MEMORANDUM OF CONSIDERATION

		IN THE CASE OF:      

		BOARD DATE:           18 November 2003
		DOCKET NUMBER:  AR2003090468

	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	
	Mr. Mark D. Manning		Member	
	Ms. Barbara J. Ellis		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) covering the period from 22 October 1990 to 5 March 1991 from his Official Military Personnel File (OMPF), reconsideration for promotion to the rank of colonel by a Standby Selection Board and if selected for promotion, that he be placed in the Retired Reserve in the rank of colonel.

APPLICANT STATES:  In effect, that he was given an unjust rating on his OER covering the period from 22 October 1990 to 5 March 1991, because he is of the Jewish faith and he had filed an Equal Opportunity (EO) complaint against his commander because of inappropriate remarks directed at his Jewish faith, and the perception of a discriminatory work environment.  He further states that shortly after his complaint was filed, accusations of disloyalty were raised including allegations he was an Israeli spy.  He was issued an adverse OER, relieved of his duties and was transferred out of his unit.  A subsequent Defense Investigative Service (DIS) inquiry was initiated into his possible links to the Mossad and treason against the United States during the Gulf War, which coupled with the fact that no disciplinary action was taken against his accusers, caused him to experience great anxiety.  He further states that he was reluctant to file an appeal to the Board because his attorney advised him that it might attract undue attention that would cause further inquiries, loss or delay of his retirement and might jeopardize his civilian employment and security clearance.  He continues by stating that he retired in 1997 and that it took 7 years for his recommendation for award of the Legion of Merit (LOM) to be approved.  After the September 11th incident at the World Trade Center in which he assisted in removing victims, he was diagnosed with latent service connected Post Traumatic Stress Disorder (PTSD) by a Department of Veteran Affairs (VA) psychiatrist.

COUNSEL CONTENDS:  In a 22-page brief, in effect, that in January 1991, the applicant filed an EO complaint against his rater and command in which an investigation substantiated that the rater/commander made inappropriate remarks and jokes concerning the applicant's religious (Jewish) dietary habits and that the working environment within the unit was one which undoubtedly left members with the impression that unequal treatment did exist in the unit.  While the rater was formally admonished by his commander, within weeks of the EO complaint, accusations of disloyalty were made against the applicant as well as allegations that the applicant was a spy, a homosexual and a sexual pervert.  Additionally, he received an adverse-referred OER from his rating chain and was released early from his duty assignment.  He continues by stating that given the Jonathan Pollard Israeli Spy Case that was prevalent at the time, the applicant did not pursue his appeal upon advice of counsel.  As a result, the applicant has suffered anxiety over the unresolved Israeli spy allegations, preserving his military career, and prospective civilian employment with Department of Defense contractors within the intelligence field and has been diagnosed with PTSD.  He further states that given the substantiated EO investigation and the Army's current zero tolerance policy, the rater should have been disqualified from rating the applicant.  Instead of properly resolving the issue, the senior rater (SR) summarily relieved the applicant of his duty under the dubious guise of a "change of duty" OER, without any due process and the OER contained attacks on the applicant's loyalty, integrity, lack of military experience, tact and people skills and the commander's inquiry that was conducted fell woefully short of rebutting the EO investigation report.  Additionally, he contends that the OSRB simply rubber-stamped the statements from the rater and improperly dismissed the third party statements submitted with his appeal.

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

He was commissioned as a United States Army Reserve (USAR) second lieutenant on 6 June 1969 and was detailed as a military intelligence branch officer.  He was ordered to active duty on 4 December 1969 and was promoted to the rank of first lieutenant (1LT) on 4 December 1970.  He served his active duty in Hawaii and submitted a request to be released from active duty (REFRAD) in Hawaii.

He was honorably REFRAD in the rank of 1LT on 16 April 1973 and was transferred to the USAR Control Group (Reinforcement) in Hawaii.  He was subsequently transferred to a Troop Program Unit in Oakland, California.  He was promoted to the rank of captain on 3 June 1975, to the rank of major on 4 June 1982 and although the record does not show a date, he was subsequently transferred to the USAR Control Group (Individual Mobilization Augmentee (IMA)).  He was promoted to the rank of lieutenant colonel (LTC) on 3 June 1989.

On 16 May 1990, the applicant received a "Relief from Active Duty Training" (REFRADT) OER covering the period from 19 March to 30 March 1990            (12 days), evaluating him as a special project officer (IMA) in an Army Special Security Group.  His rater (a LTC), gave him maximum ratings and his SR (a colonel and group commander) placed him in the second block and center of mass (COM) on his profile.

On 28 August 1990, the applicant received a REFRADT OER covering the period from 16 July to 31 July 1990 (16 days), evaluating him as a detachment commander (IMA) of a special security detachment at Fort McPherson, Georgia. His rater (a LTC) gave him maximum ratings and his SR (the same SR on the previous OER) placed him in the top block of his profile (above COM).

On 18 January 1991, the rater gave the applicant a counseling statement regarding conduct that was not in the best interest of order, sound judgment and good discipline.  He ordered the applicant to cease and desist his behavior immediately.  He also informed the applicant that if his behavior continued, he would have no recourse but to terminate his active duty, deny him access to special intelligence and relieve him for cause.

On 4 March 1991, an informal investigation that had been directed by the SR was completed on 4 March 1991.  The applicant did not include this investigation with his application; however, the results of the investigation are contained in an Officer Special Review Board (OSRB) case summary, which indicates that the investigation concluded that the applicant was not experienced in higher level staff work, that several of his actions were inappropriate and did reflect negatively on the command, that he became defensive and attributed his rater's counseling as being motivated by professional jealously and ethnic/racial prejudice, that the rater was correct in questioning the applicant's competence and in not trusting him with important actions, that there was no evidence that the rater's counseling of the applicant's performance was based on anything other than professional experience and judgment, that the rater had made inappropriate remarks and jokes about the applicant's religious dietary habits; however, they had first been initiated by the applicant and not the rater and were stopped when the applicant brought it to the rater's attention, that the applicant was not loyal to his commander (rater) and his actions were disruptive to the command.  The investigating officer noted that the applicant may have stirred things up and violated the rater's trust and confidence by relaying the details of private conversations back to individual soldiers.  The applicant also suggested to subordinates that he was better suited to command than was the rater.  The investigating officer also found that the rater had the trust and confidence of his subordinates and most of the subordinates were not aware of any prejudice on the part of the rater.  He recommended that the rater be counseled concerning his remarks and that the applicant be reassigned or released from active duty.

On 14 May 1991, the applicant's rater (a LTC) initiated a change of duty OER (the contested report) on the applicant, covering the period from 22 October 1990 to 5 March 1991 (5 months), evaluating him as a deputy commander of a special security command at Fort McPherson.

In part IVa, under performance evaluation and professionalism, his rater gave him a "3" rating under "Displays sound judgment."  In part IVb, under professional ethics, the rater stated that on three occasions the applicant displayed very poor judgement, which resulted in embarrassment to the command.  He also stated that he questioned the applicant's loyalty and integrity due to his actions and comments on at least three occasions.

In part Vb, under performance and potential evaluation, the rater gave him a "Usually Exceeded Requirements" rating and recommended that he be promoted with his contemporaries.  The rater's comments indicate that the applicant had volunteered for active duty during Operation Desert Shield/Storm, that his knowledge of computers and automated data processing (ADP) was superb and that he is enthusiastic and aggressive.  However, his lack of military experience, tact, and people skills began to manifest themselves shortly after his arrival.  He further stated, in pertinent part, that in one instance, his tactless conversation caused the command extreme embarrassment, on at least three occasions he disclosed privileged information to soldiers, seriously degrading morale and esprit de corps of the soldiers and the command.  These actions seriously affected his (the rater's) impression of his loyalty and integrity and that he (the applicant) had issued uncoordinated guidance to subordinate elements that resulted in confusion and unnecessary disruption.  He was unable to heed the rater's counseling and guidance and improve his performance and as a result, was reassigned to another position.  He went on to state that future active duty should be carefully coordinated and supervised at the O-6 level or above and stated that the applicant had excellent potential for higher level staff and promotion, given training and experience.

Meanwhile, on 1 April 1991, the SR dispatched a memorandum to the rater indicating that he had directed an investigation into a recent informal EO complaint from a member of his command.  While the investigation did not confirm the existence of discriminatory practices, he cautioned the rater to avoid future remarks of an insensitive and inappropriate nature such as those made to the applicant concerning his religious dietary habits.  He advised the rater that he must be especially sensitive in his choice of words and sensitive to reactions and perceptions of others about his words and actions.

On 25 and 26 August 1991, an EO investigation was conducted into the issues and allegations made by the applicant in which he alleged that he was the object of systematic discrimination by the rater, based on his ethnic heritage (Jewish), and especially his dietary habits.  Additionally, he alleged that other minorities (especially blacks) and women were degraded by the rater and a Department of the Army civilian.  The investigating official found no evidence of personal or institutional discrimination practices involving race or gender being practiced by the rater or the civilian; however, he did substantiate the allegations relating to the rater's negative comments concerning the applicant's dietary habits and the overall insensitivity of his verbal communication.  The investigating official opined that there was no doubt in his mind that a strong personality conflict and rivalry existed between the rater and the applicant and recommended that the commander (SR) consider this when completing the applicant's OER.

On 8 October 1991, the SR (same SR in previous two reports) placed the applicant in the third block of his SR profile, below COM.  The SR comments that the applicant, in his zeal to meet the numerous demands, clashed with commander over operational procedures, management of assigned personnel and basic command philosophy.  The commander and the applicant were unable to resolve their differences and the applicant was reassigned to a staff duty position.  The SR stated that the applicant was highly motivated and displays high potential for assignment to positions requiring independent analysis and action.  He recommended that the applicant be promoted with his contemporaries.   

The report (OER) was considered adverse and as such was referred to the applicant for comment by the SR.  The applicant responded to the referred report on 28 January 1992, to the effect that he had previously been rated by the same two officers and was rated outstanding in every respect.  The sole and only variables in the intervening period was his unwillingness or inability to tolerate his commander's anti-semitic remarks and jokes together with his overall insensitivity.  He went on to state that his disloyalty resulted in an official investigation which substantiated the commander's conduct and found that 20% of enlisted personnel believed that racial discrimination existed.  As a result, the commander received a written admonition concerning his remarks of an insensitive and inappropriate nature.  He further stated that the report was a reprisal and was illegal and violated the spirit of the regulation.  He requested that a commander's inquiry be conducted and that the period of the report be deemed non-rated.

On 5 March 1992, a commander's inquiry was completed regarding the applicant's allegations that his OER ratings were the result of his (the applicant's) unwillingness or inability to tolerate his rater's anti-semitic remarks, jokes and overall insensitivity, that his rater's comments regarding "disloyalty" were the result of a substantiated finding by an official EO investigation which substantiated his allegations, and that the report was illegal because it was done in reprisal for his initiation of an EO complaint.  He further alleged that the rating officials were unqualified to rate him after the EO investigation substantiated his allegations.
 
The investigating officer (a colonel) found that the applicant's allegations could not be substantiated and that the report was administratively correct.  In a 16 March 1992 letter, the commanding general informed the applicant that a commander's inquiry revealed no error, violation of regulation or wrongdoing regarding the contested OER.

On 15 January 1993, the Army Reserve Personnel Center (ARPERCEN) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for Retired pay at age 60 (1 April 2009).  

The applicant appealed the contested OER to the OSRB in June 1993 citing essentially the same reasons he has cited to this Board.  In the process of reviewing the applicant's appeal, the OSRB contacted the rater of the contested report, who in discussions with the OSRB, summarized many of the incidents that led the rater to conclude that the applicant had shown poor judgment along with various loyalty/integrity issues.  He also explained that the applicant often went behind his back, especially with enlisted soldiers, and discussed privileged communications that were intended solely between the commander (rater) and the deputy commander (applicant).  He stated that he believed that the applicant had no loyalty to anyone other than himself.  That he (the applicant) continually tried to undermine his authority and went as far as asking the rater to relinquish command in favor of himself (applicant).  The rater noted the incidents concerning jokes about religious dietary habits and noted that they had been initiated and carried on by the applicant.  When the applicant informed him that he felt it inappropriate, it stopped.  The rater noted that a personality conflict did exist; however, the ratings on the OER were based on performance and qualification, not personality.   

The OSRB also contacted the command USAR advisor who related that the rater and other members of the command had contacted him regarding the applicant.  The USAR advisor stated philosophically that the rater had, throughout the entire incident, remained fair and impartial from his perspective.  He opined that the rater tends to err on the side of the individual and does all he can to motivate subordinates.  He also stated that when asked by the rater what he should or could do, the advisor advised him to counsel thoroughly and if that did not work, to exercise his responsibilities through the OER system.  From the advisor's perspective, the key issues were the radically different perceptions (between rater and applicant) of the organization and how it was being commanded, the continuing disagreements between the two and a conflict of ideas.  The OSRB concluded after reviewing all of the available evidence that the applicant had failed to provide clear and convincing evidence to show that the contested OER was inaccurate or unjust or that it violated the provisions of the regulations.  The OSRB denied his appeal and a notification was dispatched to that effect on 19 August 1993. 

The applicant was considered, but not selected by Reserve Component Selection Boards during the years 1994 through 1996 for promotion to the rank of colonel.  On 27 October 1997, he was transferred to the USAR Control Group (Retired) in the rank of LTC. 

On 18 January 2002, Permanent Orders 18-1 were published by the Total Army Personnel Command (PERSCOM) awarding the applicant the Legion of Merit (LOM) for meritorious service during the period of 1 February 1988 to 31 January 1998.  It appears based on the evidence of record that an inquiry was conducted by the Office of the Chief of Army Reserve (OCAR), on 5 December 2001, to ascertain the status of two lost awards recommendations pertaining to the applicant and one other officer.  The recommendations were reconstructed and approved by the appropriate officials.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide than 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.

Army Regulation 135-155 provides the policies and procedures for convening standby advisory boards.  It provides, in pertinent part, that standby boards are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board.  A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s nonselection by a promotion board.  Had such errors been corrected at the time the individual been considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  Headquarters will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence, could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Department of the error and providing any relevant documentation.

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 has noted the applicant's contention that the contested OER was rendered as reprisal for an official EO investigation initiated by him that substantiated his allegations and finds it to be without merit.

3.  The available evidence shows that the rater initiated the contested OER well before the applicant requested an official investigation and the SR delayed preparing his portion of the OER until such time as it had been concluded.
4.  Although much time and effort was expended in investigations and commander's inquiries regarding this matter, none of the investigations substantiated his allegations of racial prejudice or discrimination on the part of the rater.  While the investigations all substantiated that the rater had made inappropriate remarks regarding the applicant's dietary habits, and the rater has admitted to doing so, it has also been established that the applicant started those remarks and carried them on.  As soon as the applicant notified the rater that he did not like him using those same remarks, the rater ceased doing so.  While it was not appropriate for the rater to ever use any such remarks, it was equally inappropriate for the applicant to introduce such remarks into the work environment as well.

5.  The evidence of record also suggests that the applicant was counseled by the rater regarding what the rater considered unacceptable conduct, months before the contested OER was initiated and it appears, based on the results of the ensuing investigations that despite having been counseled, the applicant continued in his efforts to undermine the commander's (rater's) authority.  Accordingly, the rater sought to have him removed from the unit as his deputy commander.

6.  Although it is unfortunate that both the applicant and the rater were of the same rank, the rater was the commander and as such, the applicant had a responsibility and obligation to obey the orders of the officers appointed over him. In the event that he felt compromised, he had an obligation to utilize his chain of command to resolve the differences rather than to try and undermine the commander's authority.

7.  The applicant's contention that the only difference between the previous report he received from the same rating officials is the fact that he filed an EO complaint against the rater during the second period has been noted and appears to be without merit.  The period of the two reports, as well as the scope of his duties were drastically different, as was the degree of daily contact during the period of the report.  In fact, the applicant received three ratings from the SR and two from the same rater.  The evidence suggests that the rating officials were open-minded and fair in their evaluations based on the circumstances of each rating period.

8.  The bottom-line issue in this case is whether or not the contested report properly reflects his performance and potential during the period in question and whether or not it was rendered in accordance with the applicable regulations in effect at the time.  After reviewing all of the documents submitted by the applicant and his counsel as well as the evidence of record, the evidence suggests that it is. 

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

___be___  __mdm__  ___js____  DENY APPLICATION

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

INDEX

CASE ID	AR2003090468	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2003/11/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID OER	
2.		
3.		
4.		
5.		
6.