MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 June l999             
	DOCKET NUMBER:   AC98-05331
                                              AR1999022214

	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.

	Mr. Loren G. Harrell		Director	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Samuel A. Crumper 		Chairperson	
	Ms. Shirley L. Powell		Member	
	Mr. Elzey J. Arledge, Jr.		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:  In effect, deletion of a DA Form 67-8 (Officer Evaluation Report) covering the rating period 19950715-19960712.

APPLICANT STATES:  In essence, that the report he received was unfair and unjustified.  He believes that the reasons for the adverse report were personal rather than professional.  His working relationship with his new battalion commander was strained from the beginning, becoming so bad that he sent the commander an E-mail outlining his concerns (copy submitted with his application, and receipt of the communication being acknowledged by his battalion commander).  The working relationship got even worse.  The battalion commander gave the applicant a hard time about having his back operated upon, even after he had experienced severe pain for over 1 ½ years.  He only received the award of the Army Commendation Medal (ARCOM), when other company commanders received awards of the Meritorious Service Medal (MSM) when they left command.  He was required to provide a Permanent Change of Station (PCS) itinerary when he left to go to a new assignment, when other commanders were not required to provide an itinerary.  His worst fears were realized when he received the subject OER.  He submits 12 documents in support of his application to include statements from his former battalion commander, several of his fellow company commanders, a battalion adjutant, and his former acting first sergeant.  He has been in the Army for 15 years and he has never received an adverse OER, except this one.  He also submits a copy of the OER in question, an outstanding OER from just before the rating period in question, but from another battalion commander, and two subsequent ones from a new duty position, which are outstanding.  

While not mentioned in the application, his current application is as the result of a finding of an Unsubstantiated Whistleblower Case by the Department of Defense Inspector General’s Office (DODIG).

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

He was serving on active duty during the period in question, with the rank of captain (date of rank: 199308012), Quartermaster Corps, with duty as the commander of the Lansdale (Pennsylvania) Recruiting Company of the Philadelphia Recruiting Battalion.  

For the rating period 19940806-19940829, by another battalion commander, the applicant received a maximum OER, with a 1 rating from his senior rater (SR).  The comments were all highly complementary, noting that his recruiting area was one of the “toughest”.  He always exceeded requirements and he was recommended for promotion ahead of his contemporaries.  The senior rater stated that he was an outstanding officer, with unlimited potential, clearly headed for a “front-runner pattern”.  He was recommended for selection for attendance at the Command and General Staff College ahead of his contemporaries, that he be selected for battalion command, the Army War College and immediate promotion to the rank of major.  

The contested report in question was completed by another battalion commander as his rater, but with the same senior rater.  The rater completed his portion of the report on 13 July l995 and the senior rater on l2 August l995.  This report, covering a year period, (July l995 through July l996), was for the same duty position as the previous report.  In Part IVa (Performance Evaluation-Professionalism) the rater gave him 1 ratings (highest degree--1, lowest degree--5), for all characteristics except #11 Sets and enforces high standards.  The rater’s comment on this item stated:  “Sets correct standards; steadily improving his techniques and ability to correctly enforce standards.”  The rater gave other complementary remarks on the applicant’s ability to write and communicate effectively, flexible to change, meets body fat standards and makes a good appearance in uniform.  In Part IVb, Professional Ethics, the rater stated that his moral courage was “Strong as I have ever seen.”

In Part Vb, Performance And Potential Evaluation, completed by the rater, the overall assessment was the second block, “Usually Exceeded Requirements”.  In part Vc, the rater essentially indicated that the applicant had labored to significantly improve his recruiting company, .  The rater stated that battalion training resources were provided to the company, with a dramatic improvement in the “company’s production potential and accomplishment by 35% through the 2d QTR FY 96.”  The rater noted that the company met or exceeded USAREC’s (U. S. Army Recruiting Command’s) tough standards for successful teams and individual  recruiters.  The report noted that the company had passed the March l996 Annual General Inspection with no reportable findings.  The rater stated:  his “character has been tested and strengthened”,  and the applicant has begun to develop a “direct action style of leadership which will produce effective results as he progresses in his career.“  The rater concludes that the applicant should be “…justifiably proud of his company’s documented improvement….”

In Part Vd (Promotion Potential), the rater marked the second block, “Promote with Contemporaries).  The rater stated that the applicant needs “…the experience his second command opportunity will provide.  Assign to demanding staff positions with a DISCOM, and within a Forward Support Battalion.” 

The senior rater, in Part VIIa (Potential Evaluation) rated the applicant in the first block (50 officers in the first block, 15 officers in the second block).  In Part VIIb, Comments, the senior rater noted that:  “Regarding the inconsistencies between this report and his previous, neither his level of performance nor his potential have changed since CPT B….’s last report.  He should be considered in the center of mass with the bulk of his year group.  His peers are an exceptionally outstanding group, and he has been burdened with an area that challenged his more subdued style of leadership visa viso (sic) his rater’s.”  The senior rater then goes on to note that the applicant was without a productive first sergeant through most of the rating period.  He will excel as a forward support or equivalent company commander and also as a field grade officer.

The report was not referred to the officer as it was not considered adverse by the senior rater.

The applicant’s next two OER’s, for the rating periods 19960713-19970608 and 19970609 to 19970930 were both maximum reports.  He was performing duties as company commander of a basic training company at Fort Leonard Wood, Missouri.  Both the rater and senior rater comments were most laudatory.  

As a result of a complaint to the DODIG under the Military Whistleblower Protection Act (Title 10, United States Code, Section 1034), the Department of Army Inspector General’s Office (DAIG) conducted an investigation of the conditions existing in the applicant’s company/battalion during the rating period in question. The investigation process began in October l996, and was completed in June l997.  The applicant had made four allegations:  1) that the battalion commander improperly reprised against the applicant by delaying the applicant’s request for convalescent leave from 26 March to 26 April l996;  2) that the brigade commander (SR) and the battalion commander (the rater) reprised against him for the unfavorable OER for the rating period July l995 through July l996;  3) that the brigade and battalion commanders reprised against him by approving a lesser award (the ARCOM) instead of the MSM;  4) that the battalion commander reprised against the applicant by delaying the approval of his PCS leave.  

In each case the allegations were found to be unsubstantiated.  Essentially, while the battalion commander was upset with the scheduling of his back surgery at the time of the annual IG inspection of the battalion and the company, the commander would not pre-sign the convalescent leave request prior to the surgery.  Once the surgery was completed, the convalescent leave request was approved.  

In regards to the allegation of an unfavorable OER, there was no substantiation that the battalion commander believed that the applicant complained to the USAREC IG concerning his (the battalion commander’s) leadership style.  The battalion commander was a goal-oriented leader and the applicant’s company was the weak link in the battalion as evidenced by empirical data associated with recruiting and the commander took reasonable steps to apply battalion and brigade resources to help the company reach its recruiting goals.  The brigade commander was unaware of the belief by the applicant that his battalion commander believed that he, the applicant, complained to the IG.  The brigade commander, as the senior rater, believed that he submitted a reasonable evaluation based upon the differences in leadership styles of the applicant and the battalion commander.  

In regards to the award of the ARCOM, it essentially was based upon an assessment by the battalion commander and the brigade commander that the applicant’s achievements were consistent with the award of the ARCOM and not an MSM.  The award of the ARCOM to the applicant was not the only award of an ARCOM to a departing company commander, there were at least three other ARCOM’s awarded to departing company commanders within the recruiting brigade during the period in question.  

The final allegation concerning delay in approval of his PCS leave was again unsubstantiated.  The battalion commander was within his rights to request an itinerary from the applicant prior to approving his PCS leave.  An itinerary was prepared by the applicant and the leave was ultimately approved as requested.  The investigation shows that other officers going on PCS leave were not required to submit such an itinerary.  However, the applicant’s company was classified as a “Special Attention Company” at the time which meant that his company was being specially monitored to insure reaching the established recruiting goals.  

As the result of his appeal to this Board, the case was referred to the Officer Special Review Board (OSRB) in the Office of the Deputy Chief of Staff for Personnel for review.  The OSRB’s advisory opinion (COPY ATTACHED) essentially found insufficient evidence that any part of the contested OER was inaccurate, unjust or did not adequately reflect the applicant’s performance and potential.  The OSRB recommended denial of the applicant’s request.  

This advisory opinion was provided to the applicant for comment or rebuttal.  He failed to respond.

The applicant continues on active duty, serving as a captain.  He is currently assigned to duties in Korea.  

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 rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), 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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant has submitted no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

3.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

4.  The applicant has failed to provide sufficient evidence that the report in question was prepared as a reprisal for making a protected complaint concerning his battalion commander.  This is evidenced by the denial of his claim under the Military Whistleblower Protection Act by the DODIG.

5.  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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC98-05331/AR1999022214	
SUFFIX		
RECON		
DATE BOARDED	19990610	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.