MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           4 December 2003                   
	DOCKET NUMBER:   AR2003087848

	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	
	Ms. Deyon D. Battle		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Mr. Allen L. Raub		Member	
	Mr. Kenneth W. Lapin		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, that part V (rater), part VI (intermediate rater) and part VII (senior rater) comments on his Officer Evaluation Report (OER) for the period covering 1 October 1997 through 30 September 1998 be removed from his official record.  He also requests that his records be reconsidered by the appropriate Army Special Selection Board.

APPLICANT STATES:  That his rater has a history of questionable integrity.  He states that the OER in question has substantive errors, factual inaccuracies, unjust comments and inconsistencies.  He states that his rater was relieved of his command based on his questionable integrity, misleading statements, poor decision-making skills, gross lack of judgment, and total lack of leadership ability 6 months after the OER was written.  He states that he concurs with the investigation officer’s finding that the negative OER was not based on his performance but rather an unfair evaluation.  He states that he made every effort to assist his rater in his decisions by giving him advice as the Assistant Detachment Commander; however, his rater considered his providing advice to be a personal insult.  

He further states that he recently spoke with his senior rater regarding the impact that the rater’s comments may have made in relationship to the comments that he made in the OER in question and that he was informed that the rater sometimes made recommendations.  He states that he believes that the rater may have mislead the senior rater (SR) by making misleading statements because of personal differences.  He goes on, in several paragraphs of his application to this Board, questioning the statements made by the rater and senior rater in the OER in question.  He states that his rater lowered the OER rating after he made a request for a Commander’s Inquiry and that after the group commander and the Inspector General’s office got involved, Headquarters Department of the Army Personnel Command (PERSCOM) was requested to return the OER and the rater changed the evaluation to reflect the rating that he was initially given.  He concludes by stating that based on everything that has happened, specific portions of the OER in question should be amended. 

In support of his appeal, he submits a memorandum addressed to PERSCOM from the Deputy Commander, 1st Battalion, 3rd Special Forces Group dated 14 March 2001, stating that the OER in question should be removed from his Official Military Personnel File (OMPF); an undated memorandum addressed to PERSCOM from the officer that initiated the Commander’s Inquiry confirming that he found inaccuracies and unjust comments made by the rater; a memorandum dated 6 January 1998, from a member of the 1st Battalion, 3rd Special Forces Group, attesting to his outstanding performance; and a copy of a closeout OER for the period covering 12 April through 31 September 1997, which shows that prior to the OER in question, he was given a top block rating by the same rater and the same senior rater.

He also submits a sworn statement from the Deputy Commander, 1st Battalion, 3rd Special Forces Group, attesting to the events regarding the security violation; the interview of the Deputy Commander, 1st Battalion, 3rd Special Forces Group, obtained during the Commander’s Inquiry regarding the events that took place; a sworn statement dated 19 June 1998, provided by the chief warrant officer that received the classified information via electronic mail; a memorandum that speaks to an interview provided by the Detachment Commander during the Commander’s inquiry, regarding the classified material; a memorandum from another chief warrant officer dated 12 March 2003, pertaining to a minority survey that he attended; a memorandum to PERSCOM from a chief warrant officer dated 6 March 2001, regarding the minority survey; a copy of a Request and Authorization for Leave; a list of the personnel assigned to attend the minority survey dated 14 May 1998; a sworn statement of a soldier dated 7 January 1999, explaining what he believed caused the personal problems him and his rater; and two memorandums addressed to this Board both dated 25 March 2003, from two soldiers, regarding their lack of  knowledge of a redeployment timeline.  

He continues his appeal by submitting a copy of a statement for record dated 13 January 1998, pertaining to his performance counseling; two OERs, both for the period covering 1 October 1997 through 30 September 1998; a memorandum addressed to him from his rater dated 1 February 1999, explaining why his OER was changed; a memorandum addressed to him from his senior rater dated also 1 February 1999, also explaining why his OER was changed; a memorandum dated 1 February 1999, addressed to PERSCOM, from his senior rater, modifying the OER in question; his OER appeal and the results of his appeal to the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB); and memorandums from the current commander of the 3rd Special Forces Group and the current commander of the 2nd Battalion, 3rd Special Forces Group dated 17 October 2003, requesting that all favorable consideration be granted on his OER appeal.

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

He is currently on active duty serving in the rank of chief warrant officer (CW2) and he is assigned to Company A, 2nd Battalion, 3rd Special Forces Group (A), Fort Bragg, North Carolina.

On 16 December 1998, the applicant received an annual OER covering the period from 1 October 1997 through 30 September 1998, evaluating him as the Assistant Detachment Commander 12 man, Africa-oriented Special Forces Mounted Operational Detachment.  

In Part Va, under performance and potential evaluation, the rater, a captain, gave him an “unsatisfactory performance, do not promote" rating.  The supporting comments (Part Vb) indicate that the applicant completed most tasks directly assigned to him in a satisfactory manner during the rating period.  The rater further indicated that the applicant solely planned and coordinated a 1 month detachment deployment to the Countermine Warfare Course at Fort Leonard Wood, Missouri, which later proved to be invaluable in the success of the detachment’s Humanitarian Demining Program in Chad.  The rater stated that the detachment was commended for the 4-month mission and that the applicant personally developed and taught a 2-month English course to Chadian citizens.  The rater went on by stating that a year of solid performance was marred by several regrettable incidences.  

In Part Vb of the OER the rater further stated that on 26 June 1998, the investigating officer of a Commanders Inquiry found the applicant responsible for the compromise of classified information and that on 28 May 1998, the applicant failed to ensure a direct tasking was properly coordinated and the information disseminated before preparing to depart on leave.  The rater commented that on 8 January 1998, the applicant failed to ensure that he knew the redeployment timeline prior to departing the immediate area of Fort Campbell, Kentucky and that he was not present at the designated timeline for movement to the aircraft.  The rater further commented that the applicant’s actions show lapses in judgment inconsistent with the actions of his peers and for someone of his extensive training and time in service.  The rater concluded his comments in Part Vb of the OER by stating that with mentoring and counseling from his peers and chain of command, the applicant has future potential for promotion and excellent performance.

In part VI (Intermediate Rater) of the OER in question, the intermediate rater commented that the applicant’s performance during the rating period had been inconsistent.  The intermediate rater stated that he performed well on some tasks, but he exhibited lapses in good judgment on others and that while personally very affable, his performance was not consistent with an officer with his number of years in Special Forces.  His intermediate rater concluded his portion of the OER by commenting that the applicant’s potential for positions of greater responsibility is adequate.

In Part VIIa, under Promotion Potential Evaluation, the senior rater (SR) rated the applicant as fully qualified (second block), which placed him below center of mass on the SR's profile (Part VIIb).  The SR's comments in promotion potential (Part VIIc) indicate that he (the SR) did not completely agree with the tone of the rater’s assessment. The SR stated that although the applicant was not one of his better warrant officers, and in fact ranked in the bottom 50 percent, he was not solely responsible for two of the three incidents mentioned by the rater.  The SR went on to state that an Army Regulation 15-6 investigation completed on 8 December 1998, concluded that the applicant’s rater was at least partially responsible for the compromise of classified information and the incident of 8 January 1998.  The SR stated that, nevertheless, even though the applicant performed well on several tasks, principally in preparation for his detachment’s difficult missions in Kuwait and Chad, his performance has not been as consistent as expected of an officer with his experience.  The SR stated that he did not consider the applicant to be a strong candidate of immediate promotion; however, with additional mentoring and guidance, he may prove more successful in the future.

On 1 February 1999, the rater of the OER in question notified the applicant that a modification was being made to the OER.  In the memorandum, the rater stated that during the period in question, he became aware shortly after the OER was forwarded the Headquarters, Department of the Army, that he unintentionally made a technical error which could have given the appearance of reprisal.  The rater further stated that essentially, he had changed a block in part IVb3 from “Yes” to “No” and changed the Part Va block from “Satisfactory Performance” to “Unsatisfactory Performance” after the senior rater had ordered an AR 15-6 investigation into the command climate in the detachment.  The rater stated that he did not realize that when he wrote the report in question that such changes were in contravention with the provisions of Army Regulation 623-105.  He stated that, after carefully reviewing the regulation, he decided to correct the error by changing part IVb3 from “No” to “Yes” and by changing part Va block from “Unsatisfactory Performance” to “Satisfactory Performance”.

In a memorandum dated 1 February 1999, prepared by his SR, the applicant was again informed that his rater had changed part IVb3 from “Yes” to “No” and part Va from “Satisfactory Performance” to “Unsatisfactory Performance” in the OER and that the change was made after an AR 15-6 investigation into the command climate had been initiated.  The SR stated that after reviewing AR 623-105 carefully and relooking his comments, he decided that the errors should be corrected and a closer look taken at the OER in question.  The SR went on to state that he called PERSCOM and asked that the original OER be returned.  He stated that he rewrote his portion of the OER making several modifications by changing the part VIIb block from “Below Center of Mass – Retain” to “Center of Mass”.  The SR concluded by informing the applicant that he also made changes to part VIIc of the OER to more clearly explain his disagreement with the rater’s assessment, i.e., additionally, the latter incident was so minor that it does not warrant mention in an OER. 

On 25 March 1999, the investigating officer (IO) that conducted the Commander’s Inquiry into the OER in question determined that it contained one factual inaccuracy and one unjust comment.  The IO determined that both the applicant and his rater were jointly responsible for the compromise of classified information and that the rater’s comments permit the reader to infer that the applicant alone was responsible for the breach of information.  The IO further determined that although the SR mitigates the inaccuracy in his portion of SR narrative, it does not eliminate the inaccuracy.  The IO further determined that the unjust comment made by the rater was that on 8 January 1998, the applicant failed to ensure that he knew the redeployment timeline prior to departing the immediate area of Fort Campbell, Kentucky, and that he was not present at the designated time for movement to the aircraft.  The IO stated that he concurred with the SR’s comments in that both the applicant and his rater contributed to that incident and that the incident was so minor that it did not warrant mention in an OER.  The IO concluded by stating that he found that reference to the 8 January 1998, incident was unjust; however, his inquiry uncovered no other inaccuracies, injustices, or inconsistencies in the applicant’s OER.

In an undated memorandum to PERSCOM, the applicant appealed the OER based on what he believes to be substantive errors in part V, part VI, and part VIII.  In his appeal, he stated that the OER was based on an initial conflict of ethics between the rater and himself and that the rater made false and misleading statement to members of the detachment, which resulted in the erosion of trust and confidence in the rater.  The applicant requested total removal of the report due to the rater’s factual inaccuracies, injust comments and the rating officials’ inconsistent evaluation.

On 25 October 2001, the Deputy Chief of Staff for Personnel, OSRB informed the applicant that the information he submitted and his official records had been reviewed and that the evidence does not justify altering or withdrawing the OER. The OSRB stated that the IO of the Commander’s Inquiry clearly stated that the applicant was responsible for the compromise of classified information and the fact that the rater was found to be partially responsible does not alter the fact that classified information was compromised by the applicant.  The OSRB further stated the applicant had failed to provide any supporting evidence to refute the accuracy of the rater’s statement that the applicant failed to ensure a direct tasking was properly coordinated and the information disseminated before departing on leave and that he failed to ensure he knew the redeployment timeline prior to departing the immediate area of Fort Campbell, Kentucky.  

The OSRB noted during its review that the applicant had provided supporting statements from several observers that speak highly of his performance.  The OSRB also noted an undated memorandum of support from the applicant’s former Brigade Commander (the IO of the commander’s inquiry) that indicates that the entire OER is flawed and should be removed from his record.  The OSRB noted that the memorandum fails to explain the “new” evidence he used to cause him to change his opinion of the facts from his 25 March 1999, Commander Inquiry memorandum.  The OSRB concluded its review by stating that there is not sufficiently convincing evidence that the OER is administratively or substantively inaccurate and therefore, the report will not be amended.
Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  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 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

Paragraph 9-7 of that regulation also 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 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.  The contested report appears to represent 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.

2.  The Board has noted the applicant’s contentions.  However, he has not shown to the satisfaction of the Board that he was not rated properly or that the rating officials violated proper rating procedures.  He has failed to overcome the presumption that the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.
3.  The fact that the rater’s comments are directed solely at the applicant’s performance during the rating period and appear to exclude himself from any responsibility regarding the incidents that occurred, is not a basis for removal of the OER or any portion thereof.  The rater’s comment that the applicant was found to be responsible for the compromise of classified information is true as the commander’s inquiry determined that he was partially responsible.  Amending the OER to include the word partially would not result in his receiving a higher rating and it would not explain the incident any better that what the SR explained in his comments.  

4.  While the applicant has solicited the support of his coworkers and acquaintances, the supporting statements that he submitted do not justify removal of any portion of the OER.  The applicant’s rater changed portions of his initial OER after an investigation was initiated.  The SR was able to retrieve the OER that was in error prior to its processing and provide clear and concise statements regarding what actually happened.  The OER is clear to anyone and everyone who reads it that the rater was partially responsible for two of the three incidents that occurred and that one incident was so minor, that it does not warrant mention in an OER.

5.  The OER that was finalized for the period in question appears to accurately and appropriately reflect the opinion and judgment of the rater and the SR regarding the applicant’s performance during that rating period.  His performance was rated as satisfactory and he was placed in the center of mass.  There is no available evidence nor has the applicant submitted any evidence to show that his performance should have been rated higher than satisfactory or that he would have been placed above center of mass.  

6.  The applicant’s contention that the contested report prevented him from being promoted appears to be at best speculative on his part.  It is well known that promotion selection boards do not release the reasons for selection or nonselection.  It is also well known that the established strength ceiling limits the proportion of eligible officers that may be selected and that many highly professional officers may not be promoted through each successive grade.  In any event, the Board will not attempt to second-guess the promotion boards that had the advantage of reviewing all records of individuals within the applicant’s peer-group who were either selected or nonselected.

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:

__wtm___  __kwl___  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  __alr___  DENY APPLICATION

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

INDEX

CASE ID	AR2003087848	
SUFFIX		
RECON		
DATE BOARDED	20031204	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PLUS	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID OER	
2.		
3.		
4.		
5.		
6.