PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            16 February 2000                  
	DOCKET NUMBER:   AR1999031705

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Curtis L. Greenway		Member	
	Ms. Meta Waller 		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 that his Officer Evaluation Report (OER) for the period 940930 through 950929 be corrected by changing the Senior Rater (SR) block check in Block VIIa from block #3 (below center-of-mass) to block #2 (center-of-mass), or in the alternative, by deleting the entire SR block check and profile, or by deleting the entire SR evaluation (block check and narrative comments).

3.  The applicant states, in a 27-page continuation of his basic application, that the contested OER is administratively and substantively incorrect; that it is derogatory and adverse, but was not referred to him for rebuttal, thereby denying him due process; that the SR improperly limited his representative sample of officers for comparison with the applicant in violation of Army regulation; that the SR block check was inaccurate, and unjust and did not properly reflect his performance and potential; that the SR was stationed at different installation and never observed the applicant’s duty performance firsthand; that the SR was biased against Asian-Americans; and that the SR considered improper matters when rendering his evaluation of the applicant.

4.  In support of his application, the applicant submits the following:  his entire OER appeal to the Officer Special Review Board (OSRB); the contested OER; the OSRB case summary; statements of support; excerpts from the US Total Army Personnel Command (PERSCOM) website; a Recommendation for Award during the period of the contested OER and the award certificate; a copy of a plaque presented to the applicant by the staff of the Trial Defense Service (TDS) at Fort Benning, Georgia; a copy of a letter from the Chief, TDS, commending the applicant on his winning an acquittal for his client; a copy of the FY95 TDS Region II temporary duty (TDY) travel report; copies of the applicant’s OERs; a copy of the instructions to the FY99 Major, Judge Advocate General Corps (JAGC), Promotion Selection Board; a copy of a 1998 award for excellence in legal assistance; a copy of orders awarding the Parachutist Badge and the Airborne Course Certificate; a copy of a 13 September 1999 sworn statement from the applicant.  Additionally, the applicant submits under separate cover:  a 6 December 1999 memorandum from the former JAGC company grade career management officer; a 21 December 1999 self-authored memorandum to the Board; and a 29 December 1999 self-authored memorandum forwarding a 28 December 1999 memorandum for record from a former TDS attorney at Fort McClellan, Alabama, who served there during the period of the contested OER.

5.  The applicant’s military records show that he is a Captain, JAGC, and of Asian-American descent.  In 1994, he was notified by the JAGC company grade career management officer that he would be reassigned from Fort Meade, Maryland, to a Region II TDS assignment at Fort Benning, Georgia, in September 1994.  In August 1994, the Region II Defense Counsel contacted the applicant and informed him that, as the applicant’s SR and supervisor of all Region II TDS attorneys, he preferred that the applicant be assigned to Fort McClellan, Alabama.  Believing that career opportunities for JAGC captains were more limited at Fort McClellan than at Fort Benning, the applicant declined his SR’s request.  This declination was supported by the applicant’s JAGC career management officer who felt that the applicant would be involved in a wider variety of cases at Fort Benning than at Fort McClellan.  The applicant reported to Fort Benning on 30 September 1994.

6.  On 25 October 1994, less than 1 month after being assigned to Fort Benning, the applicant attended a Region II TDS Continuing Legal Education conference in Charleston, South Carolina, along with all other Region II TDS attorneys.  At this conference, two incidents allegedly occurred which, according to the applicant, had a direct bearing upon his receipt of the contested OER.  First, his SR discussed the topic of minority recruitment and retention in the JAGC, contending that minorities were underrepresented as Army attorneys because corporations aggressively recruited competent minority lawyers.  The applicant alleges that the SR then remarked, “Us white boys just have to take what we can get.”  The applicant states that this comment was made in a public forum before all of the assembled Region II TDS attorneys.  He adds that he found the remark to be racially insensitive and offensive, and in light of the SR’s subsequent treatment of him, discriminatory.  The second incident involved the SR’s alleged public criticism of the applicant for not taking the assignment to Fort McClellan as requested by the SR.  The applicant found the SR’s remarks totally inappropriate given the setting and it led him to believe that the SR did not favor him for personal reasons.

7.  During the rating period covered by the contested OER, the applicant had the heaviest caseload of all the attorneys in his office.  This fact was reflected in the rater’s comments on the contested OER and in the FY95 TDY report that showed he was the most heavily traveled attorney in the office, if not the entire region.  He was also one of the most successful defense counsels at Fort Benning and in Region II.  In a special court-martial, he won a complete acquittal for his client and was officially cited for this action by the Chief, Trial Defense Service (his SR’s superior).  In another case, he successfully convinced the Government to dismiss all charges against his client.  In administrative separation actions, none of his clients received an other than honorable conditions discharge and one client was retained, not separated.  Also during this same period, the applicant found time to attend and complete the Basic Airborne Course and was awarded the Parachutist Badge.  He was also awarded an Army Commendation Medal for his service at Fort Benning, to include his service as a Trial Defense Counsel.

8.  The contested report was rendered as an annual report covering a 12-month period.  The applicant was rated by the senior defense counsel at Fort Benning, a captain; the SR was the Regional Defense Counsel, a lieutenant colonel.  In Part IV of the contested OER, the rater gave the applicant all "1's" for professional competence and exceptionally favorable comments for professional ethics.  In Parts Vb and Vd, the first blocks were checked to reflect "Always Exceeded Requirements" and "Promote Ahead of Contemporaries."  In Part IVc, the rater characterized the applicant as “a self-sacrificing, duty-first officer who consistently achieves great results.”  He praised his legal skills and his dedication to his clients, and added that he participated in more cases than any other attorney in the Fort Benning office.  He also stated that the applicant earned an acquittal and a dismissal through his “superb” courtroom performance.  In Part VIIb, the SR's narrative comments portrayed the applicant as a hard-working officer with great enthusiasm.  He stated that the applicant “achieved outstanding results for his clients [at trial and in administrative hearings] . . . with the distinction of never having a client receive an Other Than Honorable Discharge.” With a handwritten "X", the SR placed the applicant in the third block of his SR profile with 33 rated above, 2 rated with, and one rated below him.  The SR's placement of the applicant in the third block put him below center-of-mass (BCOM) in the bottom 10 percent of his ratings for captains.  The applicant alleges that the SR advised him to get out of the Army when he presented him with the report.

9.  The applicant was not selected for promotion to major by the FY99 Major promotion selection board which convened in October 1998.  On 15 April 1999, he appealed the contested OER to the OSRB.  In his appeal, he stated that the contested report was administratively and substantively inaccurate; that the report was adverse and should have been referred; that the SR improperly limited his sample of comparison officers used for his SR profile; and that the SR had never once observed him litigating cases in the courtroom.  The OSRB reviewed the OER and found the rater’s evaluation “extremely positive,” but found the SR’s evaluation “lackluster, void of . . . superlatives.”  The OSRB contacted the SR (now retired) who stated that the applicant was the weakest trial lawyer in the Region; that his narrative comments were intentionally chosen to differentiate the applicant from his peers; that he based his evaluation on personal counselings, rater input, and feedback from clients and commanders who “repeatedly expressed concern about [applicant’s] trial defense capabilities.” He added that he did not refer the OER to the applicant because he did not believe it qualified as adverse under the regulation.  The OSRB reviewed the SR’s evaluations of other captains and found that his narrative comments for COM officers were much more positive than the comments he used in the applicant’s rating.  The OSRB denied the applicant’s appeal stating that he did not provide sufficient evidence to overcome the presumption of regularity attached to an OER accepted at Headquarters, Department of the Army and included in an officer’s official military personnel file.

10.  The following is a record of the applicant's available OER's and AER’s (Academic Evaluation Reports).  Note that for the DA Form 67-8 the rating system depicted below has six entries:  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.  For DA Form 67-9, the first entry relates to the rater’s evaluation of performance, expressed in Roman Numerals, with I the highest and IV the lowest; the second Roman Numeral refers to the SR’s evaluation of promotion potential on a scale of I to IV; and the third rating refers to the SR’s evaluation of the applicant’s potential compared with officers senior-rated in the same grade, stated in terms of Above COM, COM, or Below COM:

		        Score/    
Period	Rater/SR Profile 	Type of Report

920105-920327	Achieved Standards	Academic (OBC)
920328-920727	I/I/Top2/0/0/0	Initial
920728-930219	I/I/Top2/6/14/1	Change of Rater
930220-940219	I/I/Top2/7/27/1	Annual
940220-940630	I/I/Top2/11/31/1	Change of Rater
940701-940929	I/I/Top2/0/0/0	PCS
940930-950929	I/I/Top3/33/2/1  *	Annual
950930-960920	I/I/Top2/0/0/0	PCS
960921-970711	I/I/Top/0/25/22	PCS
970712-970930	I/I/Top/0/2/0	Close-out 67-8
971001-980930	I/I/COM	Annual
981001-990629	I/I/COM	Change of Rater

* Contested Report

The aforementioned record of performance indicates that, with the exception of the contested OER, the applicant is an officer with a solid COM file.

11.  Army Regulation 623-105 establishes 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.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER to the OSRB rests with the applicant.  When the contested report was rendered, referral of a BCOM report was within the discretion of the SR.  Under the current regulation governing preparation of the DA Form 67-9, a BCOM report must be referred to the rated officer.

CONCLUSIONS:

1.  The contested report, although adverse, fell within the SR’s prerogative as to whether or not it should have been referred.  If the applicant’s allegation is correct that the SR advised him to leave the Army when he presented him with the report, it is clear that the SR felt that the report was a career-ending OER.  In that case, the SR should have referred it to the applicant.

2.  It cannot be confirmed or denied that the SR was prejudiced against the applicant either because of his race or the fact that he refused to change his assignment to suit the SR.  However, the SR rated the applicant in the bottom 10 percent of his SR profile and stated to the OSRB that the applicant was his weakest Trial Defense Counsel.  This is not supported by the applicant’s record which shows that he won acquittals and dismissals at trial, and that not one of his clients ever suffered less than a general discharge in administrative hearings.  The record also proves that the applicant was among the busiest defense counsels in Region II.

3.  The SR may have unfairly limited his sample of captains against whom he compared the applicant’s duty performance.  AR 623-105 requires a SR to compare the rated officer to a representative sample of 100 officers of the same grade.  In the case of attorneys, Appendix H requires that they be evaluated under the “whole officer” concept and not just as lawyers.  The SR, in his comments to the OSRB, couched his argument for the applicant’s rating in terms of the other Trial Defense Counsels whom he rated, not a representative sample of 100 other captains.

4.  The applicant’s failure to gain promotion to major by the FY99 Major, Judge Advocate General Corps (JAGC), Promotion Selection Board, clearly indicates that the contested OER contributed to his nonselection.  The fact that the applicant was denied the opportunity to rebut the contested OER at the time it was rendered violated his due process rights under AR 623-105.  Under current standards, the SR would have been compelled to refer the BCOM report to the applicant for rebuttal.

5. In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected:

	a.  by changing the Senior Rater (SR) block check in Block VIIa from block #3 (below center-of-mass) to block #2 (center-of-mass); and

	b.  by submitting his records as thus corrected to a duly constituted special selection boards for promotion reconsideration to major.

2.  That in accordance with paragraph 21e, Army Regulation 15-185, 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:  

__AAO__  __CLG__  __MW___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_ARTHUR A. OMARTIAN_
		        CHAIRPERSON

INDEX

CASE ID	AR1999031705	
SUFFIX		
RECON		
DATE BOARDED	20000216	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	 GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.0000	
2.	111.0100.0004	
3.		
4.		
5.		
6.