PROCEEDINGS

	IN THE CASE OF

	BOARD DATE:            l7 August 2000                  
	DOCKET NUMBER:   AR1999031289

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Sherri V. Ward		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Linda D. Simmons  		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, removal of a DA Form 67-8 (Officer Evaluation Report (OER)) for the rating period 910502-920115 from his records.

3.  The applicant states, in essence, that his right to due process was denied because the report is not signed by him; that his senior rater did not rate him fairly based on the facts; and, that the senior rater was biased against him because the applicant testified about soldier problems during Operation Desert Storm before Representative Les Aspin.  Further, he contends there are administrative errors in his records (dates of rating and whether he had passed the proper weight control measurements and the physical fitness test requirements).  He contends that the rating period should be much shorter (slightly over 90 days), as he spent a good deal of the rating period in Southwest Asia and was there until 5 July 1991.  He states that his original, handwritten OER Support Form (DA Form 67-8-1) was submitted to his senior rater, but it was only signed by the applicant, not dated and it contained no record of accomplishments.  Therefore, the senior rater, a brigadier general, marked that form “no contributions”.  The applicant submitted another copy of the DA Form 67-8-1, which was typed, signed and dated 12 January 1992, and contained a record of his accomplishments during the rated period. He submitted this to the senior rater, but it apparently was not used in the evaluation process.  He submits copies of appeals of the OER he made on 9 January 1997 and 
16 January 1998 (sic:  15 January 1995 and 31 December 1996).  He contends that he is entitled to a hearing of the facts based on a Federal court case.  He submits copies of letters in support of his appeal from his rater and his executive officer during the latter part of the rating period.  He also submits OER forms for nine rating periods from August 1986 through May 1993.  

4,  The applicant’s counsel fully supports the request of the applicant and requests the Board to carefully weigh the evidence with the application and grant the relief requested.   

5.  The applicant’s military records show that he had prior enlisted service in the Air National Guard of the state of Michigan from 13 October 1956 through 
4 December 1960.  He was appointed as a captain, Army Reserve (USAR), Medical Corps, in May 1976.  This was followed by a period of service, dates unclear, as an officer in the Public Health Service and he was then appointed as a major in the Tennessee Army National Guard, (TNARNG) effective 11 August 1986.  He was discharged from the TNARNG on 16 September 1989 and was transferred to the USAR, with the rank of major.

6. On 17 November 1990, he was assigned to and assumed command of a preventive medicine medical unit (USAR), a position authorized for a lieutenant colonel.  He was a major, with a date of rank of 11 August 1986.  The unit was deployed to the war zone in Southwest Asia, in connection with Operations Desert Shield/Desert Storm, from December 1990 through May 1991.  
7.  On 26 May 1991, Orders 4-2, Headquarters, 22nd Support Command, SUPCOM Medical Group (Provisional) attached the applicant from the 
12th Medical Detachment to that command as the Commander, SUPCOM Medical Group (Provisional), Preventive Medicine Team, and to serve as the Preventive Medicine Consultant to the SUPCOM Surgeon.  However, his unit returned to the United States for demobilization and return to USAR status.  He did not return from Southwest Asia until his return to the United States on or about 6 July 1991, and he resumed command of his former unit on or about 
1 August 1991.  

8.  On l7 January 1992, the applicant’s commanding officer, a colonel commanding the 442nd General Hospital, a USAR hospital, completed an OER (DA Form 67-8) on the applicant.  The rating period was shown as 910502 to  920115.  It was a permanent change of station report on the applicant.  This report was for the applicant’s performance of duty as 12th Medical Detachment Commander, and his military occupational specialty was 60C (Preventive Medical Officer).  In Part II (Authentication), item d, the applicant did not sign the report, and it is marked “not available for signature.”

9.  In Part III (Duty Description) his duty was listed as commander.  In the narrative portion it stated:  “Commander of the  (unit identification) responsible for maintaining readiness for deployment and was responsible for his units total performance in Saudi Arabia during Operation Desert Storm including training and professional performance as one of very few occupational medicine specialists in the command.”

10.  In Part IV (Performance Evaluation), item a (Professional Competence), the rater gave the applicant all “1” ratings (1 being the highest, 5 the lowest), except in four characteristics for which he gave “2” ratings, which included:
item a3 (Maintains appropriate level of physical fitness-he also did not include whether or not the applicant passed the last semi-annual physical fitness test);  item a4 (Motivates, challenges and develops subordinates);  
item a6 (Encourages candor and frankness in subordinates); and item 11a (Sets and enforces high standards).  Also the rater did not show the applicant’s height and weight in item 12 (Possesses military bearing and appearance).  

11.  In Part V (Performance and Potential Evaluation), the rater stated:  “Major (applicant’s name) is a valuable asset to the 86th USARCOM being the only board certified Occupational Medicine Specialist in the command.  He received an excellent evaluation for Operation Desert Storm and was asked to stay on as the regional expert for environmental conditions in Kuwait.  Major (applicant’s name), although newly assigned as Commander (unit identification) worked hard to develop communications and espirit (sic) in his new command.”  He stated that the applicant normally exceeded requirements, which is the second highest performance rating (always exceeded requirements was the highest rating).
In Part V, section d (Potential for Promotion), the rater rated the applicant in the highest category (promote ahead of contemporaries) and favorably commented on his potential for further service and that he deserved promotion to the rank of lieutenant colonel.  

12.  In Part VII of the report, the senior rater, a brigadier general, rated the applicant in the fifth block (out of 9 blocks) in Part VIIIa (Potential).  Eight officers were in the highest block, 17 in the second block, 12 in the third block; three in the fourth block and three, to include the applicant, in the fifth block.  There were no officers rated lower and a total of 43 officers were rated by the senior rater. 

13.  In Part VIIIb, the senior rater stated that:  “Major (applicant’s name) during this rated period served as Commander of the (unit identification).  Major (applicant’s name) displayed courage in ensuring the welfare of his troops during the demobilization period.  Major (applicant’s name) medical expertise suggests he be assigned as a staff physician in a Reserve Hospital.”  The senior rater completed his part of the report on 9 July 1992.  

14.  On 22 March 1993, in a memorandum for the Commanding General of the US Army Reserve Personnel Center (ARPERCEN), the commander of the 
86th ARCOM (a major general) reported that a commander’s inquiry had been conducted and it was determined that the applicant’s OER had several administrative errors.  They included:  Part I, non-rated periods should be 910502-920706 (Change of Rater) and 910707-910731 (Casual).  In Part IV, block a2 (Physical Fitness) it should show PASS 9111 and in Part IV, block a12, it should show height/weight of 68/168 and the comment “yes.”  The applicant has submitted a paper copy of the corrections to the report as directed, which was signed by the Director, Personnel Records Management, ARPERCEN, but the certification is undated.  Further, the official copy of the report in his official military personnel file (OMPF), provided by the ARPERCEN to the Board in fiche form fails to show these corrections.  

15.  The following is a record of the applicant's available OER's and School Academic Evaluation Reports between 1986 and 1998.  Note that for the DA Form 67-8 the rating system depicted below has six entries, as follows:  

the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant:

                       		 Score/
Period              		Rater/SR Profile        	Type of Report

Aug 86-Aug 87		II/II/Top3/0/0/0* **		Annual
Aug 87-Aug 88		I/I/Top2/0/0/0* **		Change of Rater
Aug 88-Aug 89		II/II/Top2/0/0/0* **		Annual
Oct 89-Sep 90#		II/II/Top3/0/0/0*		Annual
Oct 90-May 91		I/I/Top 2/0/0/0 * ** @	Change of Rater
May 91-Jan 92 $		II/I/Top5/40/3/0 ** 		PCS
Jan 92-Jan 93		II/II/Top3/17/2/0		PCS
Sep 93-May 94 ##		I/I/Top 2/42/71/29  %	PCS
Jun 94-Dec 95		Two Letter Reports		Special Duty
Jan 96-Jul 96		I/I/Top/0/29/30		PCS/REFRAD
Aug 97-Aug 97		I/I/Top/0/35/33		REFRAD/Annual Tng/                                                     10 Days
Mar 98-Apr 98		I/I/Top/O/28/64 %%		REFRAD/Special Duty
                                                                                         16 Days 
________________________
*	Number of rated officers unknown
**	Command Report
#	Rating Period Aug 89-Sep 89 Not Rated/Accounted For
##	Rating Period Jan 93-Sep 93 Not Rated/Accounted For
@	Service in Southwest Asia
$	Contested Report
%	Promoted Lieutenant Colonel
%%	Promoted Colonel
PCS = Permanent Change of Station
REFRAD = Released from Active Duty
______________________________

16.  In connection with the contested report, the applicant includes a DA Form 67-8-1 (OER Support Form).  It is handwritten.  In Part III-Verification of Initial Face-to-Face Discussion, the rated officer has initialed the form, but it is undated. The rater’s initials are also not shown on the form.  Part IV-Rated Officer, Parts IVa (State your Significant Duties and Responsibilities) and IVb (Indicate your Major Performance Objectives) are completed in handwriting.  On the reverse of the form, Part IVc (List your Significant Contributions) is not completed.  In Part V, (Rater and or Intermediate Rater comments), the senior rater, a general officer, has written “Noted above No Contributions.”  His comments appear to be dated 20 June 1992.  

17.  In connection with his appeal, the applicant submits another copy of the same form, with typewritten comments in Parts IVa, IVb and most significantly, he lists a series of accomplishments in Part IVc.  He signed this section, and it is dated 12 January 1992.  The applicant claims to have submitted this to his senior rater, but he has provided no proof or date of such submission or that either his rater or senior rater ever saw or considered this document in their rating decisions.  Again, there is no date entered in Part III showing a date of face-to-face discussions of his duties with his rater.  Only he has initialed this section.  

18.  On 10 August 1993, the applicant was promoted to the rank of lieutenant colonel at his mandatory promotion date.  Later, this Board adjusted his promotion date to 15 December 1991, based upon a determination that he was eligible for promotion due to a unit vacancy. 

19.  On 15 January 1995, the applicant submitted an appeal of the OER to the ARPERCEN, in accordance with chapter 9, Army Regulation 623-105.  His appeal cited substantive inaccuracy by the senior rater, citing the apparent use by the senior rater of the “handwritten”  OER Support Form.  He included a copy of the typewritten OER Support Form.  He stated that by use of the improper support form, the senior rater placed him in the center of mass, rather than at a higher level, as shown on his other reports.  He included copies of several OER’s from 1986 through 1994.  He also included a memorandum from his rater and his former executive officer who outlined his accomplishments during the rating period.  

20.  On 23 April 1996, the ARPERCEN returned the appeal stating that the adjudication process could not be continued by the Officer Special Review Board (OSRB), in the Office of the Deputy Chief of Staff for Personnel, Department of the Army.  If he resubmitted an appeal, he must include evidence and/or third party statements that established, clearly and convincingly, that an inaccuracy or injustice had occurred.  The statements had to show that they were “on hand” during the rating period and must refute specific aspects of the report.  These third party individuals had to be in a position to observe the applicant’s duty performance firsthand and his interaction with the rating officials.  

21.  On 31 December 1996, the applicant again submitted an appeal of the  report to the ARPERCEN.  In his appeal he claimed both administrative and substantive errors.  He cites the problems with the dates (his remaining in Southwest Asia essentially for 3 months), that he wasn’t the senior officer in his unit, that his rater should have been his senior rater, that he did not sign the report and that the entire period be classified as a non-rated period.  He included orders reassigning him to a Regular Army unit in Southwest Asia beginning on 
2 May 1992, and two more statements, one again from his rater and a second from the unit’s full time unit administrator who both again outline the applicant’s accomplishments during the rated period.  These statements essentially noted that he worked diligently to help resolve problems of his soldiers in his unit as the result of the mobilization and the demobilization process.  He also noted that, contrary to his senior rater’s comments, he was a preventive medicine officer and not qualified for assignment to a Reserve Hospital as a staff physician.  

22.  On 15 January 1998, the applicant was promoted to the rank of colonel in the USAR.  He was serving as a member of the Army Guard/Reserve (AGR) program at the time.  The effective date of promotion for officers in this capacity is determined by vacancies in the AGR program.  

23.  On 26 February 1999, the OSRB denied the applicant’s appeal.  Essentially, that board stated that it had been too long since the report had been rendered.  Further, that board concluded that the applicant had not presented sufficient clear and convincing evidence that the report rendered was inaccurate, unjust or not objective.  Essentially, the OSRB claimed that there was no Equal Opportunity or Inspector General investigations/reports to support his claim.  All the statements with his appeals show that he was, in fact, the unit commander of the 12th Medical Detachment.    The ARPERCEN notified him, on an unknown date, of the denial and advised him of the procedures to apply to this Board.

24.  Army Regulation 623-105, then in effect, established the policies and procedures for the OER system.  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 be administratively correct, 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. 

25.  Further, that regulation establishes in various sections, the guidance and procedures for completion of an OER.  Section II, chapter 4 provides guidance and procedures for completion of the DA Form 67-8-1.  It emphases the importance of face to face communication between the rated officer and his rater/senior rater.  This form must be initiated soon after the rater assumes his duties, and may be modified throughout the rating period.  At the end of the rating period, the DA Form 67-8-1 is completed by the rated officer with his accomplishments outlined.  It must be forwarded to the rater and the senior rater. The senior rater must return the form to the rated officer at the completion of his rating action.  

26.  Establishment of the rating period, to include non-rated days is also essential.  Paragraph 4-10 and 4-11 outlined the procedures to compete the administrative portions of the report, for the rated officer to review his job description and to add his height/weight and Army Physical Fitness Test results on the report.  The rated officer certified the accuracy of all these entries by his signature in Part IId-Authentication of the report.  However, processing of the report was not to be delayed to obtain the rated officer’s signature.  

27.  This same regulation, at paragraph 4-27, discussed when a report should be referred to an officer by the senior rater for his information and/or submission of comments or rebuttals to the report.  Mandatory referral was required for various reasons to include when the senior rater places the rated officer in the lowest three blocks (blocks 7-9) for potential, or he/she had failed the APFT or was overweight.  Essentially, the report would be referred when it contained adverse information.  Such referrals had to be documented and the rated officer could comment on the derogatory information.  However, such comments or rebuttals do not constitute an appeal of the OER.  The procedures in chapter 9 of 
AR 623-105 must be followed in making OER appeals.  

CONCLUSIONS:

1.  The Board concludes that an OER was appropriate for the rating period 2 May 1991 through 15 January 1992.  

2.  However, the Board is not satisfied that the report was administratively correct at the time it was initiated.  The Board notes that the non-rated periods were not properly recorded, and that the job description was inaccurate in that the rated officer took command of his unit after it redeployed from Southwest Asia and had a new mission in support of the Army Reserve.  Further, the applicant’s height/weight and APFT results were not on the report at the time it was finalized by the senior rater as of 7 July 1992.  

3.  Even though correction of the rated period, and the height/weight and APFT data were directed in early 1993, there is no evidence that the official copy of the report on the OMPF (fiche form), which is seen by promotion selection and other personnel management boards, has ever been corrected.  It is only corrected on a paper copy provided by the applicant to the Board.

4.  Next, the Board notes that the OER Support Form apparently used by the rating officials was incomplete.  There is no evidence that an initial meeting was held between the rater and the rated officer to establish his duty objectives at the start of the rating period.  Further, there is no evidence that his rating officials attempted to obtain a properly completed OER Support Form, especially a statement of accomplishments by the rated officer during the rating process.
5.  Further, the Board finds both the rater’s and the senior rater’s comments as to the applicant’s accomplishments to be inconclusive, at best.  Certainly these comments do not support the senior rater’s placement of the applicant in the fifth block, one of the three lowest ranked officers of the 43 reports he had rendered as of the date of the rating.  This was clearly a placement well below the senior rater’s center of mass.

6.  While a referral of the report to the rated officer was not mandated, the lack of the height/weight and APFT data and the low potential rating all are indicative of the need to forward the report to the applicant for his review and comment in June or July 1992.   

7.  The Board also notes that the report does not seem to have had any adverse effect on the career of the rated officer.  He has twice been selected for promotion after the end of the rating period and the applicant continues to serve in the USAR, with the rank of colonel.  

8.  Accordingly, the Board concludes that there are so many errors in this case that it would only be fair and just at this time to direct the removal of the report in its entirety from his OMPF and that an appropriate statement be placed in his file.

9.  However, the Board is not convinced that the report has had an adverse effect on his career.  Therefore, in the absence of such evidence, it finds that there has been no basis established to refer his records to any standby promotion or other personnel management selection boards that has considered his records since January 1992.   

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the OER for the rating period 910502-920115 from the OMPF of the individual concerned.  

2.  That an appropriate nonprejudical statement explaining the absence of the subject evaluation report be placed in his records.

3.  That, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:  

__svw___  __mhm__  __lds___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		     __Sherri V. Ward_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999031289	
SUFFIX		
RECON		
DATE BOARDED	20000817	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	DASA	
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.