PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  30 May 2002
	DOCKET NUMBER:  AR2001064528

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor, Jr.		Chairperson	
	Ms. Paula Mokulis		Member	
	Mr. John P. Infante		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, in effect, that his Academic Evaluation Report (AER) for the period of 1 July 1997 through 12 June 1998, be removed from his record, that he be reconsidered for promotion to chaplain (major), and that he be returned to active duty from the Army Reserve.

3.  The applicant states, in effect, that he received an AER that should have been referred to him, but it was not.  He immediately requested a commander’s inquiry but one was not conducted for over 6 months and then it was incomplete, inaccurate, and was not properly conducted.  He identified the deficiencies and requested that the inquiry be reopened but he never received a response.  He appealed his AER to the Total Army Personnel Command (PERSCOM), 
Appeals and Corrections Branch.  The Officer Special Review Board (OSRB) found that the AER should have been referred and so directed PERSCOM to refer it to the applicant.  The applicant responded to the 6 August 2001 referral with 21 August 2001 comments that the unsatisfactory ratings were not supported by the AER comments, he was not counseled that his performance was unsatisfactory, the rating and AER comments were not supported by fact and were conflicted, and he did not circumvent the grievance procedure.  The OSRB then considered his appeal and on 25 September 2001, sent the applicant a memorandum informing him of approval of a partial appeal to the effect that the referral letter and his rebuttal would be filed in his record but that otherwise his appeal was denied.  

4.  During this period of over three years, he was considered for promotion to chaplain (major) with records containing his unjust and incorrectly executed AER with the consequence that he was not selected for promotion and was qualitatively released from active duty and transferred to the Reserve.  Failure to refer the AER in a timely manner or to conduct a commander’s inquiry in a timely or complete manner was a serious injustice to his promotion consideration and career.

5.  He provides copies of his AER, correspondence requesting a commander’s inquiry, the inquiry officer’s report, correspondence appealing his AER, correspondence from witnesses in support of his appeal, correspondence from the OSRB on his appeal, and a Clinical Pastoral Education Residency successful completion certificate.

6.  The applicant’s military records show that he is a chaplain (captain).  He satisfactorily completed the Chaplain Officer Basic Course on 24 August 1990.  He was promoted to captain on 1 December 1992.

7.  He served as a battalion chaplain from 26 March 1992 through 30 June 1997, in three different battalions.  During this time, he received seven top block center-of-mass Officer Evaluation Reports (OERs), one second block center-of-mass 

OER, all “Always Exceeds Requirements” and “Promote Ahead of Contemporaries”, and all “1” in professional competence.  His intermediate raters were brigade chaplains on all reports except one.

8.  He attended the Clinical Pastorial Education (CPE) course at Brooke Army Medical Center (BAMC), Fort Sam Houston, Texas, from 1 July 1997 through 
12 June 1998.  He received an Academic Evaluation Report (AER) for this period that showed that he marginally achieved course standards, satisfactory in written communication and student’s research ability; unsatisfactory in oral communication, leadership skills, and contribution to group work; and a “no” for demonstrated academic potential for selection to higher level schooling/training.  The AER preparing officer was a Government Service (GS) grade 12 clinical pastoral education supervisor and the reviewing officer was a chaplain (colonel) Chief of the Department of Ministry and Pastoral Care, BAMC.  The preparing officer and the reviewing officer’s commander was the hospital commanding general.

9.  The preparing officer supported his evaluation of the applicant with the comments in section 16 of the AER, which stated in pertinent part, “He entered the course with reservations and resistance about utilizing his personal history in the learning of pastoral care, and was not able to move beyond the impasse.   He interacted primarily with this peers on the intellectual level of learning.  It limited the group process and impeded the building of teamwork.  When challenged to try new styles of pastoral care, he usually reacted by setting up ‘me versus you’ responses.  At the beginning of the fourth unit, he was withdrawn from the process phase of the program and asked to complete the written materials.  His response was to circumvent the grievance rules of the program by registering complaints with higher headquarters of the military and the regional ACPE (Association of Clinical Pastoral Education) director.  (The ACPE establishes the rules for CPE and accredits the courses.)  Under close supervision, he provided basic pastoral care to the staff, patients, and family members.  He completed didactic (lecture) courses … but showed little integration of the concepts in the practice of his ministry.  In his research project … he showed skills in writing and literary research but lacked abilities to design, carry out, and summarize clinical research.  …  (The applicant) should not be considered for further education in Clinical Pastoral Education although he could possibly learn well in a structured academic environment.”

10.  By memorandum dated 22 June 1998, the applicant requested that the commanding general of BAMC conduct a commander’s inquiry on the AER based on substantive inaccuracy, he was not counseled about any unsatisfactory performance, failure to refer the AER before it was forwarded to Headquarters, Department of the Army (HQDA), and allegation that the preparing officer’s 

evaluation and comments were false or distortions of the truth.  On 9 December 1998, the BAMC lieutenant colonel (LTC) Troop Command (TC) commander directed a commander’s inquiry and appointed an investigating officer.  The investigation officer provided a report to the LTC TC commander.  She reported that she had interviewed the AER preparing officer and the reviewing officer, two clinical chaplains who were not involved with the AER but knew the applicant’s academic abilities, and a supervisor in training (assistant of the preparing officer). She stated that she found no error in the execution of the AER in either administrative data or clinical appraisal and that she found no injustices or illegalities in administering the AER.

11.  By memorandum dated 22 September 2000, the applicant requested that the commanding general of BAMC reopen the commander’s inquiry since the initial commander’s inquiry did not address the lack of referral of the AER or the comments section of the AER not supporting the unsatisfactory ratings, both required by regulation.  He also again challenged the preparing officer’s evaluation.  On 27 October 2000, the applicant’s Judge Advocate legal advisor requested of the BAMC commanding general a status of the second request since no response had been received.

12.  On 15 February 2001, the applicant appealed his AER to the Appeals and Corrections Branch, PERSCOM, based on substantive inaccuracy and denial of substantive due process (referral and commander’s inquiry).  He also contended that the AER’s unsatisfactory abilities ratings were not supported by required comments and that the evaluation included a comment that he had filed grievances against the preparing officer prior to the issue of the AER.  The 
appeal was returned with a memorandum of instruction dated 22 February 2001. He again filed the appeal on 19 March 2001.

13.  The applicant’s appeal was considered by the OSRB.  The OSRB found that the rating officials, the entire command, and PERSCOM failed to refer the AER and that the review process was flawed because the commander’s inquiry was not conducted within the required time limit nor did the inquiry officer or PERSCOM identify the failure to refer the report.  The OSRB determined that the preparing officer’s comments did address the unsatisfactory ratings based on additional input from the preparing officer and the reviewing officer during the OSRB investigation.  With further explanation of the meaning of his comments by the preparing officer and reference to a statement by the applicant in his referral comments, the OSRB concluded that the preparing officer’s comments did address the unsatisfactory rating in oral communication.  

14.  The OSRB determined that there was no error in the preparing officer’s comments in the evaluation about the complaints filed by the applicant with 

higher headquarters against the preparing officer.   The OSRB stated that the preparing officer included this information to explain his judgment of the applicant and that he circumvented prescribed rules.  The OSRB further stated that the applicant, “failed to substantiate his allegation,” that, “the AER improperly referenced the fact that the applicant filed a grievance (complaint).”

15.  As a corrective action to the failure to refer the AER, PERSCOM Appeals and Corrections Branch referred the AER to the applicant on 4 August 2001.  The applicant responded with rebuttal on 21 August 2001.  The OSRB then forwarded the applicant’s comments to the rating (preparing) official for consideration.  The preparing official reviewed and considered the applicant’s rebuttal and determined that the AER was accurate, fair, and just as rendered.  On 17 September 2001, the OSRB directed that the applicant’s rebuttal be filed in his Official Military Personnel File (OMPF) with the AER.  On 25 September 2001, the OSRB informed the applicant of these decisions.

16.  The applicant was considered for promotion to chaplain (major) by promotion boards in March 1999, March 2000, and April 2001, and not selected.  As a consequence, he was released from active duty on 1 January 2002, and transferred to the U. S. Army Reserve.

17.  Army Regulation (AR) 623-1 (Academic Evaluation Reporting System) states in pertinent part, that detailed comments are required to justify a performance summary rating of “Marginally achieved course standards,” demonstrated ability ratings of “Unsatisfactory,” and an academic potential rating of “No.”  The regulation also requires referral to the rated officer of any AER that contains any one of these deficient ratings.  After signing a referred report, the reviewing official will forward the report to the student, via a memorandum, for acknowledgment and comment. The reviewer will ensure that the provisions of the regulation have been followed. The student will acknowledge receipt of the referred report and may enclose a comment or statement if he or she feels that the rating or remarks are incorrect.  The referral memorandum and acknowledgment are forwarded with the report.  If the student has departed the school under circumstances that preclude immediate referral of a report to him or her, a copy will be forwarded by certified return mail directly to the student with appropriate suspense.

18.  An AER is rendered by a rater, called a preparing officer, and reviewed by a reviewing officer.  The reviewing officer services the same purposes as a senior rater on an OER as described in AR 632-105 (OER System) with respect to ensuring that the evaluation report is properly administered in accordance with the regulation and that the evaluation is accurate.  When an AER is a referred report, the reviewing officer refers the evaluation to the rated officer for comment. 

The reviewing officer reviews the rated officer’s comments to determine if the facts provided warrant reconsideration of the evaluation.  He refers the comments to the preparing officer for consideration.  The preparing officer confirms his evaluation or amends it by raising it appropriately.  He may not lower the evaluation.  When this process is completed, the AER, referral memorandum, and the rated officer’s comments are forwarded to HQDA to be filed together in the rated officer’s official personnel file.

19.  Army Regulation 623-1 states that a commandant’s inquiry will be conducted when it is brought to the attention of the commandant or head official that an AER may be illegal, unjust, or in violation of the regulation.  The inquiry will be conducted according to AR 623-105, paragraphs 6-3 through 6-6-4 on commander’s inquiry, which states, in pertinent part, that the inquiry will be made by a commander in the chain of command above the rating officials (preparing officer and reviewing officer) and forwarded to HQDA not later than 120 days after the “Thru” date of the evaluation.  The results of the investigation will include findings, conclusions, recommendations, and the commander’s signature, and be limited to one page.  Sufficient documentation, such as reports and statements, will be attached to justify the conclusions.

CONCLUSIONS:

1.  When the applicant received his AER on or about 12 June 1998, he determined that according to the regulation, it was illegal, unjust, and in violation of the regulation since it had not been referred, the comments did not support the evaluation, and it included a comment of reprisal by the rating officer that the applicant had filed complaints about him with higher headquarters.  On 22 June 1998, the applicant properly requested that the BAMC commanding general conduct a commander’s inquiry.  This was the proper authority to conduct the commander’s inquiry according to AR 623-105 which states that the commander’s inquiry is to be conducted by the commander in the chain of command above the rating officials, the reviewing office being a colonel and hospital department chief.  The inquiry was not conducted by the proper authority, the BAMC commander, but was initiated by an improper authority, the LTC TC commander, who is not in the chain of command or rating chain above the rating officials, nor did the LTC TC commander conduct the inquiry “For the Commander.”

2.  The inquiry was not conducted and forwarded to HQDA within 120 days from 12 June 1998 as required by AR 623-105.  Although the applicant requested the inquiry within 10 days, the inquiry was not begun until 9 December 1998, 181 days after 12 June 1998, and the inquiry officer did not provide a report until 
16 December 1998, 188 days after 12 June 1998.  The requirement for 

completion of an inquiry and submission within 120 days is to protect the rated officer from an unjust, illegal, and improper AER negatively and unjustly impacting his career. Failure to conduct a timely inquiry is an injustice to the rated officer and an error of serious consequence.

3.  In addition to not being conducted by proper authority, the inquiry was incomplete and inaccurate.  It incorrectly stated that there were no injustices or illegalities in the preparing or processing the AER.  The inquiry did not address the very obvious failure to provide the requested inquiry within 120 days as required by the regulation to prevent error and injustice.  It did not identify the very obvious failure to refer the AER, despite the fact that was one of the contentions of the rated officer requesting the inquiry.  The inquiry did not address one of the rated officer’s critical contentions, that the preparing officer’s evaluation was prejudiced by the applicant’s “inquiry into the complaint procedure.”  The LTC TC commander did not complete the inquiry according to the regulation by forwarding to HQDA the findings, conclusions, and recommendations, with attached reports and statements justifying the conclusions, with the results bearing his signature.  When the applicant requested that the BAMC commanding general reopen the inquiry due to its deficiencies, and his legal advisor also requested a status on the inquiry, they received no answer.

4.  The preparing officer failed to justify in detail, by his comments on the AER, all unsatisfactory ratings as required by the regulation.  The applicant received unsatisfactory ratings in oral communication, leadership skills, and contribution to group work.  The preparing officer justified the unsatisfactory ratings in leadership skills and group work but failed to justify in detail the unsatisfactory rating in oral communications.  On leadership skills and group work, the preparing officer identified the applicant’s deficiencies in, “interaction with peers limiting group process, impeding building teamwork, and being under close supervision.”  However, the preparing officer made no detailed comment justifying the unsatisfactory evaluation in oral communication.  The OSRB, after further clarification from the preparing officer and taking comments from the applicant’s referral rebuttal, concluded that the preparing officer’s comments alluded to the unsatisfactory oral communications evaluation.  This conclusion is not accepted.  The AER comments must stand by themselves to clearly justify in detail any unsatisfactory evaluation rating without explanation by and reference to material outside the evaluation report.  Selection boards who view the AER do not have access to the external material or the preparing officer’s further clarification of his remarks when making a judgment on the applicant’s record.

5.  The preparing officer’s comment about the applicant registering complaints with higher headquarters and his superior (the regional ACPE director) is 

retaliatory and a reprisal for the applicant seeking redress for his grievances.  The OSRB determined that this was not a violation since it was verified and occurred during the rating period.  However, this determination implies that it was verified that the applicant did file complaints with the preparing officer’s superiors, in which case the preparing officer’s comment is retaliatory and reprisal in nature. On this basis alone, the AER should be deleted from the record.

6.  The AER was not referred to the applicant for comment as required by regulation when it was rendered in June 1998.  According to the referral process prescribed in the regulation, the rated officer’s comments are to be considered by the preparing officer and reviewing officer prior to submitting the AER to HQDA.  The AER was referred to the applicant in August 2001, three years after the fact. The applicant responded with comments in August 2001.  The OSRB stated that it provided the comments to the rating official for consideration and comment.  This rating official was shown to be the preparing officer.  There is no record of the referral comments being reviewed by the reviewing official.  Review of the rated officer’s comments by the OSRB in place of the original reviewing officer is unjust and inaccurate.  The OSRB is not the reviewing officer according to the regulation and does not have the benefit of knowing the preparing officer, knowing and understanding the requirements of the course against which the rated officer is being evaluated, and knowing and understanding the personalities, circumstances, and facts relating to the evaluation.  Further, to allow the preparing officer or the reviewing officer to consider referral comments more than three years after the fact and make determinations more than three years removed from the circumstances under which the evaluation was given is to allow retrospective conclusions.

7.  As a result of the failure of the commander’s inquiry to be conducted by proper authority, to be timely, accurate, correct, and properly administered, the applicant’s unjust, illegal, and improper AER was viewed by 3 promotion boards which did not select the applicant for promotion resulting in him being qualitatively released from active duty.  The failure to properly refer the AER in a timely manner, to clearly detail all unsatisfactory ratings, and to include a reprisal and retaliatory statement render the AER unjust and unfair.  Based on the foregoing reasons, the AER and all related references should be removed from the applicant’s record, he should be reconsidered for promotion to chaplain (major) after such removal, and if selected, promoted and returned to active duty.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

That all of the Department of the Army records related to this case be corrected for the individual concerned by:

	a.  removing the AER for the period 1 July 1997 through 12 June 1998 and all related references from the applicant’s record;

	b.  placing a statement in the record to show this period non-rated time without prejudice; 

	c.  reconsider him for promotion to chaplain (major) in the primary zone under the 2000 and 2001 criteria; and

	d.  if selected for promotion, promote him with back pay and allowances and return him to active duty.

BOARD VOTE:  

___ro___  __pm____  __ji____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Raymond V. O'Connor, Jr.___
		        CHAIRPERSON

INDEX

CASE ID	AR2001064528	
SUFFIX		
RECON		
DATE BOARDED	20020530	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.0100.0012 – Academic Report	
2.		
3.		
4.		
5.		
6.