.  Paragraphs 8-6a and 8-6a(1) state that the Chief, NGB will exercise final review authority on all Army NGB evaluation reports arriving at the ARNG Personnel Center to include returning to States those reports that appear to be in error or violate the provisions of this regulation. Paragraph 8-6b(1) states that on arrival at the ARNG Personnel Center, OERs will be reviewed.  The original report (if it appears to be administratively correct) will be filmed onto the rater officer’s OMPF.  The original report will then be returned to the State where it is put in the officer’s State management file.  

AR 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Paragraph 4.3 states that informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation or board.  No respondents will be designated and no one is entitled to the rights of a respondent.  The investigating officer or board may still make any relevant findings or recommendations, including those adverse to an individual or individuals.

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 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.
2.  The Board notes that the rating officials did not complete the contested OER in a timely manner; however, that in itself does not negate the validity of the report or show unjustness in the ratings.

3.  The negative comments on the OER could have been determined by the SR to have been so derogatory that the report could have an adverse impact on the applicant’s career.  However, this is a judgment call on the part of the SR.  In this case, the SR informed the OSRB that he did not believe the OER to require referral.  Failure to refer an adverse OER to an officer by itself would not negate the validity of an OER because referral would not require the rating official to change his rating and because the rated officer would still have recourse to the appeal process.

4.  According to the OSRB, the contested OER had already been accepted at HQDA when the applicant requested a Commander’s Inquiry.  Since the primary purpose of a Commander’s Inquiry could not have been served, the Board concludes that MG F___ was within his rights to return the applicant’s initial request for one without action.  

5.  The MNIG concluded that the LOR was merely a “statement of performance” and that it did not hinder due process and found the allegations regarding the AR 15-6 investigation to be unfounded because the rater had first hand knowledge of the loss of the accountability of the fuses.

6.  MG F___ directed that an inquiry be made into the allegations of error and violations of regulation after being erroneously briefed by the Acting Chief of Staff 
concerning the contents of the MNIG Review and the SJA Review.  After being informed by the OSRB of the contents of those Reviews, and after reading them himself, MG F___ informed the OSRB that he would never have signed that letter if he had known it was not consistent with the viewpoints of the MNIG and SJA and he was going to prepare a rescission to his memorandum.  He further stated that he had no further information that would indicate the OER, as written, was either inaccurate or unjust.

7.  The OSRB did analyze the issues raised by the applicant.  The OSRB informed the Board analyst that the OER appeal case summary could be requested by the applicant under the Freedom of Information Act.

8.  The Board notes that the SR indicated he was shocked to learn that the markings and narrative he directed be placed on the OER by administrative personnel had been changed without his authority.  The regulation states that such statements by rating officials will not be honored when requesting an OER be altered or withdrawn and that is why it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.  The SR’s signature on the OER verified all entries on that report at the time of his signature.  

9.  The contested OER does not mention the applicant was under investigation.  AR 625-105 states that any verified derogatory information may be entered on an OER.  The OER states that the applicant’s unit lost 27 fuses during field operations that were subsequently found by brigade personnel.  This was verified information at the time the OER was completed.

10.  There is no evidence to show the applicant was offered only a one-year retention by the 1998 Selective Retention Board based solely or in part upon the contested OER. 

11.  Based upon the above, there are no grounds for sending the applicant’s records to an SSB for reconsideration for promotion to colonel.

12.   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

__slp___  __sk____  __eja___  DENY APPLICATION

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

INDEX

CASE ID	AR2001062441	
SUFFIX		
RECON		
DATE BOARDED	20020319	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.