MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            5 March 2002
	DOCKET NUMBER:   AR2001063738

	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. Carl W. S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Mr. Donald P. Hupman, 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, the removal of an officer evaluation report (OER) from his records, revocation of the order of non-continuation on active duty in the Active Guard/Reserve (AGR) Program, reconsideration for promotion to the rank of lieutenant colonel by both boards (1999 and 2000) that              non-selected him, and reinstatement to active duty in the AGR Program with all back pay and allowances from the date he was initially released for                non-continuation.  As an alternative, he requests that he be recalled to active duty and selectively continued to serve in a military intelligence specialty.

APPLICANT STATES:  In effect, that he had successfully served in the S3/S2 position where he received a favorable rating and then was relieved for cause about 2 months later for vaguely poor duty performance.  He goes on to state that his rater replaced him with one of his cronies for a period of about 6 weeks and was never given due process regarding his relief for cause.  He goes on to state that the relief was never documented nor was there an investigation conducted and after he was reinstated, he was not allowed to perform his normal staff duties and struggled through the rating period under a cloud of stigma, doubt and disgrace.  He continues by stating that his denial of due process, especially during his initial probationary AGR tour was an injustice that precipitated his non-renewal in 1998.  He contends that as a result of this injustice, he was twice non-selected for promotion and was forced to retire.

COUNSEL CONTENDS:  In effect, that not only did the applicant’s rater run roughshod over the applicant’s due process rights, the Officer Special Review Board (OSRB) denied his appeal in June 2001, without an explanation to explain why they did not believe the un-rebutted statements from two witnesses that corroborated the relief action, the fact that a proper investigation was not conducted regarding the relief and the unsubstantiated allegation of an Army Physical Fitness Test (APFT) failure that is indicated on the contested OER.  He goes on to explain the applicant’s educational qualifications and how they relate to his ability to perform as an officer and the contradictions they present to the contested OER comments and ratings.  He also addresses, in depth, the discrepancies that exists between the applicant’s other evaluations from the same and different ratings chains and contends that the disparity is apparent. 

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

He initially enlisted in the Navy and served on active duty from 22 August 1967 to 21 August 1969, when he was honorably released from active duty (REFRAD) and was transferred to the Naval Reserve.

It appears that he enlisted in the New Jersey Army National Guard (NJARNG) on 9 October 1976 and attended the New Jersey Military Academy Officer Candidate Course from June 1978 to June 1979.  He was commissioned as a second lieutenant in the NJARNG on 3 June 1979.  He attended the Military Intelligence Officer Basic Course at Fort Huachuca, Arizona, from 19 March 1980 to 22 May 1980 and marginally achieved course standards.  He immediately entered the Tactical Intelligence Officer Course on 23 May 1980 and was relieved from the course on 25 June 1980 for failure to achieve course standards.

He remained in the NJARNG until he was discharged from the NJARNG and was transferred to the United States Army Reserve (USAR) Control Group (Standby) on 24 September 1980.  While in the USAR, he was transferred to a troop program unit and was promoted to the rank of first lieutenant on 2 June 1982.  He was promoted to the rank of captain on 1 June 1986 and to the rank of major on 1 June 1993.  During this period he completed the Officer Advanced Course and the Command and General Staff Officer Course.

On 5 August 1996, while serving as an AGR major in Fort Snelling, Minnesota, the applicant received a change of rater OER covering the period from 27 August 1995 to 30 April 1996, evaluating him as a brigade assistant S2/S3 of a Field Exercise Brigade.  His rater indicated that his performance usually exceeded requirements and that he should be promoted with his contemporaries.  His senior rater (SR) placed him in the second block of the SR Potential Evaluation (block VIIa) and indicated that he had the potential to be an outstanding AGR staff officer.  His placement in the second block placed the applicant below center of mass in the SR’s profile.
 
On 25 June 1997, the applicant received an annual OER (contested report) covering the period of 1 May 1996 to 30 April 1997.  The report evaluated him again as an assistant S2/S3.  His rater (different from previous OER) gave the applicant “3” ratings in five areas of Part IV – Performance Evaluation – Professionalism under “possesses capacity to acquire knowledge/grasp concepts”, “Demonstrates appropriate knowledge and expertise in assigned tasks”, Maintains appropriate level of physical fitness”, “Clear and concise in written communication” and “clear and concise in oral communication.”  He also indicated that the applicant failed his APFT in April 1997.  He gave the applicant three “2” ratings under “Motivates, challenges and developing subordinates”, “Performs under Physical and Mental Stress” and “Displays sound judgment.”  The supporting comments indicate that the applicant has difficulty learning the skills needed for the position and that he failed to understand the brigade’s mission of lane training.  He also indicated that all of the applicant’s work must be checked for correctness, that he was often unclear in both written and oral communication, and that he had failed two APFTs, although one is currently being reviewed to determine its validity.  

In Part V, under Performance and Potential Evaluation, he rated the applicant’s performance as having “Met Requirements” and gave the applicant a “Do not Promote” rating under potential.  In the supporting comments he indicated that the applicant is a dedicated, loyal, hard working officer who performed to the best of his abilities.  Unfortunately, his past experiences did not prepare him for the assignment and he has difficulty learning the skills for it.  Although he has been the full-time assistant for over 1 year, he still does not understand the brigade’s mission, cannot write an operations order, and has to have all correspondence reviewed before it is sent out.  His communications skills, both written and oral, have often caused more confusion than clarification.  He is not allowed to give briefings.  His potential to remain in the position is limited and he could best serve the Army in a position where he could work by himself, such as collecting data in a comptroller’s office. 

The SR (same SR on previous report) placed the applicant in the fourth block (below center of mass) under Potential Evaluation (Block VIIa) and indicated that based on his performance during the rated period, he had limited potential.

The OER was referred to the applicant and he elected to submit comments in his own behalf.  He asserted that he had not been timely counseled, that the OER did not include any of the 31 contributions he listed on his support form, that it was his rater who did not understand the brigade’s mission or lane training process, that it was not his responsibility to review his work, as there was an individual assigned to do just that, and that he was not aware that he was not allowed to give briefings.  He also stated that he believed that his SR was being influenced by someone who did not believe he should be in the job, that he was never counseled regarding poor performance and after having received good ratings from his previous year in the job, assumed that he was still doing a good job.  He also contended that his duty description had not been adjusted to remove his duties as the Supervisory Staff Assistant (SSA) after someone was hired for the job.

The applicant submitted a request for a commander’s inquiry on 2 July 1997 contending that the OER contained inaccurate and untrue statements and did not address any of his 31 significant contributions.

The commanding general (CG) responded to the applicant’s request on 20 August 1997 and indicated that an informal investigation had been conducted into his allegations and he determined that no injustice or illegality occurred. He indicated that some administrative errors were detected and corrections had been made.  He advised the applicant of his right to appeal the OER under Army Regulation 623-105.  

On 4 September 1997, the applicant submitted an Inspector General (IG) Action Request in which he contended that his rater had failed two consecutive APFTs and was given preferential treatment that the applicant was not afforded.  On 14 February 1998, the IG responded to the applicant’s allegations and indicated that after a thorough investigation, it was determined that his allegations were unsubstantiated. 
Although the exact date cannot be determined from the available evidence, it appears that the applicant’s unit submitted a request to have the applicant eliminated from the service based on two consecutive APFT failures.  The office of the Staff Judge Advocate for the division opined that based on a review of the medical records, a reasonable doubt existed as to whether or not there was an underlying medical reason for one of the failures.  Inasmuch as the elimination packet did not address that issue, he opined there was insufficient evidence to support a successful elimination board action and recommended that it be disapproved and returned.  The CG returned the request without action on 14 September 1997.  

The applicant submitted an appeal of the OER to the OSRB on 29 September 1997, contending that the rating officials did not use the support form he provided in preparing the contested OER, that he was not counseled during the rating period, that the duty description was not accurate, that he received no guidance from his rating officials, that he had very limited contact with his rating officials, and that none of his contributions were listed.  He also contended that his prior and subsequent evaluation reports reflect a superior manner of performance and potential, which refute the comments and ratings on the contested OER.  He provided 27 enclosures, which included 11 supporting statements from third party personnel.

During the processing of his case, the OSRB contacted the rating officials of the contested OER.  The rater indicated that he remembered the applicant and the circumstances surrounding the contested OER.  He indicated that he spoke with the applicant on almost a daily basis and provided him with detailed guidance throughout the rating period.  He also indicated that he had counseled the applicant verbally and in informal written form on various correspondence.  He also indicated that he did review the support form and made a conscious decision to author the OER as he did.  He further indicated that the applicant was a very amiable and likeable person who tried hard to get the job accomplished and if effort expended equated to success, the applicant would have been very successful. He simply did not have the skills to handle the complexities of the job.

The SR was also contacted and he also confirmed that he remembered the applicant and the circumstances surrounding the contested OER.  He asserted that he deliberately worded the OER as he did and intentionally placed him in the fourth block.  He also stated that the applicant’s assertion that he never received negative counseling was unequivocally incorrect, because he had multiple discussions with the applicant that amounted to counseling.  He also stated that during his first evaluation of the applicant, he gave him the benefit of the doubt.  However, because his subsequent performance was unacceptable, he felt obliged to document his shortcomings.  He also indicated that the applicant’s subordinates worked very hard to cover his mistakes and help him succeed; however, the job was too complex for him.
After reviewing all of the evidence in the case, the OSRB opined that he had failed to provide sufficiently convincing evidence to show that the OER was inaccurate, unjust or that it did not accurately reflect his performance and potential.  The OSRB denied his appeal on 30 October 1998. 

Meanwhile, on 16 April 1998, he received a change of rater OER covering the period from 1 May 1997 to 31 December 1997.  The report evaluated him in the same position and was rendered by the same rater, the brigade executive officer and a new brigade commander as the SR. 

In Part IVa, under Performance Evaluation – Professionalism, the rater gave the applicant three “2” ratings under “Clear and Concise in Written Communications”, “Displays Sound Judgment”, and “Clear and Concise in Oral Communications.”  The supporting comments indicate that the applicant worked many hours and despite being short of personnel and he never failed to complete an assignment on time.  He gave the applicant “1” ratings in the remaining 11 areas.  He also indicated that despite facing severe personal and professional difficulties, the applicant was able to separate his problems from his job and concentrate on accomplishing his tasks and improving his performance.

In Part Vb, under Performance and Potential Evaluation, the rater gave the applicant a rating of “Usually Exceeded Requirements” and indicated that he should be promoted with his contemporaries.  The supporting comments indicate that the applicant’s performance had improved during the rating period, that he had made a determined effort to learn how the section functioned, that he was well organized and never missed a suspense date.  He also indicated that the applicant had been commended by the brigade commander for his work on brigade security issues. 

The intermediate rater indicated that the applicant had done an excellent job in fulfilling the duties of the SSA during his absences.

The SR placed the applicant in the third block of his SR profile (below center of mass) and was complimentary of his performance.  He also indicated that the applicant should be assigned to a comptroller position where his attention to detail and technical training would be a strong asset.

The applicant requested a waiver of the administrative disqualification for subsequent tours in the AGR Program and his request was disapproved by the Chief of the Army Reserve (a major general) on 29 December 1998.  He was released from active duty on 31 December 1998 and was transferred to a USAR Troop Program Unit.

On 22 March 2001, the Army Reserve Personnel Command (ARPERSCOM) dispatched a memorandum to the applicant explaining that he had been twice non-selected for promotion to the rank of lieutenant colonel, that he was eligible to be transferred to the Retired Reserve and that he must do so no later than the first day of the seventh month, following the date the President approved the board results.  He was provided an option form to complete and return with his elections.

He again submitted an appeal of the contested OER with the assistance of counsel, to the OSRB.  However, the OSRB opined that he had not submitted new evidence of a clear and convincing nature to warrant another review by the OSRB.  The OSRB declined to reconsider his case and advised him on 6 June 2001, of his right to appeal to this Board.

A review of the supporting documents submitted by the applicant show that he had four letters of support from three general officers and one colonel supporting his continuation in the AGR Program.  He also submits letters of support from seven noncommissioned officers and four officers.  Only one of the letters indicates that there was an instance in which another officer was placed in the position of assistant S3 during annual training in 1996.  The applicant’s counsel also provides a statement of a telephone conversation he had with the SSA of the applicant’s unit at the time of the contested OER, which mentions that the applicant was relieved during Annual Training in 1996 and provides his opinion of why it occurred. 

A review of the applicant’s OER history shows that from as early as 1980, the applicant began receiving substandard evaluations.  His academic evaluation report (AER) for the officer basic course shows that he marginally achieved course standards.  The comments show that he demonstrated little or no leadership capability, that he could not pass the 2-mile run and on two occasions failed to pass any events of the APFT.  He also demonstrated an inability to handle even a marginal amount of pressure.  He then attended the tactical intelligence officer course and failed to meet course standards as demonstrated by his failure of all tests.  He has received at least one other referred report as a first lieutenant where his rater indicated that he should not be promoted.  The applicant responded to that report to the effect that he did not want to work in the G3 administrative support section and his rater would not transfer him.  It does not appear that he appealed that OER.  His evaluations show that in every officer rank he has held, comments/observations similar to those made on the contested OER were made by previous rating chains.  Some of the comments include “showed little initiative in learning his job responsibilities and motivating subordinates to perform properly”, “despite two advanced civilian education degrees, he lacks basic officer skills, cannot respond to mission type orders, tasks must be explained in great detail”, “Unable to understand basic staff procedures, lacks capacity to provide required leadership to subordinate personnel, all work produced must be extensively revised, while understanding need for improvement, fails to make adequate efforts, written guidance, counseling sessions and coaching did not produce marked improvement or efforts to improve performance”, “should apply himself more to details in his assignments and not worry about what others think he is doing”, “should be assigned to a line unit so that he can see the big picture, that of the USAR and the Army”, “needs to formulate plans for accomplishment of assignments prior to reacting to situations”, “performed majority of his duties satisfactorily”, “has a tendency to over-react during periods of stressful situations, at times, his unsound judgment cased confusion within the section”, “Has not sufficiently grasped the knowledge and skills necessary for budget operations, his errors in judgment and oral communications are a result of his failure to demonstrate appropriate knowledge and expertise in his assigned tasks, has altruistic tendencies”, “Has difficulty in applying the knowledge to assigned tasks and changing situations”.  All of these observations were made up to and including the rank of captain. 

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions 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.  Paragraph 9-7e of that regulation provides, in pertinent part, that the support form (DA Form 67-8-1) may be used to facilitate the preparation of an OER.  However, it is not a controlling document in terms of what is entered on the OER. 

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.  The Board has noted the applicant’s contention that he was relieved for cause and was denied his due process rights and finds it to be without merit.  While he had provided two documents that indicate he was relieved, the Board finds it insufficient to show that he was in fact relieved of his duties for cause.

2.  Not only did the applicant remain in the position for at least 2 years after the alleged relief, it does not appear that he has raised this issue in his prior appeals. While the Board can find no motivation on the part of the rating chain to relieve the applicant for cause, the Board notes that he did receive a commander’s inquiry for the same period in which he now claims he was relieved and he submitted an appeal of the contested report.  Neither the inquiry nor the appeal found that his rights had been violated and the Board finds likewise. 

3.  Inasmuch as the applicant has contended that a review of his prior and subsequent evaluation reports will show that the evaluation is flawed, the Board has reviewed his entire evaluation history and finds the comments in the contested evaluation to be similar to those evaluations made by other rating chains throughout his career.  Accordingly, the Board is inclined to believe, in the absence of evidence to the contrary, that the contested OER represents a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  While it is clear that he improved with time in the position, this does not invalidate the observations of his rating chain at the time.  Therefore, there is no basis for removing it from his records.

4.  The applicant’s contentions have been noted by the Board; however, he has not shown to the satisfaction of the Board that he was not rated properly or that the rating officials violated proper rating procedures.  He has failed to overcome the presumption that the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.

5.  The supporting statements submitted by the applicant have been noted by the Board as well.  However, the Board does not find them sufficient to show that they were aware of the expectations of the rating chain at the time.  The Board is convinced that the applicant was aware of the expectations of his rating chain, whether it be by verbal or written counseling and that he failed to meet those expectations.  It also appears that the applicant’s rater was trying to assist the applicant into growing into the position without having to take such drastic measures as a relief for cause, as evidenced by his eventual success in that position under the same rating chain.  It also appears inconceivable that he would have remained in that position had there actually been a basis to relieve him for cause and the chain of command would have nothing to gain or lose by not doing a relief action if the applicant actually did warrant a relief for cause. 

6.  The applicant’s contention that the report is invalid because it does not include his accomplishments also appears to be without merit.  The regulation does not require that rating officials must enter the data provided by the applicant on a report.  It simply provides that it must be considered by rating officials.  Given the circumstances in this case, the Board finds that the decision by the rating officials at the time to document his shortcomings was within their rights as rating officials and did not violate any of the applicant’s rights.

7.  The applicant’s contention that the OER is invalid because it contains unproven derogatory information regarding two APFT failures also appears to be without merit.  At the time the contested report was prepared, the information appears to have been correct as it was entered.  It also appears that the applicant has never proved that he did not fail two tests, but simply that he was given the benefit of any doubt on one of the tests.

8.  Likewise, inasmuch as there is no basis to remove the contested OER, there is also no basis to approve the remainder of his request.  While the Board understands his desire to return to active duty, he has failed to show through the evidence submitted with his application or the evidence of record that he was unjustly released from active duty.  While he may be recalled from the Retired Reserve, that decision is best made by the Department based on the needs of the Army and the skills of the individuals concerned.  Accordingly, the Board will not direct his reinstatement to active status.

9.  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 this requirement.

10.  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

___fe ___  ___tbr___  ___dh___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001063738	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/03/05	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0100/void oer	
2.  192	110.0300/reinstate	
3.  320	131.1000/relook	
4.		
5.		
6.