PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             14 August 2003                 
	DOCKET NUMBER:     AR2003091675

	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. Joseph A. Adriance		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Mr. James E. Anderholm		Member	
	Ms. Linda M. Barker		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)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests, in effect, that a Relief for Cause Officer Evaluation Report (OER) he received for the period 5 July 1996 through 3 September 1996 be removed from his record, with a recommendation that he be promoted to the rank of lieutenant colonel (LTC).  

3.  The applicant states, in effect, that his rater’s actions were based on her personal desire to have someone else in the battalion S-3 position and not on his capabilities as the S-3.  He claims that his records, both before and after, clearly reflect that this less than two month period is not reflective of his capabilities as an officer, and this rating period and referred OER is an aberration to an otherwise outstanding career.  He provides a brief history of his career, which includes a highly successful company command during the Persian Gulf War, his promotion to major below the zone, and his selection for nominative assignments within the Military Police (MP) Corps.  He also indicates that he graduated from the Command and General Staff College (CGSC) in 1995, and received superior OER evaluations from two different S-3s as a MP Brigade Plans Officer.

4.  The applicant states that he was selected for the S-3 position of the 720th 
MP Battalion prior to the assignment of his rater.  He claims that prior to his selection, the Brigade S-3 was informed by the rater that she did not want the applicant for the S-3 position, and she preferred another officer, a female major, for the position.  The applicant states that the rater never informed him of her desire to have another officer, and had he known prior to the deployment of the unit, he would have been happy to comply with the battalion commander’s wishes instead of remaining in the assignment and setting himself up for failure.  

5.  The applicant further states that the rater indicated that the final catalyst for his relief was an incident involving ordnance taken from a Serb national.  Immediately following the incident, the rater directed the applicant to be on the shuttle flight back to Fort Hood, Texas, the following morning.  The applicant was not informed that he was relieved of his duties, and was only told to leave the area.  The applicant states that it is his belief that the rater had predetermined his destiny and used this incident as a catalyst to execute what had always been her personal desire.  He claims that the rater was informed by Division personnel that she must support the applicant’s return with a relief for cause report, or leave him in place. When the rater informed the applicant he would receive the contested report, she attempted to mitigate the severity of the action by indicating to him that it would have no effect on future promotion consideration because of his outstanding career path.  He concludes that the rater had openly stated that she had no interest in having him as a member of her team, and exercised her option to remove him based on this frivolous incident that had major repercussions to his otherwise flawless career.  

6.  In support of his claims, the applicant provides several statements from individuals who were present during the deployment, which he claims confirm the abusive nature of the rater during the period of the contested report.  The applicant further states that his record, as evidenced by his OERs both before and after the contested report, clearly demonstrates that his relief was an anomaly and not reflective of his true capabilities.  The applicant states that it is important to put everything written in the contested OER in perspective, and to understand that his affiliation with the rater was 59 days.  During this short period, the battalion deployed from Fort Hood to Germany, trained in Grafenwoehr, Germany, rotated through the Combat Maneuver Training Center (CMTC), where it received many laudatory comments on its performance, and finally deployed to Bosnia.  He states that after setting up the battalion Tactical Operations Center (TOC), and settling into the routine of operations, the rater relieved him.  At that time, he had only been affiliated with the senior rater for approximately nine days, during which time he spoke to him once.  He claims it is evident that the senior rater endorsed the relief based on the rater’s input because he had no more insight into the applicant’s performance or capabilities other than what the rater told him. 

7.  The applicant also claims that upon his return to Fort Hood, he was assigned as the assistant S-3 of the Corps Support Command, where he served for ten months.  He then served as the executive officer of the Jacksonville Recruiting Command for two years.  For the past three and one half years, he has been the commander of the Regional Correctional Facility, Fort Sill, Oklahoma.  He states that the OERs, two Meritorious Service Medals, and an Army Achievement Medal he has received during this period clearly reflect his continued outstanding performance of duty as an officer.  He states that he has never let the debacle that occurred in 1996 effect his performance as an officer in the United States Army.  

8.  In summary, the applicant states that the rater did not want him as her S-3, which she stated before his arrival, and made her choice of a less qualified female officer before he ever reported to the unit.  Despite a near total lack of guidance, he performed exceptionally well under the most difficult circumstances associated with deployment.  The battalion’s performance was outstanding, in large part due to the efforts of the S-3 section.  Once the battalion was safely in place in Bosnia, the rater used the incident of a patrol bringing back unexploded ordnance as an excuse to relieve him.  A year after his relief, he was informed by a senior non-commissioned officer (NCO), that the rater’s driver approached her about his relief.  He was perplexed as to why the applicant had been relieved for the ordnance issue, which he had no control over, when the rater had done the same thing prior to his relief.  

9.  The applicant also states that the rater attempted to send him back to Fort Hood without comment, and sought to replace him with her predetermined candidate.  He was denied the right to submit comments with the referred OER, and he was denied the right to a commander’s inquiry.  In conclusion, the applicant requests that the contested OER be removed from his record and that he be considered for promotion to LTC.  He states that the contested report is not reflective of his capabilities then or since the relief; it is an aberration to an otherwise stellar career that has prevented him from future progression in the United States Army.  He provides copies of 15 OERs he received between 1990 and 2002, and supporting statements from four officers and two NCOs who were in his organization at the time of the incident.  

10.  The applicant’s military records show that he is currently serving on active duty as a major (MAJ) at Fort Sill, Oklahoma.  His record prior to the incident reveals an excellent evaluation history that was marked by his selection for promotion to major below the zone.  

11.  While serving with the 170th MP Battalion during Operation Joint Endeavor, the applicant received the contested OER that covered the period 5 July 1996 through 3 September 1996.  On 6 September 1996, the contested OER was referred to the applicant in accordance with the governing regulation for acknowledgement and comment prior to the report being forwarded to Department of the Army (DA).  

12.  In Part IV (Performance Evaluation-Professionalism-Rater), the rater gave the following scores in the questions indicated:  3 - Question #1 (possesses capacity to acquire knowledge/grasp concerns); 4 - Question #2 (demonstrates appropriate knowledge and expertise in assigned tasks); 3 – Question #4 (motivates, challenges, and develops subordinates); and 2 – Question #10 
(is adaptable to changing situations).  The rater gave the applicant a 1 score in the rest of the 14 questions in this section.  In explanation of her scores in this area, the rater provided the following comments:  unable to satisfactorily perform duties as a battalion S-3 during a deployment and conduct of operations in a combat zone; never fully took charge of his operation and made the requisite decisions required of a battalion S-3 or field grade officer; excellent briefer and writer; dedication to the Army is unquestionable; and integrity and moral standards are above reproach.  

13.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the four block (often failed requirements).  In her supporting comments, the rater stated that she directed the applicant’s relief for cause for his failure to satisfactorily perform as a battalion S-3 for two months.  She further indicated that he failed to demonstrate the requisite skills necessary to function effectively as an S-3.  Specifically, he never took charge of his section and effectively organized, managed, and supervised operations.  

14.  The rater further indicated in her comments in Part V, that during CMTC validation exercise in preparation for deployment and the Bosnia mission, the following areas were identified as needing improvement:  lack of ability for TOC mission planning; mission analysis; situational awareness; and TOC management, all areas for which the applicant was responsible.  The rater further stated that the applicant had demonstrated a complete inability to correctly assess situations and make critical decisions at critical points in time, which resulted in an MP patrol being told to transport a live Serbian hand grenade in an MP vehicle.  The rater further stated that for two months, she had to provide very specific guidance to the applicant on almost every aspect of his job.  She stated that while he was anxious to learn and improve, his capabilities were simply not where they should be for a field grade officer and CGSC graduate.  

15.  In Part Vd (potential) the rater placed the applicant in the three block (do not promote), and provided a supporting comment that stated that the applicant had “no potential for battalion command in the Army.”  In Part VII (Senior Rater), the senior rater placed the applicant in the four block, below center of mass.  The senior rater commented that he concurred with the rater.  He further stated that the applicant’s failure to synchronize battalion operations and take decisive action jeopardized the safety and well being of soldiers committed in peace enforcement operations, forward deployed in Bosnia-Herzegovina.  

16.  The applicant appealed the OER in question to the Department of the Army (DA), Officer Special Review Board (OSRB).  He contended that the OER was substantively inaccurate, and he submitted much the same supporting argument and evidence that he has provided to this Board.  

17.  The OSRB contacted the rater, who indicated that she had never verbalized that she did not want the applicant to be the S-3.  However, she did admit that she had discussions with a female major who was a possible candidate for the job.  The rater also admitted that she had initially considered not relieving the applicant and just returning him to home station, but upon further consideration she felt his performance was so sub-standard that it needed to be officially documented.  The rater also indicated that she did not berate or belittle the applicant.  However, as she became more and more frustrated with him, the 
“ass chewing” became more and more public.  In regard to the incident that led to his relief, the rater stated that the applicant allowed himself to be incorrectly influenced by members outside the organization.  The OSRB did not contact the senior rater to gain his perspective on the contested report.  

18.  The OSRB finally found that the applicant’s allegation that the rater’s leadership style was tyrannical and bordered on abusive was supported by the third-party statements submitted.  However, it determined that the rater’s leadership style was not the issue.  

19.  The OSRB report further indicated that third-party statements spoke highly of the applicant’s performance, and supported his contention that the rater may have possessed an abusive leadership style.  However, the OSRB concluded that none of the individuals providing third-party statements were in a position to fully understand or appreciate the expectations of the rating officials for the applicant. 

20.  The OSRB finally concluded that there was not sufficient evidence provided to show that the contested OER was inaccurate, unjust, and did not adequately reflect the applicant’s performance and potential.  Thus, the OSRB elected not to delete the contested report.  

21.  The third-party supporting statements provided by the applicant include a statement from a LTC, who was the brigade S-3 at the time the applicant was the battalion S-3.  This officer provides examples of the applicant’s outstanding performance in this S-3 position and credits him with many accomplishments that made the section stronger.  He stated that when the 720th MP Battalion was notified of its deployment to Bosnia, the applicant was selected to become the battalion S-3, and while his departure had a tremendous impact on the brigade S-3, he supported the move because the applicant had truly earned the opportunity.  He also indicated that he was excited about the energy, expertise, and leadership the applicant would bring to the battalion during this important mission.  However, he was concerned about the move because on at least on two occasions prior to the move, the battalion commander, the applicant’s rater, had expressed to him that she did not want the applicant as her S-3.  

22.  The brigade S-3 also stated that the applicant’s performance during the battalion’s preparation for deployment to Bosnia was outstanding.  He further stated that the applicant’s removal as the battalion S-3 and subsequent return from Bosnia came as a complete shock, and in his opinion defies logic.  Short of intentional misconduct, this simply did not make sense.  To that point, the applicant had consistently been identified as one of the future leaders of the MP Corps.  He excelled in the tough jobs as a company grade officer, and as a field grade officer, established himself as a superb operator and planner at the brigade S-3 level.  

23.  The brigade S-3 further stated that he could not accept that the applicant was not up to the task as a battalion S-3.  He concluded by stating that Army officers often state that all it takes is to be in wrong place at the wrong time working for the wrong boss, and a stellar career can be destroyed.  There is no better example of this than the applicant.  He comments that this cannot be allowed to stand.  It would be a great disservice to both the Army and a gifted officer.  

24.  There are four other supporting third-party statements from two commissioned officers and two NCOs who worked for the applicant while he was the battalion S-3.  All four of these individuals support the applicant’s version of events and attest to the fact that the battalion commander treated the applicant unfairly.  

25.  A captain, who was the assistant battalion S-3 at the time, stated that soon after the applicant assumed his duties as the battalion S-3 in June 1996, the unit was alerted for movement to Bosnia.  The S-3 was in charge of coordinating all aspects of training as well as movement requirements.  All these requirements were met to standard and the battalion successfully deployed in July 1996.  He further stated that the applicant played a key role in the success of the battalion.

26.  The battalion S-3 sergeant major (SGM) also provided a statement supporting the applicant.  He stated that he provided his statement believing that he was the only one who could do so without suffering repercussions.  He states that the applicant was unfairly treated and should not have been relieved from his duties.  He claims his statement is a true representation of his observations of the events that took place, and is not the result of any sense of loyalty or disloyalty to any person involved.  The SGM indicated that the applicant’s performance was much the same as all the S-3 officers he had worked with.  The applicant was quick to correct any faults in his subordinates, and he published a standing operating procedure (SOP) for the TOC, which was the first of its kind.  

27.  The SGM also stated that he was present in the TOC when the incident that resulted in the applicant’s relief took place.  He claims that when the patrol confiscated the grenade, the applicant attempted to contact the battalion commander, but she could not be located.  The applicant then went to the brigade S-3, their higher headquarters, for guidance.  The decision to transport the grenade was not made by the applicant, and at no time did the applicant or anyone else in the battalion S-3 TOC give the patrol permission to transport the grenade.  

28.  The SGM further states that when it was discovered the grenade was being transported, the applicant contacted the Explosive Ordnance Detachment (EOD). EOD personnel instructed them that it was safe to transport the grenade and they would meet the patrol at the gate and destroy the grenade. The SGM indicates this communication was logged in the TOC journal.  The SGM reiterated that at no time did anyone give the patrol permission to transport the grenade, and had the applicant made the decision to stop the transport of the grenade, he would have also been cited for making the wrong decision.  

29.  The statement provided by a battle staff NCO, a staff sergeant, furthers attests to the abusive nature of the rater, and supports the version of the grenade transport event outlined by the S-3 SGM.  Finally, a captain assigned to the S-3 at the time also provides a statement very supportive of the applicant, and that confirms the unit was cleared for deployment and that the S-3 received laudable comments on their training, preparation, and deployment.  

30.  Army Regulation 623-105 prescribes the Army policy on OERs.  It also provides guidance regarding redress programs including commander inquiries and appeals.  Chapter 6, section II provides guidance on Commander’s Inquires. It states that Commanders are required to look into alleged errors, injustices, and illegalities in officer evaluation reports.  These matters may be brought to the commander's attention by the rated officer or anyone authorized access to the report (para 1-16). The primary purpose of the commander's inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  It further states, in pertinent part, that it is not intended as a substitute for the appeals process, but that the commander may determine that there was a lack of objectivity or fairness by rating officials.

31.  Chapter 6, section III of the OER regulation contains the policy on the appeals process.  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 regulatory presumption of regularity should not be applied to the report under consideration. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of his/her assertions, the clear and convincing standard has been met with regard to those assertions.

32.  The OER regulation also indicates, in pertinent part, that supporting evidence for substantive claim should include statements from third parties.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions affording them good opportunity to observe, firsthand, the appellant's performance as well as interactions with rating officials. 

33.  The OER regulation further states that the results of a commander's inquiry may provide support for an appeal request.  It further states that clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of his/her assertions, the clear and convincing standard has been met with regard to those assertions.

34.  Army Regulation 600-8-29 (Officer Promotions) prescribes the Army’s officer promotion policy.  Chapter 7 contains guidance on Special Selection Boards (SSBs).  It states, in effect, that an SSB may be convened to consider or reconsider officers for promotion when record before the board that considered an officer from in or above the promotion zone contained some material error. 

CONCLUSIONS:

1.  The Board finds the OSRB’s decision to deny the applicant’s appeal was accomplished in accordance with the governing regulation.  However, it does not concur with its final determination.  The Board finds there are significant equity considerations in this case that require further evaluation.  

2.  The evidence of record confirms that with the exception of the contested report, the applicant’s evaluation history prior to the contested report was outstanding, as evidenced by his below the zone selection for promotion to major.  Further, his subsequent evaluation reports all place him above center of mass or in the top block, and portray him as an excellent performer with unlimited potential.  This clearly establishes that the contested report was an aberration.

3.  The OER regulation states that in considering an appeal, third-party statements should be provided from persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  It further states that such statements are afforded more weight if they are from persons who served in positions affording them good opportunity to observe, firsthand, the appellant's performance as well as interactions with rating officials. 

4.  Notwithstanding the OSRB finding to the contrary, the Board finds the 
third-party statements provided by the applicant were from credible individuals who were serving in positions that afforded them an excellent opportunity to observe the applicant’s performance as well as his interaction with the rater.  These statements clearly confirm the applicant’s claim that the rater did not want him in the S-3 position and that her leadership style bordered on abusive.  

5.  More importantly, the third-party statements cast doubt on the rater’s version of the facts and circumstances surrounding the incident that led to the applicant’s relief.  They attest to the fact that the applicant’s actions in regard to the incident were supported by both the S-3 of his higher headquarters and by EOD personnel, which raises significant doubt that the incident supported the drastic relief action taken.  

6.  The Board notes that additional doubt on the validity of the relief for cause action is raised by the rater’s own admission that she did not originally intend to relieve the applicant of his duties, but rather to just reassign him to another position.  Her assertion is that she finally came to her decision after deciding that the applicant’s sub-standard performance should be documented.  The applicant contends that the rater only took the relief action after being influenced to do so by higher headquarters.  The Board makes no judgment on the veracity of either statement.  However, in the opinion of the Board, the reasons for relieving an officer with an outstanding service record of his duties should be serious and evident, and should not be an after-thought of the relieving rating official, which it appears to be in this case.  

7.  The Board also takes special note of the fact that the senior rater was new to the position and that his version of the events was not obtained by the OSRB during its consideration of the appeal.  In addition, there is no evidence a commander’s inquiry was requested or conducted, and there is no objective and unbiased evaluation of the events that lead to the applicant being relieved of his duties.  As a result, the Board finds that the applicant has provided sufficient evidence that raises significant doubt as to the validity of the rater’s actions in relieving him from his duties and in rendering the contested OER.

8.  In view of the facts of this case, the Board finds that the applicant has satisfied the clear and convincing evidence regulatory burden of proof necessary to support a successful OER appeal.  Therefore, the Board concludes that it would serve the interest of equity and justice to remove the contested report from the applicant’s record at this time. 

9.  The Board also finds that once the contested OER is removed, it would appropriate to place the applicant’s corrected record before a duly constituted SSB for reconsideration for promotion to LTC under the criteria of any Promotion Selection Board for which he was eligible on or after on or after 3 September 1996.  In the event the applicant is selected for promotion by the SSB, his promotion effective date and date of rank should be established as if he had been originally selected by the applicable Promotion Selection Board.  

10.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the Relief for Cause OER ending on  3 September 1996 from the record of the individual concerned; by declaring the period of service covered on the OER as a nonrated period of service; and by placing a
non-prejudicial explanation in his records explaining the gap created in OER rating periods as a result of this action. 

2.  That once the corrective action outlined in the preceding paragraph is taken, the records of the individual concerned be submitted to a duly constituted SSB for promotion reconsideration to LTC under the criteria followed by any Promotion Selection Board for which he was eligible on or after 3 September 1996.  In the event he is selected for promotion by the SSB, his LTC promotion effective date and date of rank should be established as if he had been originally selected by the applicable Promotion Selection Board, and he should be provided all back pay and allowances due as a result.  

BOARD VOTE:  

__JA___  ___LB__  __RO          GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		Raymond V. O’Connor
		   CHAIRPERSON

INDEX

CASE ID	AR2003091675	
SUFFIX		
RECON		
DATE BOARDED	2003/08/DD	
TYPE OF DISCHARGE	NA	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.  1043	131.1100	
3.		
4.		
5.		
6.