RECORD OF PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:           12 February 2004                   
	DOCKET NUMBER:   AR2003090200

	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	
	Mr. Klaus P. Schumann		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. Lester Echols		Member	
	Mr. Robert J. Osborn		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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, in effect, removal of the negative Officer Evaluation Reports (OER) from his military records, reinstatement into the active Army with back pay and credit for time in served since his separation, reassignment to the logistics officer advanced course, and all other entitlements he is due as a result of these corrections.  

2.  The applicant states, in effect, that the results of a two-year United States Army Reserve Command (USARC) Inspector General (IG) investigation substantiated several allegations he lodged against his former command.  Specifically, that he was not permitted reassignment and that he was not properly counseled regarding his duty performance by his superiors.  

3.  The applicant further states that testimony given during a Board of Inquiry (BOI), convened prior to his separation, shows that his OERs were altered to reflect poor performance in retaliation against him.  He states the witnesses that testified during the BOI could not cite any examples of his poor performance during questioning and that the witnesses were provided scripts by the 
Staff Judge Advocate (SJA) to prepare them for questioning.  He also states that the SJA "hand-picked" the members of the BOI and that they were the friends of the witnesses that appeared, which is a clear violation of procedure.

4.  The applicant further contends that he requested assistance on several occasions from a Member of Congress and each response to the allegations he presented derived a different reply from his former chain of command.  Further, he believes that this lack of consistency was an effort by his chain of command to mislead the Member of Congress regarding the conditions he was experiencing within the command.  He believes a truthful answer in the response to his first Congressional inquiry would have resulted in his reassignment from his unit and therefore would have prevented the adverse actions subsequently taken against him.

5.  In support of his application, the applicant provides the enclosed self-authored statement to a Member of Congress, dated 18 April 2003, with the nineteen tabbed exhibits identified.  

CONSIDERATION OF EVIDENCE: 

1.  The applicant entered the Army and was commissioned a second lieutenant in the Transportation Corps of the United States Army Reserve (USAR) on 
22 May 1988.  He served in units in the Baltimore, Maryland and Milwaukee, Wisconsin areas before being honorably separated from the Army for substandard performance in 2000.  
2.  The applicant's military records contain an Officer Records Brief (ORB) that shows, in Section VIII (Awards and Decorations), that he was awarded the Meritorious Service Medal, the Army Commendation Medal with 1st Oak Leaf Cluster (OLC), the Army Achievement Medal with 1st OLC, Army Reserve Component Achievement Medal, Southwest Asia Service Medal with one bronze service star and the National Defense Service Medal during his service in the Army.

3.  The applicant's OER (DA Form 67-8) history shows that between 5 June 1994 and 6 June 1998, the applicant received six OERs with negative comments from seven different rating officials.  All of the negative evaluations he received were for his performance in the grade of captain.  

4.  Records show that the applicant was assigned to the 757th Transportation Battalion based in Milwaukee, Wisconsin, performing duties as a Train Dispatcher, during the period he received the negative reports in question.  

5.  The applicant's OER for the period 5 June 1994 through 4 June 1995 was an annual report which covered 12 months of rated time.  This OER contained negative comments and it was properly referred to the applicant on 9 September 1995, and the applicant acknowledged receipt of the referred report the same day.  However, the record shows that the applicant elected not to submit rebuttal comments to the referred report nor did he request a commander’s inquiry, as it was his right to do.  Further, he chose not to file an appeal of the contested report to the Officer Special Review Board (OSRB).

6.  The applicant's OER for the period 5 June 1995 through 4 October 1995, was a change of rater report which covered 4 months of rated time and it was rendered on 29 July 1999.  The OER was referred to the applicant and he acknowledged receipt on 29 July 1999. The applicant's records show that he did not submit rebuttal comments to this report nor did he request a Commander's Inquiry.  Further, he elected not to file an appeal of this OER to the OSRB.

7.  The applicant's OER for the period 5 October 1995 through 19 June 1996 was a change of rater report which covered eight months of rated time.  This OER was rendered on 11 September 1998 and the applicant acknowledged receipt of this referred report on 17 October 1998.  The applicant submitted rebuttal comments on 3 November 1998; however, he did not request a Commander's Inquiry nor did he file a formal appeal of the report to the OSRB.

8.  The applicant's OER for the period 20 June 1996 through 19 June 1997 was a properly rendered annual report which covered 12 months of rated time.  This OER shows, in Part II (d) (Signature of Rated Officer), that the applicant refused to sign this report.  The applicant's records show that he submitted rebuttal comments on 3 November 1998; however, he again elected not to request a Commander's Inquiry or to file an appeal the report to the OSRB.  

9.  The applicant's records contain a memorandum, dated 9 May 1997, signed by the 88th Regional Support Command (RSC) Commanding General (CG), which designated the applicant's Battalion Commander as his senior rater (SR) for the period 20 June 1996 through 19 June 1997.

10.  The applicant's OER for the period 20 June 1997 through 31 October 1997 is a change of rater report which covered 4 months of rated time.  The rater signed his portion of this OER on 3 April 1999, the intermediate rater signed his portion on 18 May 1999 and the SR signed the OER on 31 May 1999.  The referral memorandum for this OER is dated 8 June 1999, however an acknowledgment of receipt from the applicant is not contained in his military records.  The applicant's records show that he did submit rebuttal comments to the SR for this report, but he did not request a Commander's Inquiry or file a formal appeal to the OSRB.  

11.  The applicant's OER for the period 1 November 1997 through 6 June 1998 is a change rater report which covered 6 months of rated time.  The applicant and all rating officials signed the OER on 17 October 1998.  The report was properly referred on 17 October 1998 and the applicant acknowledged receipt of the referral on the same day.  The applicant's records show that he provided rebuttal comments to the SR for consideration.  However, he did not request a Commander's Inquiry or file a formal appeal to the OSRB.  

12.  The applicant's six OERs covering his service as a captain and his duty performance as a Train Dispatcher, during the period 5 June 1994 through 6 June 1998, show that he received ratings of less than "1" in numerous elements of professional competence and received numerous negative comments under professional competence from four different raters.  The raters placed him in the second block (Usually Exceeded Requirements) on two occasions, third block (Met Requirements) on three occasions and in the fourth block (Often Failed Requirements) on one occasion under Part Vb (Performance During This Rating Period).  

13.  In the OERs during this period, the raters also made numerous negative comments and limited positive comments on the applicant's performance, and listed no achievements under Part Vc (Comments on Specific Aspects of the Performance).  On four occasions the raters placed him in the third block (Do Not Promote) and on two occasions he was placed in the second block (Promote With Contemporaries) in Part Vd (This Officer's Potential for Promotion to the Next Higher Grade).  In Part Ve (Comment on Potential), the raters provided negative comments and stated, in effect, that the applicant’s potential was limited and that he should not be retained in the Active Guard Reserve (AGR) program.

14.  Three different SRs evaluated the applicant on his performance as a Train Dispatcher during the period 5 June 1994 through 6 June 1998.  All the SRs placed him "below center of mass" on all reports.  

15.  The applicant provides an undated, unsigned (with the exception of the applicant's signature) and unprocessed OER that contains laudatory comments regarding his performance during a twelve month period between 20 June 
1995 through 19 June 1996.  

16.  On 11 February 1999, the applicant was issued a memorandum which required him to show cause for retention on active duty because of substandard performance of duty.

17.  A BOI convened from 12 June 1999 to consider the applicant's suitability for continued service in the Army.  This BOI recommended that he be discharged from the Army.  As a basis for its decision, the BOI cited the applicant’s downward trend in overall performance which resulted in an unacceptable record of efficiency; his failure to exercise necessary leadership or command expected of an officer of his grade; his failure to perform assignments commensurate with his grade or experience; his apathy, defective attitudes or other characteristic disorders to include inability or unwillingness to expend effort; and his inability to achieve satisfactory progress in the weight control program or his inability to maintain the established Army weight standards after removal from the weight control program.  

18.  On 1 March 2000, the General Officer Show Cause Authority (GOSCA) approved the BOI proceedings and recommended that the applicant be discharged from the service.

19.  On 3 October 2000, the Army Board of Review for Eliminations reviewed records associated with the separation of the applicant.  This Board found, by a preponderance of the evidence, that the applicant should be eliminated from the Army for substandard performance.  Additionally, this Board, due to reprisal allegations made by the applicant, directed that he be counseled prior to his separation regarding his entitlement to protection under the Whistleblower Protection Act if his allegations were substantiated.  

20.  On 9 July 2002, the USARC IG found two of the applicant's battalion commanders failed to properly remove a suspension of favorable personnel (FLAG) action against him and that he should have been eligible to transfer out of his unit during the period July 1997 through August 1998.

21.  The evidence of record fails to show the applicant applied for protection under the Whistleblower Protection Act or that any acts of reprisal were substantiated by the proper authorities in his case.  

22.  Army Regulation 623-105 paragraph 2-9b states that the rated officer will begin a discussion of his or her duty description and performance objectives with his or her rater.  This must be done within 30 days after the beginning of each rating period.

23.  Army Regulation 623-105 paragraph 3-22c(2)a states that the senior rater makes an assessment of the rated officer's overall potential in comparison with all other officers of the same grade the senior rater has senior rated or currently has in his or her senior rater population.  This potential is evaluated in terms of the majority of the officers in the population.  If the potential assessment is consistent with the majority of officers in that grade the senior rater will place his "X" in the Center of Mass box.  If the rated officer's potential exceeds that of the majority of officer's in the senior rater's population, the senior rater will place his "X" in the Above Center of Mass/Center of Mass box (The intent is for the senior rater to use this box to identify their upper third in each grade).  However, in order to maintain a credible profile, the senior rater must have less than 50% of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a Center of Mass label.  If the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater believes the rated officer should be retained for further development, the senior rater will place his "X" in the Below Center of Mass-Retain box.  If the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater does not believe the rated officer should be retained on active duty the senior rater will place his "X" in the Below Center of Mass-Do Not Retain box.

24.  Army Regulation 623-105 paragraph 4-27 requires that certain types of OERs be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are any reports with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating official's narrative.  Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official requires referral to the rated officer.

25.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide 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.

26.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  The regulation provides for a Commander’s Inquiry in cases where it brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a 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 of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.  

27.  Army Regulation 623-105, paragraph 3-57 provides the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  

28.  Army Regulation 623-105, Chapter 6 contains the policies and procedures pertaining to managing the OER redress program  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  It states that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-57 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

29.  Army Regulation 623-105 paragraph 3-22(3) states that the senior rater's narrative comments should focus on the rated officer's potential and future assignments but may also address performance, the administrative review, or the evaluations of the rater and intermediate rater.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect,  that he was not allowed to move on a permanent change of station (PCS) which generated two additional OERs that would not have been rendered had he been allowed to proceed on his PCS.  He further contends that the results of an investigative inquiry by the USARC IG which found that he was eligible for a PCS during the period July 1997 through
19 August 1998 substantiates this claim.  

2.  However, the applicant's OER history shows that his pattern of substandard performance began in June 1994 and was documented on four separate OERs prior to the period he would have PCS'd.  Therefore, the evidence does not support his claim that a PCS would have positively impacted any additional OERs or his discharge for substandard performance.  This is particularly true given his records show that in all of the six OERs he received over a four year period as a captain, the SR in all cases rated his performance below center of mass.

3.  The applicant contends that an investigative inquiry conducted by the USARC IG found that he was kept uninformed about his job performance.  However, the IG finding failed to specify the context from which it derived its conclusion nor the resulting action based on this conclusion.  Therefore, notwithstanding the IG finding, it is difficult to apply its findings to a specific OER or period of time and it provides an insufficient evidentiary basis from which a conclusion could be made that it impacted the evaluations the applicant received on the OERs in question. 

4.  It is noted that the timeliness, accuracy of administrative data and the administrative processing of a number of the applicant's OERs was clearly deficient.  However, these mitigation factors do not provide a sufficient evidentiary basis from which to conclude that the applicant's OERs do not contain valid subjective evaluations of the applicant's performance by the rating officials for the periods of the report.

5.  The applicant contends that his OERs were altered to reflect poor performance.  In support of this contention, he provides an unprocessed OER for the period 20 June 1995 through 19 June 1996 that contained laudatory comments.  He argues this substantiates his contention that his OERs were altered to reflect poor performance.  However, the OER in question was not properly processed and lacked the signature of any rating official.  Therefore, it does not establish a sufficient evidentiary basis from which to draw the conclusion that the OER finally processed for this period, was changed and did not reflect the intended comments of the rating officials.

6.  Further, the applicant also contends that his OERs were altered to reflect poor performance in retaliation against him for making complaints, which led to unwanted investigations of his command.  However, his contention was not supported in the proceedings of the BOI or corroborated by an investigative inquiry conducted by the IG or any other investigative body.  Therefore, the available evidence does not support the applicant's contention in this case.

7.  The applicant contends that testimony given during the BOI shows that his OERs were altered to reflect poor performance and that witnesses against him could not cite specific examples of his poor performance.  However, a review of the BOI proceedings, approved by the Regional Support Command Commanding General, does not support this contention.

8.  The applicant contends that during the BOI proceedings witnesses were provided scripts by the SJA to prepare them for questioning and that the SJA "hand-picked' members of the BOI who were also friends of the witnesses that testified.  However, the applicant does not present evidence to support these allegations.  

9.  It is noted that the applicant did not exercise his rights to several administrative redress remedies, specifically a Commander’s Inquiry and the OER appeals system, which would have addressed his contentions regarding the inconsistencies or irregularities in his OERs at the time the reports were rendered.

10.  The applicant contends that his former command purposely provided inconsistent information to a Member of Congress, who was making an inquiry on his behalf, in an effort to mislead the Congressman regarding the conditions the applicant was experiencing within the command.  However, the evidence of record shows that an inquiry conducted by the IG regarding the applicant's contention was not founded.  Therefore, lacking evidence to the contrary, the applicant has failed to substantiate his contention.

11.  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.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__RJO__  __LE___  __JHL__      DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		Joann H. Langston
		 CHAIRPERSON

INDEX

CASE ID	AR2003090200	
SUFFIX		
RECON		
DATE BOARDED	2004/02/12	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1. EvalRpt	111.0000.0000	
2.		
3.		
4.		
5.		
6.