MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            19 November 2002
	DOCKET NUMBER:   AR2002073295

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Sherri V. Ward		Member	
	Mr. Melvin H. Meyer		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:  The removal of an officer evaluation report (OER) from his Official Military Personnel File (OMPF), reappointment as a commissioned officer, and promotion to the rank of major, effective 10 August 2000. 

APPLICANT STATES:  In effect, that the OER covering the period from 18 May through 5 October 1988 was rendered in violation of Army Regulation 623-105 because it contains unverified derogatory information and indicates that he has no promotion potential, which is disputed by 10 subsequent evaluation reports.  It was also prepared contrary to Army Regulation 600-20, which requires written approval of the first general officer in the chain of command, which was not done and which made his relief illegal.  He goes on to state that the OER has prevented him from being selected to the rank of major and resulted in his being discharged from the service as a commissioned officer due to being twice      non-selected for promotion.  He further states that he did not appeal the OER because he was told by the so-called personnel experts that he had no grounds for an appeal and he has now passed the 5-year statute of limitations for appeal to the Officer Special Review Board (OSRB).  He continues by stating that the rater’s statement regarding his questionable integrity, lack of promotion potential and the issue of not being forthright, is not true and is not supported by any proof or specifics and is contradicted by his subsequent evaluations.  He provides an extensive explanation of the events that led to his relief for cause and provides numerous letters of support in an extensive packet of enclosures submitted with his application.

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

The applicant was commissioned as a Regular Army infantry second lieutenant on 13 August 1982.  After completing his training, he was transferred to Germany for duty as an infantry platoon leader in a mechanized infantry company.  

He received his first OER on 21 November 1983 covering the period of 18 December 1982 through 31 October 1983.  In part IVa, under professional competence, his rater (captain/company commander) gave him a “3” rating under “Demonstrates appropriate knowledge and expertise in assigned tasks”, “2” ratings under “Performs under physical and mental stress”, “Displays sound judgment” and “Is adaptable to changing situations.”  He gave him “1” ratings in the remaining 10 areas.  In part V, under performance and potential, his rater gave him a rating of “Usually exceeded requirements”.  He indicated that the applicant’s initial performance was hindered by his deficiencies in basic skills competency. 

His senior rater (battalion commander/lieutenant colonel) placed him in the fourth block at the bottom of his senior rater profile under potential evaluation.  He indicated that the applicant had been working hard to develop the skills required of an infantry officer and was developing into a solid platoon leader.

He was promoted to the rank of first lieutenant on 13 February 1984 and to captain on 1 June 1986.

On 5 November 1988, the applicant received a relief for cause OER covering the period from 18 May through 5 October 1988, evaluating him as a company commander of an air assault infantry rifle company.

In part IVa, under Professional Competence, where on a scale of “1” to “5”, “1” is the highest, he received a “5” rating under “Displays sound judgment”, a “4” rating under “Sets and enforces high standards”, a “3” rating under “Motivates, challenges and develops subordinates”, “Performs under physical and mental stress” and “Seeks self improvement.”  He received “2” ratings under “Demonstrated appropriate knowledge and expertise in assigned tasks”, “Encourages candor and frankness in subordinates”, and “Is adaptable to changing situations.”  He received “1” ratings in the remaining six areas. 

In part IVb, under Professional Ethics, the supporting comments indicate that he failed to promote the development of subordinates leaders as a result of attempting to do everything himself, he experienced considerable difficulty performing under stressful conditions, repeatedly exercised poor judgment, sought improvement, but seldom employed what was advised, high standards were only a trite expression, he took many shortcuts, his integrity was questionable, he was not forthright with superiors or subordinates, and he attempted to cover mistakes until they were discovered by his superiors. 

In part V, under performance and potential evaluation, his rater gave him a rating of “Often failed requirements”.  The supporting comments indicate that the applicant was relieved for cause as a result of his failure to comply with established safety procedures/regulations during a live fire exercise and his failure to exercise sound judgment as it applies to the expenditure and safeguarding of Army resources.  These violations and poor judgment resulted in the accidental shooting of a soldier in his command and the damaging of four automatic weapons.  The relief was directed by the battalion commander and was conducted in accordance with Army Regulation 600-20 and local supplementary regulations.  The applicant was counseled concerning the reason for his relief and was given a copy of the Army Regulation 15-6 investigation report that was used as the basis for his relief.  He repeatedly demonstrated an inability to exercise sound judgment.  On one occasion, two soldiers in his command were left unattended in the field for a period of 11 hours, while knowing of their absence, he took no action to locate the soldiers and ensure their safety. Rather, he allowed the soldiers to remain unaccounted for while he slept.  He was given every opportunity to succeed in his command, but poor judgment and questionable integrity made retention as a commander unfeasible.

His rater’s comments on potential indicate that his potential for continued service was limited by his lack of sound judgment, immaturity and questionable professional ethics.  He recommended that the applicant be considered for elimination from active service at the earliest opportunity. 
 
The applicant’s senior rater (SR) placed him last in his SR profile (block five) under potential evaluation and concurred with the rater’s comments.  He indicated that he fully supported the applicant’s relief and that the applicant was not suited for military leadership where uncertainty and stress are common factors.  He further stated that we must be able to depend on each other’s word and not have to wonder if we’ve asked the absolutely correct question in order to divine the real meaning of the answer given.  The applicant could not be depended on in this regard.  He stated that the applicant does not have promotion potential and that the report complied with Army Regulation 623-105.

The report was considered adverse and as such was referred to the applicant for comment.  The applicant elected to submit a statement in his own behalf whereas he asserted that while he had shown bad judgment on two significant occasions and did not contest his relief, he strongly denied and repudiated the comments regarding his integrity, openness and forthrightness.  He contended that at no time was his integrity ever compromised. 

On 5 September 1989, a memorandum (Initiation of Elimination) was dispatched from the Total Army Personnel Command (PERSCOM) thru the applicant’s commanding general (CG) to the applicant.  The memorandum directed the applicant that he was required to show cause for retention on active duty because of substandard performance of duty, misconduct and moral or professional dereliction.  The specific reasons cited were a low record of efficiency when compared to other officers of the same grade, branch and length of service and his failure to exercise necessary leadership or command of your grade as substantiated by two evaluation reports ending on 31 October 1983 and 5 October 1988. 

On 24 October 1989, the applicant acknowledged that he was exercising his option to appear before a board of inquiry to consider the allegations against him and whether he might continue service as a commissioned officer.  He indicated that all communications should be sent to his Trial Defense Service counsel as well.

On 30 November 1989, the applicant submitted a request for resignation in lieu of elimination proceedings in which he requested that he be issued an honorable discharge and be given a Reserve commission.  His chain of command favorably supported his request and his CG recommended that he receive an honorable discharge.

On 16 January 1990, the PERSCOM dispatched a message approving the applicant’s request for resignation in lieu of elimination proceedings.  The message directed that the applicant be honorably discharged in accordance with Army Regulation 635-120, chapter 4 due to misconduct, moral or professional dereliction.

Accordingly, he was honorably discharged on 5 February 1990, under the provisions of Army Regulation 635-120, chapter 4, for misconduct, moral or professional dereliction.  He had served 7 years, 5 months and 23 days of total active service and was paid $15,000 in separation pay.  He was issued a separation code of “BNC.”

He submitted a request for a waiver to receive a Reserve commission to the Total Army Reserve Personnel Command (ARPERSCOM) on 28 March 1990.  His request was forwarded to the Department of the Army, Office of the Deputy Chief of Staff for Personnel (ODCSPER), where it was denied on 17 July 1990. 

The applicant applied to the Army Discharge Review Board (ADRB) on 5 February 1993, requesting that his narrative reason for separation be changed to “Unqualified Resignation” and that he be given a separation code that would allow him to serve in the Reserve Components.  

Meanwhile, he joined the Texas Army National Guard (TXARNG) on 3 October 1994, in the pay grade of E-5, for a period of 3 years.  

He was granted a personal appearance before the ADRB Traveling panel in Dallas, Texas, on 30 March 1995, whereas, he asserted that his actions did not meet any of the standards outlined to qualify for misconduct, moral or professional dereliction of duty nor did it qualify for substandard performance of duty.  

The ADRB panel noted that the applicant admitted to both incidents and answered questions surrounding them as accurately as possible.  His service both before and after the events was satisfactory and while he did show poor judgment, it did not appear to be a compromise of integrity.  The majority of the panel members voted to change the narrative reason for separation to “Secretarial Authority”, as a matter of equity. 

He continued to serve as a cavalry scout in the TXARNG until he was discharged on 23 February 1996, to accept an appointment as a commissioned officer (captain) in the TXARNG, effective 24 February 1996.

On 14 January 2000, the applicant was notified in writing of his first non-selection for promotion to the rank of major by the 2 March 1999, Army Reserve Components Selection Board.  He received his second notification of             non-selection to the rank of major on or about 30 August 2000, indicating that he had been twice non-selected by the board that convened on 7 March 2000 and that he was required to be discharged no later than 1 February 2001.

Accordingly, he was honorably discharged on 1 February 2001, under the provisions of National Guard Regulation 635-100, paragraph 5a(10), upon failure for promotion to the next higher grade after second consideration under Army Regulation 135-155.

Although there is no contract in the available records, it appears that the applicant immediately enlisted in the TXARNG in the pay grade of E-5, where he was serving at the time he made application to this Board.

There is no indication in his OMPF that he ever appealed any OER to the OSRB.
Additionally, the applicant did not provide and his records do not contain a copy of the investigation conducted under Army Regulation 15-6.

Army Regulation 600-20 provides guidance regarding relief for cause.  It provides, in pertinent part, that action to relieve an officer from any command position will not be taken until after written approval by the first general officer in the chain of command of the officer being relieved has been obtained.  If a relief for cause action is contemplated on the basis of a formal investigation under Army Regulation 15-6, the referral and comment procedures of that regulation must be followed prior to the act of initiating or directing the relief.

Army Regulation 635-100, in effect at the time, prescribed the policies and procedures governing the transfer and discharge of Army officer personnel.  It states, in pertinent part, that an officer is permitted to serve in the Army because of the special trust and confidence the President and the nation have placed in the officer’s patriotism, valor, fidelity, and competence.  An officer is expected to display responsibility commensurate to this special trust and confidence and to act with the highest integrity at all times.  However, an officer who will not or can not maintain those standards will be separated.  Reasons for separation include substandard performance of duty, misconduct, moral or professional dereliction, and derogatory information contained in the OMPF.  

Paragraph 4-6 of that regulation provides that the purpose of the Board of Inquiry (also known as a show-cause board) is to give the officer a fair and impartial hearing to determine if the officer will be retained in the Army.  The Government is responsible for establishing, by preponderance of the evidence, that the officer failed to maintain the standards desired for his grade and branch or that the officer’s conduct has been prejudicial to national security.  In the absence of such a showing by the Government, the board will retain the officer.  However, the respondent is responsible for producing evidence to disprove the Government’s position.

That regulation also provides that an officer will not be considered for involuntary separation because of conduct that has been the subject of judicial proceedings that resulted in acquittal nor will he be considered for elimination if he has been the subject of elimination proceedings that resulted in a final determination that the officer should be retained in the Service.  An officer will be considered to have been the subject of elimination proceedings only if allegations against the officer were acted on by a board of inquiry.  Exceptions to this policy provide that an officer may be considered for elimination for misconduct, moral or professional dereliction, or in the interest of National security at any time subsequent to the closing of the prior case that resulted in the officer’s retention on active duty.  However, an officer may not again be required to show cause for retention on active duty solely because of conduct that was the subject of previous proceedings.  However, the grounds for elimination in the earlier case may be joined with the new grounds in the later case.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Each report must stand alone.

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.

Army Regulation 135-155 prescribes policy and procedures used in the selection and promotion of commissioned officers in the National Guard of the United States and the United States Army Reserve (USAR).  It provides, in pertinent part, that board members will select officers using the fully or best-qualified method, as covered in the letter of instruction.  Board members must take an oath not to divulge the proceedings or results thereof pertaining to the selection or non-selection of individual officers except to proper authority.  Officers under consideration may write to the selection board inviting attention to any matter of record in the Department of the Army deemed vital to their consideration.  An officer who twice fails to be selected for promotion to the rank of major will not again be considered for promotion and is required by law to be discharged unless eligible for and requests transfer to the Retired Reserve. 

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.  The applicant’s contentions that the contested OER contains unverified derogatory information and that his relief was not conducted in accordance with the applicable regulations has been noted by the Board.  However, the applicant has failed to show through the evidence submitted with his application or the evidence of record, sufficiently mitigating evidence to support his contentions. 

2.  The Board also notes that the applicant comes to the Board 14 years after the fact with his contentions, yet at the time of his relief, he was provided a copy of the investigation conducted under Army Regulation 15-6, that served as the basis for his relief.  The Board does not have the report of investigation in the available evidence to ascertain all of the circumstances that led to his relief or the procedures that were followed.  However, the contested OER that was issued at the time, specified that the procedures of Army Regulation 600-20 and local supplementary regulations had been complied with.  The applicant has failed to submit evidence to refute that statement; therefore, the Board must presume, in the absence of evidence to the contrary, that his relief was accomplished in accordance with applicable regulations.   

3.  The Board has noted the many letters of support submitted by the applicant with his application and acknowledges that he has served well since receiving the relief for cause OER.  However, good subsequent service does not change the considered opinions and objective judgment of the rating officials at the time.

4.  The Board also recognizes that a relief for cause is a serious action that has far lasting effects on soldiers and especially commanders that are relieved.  Likewise, the Board also believes that his chain of command understood the seriousness of such an action and took the steps they felt were necessary under the circumstances.  

5.  The applicant always had the option of seeking legal counsel to appeal his relief and/or his OER.  He also had the option to appear before a Show Cause Board to set the record straight, at a time that the events were still fresh.  However, he withdrew his request approximately a month after electing to exercise that option and submitted his request for resignation in lieu of elimination proceedings. 

6.  The applicant’s contention that the OER served as the basis for his being twice non-selected is at best speculative on his part.  While he may be correct, it is a well-known fact that promotion selection boards do not reveal the basis for selection or non-selection of individuals considered.  This Board does not have the advantage of comparing the applicant’s records to all of those who were considered at the same time and will not attempt to second-guess the members of the selection boards who were in the best position to determine who was best or fully qualified for selection.

7.  While it is unfortunate that the applicant was not selected for promotion to the rank of major, there are always people in that category because there are always more people eligible for promotion than there are vacancies to fill.  For this reason alone, promotion selection boards have a very difficult job at best to determine who will best meet the needs of the Army.

8.  Accordingly, based on the information available to the Board, the Board is convinced that the contested OER represents a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records or granting him a promotion to the rank of major.

9.  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

___js____  __mm___  _sw_____  DENY APPLICATION

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

INDEX

CASE ID	AR2002073295	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/11/19	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  192	110.0300/reinstatement	
2.  310	131.0000/promotion	
3.  221	111.0005/void oer	
4.		
5.		
6.