PROCEEDINGS

	IN THE CASE OF:     

	BOARD DATE:            26 October 2000                  
	DOCKET NUMBER:   AR1999033930

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Ms. Melinda M. Darby 		Chairperson	
	Mr. Arthur A. Omartian		Member	
	Mr. William D. Powers		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   1 November 1992 through 31 October 1993 be removed from his official military personnel file (OMPF), and that he receive promotion reconsideration for each promotion board that non-selected him for promotion.  The applicant submits his appeal to the OER in support of his request.

3.  The applicant’s statements are included in his appeal, summarized below.

4.  The applicant was initially a field artillery officer.  A review of his evaluation reports dating from 30 September 1985 through 15 September 1989, while still a field artillery officer, but operating as a program/budget officer, shows that he received all 1’s in Part IV -  Performance Evaluation – Professionalism, on all five of those reports.  Comments included, “He is very patient and helpful and provides assistance upon request,” and,  “I have come to appreciate his realistic and unrelenting loyalty to the Indiana National Guard,” and, “His administrative skills are superlative and his communication skills outstanding,” and, “I have never worked with such a well-organized and dedicated officer,” and, “He is the best writer of military publications at this activity,” and, “An outstanding communicator, both in writing and speaking.”  His two reports after that, the last one ending on 14 March 1991, show that he received all 1’s in Part IV, with his rater commenting on his enthusiasm, leadership, and his management abilities.  In the last report his rater stated that the applicant was very effective in developing subordinates in both professional and technical skills, that he related well to peers, superiors, and subordinates, and was capable of viewing situations from many perspectives.  In all the above reports, his raters stated that he always exceeded requirements and should be promoted ahead of his contemporaries.  He was rated in the top block or the second from the top block on all the reports by his senior rater, and was either in the center of mass or above the center of mass on all the reports.  

5.  The applicant completed Command and General Staff College in 1985; a Defense regional interservice support course in 1986; a Comptroller course in 1987; a programming, budgeting and execution course in 1988; a resource management course in 1989; an advanced resource management course, a finance pre command course, and a Defense strategy course in 1990; and the Finance Officer Advanced Course and a disbursing operations course in 1991.
In 1995 he graduated from the Army War College.

6.  On 14 January 1999 the applicant was notified that he was not selected for promotion to Colonel.
 
7.  The applicant was the Comptroller to the Indiana Army National Guard (INARNG) during the rating period of the contested report.  He was rated by a Colonel, the Director of Resource Management, and senior rated by a Colonel, the Chief of Staff of the Indiana Army National Guard.  
8.  In Part Iva (Professional Competence) of the OER, the applicant’s rater gave him “2” marks in 10 out of the 14 items included in that part, “1” being the highest rating and “5” being the lowest.  Additionally, his rater stated that the applicant needed to work more with other division chiefs which would enable him to improve as a team player.

9.  In Part V (Performance and Potential Evaluation) of the OER, the applicant’s rater stated that the applicant met requirements and should be promoted with contemporaries.  His rater stated:  “[The applicant] has an enormous amount of ego which hampers his ability to be a team member.  Although very knowledgeable in finance matters, he doesn’t really understand the importance of the total concept of why his part is only a portion of the operation.  His lack of consideration as a team member causes him to withhold guidance on proper commitment of funds until after the fact.  He maintains a very secretive manner of operations…secretive manner raises concerns as to his loyalty to the organization…understanding and utilization of the chain of command is substandard…circumvented this chain to acquire permission to enter the correspondence studies [a senior service college]…No other director has voiced a desire for his services…He wants to be a leader without peers.”  In remarking on his potential, his rater stated that his potential for future assignment was extremely limited due to his unmarketable condition with other directors.

10.  The applicant’s senior rater placed him in the second block from the top (center of mass) in Part VIIa (Potential Evaluation) of that form.  His senior rater stated:  “[The applicant] is a highly professional trained and competent comptroller.  His fine efforts on behalf of the organization and the program managers have allowed the INARNG to achieve or exceed NGB and TAG (The Adjutant General) goals. This officer has proven to be mission oriented and he was instrumental in improving the Comptroller Division of the USPFO (United States Property and Fiscal Office) and advising the PBAC (Program, Budgeting, and Accounting Committee) Chairman.  His training leadership abilities make him highly suitable to be considered to work in a higher level staff assignment.”    

11.  Included with this OER was the applicant’s support form, in which he listed his major performance objectives and his significant contributions, which included providing timely finance support to all phases of INARNG operations, revising a finance regulation to incorporate new fiscal year funds accountability procedures, drafting a program for pay of ARNG and USAR soldiers ordered to federal active duty for domestic emergencies, and so on.

12.  The OER was referred to the applicant for his acknowledgement and comment.

13.  In his comments to The Adjutant General, Military Department of Indiana, the applicant stated that he had established timely and high qualified customer service, and that the Comptroller Division received an outstanding rating in customer service from the First U.S. Army Inspector General on 11 June 1993, stating that he, the applicant, takes the finance motto, “to serve and support,” to heart.  He stated that his actions had been selfless and had been geared to further enhancing the already outstanding customer service.  He stated that he had received nothing lower than a “1” in Part IVa of OERs since 1985, stated that he could offer reasons why each of the “2s” should be “1s”, but would comment only on items 2 and 7.
•	Item 2, Part IVa.  Demonstrates appropriate knowledge and expertise in assigned tasks.  The applicant stated that he labored zealously to share his funds management experience and knowledge to insure the INARNG received the most for its funds.  He used separate correspondence, meetings, one-on-one meetings, and the basic funds management regulation.  He stated that he used his knowledge and expertise to develop a model military pay program for ARNG and USAR soldiers ordered to federal active duty for domestic emergencies, and that program was being used as the prototype by DFAS-IN (Defense Finance and Accounting Service, Indianapolis), DA, Forces Command, the National Guard Bureau, and the Army Reserve. 
•	Item 7, Part IVa.  Clear and concise in written communications.  He stated that over the years, he learned to write in a style pleasing to his rater.  He stated that he quickly learned the writing style preferred by his current rater, but his rater seemed to continually pick on his writing style, replacing his thoughts with his own (rater), yet retaining the same meaning.  Personnel have told him they did not understand why his rater was so critical of his written communication.
•	In remarking on the rater’s comment concerning item 2 (Responsibility) in Part IVb of the form, the applicant stated that he had never received a negative comment, that he regularly visited each division chief to accomplish actions, visited program managers to keep them abreast of changes which would impact upon their area, and sought opportunities to better serve and assist them.
•	In regard to the rater’s comment that he met requirements, the applicant stated that was an unfair evaluation, in that he continually sought ways to better the ability of the INARNG to enhance its ability to provide correct and timely pay and funds management.  He researched and prepared a staff study concerning the pay of ARNG and USAR soldiers ordered to active federal service. 
•	In regard to the rater’s comments on the applicant’s performance, he stated that those comments were totally unfair and unjustified.  He stated that he had never withheld guidance, and had pleaded with program managers and his rater to seek his assistance, and that they refused until a crisis developed or until it was too late to correct their mistake.  He stated that he was not secretive about his operation, but that his rater told him he did not want to be kept informed about his operations; yet, he repeatedly violated the chain of command by obtaining information directly from his [the applicant] soldiers.  He stated that he had to deal with active duty soldiers and DFAS to pay the bills of the INARNG.  He stated that he led from the front and by example.  He stated that his rater informed him in a private meeting that he should seek other employment; otherwise, he [the rater] would not give him a good evaluation report.  He said that his rater restated that on several occasions.   

14.  The applicant appealed the OER to the National Guard Bureau on                 23 October 1998, stating that he did not previously appeal the report since he believed its negative impact would be offset by subsequent positive reports.  He stated that his statement, which he provided at enclosure 4 to that appeal, challenged the allegations that he was not a team player; that he did not properly use the chain of command; that he was more enterprising with active duty personnel [than with NGB personnel]; that, in effect, he circumvented the chain of command concerning his senior service college selection; and that he was secretive in his manner of operations.  The applicant provided 54 enclosures with his appeal, to include a copy of the OER, a copy of his support form, and a copy of his comments on the referred report (as indicated above).  In his self-authored statement to his appeal, the applicant stated that his rater informed him, in a       3 June 1993 private meeting (enclosure 15), that he, the applicant, would receive a bad evaluation report unless he left the USPFO, and although he did leave, he still received a bad report.  The applicant stated that his remarks are supported by third party statements (enclosures 5 through 12).  He stated that enclosure 14 was his initial draft for his referred OER remarks and contains 21 enclosures.  The applicant commented on the above allegations –

•	Failure to be a team player.  He stated that on his own initiative he initiated frequent meetings with program managers to assist them, that he created and maintained a series of standard office procedures to assist his office in managing federal funds, and that he provided funding, policy, and procedural information.  He stated that he volunteered to serve as treasurer for the annual National Guard Association of Indiana State convention.  The applicant provides 13 enclosures to support his rebuttal to this allegation (enclosure 14 contains 21 enclosures).  
•	Substandard utilization of the chain of command.  He stated that he was required to weekly brief the Chief of Staff on the status of funds, and that prior to the briefing he provided his rater and the USPFO with a copy of the status of funds report, and provided a back brief to his rater and the USPFO.  He refers to enclosure 33, a memorandum from him to the Chief of Staff, with copies to interested personnel, concerning information to assist in a PBAC preparation.
•	More enterprising with active duty personnel.  He stated that the Indiana Army National Guard received its federal funds from the National Guard Bureau and several DA agencies to which the INARNG provided interservice support. His office processed all pay actions, maintained/evaluated accounting data, but the actual payment and accounting were provided by the DFAS in Indianapolis.  He stated he maintained interservice support agreements, and that the closure of missions at Fort Benjamin Harrison, and the INARNG involvement with the U.S. Navy, required his involvement with active duty personnel.  Additionally, he developed a process whereby all Reserve component personnel are now paid on a Reserve component pay system when on active duty.  He referred to five enclosures.
•	Senior service college selection.  He stated, in effect, that in the spring of 1992 he requested support for his application for senior service college, but his senior rater (who for the evaluation that he was appealing was his rater) said he did not want him away from his duties; but later his rater told him to give him the application, which was processed and approved.  He referred to enclosure 14, and stated that enclosures 30, 31, and 32 show that the statement [in the OER] regarding his senior service college application did not fall within the rating period of the OER being appealed.
•	Secretive manner of operations.  He stated that his rater accused him of being a loner and secretive since he did not discuss his personal life at work. He stated that he was paid to ensure the funds of the INARNG were properly and timely managed, accounted for, and expended, not to discuss his personal life.     

15.  The supporting statements provided by the applicant include one from a Colonel, who stated that he was the Chief of the Financial Services Center, Comptroller Division, of the Army National Guard, located at DFAS, Indianapolis during November 1992 through October 1993, and who also stated that his observations and contact with the applicant led him to recruit the applicant for a tour of active duty with his organization.  He stated that the applicant played a key role in the successful mission of the Finance Services Center from March 1994 through March 1998, and said that the negative comments in the appealed OER were totally out of character with his observation of the applicant.  

16.  In a 8 September 1998 statement, a retired Colonel, who was the Comptroller of the Army National Guard from August 1992 through                 January 1997, said that he had observed the applicant’s performance for the three years subsequent to the report being appealed, and had never witnessed behavior that subverted the chain of command, detracted from accomplishments, or emphasized his personal gain or enormous ego.  He stated that the applicant’s performance was outstanding.  He fully supported the applicant’s appeal.

17.  In a 7 October 1998 statement, a retired Colonel, who stated that the was the Commandant of the Army Finance School from May 1992 through       October 1994, also supported the applicant, stating that his observation of the applicant’s job performance did not support the comments or the ratings of the rater on the appealed OER.  He stated that the applicant was supportive of the Soldier Support Center and the Army’s overall team concept.  He stated that the applicant was very knowledgeable in his functional area, had an excellent rapport with the Finance school and faculty as well as other installation staff.  He stated that the applicant represented the Reserve component well, and was professional, knowledgeable, and diligent in his duties.

18.  In a 14 October 1998 statement, a National Guard Colonel, the Director of Surface Maintenance, supported the applicant in his appeal, stating that the applicant always presented himself as a team player, that he played a key role in the management, expenditure, and accounting of the INARNG federal funds, that he took the initiative to meet frequently with program managers, and senior leadership, providing them with their funds status information.  He stated that the applicant did brief the Chief of Staff weekly, and provided the same briefing to his rater, and any remarks from the Chief of Staff.  He also stated that the applicant could not perform his duties without close association with active duty personnel.

19.  The four other statements provided by the applicant, one each from a lieutenant colonel contracting officer, a finance officer captain, a civilian payroll supervisor, and a civilian supervisory auditor, all support the applicant in his appeal.  

20.  In May and June 1992 the applicant received letters supporting the applicant’s request for attendance to the Senior Service College Program, from the Adjutant General of the INARNG, from a retired Army major general, and from the commander of the Army Soldier Support Center, all who attest to his dedication to duty and integrity.
 
21.  The applicant provides eight enclosures from officers with whom he worked and who supported his application for a Title 10 tour, and who attested to his professionalism and duty performance.  These included letters from a retired ARNG colonel, the Commandant of the Army Finance School, the Chief of Staff of the INARNG, the 38th Infantry Division Assistant Division Commander, and the Director of the DFAS at Indianapolis (enclosures 36-43).

22.  He provides documentation at enclosure 13 showing award of the Meritorious Service Medal. 

23.  He provides a copy of a calendar page at enclosure 44 that he wrote following a meeting with his rater on 7 February 1994, in which he stated that his rater said that the applicant was a threat to his job security and that he [his rater] had to get rid of him.  He stated that his rater was separated from the INARNG in June 1997 because the state retention board recommended his non-retention.

24.  The applicant submits at enclosures 45-54, ten officer evaluation reports that were completed prior to and after the report that he was appealing.  He stated that those reports showed the nature of his job performance, and that the report that he was appealing was totally out of focus with his other reports.  He stated that his rater wanted him gone because he perceived him to be a threat to his job security. 

25.  He received all 1’s in Part IV – Performance Evaluation – Professionalism, on all those reports, covering the period from 15 March 1991 through                   7 March 1998, less the period of the appealed report, in his duties as a commander/finance officer, program/budget officer, comptroller, and as the Chief, Field Services Branch while on an Active Guard/Reserve (AGR) tour.  All those reports show that he always exceeded requirements and that he should be promoted ahead of his contemporaries.  

26.  The report for the period 1 July 1991 through 30 June 1992 shows that his senior rater (who was his rater on the appealed report), stated that the applicant was extremely knowledgeable in finance administration, was eager to help others learn more about finance management, and had achieved special recognition by the active Army members of the Army Finance Corps for his assistance in helping doctrine throughout the finance community.  He stated that the applicant’s knowledge of finance directives and procedures was met by very few, active or Reserve, and that the applicant was qualified to serve as the Comptroller.  

27.  In the report for the period 1 July 1992 through 31 October 1992, that same person, yet the senior rater, stated that the applicant’s dedication to the military was equaled by few, that his enthusiasm and capacity for work caused him to seek out missions others avoided, and that the applicant was a workaholic who should conserve his time by trying to be more selective in his choice of missions. He stated that his responsibilities should be confined to his area of expertise and not chosen only to provide personal recognition.  He went on to say that would enable the applicant to continue doing an outstanding professional job and give him more time to work on his relationship with his peers.     

28.  In the report for the period 1 November 1993 through 13 March 1994 – the period directly after the period of the contested report, the applicant’s rater, his same rater as that on the appealed report, gave him all 1’s in Part IV of that report, and stated that the applicant, “continues to improve on his self-improvement.”  He stated that the applicant had made considerable changes from his previous OER, that his loyalty to his rater was unquestionable, and that he was advising his rater as well as the senior rater of changes that affected the financial community.  He stated that the applicant’s knowledge of financial matters was equaled by very few, and that he took great pride in learning everything he could relating to his position.  He stated that the applicant always exceeded requirements and should be promoted ahead of his contemporaries.

29.  On 24 August 1999 the DCSPER Special Review Board returned his appeal, without action, stating that the applicant had failed to provide sufficient evidence of a clear and convincing nature to warrant consideration by the Officer Special Review Board (OSRB).  That board stated that with the exception of his self-authored statements and numerous third party supporting statements from subordinate, observers/co-workers and previous and subsequent superiors, no other evidence was provided to support his claim of substantive inaccuracy and the rater’s failure to properly execute his designated responsibilities.  The board stated that the appeal was absent evidence in the form of statements from either the senior rater or senior officers equivalent to the rating officials in the applicant’s rating chain at the time of the contested report, or other official reports concerning IG/EO/Commander’s Inquiry results.   

30.  On 1 November 1999 the applicant resubmitted his appeal, and included a statement of support from a retired major general, formerly the Adjutant General of the Indiana Army National Guard during the period of the contested OER, an informal note from that person, a letter of support from his senior rater on the OER being appealed, and two recent officer evaluation reports. 

•	In a 24 October 1999 letter to the applicant, the retired major general stated that he personally felt that the applicant’s rater had a personal dislike for the applicant or his personality.  He stated that the rater’s narrative [in the contested report] was unfair and unfounded, that he [the retired major general] had always considered him to be a team player and felt that he professionally utilized the chain of command.  He went on to say that the applicant’s interface with active duty personnel was good, that he had never known the applicant to be secretive, and that he knew the applicant to have a very open and effective social and family life.  He stated that one adverse OER should not be cause for non-selection and he would encourage the NGB to withdraw the report or totally disregard it.  The note that accompanied the letter simply stated that the retired major general hoped that the letter would help.
•	In a 28 October 1999 memorandum to the applicant, the applicant’s senior rater on the contested OER stated that he had worked with the applicant and the applicant’s rater for a period of 15 years, but it was not until he became Chief of Staff that he realized the shortcomings or lack of technical competencies on the part of the rater.  He stated that the rater had to rely very heavily on subordinates such as the applicant.  He went on to say that it was obvious to him the OER was one of personal retribution and he endeavored to intervene, to no avail.  He stated that based on the applicant’s OER history, it was unfathomable that he could be as deficient as portrayed by the rater.  He stated that he personally felt that the applicant was a mover and shaker, able to accomplish the mission and provide the leadership needed.  He stated that his constant interaction with the directorate staff and his willingness to share his knowledge, made a most successful organization. He stated that his supervisor felt threatened by his success and sought a way to trim his feathers.  He stated that he trusted that any review board could easily determine that the OER did not fit the norm for the applicant’s performance, but was instead used as a tool to harm him by an insecure supervisor.  He stated that the supporting statements provided by the applicant reflect the truth.  He stated that the OER should be removed from the applicant’s record.   

31.  On 29 March 2000 the DCSPER OSRB acted on the applicant’s appeal.  The 28 page case summary is attached.  The OSRB reviewed all the documents submitted by the applicant, to include the contested OER, his 1 November 1999 appeal memorandum, his self-authored statement, supporting statements from his former senior rater during the rating period, from the former INARNG Adjutant General, and officer and civilian observers.  It reviewed his support form, his award recommendation, the approval of his senior service college application, and his draft comments on his referred OER.  It looked at the applicant’s notebook pages, copies of correspondence and SOPs initiated by the applicant, letters of appreciation, and statements from coworkers supporting the applicant’s application for a Title 10 tour with the National Guard Bureau.  It looked at the OERs the applicant submitted with his appeal covering periods both before and after the period of the contested report.  The OSRB determined that the following documents, among others, were not pertinent to the period of the appealed report, issues raised, or otherwise not considered to be usable evidence.    

•	The OSRB determined that the 24 October 1999 letter from the former INARNG AG to the applicant was not pertinent, in that the comments were generalized and a personal opinion, and that he provided no substantive evidence nor did he attempt to explain why the rater’s assessment should not be accepted as a fair and objective evaluation.
•	It determined that the supporting statements provided, while laudatory, did not provide any evidence pertinent to the relationship between the applicant and the rater nor to the issues raised in his request for appeal, and those statements were not usable.
•	It stated that awards for performance are recognition for performance and are not pertinent to the senior rater’s assessment of an individual’s potential, and while the award of the MSM was noteworthy, it was not relevant to the issues raised in the request for redress.
•	The OSRB stated that the approval of the applicant’s senior service college application on 12 June 1992, was not relevant to any issues raised in the appeal.
•	It determined that the draft rebuttal comments on the referred OER were subsequently revised and submitted in a final form, and as such were working papers; and, since the draft did not include the final thoughts of the applicant, it provided no additional information not already contained in the official rebuttal response.
•	It noted that applicant’s notebook pages, but stated that those notes proved no information not covered in his other self-authored statements.  
•	It noted his writing examples, but stated that those documents provided no information or evidence germane to and/or relevant to the issues raised.
•	The OSRB noted the National Guard Association of Indiana Treasurer’s report, letters of appreciation, and support statements for a Title 10 tour from coworkers.  It determined that those documents were not relevant or germane to the issues raised concerning the contested report. 
•	It stated that the applicant’s favorable OERs, both before and after the period of the contested report, did not prove that his duty performance was at that constant level during the rated period of the contested report, and therefore, those OERs provided no information germane to the issues identified in the appeal, and as such, offered no evidence applicable to the contested OER.
 
32.  The OSRB considered the applicant’s OER, the comments, remarks, and markings thereto; the applicant’s rebuttal, and the applicant’s OER support form. The OSRB noted that none of the supporting statements from coworkers provided by the applicant made mention of his writing style (reference the “2” rating in Part IVa7 (clear and concise in written communication) of the report.   The board stated that the applicant had not explained how or why his revision of a regulation and completion of a staff study would deserve a better rating than “Met Requirements.”

33.  The OSRB noted that the senior rater made no recommendation for promotion, advanced military schooling, or future command opportunities usually found in the “top” block reports.  

34.  The OSRB stated that the applicant listed his significant contributions on the OER support form, but noted that the 10 contributions were one line entries and very general in nature.

35.  The OSRB again lists those comments provided by the applicant in his self- authored statement concerning the five adverse remarks in his OER (pages 11, 12, and 13 of the OSRB case summary).  

36.  The OSRB noted the support statement provided by the applicant’s senior rater, but indicated that the senior rater made no reference about his “2-block center of mass” assessment, or why he did not render a top block rating.  He provided no detail concerning why the rater did not change his rating after the senior rater stated that he discussed the rating with him; nor did he provide clear and compelling evidence to support his notion of rater retribution.

37.  The OSRB commented on a supporting statement from an officer who worked under the applicant’s rater during the same period of time as the contested OER. The board noted that person commented on the rater’s character, but offered no information concerning the issue of bias/retaliation/retribution or that the rater was unable to render an accurate, just, and objective evaluation.  The OSRB did contact that officer, who stated that he had no complaints about either the rater or senior rater.  In fact, he stated that he was quite satisfied with the OER he received from the rater. 

38.  The OSRB noted that the applicant’s memorandum for the senior rater concerning status of funds was addressed only to the Chief of Staff, and the rater was not listed on the distribution list.

39.  The OSRB contacted the rater on 14 December 1999 and 23 February 2000. The OSRB stated that the rater recalled the events that occurred during the rating period, produced copious documentation of counseling sessions he had with the applicant, and provided examples from his personal files concerning the applicant’s work and records of correspondence pertaining to the contested OER.  The rater stated to the OSRB-

•	That after several months and several sessions about work requirements, it became obvious that the applicant was more concerned with active duty than with Reserve interests, and that no matter how many times he discussed what his expectations were concerning his duty, the applicant habitually circumvented him by going directly to the Chief of Staff, and not keeping him informed. 
•	That he counseled the applicant at least 20 times during the rating period, but the applicant had his own way of doing things, and ignored the rater’s desires. He stated that he only found out about the applicant’s actions with active duty organizations after the fact.  He stated that the rater apparently derived great satisfaction in seeing his efforts affect the wider scope, the more visible active duty operations.
•	That he denied the applicant’s allegation that his secret manner of operations referred to the applicant not sharing details of his personal life, but stated that the applicant failed to keep him informed about his job related military activities, that he made decisions without approval from the rater, and that he had a habit of not informing the rater about the status of the programs he was working on, to his (the rater) embarrassment on occasions.  He stated that the applicant routinely left him out of the information loop about decisions and matters of policy by the applicant who would directly approach the senior rater for resolution.  He stated that he never saw any of the weekly funds status reports sent directly to the senior rater nor the weekly briefing report to the senior rater, another example of the applicant’s secretive manner and circumvention of the rater.  
•	That the applicant circumvented his rating chain of command concerning the applicant’s application to the Army War College Corresponding Studies Course, in that the rater had no knowledge that the applicant was enrolled in the program.  The OSRB confirmed that the applicant’s application was forwarded five months before the beginning of the rating period, and unless the applicant had informed the rater, the rater would not have known that the applicant had another commitment which prevented him from participating in a planned annual training session. 
•	That the applicant’s written actions contained conflicting content and confusing structure, and the rater provided examples which so demonstrated. The rater stated that the applicant became offended when his words were changed, that he did not take criticism graciously, and resisted changes.  He stated that the applicant’s oral abilities followed his writing skills.
•	That he acknowledged that he made a comment relating to the applicant leaving the comptroller position; however, the allegation made by the applicant (that he had to go) was taken out of context.  He stated that the remark he made resulted from an incident of outright lying to the USPFO, and was made in conjunction with other comments to convey his displeasure, that he would not condone lying, and that he had to go if he would not make the effort to change his ways. 
•	That when asked about the referral and rebuttal of the report and the senior rater’s statement that the rater would not change his evaluation, the rater stated he provided the senior rater documentation of counseling, discussed examples of the applicant’s conduct and addressed the senior rater’s concerns.  He stated that he declined to change his assessments, that the senior rater did not pressure him, and the matter was not brought up again.
•	That he was very careful that his narrative comments only related to incidents during the rating period and about which the applicant had made no effort to correct.  He stated that the report was fair and accurate.

40.  The OSRB contacted the applicant’s senior rater on 10 December 1999 and again on 24 February 2000.  The senior rater stated-

•	That he provided the supporting statement at the applicant’s request because he felt that one OER should not prevent an officer from being promoted.  Concerning his remark in his supporting statement that the OER was one of personal retribution, the senior rater stated that he was unable to recall any examples or incidents leading him to make that remark.  He stated that other than a perception that the rater was not as much an expert as the applicant in the day to day issues, the senior rater could not present any reasons for personal animosity or retribution.  The senior rater did state he was aware that the applicant did not inform the rater on many issues, and did tell the rater that the applicant should be given leeway, in that the rater’s lack of experience would cause the applicant’s work to be delayed.  The OSRB asked if that could be perceived as condoning the applicant’s circumvention of the rater.  The senior rater stated that he saw it as a way to allow the applicant to get things done.  In response to the OSRB’s observation that it seemed unusual to allow an officer to habitually circumvent his rater in matters of policy and decision, regardless of the rater’s level of experience, the senior rater stated it was not always necessary to involved the rater, and he stated that the rater wanted to know everything, so he could control things.
•	That his part of the contested OER was a fair and accurate evaluation, in that his top block was reserved for the best officers with outstanding potential for command, promotion, and further military schooling; his second block for officers who were not as good as the best, but still had potential for promotion.  He said that the applicant did not rate a top block evaluation compared to his peers.  When asked why he called the applicant a “mover and shaker” in his supporting statement, yet rated him as second block center of mass with lackluster comments void of promotion potential and/or schooling recommendations, the senior rater stated that he considered his portion of the OER to be a good one for a lieutenant colonel with the applicant’s duties and who had the potential to do more.  He stated that he purposely left out comments on potential for promotion, command, or schooling because he viewed the applicant as having a niche in the finance arena, at the staff level, and not as a commander.    
•	That he was not aware that the relationship between the applicant and the rater was so adverse that it would result in an unfavorable OER, and could not recall intervening until the OER was referred.  He stated that he could recall the discussion with the rater concerning the OER, but could not remember any other discussion about the applicant’s performance with the rater.  
•	That he also was unaware of the applicant’s enrollment in the Army War College Corresponding Studies program, but that he was unaware of any other instances conducted in a secretive manner by the applicant. 

41.  The OSRB contacted a lieutenant colonel (observer) on 10 December 1999, who confirmed that he had the same rating officials as the applicant during the rating period of the contested report, and said that he provided he supporting statement because the applicant had requested one from him.  He stated that he interacted with the applicant only occasionally, and was not familiar with the specifics of the applicant’s job requirements.  He stated he had no problems with either the rater or senior rater and had been given a very favorable OER by both. He stated that he had a good relationship with his rating officials because he did a good job and kept them informed.  He stated that he provided the supporting statement to help a fellow soldier get promoted.
 42.  The OSRB stated that the burden of proof for the contentions present in the applicant’s request for relief rests squarely with the applicant.  The OSRB opined that the applicant intended to convey that the rater unfairly and unjustly evaluated him.  Accordingly, to justify either deletion or amendment, the applicant had to produce evidence that clearly and convincingly nullified the presumption of regularity.  The OSRB stated that the applicant did not prove and the OSRB did not find the necessary evidence to amend or delete the OER.  It concluded that there was not sufficiently convincing evidence that the contested report was inaccurate, unjust, and did not adequately reflect the applicant’s demonstrated performance and potential during the rating period.  It denied the applicant’s appeal.

CONCLUSIONS:  

1.  The Board notes the information provided by the OSRB, especially that provided by the applicant’s rater - concerning the applicant’s aversion to active duty interests versus Reserve interests, the applicant’s circumvention of the chain of command, ignoring the rater’s desires, not keeping his rater informed, and his less than stellar oral and written skills.  The Board also notes the rater’s statement to the OSRB that he counseled the applicant at least 20 times during the rating period.

2.  The Board takes into consideration the information provided to the OSRB by the applicant’s senior rater, who stated that he was aware that the applicant did not inform his rater on many issues, and stated that he, the senior rater, was also unaware of the applicant’s enrollment in the Army War College Corresponding Studies program.  He also indicated that he was not aware of the adverse relationship between the applicant and his rater.  

3.  The Board recognizes that an OER accepted for inclusion in the official record of an officer is presumed to administratively correct and to represent the objective judgement of rating officials at the time of preparation.  The Board also takes into account that favorable OERs covering other duties with other rating officials or even the same duties as a contested report do not necessarily prove that an officer’s duty performance was at that constant level during the rated period of the contested report, and that those OERs do not provide information germane to the issues identified in an appeal, and provide no evidence applicable to the contested OER.  

4.  The Board also acknowledges that third parties, while speaking highly of the applicant, might not have been in positions to know or appreciate the expectations that rating officials had for the applicant, and as such, were in no position to provide any evidence to overcome the presumption of regularity.

5.  The applicant’s evaluation reports before the appealed report were excellent.  Although not always considered a top block officer by his senior raters, going back to 1985 while still a field artillery officer, and working in a finance field, he garnered all 1’s in Part IV on all reports, and continued to do so in the reports after the rating period of the contested report.  His raters on these reports stated that he always exceeded requirements and should be promoted ahead of his contemporaries.  The Board notes the letters of support that he received from high ranking officers, who either knew and worked with the applicant during the period of the appealed report, or knew and worked with him after the period of that report.  It takes into consideration the recommendations that the applicant received for attendance at a senior service college.  The Board has also considered the letters from those officers who supported the applicant’s request for an AGR tour and the approval of his request.  The Board notes that the applicant was a graduate of the Army War College in 1995.

6.  Especially relevant, is the rating and the information provided by the applicant’s rater (the same rater as that on the appealed report) on the OER directly after the appealed report.  This was a four month report, showing that the applicant’s all 2’s in the items in Part IV of the appealed report, were now all 1’s in this subsequent report.  The applicant’s rater stated that the applicant always exceeded requirements, a considerable change from the “Met Requirements” of the previous report.  He also stated that the applicant should be promoted ahead of his contemporaries, again a turn about from his previous report.

7.  The applicant and his rater had some serious problems, and the Board believes that the applicant did at times ignore his rater, and not keep his rater informed at all times, apparently with the sanction of his senior rater.  In effect, he did not, at all times, do what his rater wanted him to do.  But, the Board believes that there was an underlying personality conflict during the rating period, and the Board cannot reconcile the ratings the applicant received on the appealed OER with those received on the OER directly following by the same rater, nor in fact, with the other reports reviewed by the Board.
 
8.  Consequently, and despite the denial of the applicant’s appeal by the OSRB, in this particular case, the preponderance of the evidence indicates that the OER given was not a fair and just report.  The Board takes into account the information provided by the applicant’s raters and senior raters in the reports both before and after the period of the appealed report, the letters of support that he has received from knowledgeable and experienced officers, the letters that he received supporting his request for an AGR tour, and the applicant’s own education and experience.  It believes that his professional competence, ethics, performance and potential evaluation, could not have been as bad as reflected on the contested report, especially in view of the subsequent report rendered by the same rater.  The information contained in the contested report is completely foreign to the information in all his other OERs.  
9.  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 from the Official Military Personnel File of the individual concerned the officer evaluation report covering the period 1 November 1992 through 31 October 1993, and all documents related thereto.

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

3.  That, following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards for promotion reconsideration to colonel, and that, if he is selected for promotion to colonel, he be promoted and assigned an appropriate date of rank, and be awarded back pay and allowances.

4.  That, if he is not selected for promotion to colonel, he be notified accordingly.

5.  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:  

___mmd_  ___aao__  ___wdp_  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033930	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001026	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  310	111.00	
2.   193		
3.		
4.		
5.		
6.