MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           24 May 2000                   
	DOCKET NUMBER:   AR1999034087

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. John N. Slone		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That he be reinstated on active duty in the rank of major as of the date of his separation with all due pay and allowances; that all reference to his separation be expunged from his record; and that he receive credit for time in grade for pay, promotion and retirement purposes from the date of his separation to the date of his reinstatement.

APPLICANT STATES:  The applicant defers to counsel.

COUNSEL CONTENDS:  That there was insufficient  evidence to support the finding of an unacceptable record of efficiency.  The applicant had been on the Temporary Disability Retired List (TDRL) for 2 years prior to the first adverse Officer Evaluation Report (OER) that triggered the show cause board.  He was thrust into a line environment in Korea without the training that would have brought him back to his prior operational standard.  He had a rater who left the Army “because he knew he would not make Major.”  More importantly, he was promoted to captain (CPT) after this OER so it cannot be used to demonstrate an unacceptable record of efficiency when notwithstanding its presence he was promoted.  The other two OERs that formed the basis for the show cause board were generated by Army Chaplains who had not the slightest idea of line responsibilities.  It is critical to understand that these two OERs were not back-to-back.  He received an intermediate OER during his temporary duty in Haiti that was extremely laudatory.  This was an OER given by line officers to a line officer. The Chaplain’s School was engaging in improper conduct in which the applicant would not participate.  These staff officers destroyed the applicant’s career.

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

He enlisted in the Regular Army on 6 January 1987.  He was commissioned out of Officer Candidate School as an infantry officer on 25 June 1987.  After injuring himself during Ranger training, he was placed on the TDRL effective                 13 December 1988 in the rank of second lieutenant. 

The applicant was taken off the TDRL and ordered to active duty 31 March 1991. He was assigned to Korea with a report date of 15 April 1991.  On 30 April 1991, he was promoted to first lieutenant with a date of rank of 25 June 1989. 

The applicant’s first OER after returning to active duty was a 9-month change of rater report for the period 30 April 1991 through 6 March 1992.  He was a Bradley Rifle Platoon Leader assigned to Company B, 1st Battalion 5th Infantry in Korea.  His rater was the company commander and his senior rater was the battalion commander.  His rater had given him two 2s (1 being to the highest and 5 to the lowest degree) in part IVa for “Possess capacity to acquire knowledge/grasp concepts” and “Demonstrates appropriate knowledge and expertise in assigned tasks.”  Part IVb contained the comment “Does not display the level of proficiency expected of an officer of his grade and experience.”  In part Vb, the rater checked the “met requirements” block with numerous negative comments in part Vc.  He checked the “promote with contemporaries” block in part Vd and in part Ve made the comment “…he will not make an effective captain in the U. S. Army.”  The senior rater gave him a below center of mass rating with accompanying negative comments.  The OER was referred to him and he submitted a rebuttal.  He did appeal this OER.  The appeal summary is not available but the Officer Special Review Board (OSRB) denied his appeal.

The applicant was reassigned to Fort Benning, GA.  On 8 January 1993, orders were published promoting him to CPT with a date of rank of 1 January 1992.
(The U. S. Total Army Personnel Command (PERSCOM) has stated that he was probably considered by a special selection board under the fiscal year 1990 promotion criteria but could not confirm that information.  If he was considered by a special selection board, that board would have looked at his records as they were constituted at the time the board was originally held.)

The OER from the applicant’s Fort Benning assignment, for the period 6 March 1992 through 20 May 1993, contained all 1s in part IVa.  In part Vb the rater checked the “always exceeded requirements” block with commensurate laudatory comments in part IVc and the “promote ahead of contemporaries” block in part IVd with commensurate laudatory comments in part IVe.  The senior rater gave him a 2-block rating with commensurate laudatory comments in part VIIb.

The applicant then attended the Infantry Officer Advanced Course (IOAC) and afterwards was assigned to the U. S. Army Chaplain Center and School (USACHCS).

The applicant received a 7-month change of rater OER for the period 5 February through 10 October 1994.  He was an instructor/writer at the USACHCS.  His rater was a chaplain, major, and the Training Development Officer, Officer Basic Course.  His senior rater was a chaplain, lieutenant colonel, and the Chief, Chaplain Officer Basic Course Division.  His rater had given him seven 2s in part IVa with numerous negative comments in part IVb.  In part Vb, the rater checked the “met requirements” block with numerous negative comments in part Vc.  He checked the “promote with contemporaries” block in part Vd with several negative comments in part Ve.  The senior rater had given him a 4-block rating (one other rated officer received a top-block rating) with accompanying negative comments.  He did appeal this OER.  The appeal summary is not available but the Officer Special Review Board (OSRB) denied his appeal.

The applicant deployed to Haiti and received a 3-month change of duty OER for the period 22 October 1994 through 27 January 1995.  He was the J-3 (Joint Plans and Operations section) Battle Captain.  His rater was a transportation officer and his senior rater a brigadier general.  The OER from this assignment, contained all 1s in part IVa.  In part Vb the rater checked the “always exceeded requirements” block with commensurate laudatory comments in part IVc and the “promote ahead of contemporaries” block in part IVd with commensurate laudatory comments in part IVe.  The senior rater gave him a top-block, center-of-mass rating with commensurate laudatory comments in part VIIb.

The applicant returned to the USACHCS and received a 3-month permanent change of station OER for the period 28 January through 29 June 1995.  He was the Supply Officer for Headquarters and Headquarters Company.  His rater was an infantry captain, the company commander.  The senior rater was a chaplain colonel, the school commandant.  His rater had given him all 1s in part IVa with no negative comments in part IVb.  In part Vb, the rater checked the “usually exceeded requirements” block with no negative comments in part Vc.  He checked the “promote with contemporaries” block in part Vd with no negative comments in part Ve.  The senior rater had given him a 3-block rating (one other rated officer received a top-block rating) with no negative comments. 

A 19 July 1996 letter from the U. S. Army Training and Doctrine Command Inspector General (IG) to a Mrs. P___ noted that three of her allegations against a Mr. B___ and/or the USACHCS were substantiated and three allegations were not.

On 25 September 1996, PERSCOM notified the applicant that he was identified by the Fiscal Year 1996 Major, Army Competitive Category, Promotion Selection Board and approved by PERSCOM to show cause for retention.  The action was based on a downward trend in overall performance resulting in an unacceptable record of efficiency and failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers of the same grade and competitive category, as substantiated by his OERs for the ending periods 6 March 1992, 10 October 1994 and 29 June 1995.

On 2 December 1996, the applicant rebutted the initiation of elimination action.  He stated that the first cited OER was for his first duty assignment after returning to active duty after being on the TDRL for 2 years.  It was not characteristic of his true abilities as evidenced by his subsequent promotion to captain and subsequent OERs.  The other two OERs were given as punishment and retribution after he filed an IG complaint which exposed their misconduct.  
On 2 January 1997, PERSCOM reviewed the applicant’s rebuttal and determined that the elimination action would be continued.

On 9 June 1997, a board of inquiry convened.  The applicant’s rater on the first cited OER testified telephonically.  He testified that his rating of the applicant was mainly based on his actions in the field during November and December 1991.  His evaluation was not tainted by a personality conflict; he had no problem with the applicant personally.  Most of the other officers he rated got a “usually exceeded” or “always exceeded” rating.  The senior rater for the second cited OER testified telephonically and expanded on his reasons why he rated the applicant as he did.  The senior rater on the third cited OER testified telephonically.  He testified that the reason the applicant was transferred from the staff and faculty to the company was based on his behavior and attitude towards the students.  He continued to have behavior problems and attitude while assigned to Headquarters and Headquarters Company.  Several witnesses for the applicant testified that they would gladly have the applicant work for them again. The applicant testified in his own behalf.  He stated he had a personality conflict with his rater in Korea.  His rater did not want to hear anything from people.  He had to retrain himself.  No one told him how to do an operations order.  When he returned from Korea he was assigned to the International Student Detachment at Fort Benning, GA.  He received all top ratings on the OER from that assignment.  He attended and graduated from the Infantry Officer Advanced Course and was assigned to the Chaplain School.  When he arrived there he was treated as an outsider because he was not a chaplain.  He was harassed when he was assigned duties as a Casualty Assistance Officer.  When he returned from Haiti, he was the supply officer but no one told him why he was no longer an instructor.  He had problems with the shipment of property to Fort Jackson, SC.  He believed there were illegal shipments and the IG investigation substantiated that items were being illegally shipped. 

The board found that there was a significant downward trend in the overall performance of the applicant resulting in an unacceptable record of efficiency and that his records indicated a failure to keep pace with his contemporaries as demonstrated by that low record of efficiency.  It recommended his discharge with an honorable characterization of service.

On 10 November 1997, the Deputy Assistant Secretary (Army Review Boards) approved the applicant’s elimination from the Army, for substandard performance of duty, with an honorable discharge.  His DD Form 214, Report of Separation, is not available.  

Army Regulation 600-8-24 prescribes the officer transfers from active duty to the Reserve Component and discharge functions for all officers on active duty for   30 days or more.  Elimination may be initiated for substandard performance of duty when there is a downward trend in overall performance resulting in an unacceptable record of efficiency and failure to keep pace or to progress with contemporaries, as demonstrated by a low record of efficiency when compared with other officers of the same grade and competitive category or for other reasons.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant contends that he was thrust into a line environment in Korea in April 1991 without training and that the rater on the first cited OER based his ratings on a field exercise during November and December 1991.  The Board concludes that, even after 2 years on the TDRL, during the 6 months between his assignment to Korea and the November 1991 exercise he should have been able to retrain himself on how to do an operations order and perform any other requirements his rater may have expected of him.  The Board also concludes that the applicant has not provided any evidence to show that the rater rated him as he did “because he knew he would not make Major.”

3.  The Board concludes that the fact the applicant was promoted to CPT after receipt of the first cited OER is immaterial.  If he was considered for promotion to CPT by a special selection board, that board would have looked at his records as they were constituted when the original fiscal year 1990 board meant, which would have meant that this OER would not have been seen by the board.  More importantly, the applicant was required to show cause for retention based upon a downward trend in overall performance.  The Board agrees that this one OER does not make a trend; however, it is the start of the trend.

4.  The Board concludes it is immaterial whether or not chaplains have any idea of line responsibilities.  During the next two cited OERs, the applicant was not in a line unit and he was not assigned to line duties.  He was assigned to staff duties at the USACHCS about which his chaplain raters did have some idea.  The fact that he received a commendable OER in between these two OERs is immaterial; he was performing completely different duties.  (The Board notes that on this OER his rater was not a line officer).  The Board also notes that the applicant’s rater on the third cited OER was an infantry officer.

5.  The Board concludes that the applicant’s duties as an instructor during the period of the second OER had nothing to do with his allegation that the Chaplain’s School was engaging in improper conduct.  The Board also notes that the IG report provided by the applicant is not a reply to him, does not mention him or his raters and so is not evidence that his raters asked him to engage in improper conduct while performing duties as a supply officer during the period covered by the third cited OER.

6.  The Board concludes that the three cited OERs did indicate a downward trend in the applicant’s overall performance resulting in an unacceptable record of efficiency and so it was appropriate for PERSCOM to require him to show cause for retention and, ultimately, separate him.
7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jns___  __mdm___  __mw____  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034087	
SUFFIX		
RECON		
DATE BOARDED	20000524	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	110.03	
2.		
3.		
4.		
5.		
6.