IN THE CASE OF: BOARD DATE: 26 April 2012 DOCKET NUMBER: AR20110023512 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the United States (U.S.) Court of Federal Claims, Washington, DC. The Court directs the ABCMR to consider: * Whether the senior rater’s comments were inconsistent with the two-block rating on the applicant’s (plaintiff) 1996 officer evaluation report (OER) * Whether the 1996 OER should have been referred to him * Whether he was denied entry into the Active Guard Reserve (AGR) Program due to his waiver requirement * Whether his case should be treated similarly to Captain (CPT) MXXXXX P. JXXXXX's (hereafter referred to as CPT MPJ) case as cited by the applicant in his application and complaint 2. Court also requests the following be taken into consideration: * A letter, dated 10 January 1998, to the applicant informing him that he was placed on the Order of Merit List (OML) * A declaration by Mr. WXXXXXX detailing his conversation with Colonel (COL) PXXXXXX 3. According to the Joint Motion for a Voluntary Remand: a. The plaintiff stated he retired from the U.S. Army Reserve (USAR). b. The plaintiff was bringing suit pursuant to the Administrative Procedure Act, 5 U.S. Code, section 702, challenging two ABCMR decisions as arbitrary, capricious, or contrary to law. c. The plaintiff seeks to have the ABCMR reconsider his claim requesting that the senior rater comments and evaluation be removed from his 1996 OER and that he be provided constructive entry into the AGR Program. 4. The Court provides: * A Motion Order to remand the applicant’s case to the ABCMR * Complaints for Declaratory Relief * Plaintiff’s Memorandum for Points and Authorities in Support of Cross- Motion for Summary judgment, and Opposition to Defendant’s Motion for Summary Judgment * Plaintiff’s Motion to Supplement the Administrative Record and Memorandum in Support * Plaintiff’s Cross-Motion for Summary Judgment * Declaration of JXXX A. WXXXXXX CONSIDERATION OF EVIDENCE: 1. Having had prior enlisted service in the U.S. Coast Guard, the applicant’s military record shows he was appointed as a Reserve commissioned officer in the rank of second lieutenant, Signal Corps, and executed an oath of office on 2 May 1988. 2. He accepted a concurrent call to active duty and subsequently served in a variety of stateside and/or overseas assignments. He was promoted to captain (CPT) on 1 January 1993. He was assigned to Headquarters and Headquarters Company (HHC), 123rd Signal Battalion, 3rd Infantry Division, Germany. 3. During the month of January 1996, the applicant received a change of rater OER which covered 9 months of rated time from 25 February 1995 through 15 January 1996 for his duties as the Division Telecommunications Officer/Chief, Information Service Support Office (ISSO). His rater was major (MAJ) PTP, the Assistant Division Signal Officer, and his senior rater was lieutenant colonel (LTC) OEH, the commander. The OER shows the following entries: a. In Part IV (Performance Evaluation – Professionalism), the rater placed the number 1 (1 being high degree and 5 being low degree) in all 14 professional competencies and entered selected bullets. b. In Part V(c) (Performance During This Rating Period), the rater placed an "X" in the "Always Exceeded Requirements" block. In Part Vc, he entered the following comments: [Applicant's] duty performance had been outstanding. Given the daunting task of managing two disparate sections, restructuring one of them and providing more services with less resources, [Applicant] responded with superb results. [Applicant] oversaw the downsizing of the Information Service Support Office. His careful planning and extensive coordination for alternate means of service meant that the division lost minimal information services despite losing 66% of section personnel. During this same time frame, [Applicant] successfully managed the transition of the entire division to a new garrison reproduction equipment contract. His diligence led to a problem-free changeover with no service interruptions. [Applicant] was able to produce copiers for field use issued down to battalion level. This was the first time in over 5 years that battalions were provided such a capability. c. In Part V(d) (This Officer’s Potential for Promotion to the Next Higher Grade is), the rater placed an "X" in the "Promote Ahead of Contemporaries" block. d. In Part V(e) (Comments on Potential), the rater commented "[Applicant] has tremendous potential. He should be placed in command immediately. Promote. Send to advanced schooling. He would respond to the tough jobs." e. In Part VII(a) (Senior Rater), the senior rater placed an "X" in the second block from the top - with 8 other officers rated in the first block - and placed an "X" in the "Yes" block to indicate that a completed DA Form 67-8-1 (OER Support Form) was received with this report and considered in his evaluation and review. He further entered in Part VIIb: [Applicant] has done a consistently tremendous job in a variety of roles. He has served in a dual position as Telecommunications Officer and Officer in Charge of supplying information services, managing both effectively. He has made great strides in maintaining top quality information services for the division even though faced with diminishing assets. His personal involvement and perseverance led to the purchase of field copiers bringing field reproduction services down to battalion level for the first time in years. [Applicant] is a highly talented officer who could get things done. 4. The contested OER was signed by the rater, senior rater, and the applicant on 10 January 1996. 5. The applicant appealed the OER around June 1999. His appeal was returned in August 1999 as unacceptable as he had not provided sufficient evidence to warrant consideration at that time. However, an administrative correction concerning the number of rated months was made to the report. 6. The applicant was considered and not selected for promotion to MAJ by the 1998 and 1999 Active Duty List (ADL) promotion boards. 7. In a letter, dated 22 January 1999, the Director, Full Time Support Management Directorate (FTSMD), U.S. Army Reserve Personnel Command (AR-PERSCOM), advised a Member of Congress in response to his letter regarding the applicant obtaining a job in the AGR Program. The letter stated: a. Unfortunately, they were unable to comply with the applicant’s request at that time. b. Officers who have more than 13 years of active Federal service did not ideally support life cycle management due to limited future utilization. Although service members with more than 13 years active Federal service are boarded for accessioning purposes and are conditionally placed on their OML, they are considered only after all others who do not require waivers, if a requirement exists. Placement on the AGR OML is not a guarantee that a service member will be accessioned into the Program. c. During the past year, a position requiring the applicant’s branch and functional area, commensurate with his grade requirement, was not available. Therefore, the applicant had not been accessioned into the AGR Program. 8. On 22 November 1999, he was advised of his selection for continuation of active duty to obtain sufficient time to retire. 9. In a letter, dated September 2002, he advised his counsel that he did not have the following documents and they had been lost during his move from Germany to Atlanta, GA: * original AGR packet * letter indicating he was on the OML * reply from a Member of Congress 10. On 3 September 2003, he was advised of his mandatory retirement, as a result of his second non-selection for promotion, no later than 1 March 2004. 11. He was honorably retired from active duty on 30 April 2004 and he was placed on the retired list in his retired rank of CPT on 1 May 2004. 12. A Declaration of JXXX A. WXXXXXX, states: a. On Friday 21 May 2010, he contacted by telephone WXXXXXX PXXXXXX, COL, USAR (Retired). From 1996 to 1999 COL PXXXXXX confirmed he was the Director, FTSMD that oversaw the AGR Program. b. COL PXXXXXX did not recall the specifics of the AGR accessions case and Congressional inquiry of the applicant. However, COL PXXXXXX agreed to provide information on the FTSMD Officer Accessions and policy during his tenure as Director, in particular, how officers are considered for vacancies according to an OML, when officers were contacted and offered jobs, and the waiver process. COL PXXXXXX also agreed to respond to the case findings of the applicant's 2006 ABCMR decision. c. COL PXXXXX added that he did remember Accessions officials Ms. WXXXXXXX and Major (MAJ) GXXXXXX. He added that MAJ GXXXXXX in 1998 was reassigned to him from Principal Medical Officer duty to FTSMD operations, as the Accessions Officer in Charge. d. COL PXXXXX stated that as the Director, he would never call, direct, or influence Accession officials to circumvent the normal OML process to find a candidate an AGR assignment. Nor would he contact Accessions to go outside the normal assignment protocol by calling a candidate to talk about vacancies they could qualify for. COL PXXXXXX added that he would fight even any general officer who might attempt to influence the normal assignment process. e. COL PXXXXXX responded to the ABCMR finding that Ms. WXXXXXXX was prompted by the applicant's inquiry to contact him and offer two AGR jobs. The Board believed that that contact was not based on a legitimate requirement where [Applicant] was properly considered based on his credentials and his turn on the OML. Rather, the Board found that Ms. WXXXXXXX could only have called the applicant to generally discuss potentially available assignments. COL PXXXXXX responded that Accessions officials never contact an officer to just casually discuss potential job vacancies out of turn. Contact with a candidate to discuss available vacancies did not occur unless there was a valid requirement in which the officer was already determined to be best qualified based on the OML. f. COL PXXXXX responded to the applicant's contention that in a later phone call with MAJ GXXXXXX in November 1998, MAJ GXXXXXX refused to process a waiver request for the two jobs. MAJ GXXXXXX said he would wait until the next OML comes out because it would have many officers to choose from who didn’t need waivers. COL PXXXXXX responded that such refusal to process the waiver by waiting until the next list comes would be improper, that the current OML remained valid for 1 year until mid-January of the next year, and that the existing OML must first be exhausted. In such a circumstance, when a candidate verbally accepted a job vacancy offered by Ms. WXXXXXXX, that would have to be honored with the waiver process followed through. 13. In Docket Number AR201056808, the ABCMR granted relief to another applicant, CPT MPJ who was also accepted into the AGR program conditionally and placed on the OML through an AGR board selection process. It appears an assignment became available for CPT MPJ for which he may have been otherwise qualified but for which an AGR assignment official refused to place him due to waiver requirement. In that case, AGR officials claimed that despite the selection and OML ranking, assignment managers had the discretion to determine who was best qualified to fill a vacancy and the delay occasioned by the need for a waiver was a valid basis to determine he was not the best qualified. CPT MPJ was then offered a branch-immaterial position for which a waiver was ultimately disapproved. The Board in AR2001056808 concluded it was incumbent on officials of the Accessions Branch to verify CPT MPJ’s eligibility for the position prior to offering him a position. Once the offer was extended, it was reasonable for CPT MPJ to expect his waiver request to be processed. The ABCMR granted relief as a matter of equity by having CPT MPJ's records corrected to reflect his retroactive placement in the AGR program contingent on his selection for promotion to MAJ. 14. Army Regulation 623-105 (Personnel Evaluation Report – Officer Evaluation Reporting System), in effect at the time, established the policies and procedures for preparing, processing, and using the OER. The regulation stated an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to had been prepared by the proper rating officials, and to represented the considered opinion and objective judgment of the rating officials at the time of preparation. The burden of proof in appealing an OER rested with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullified the presumption of regularity and action was warranted to correct an apparent material error or inaccuracy. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 15. Army Regulation 623-105, paragraph 4-16b, stated the senior rater's evaluation is made by comparing the rated officer's potential with all other officers of the same grade or grade groupings. His or her evaluation was based on the premise that in a representative sample of 100 officers of the same grade grouping (Army-Wide), the relative potential of such a sample would approximate a bell-shaped normal distribution pattern. Paragraph 4-16(5)(a) stated the "DA use only" column is used by the DA to record the senior rater's rating history (profile). The profile will contain all OERs rendered by the senior rater for the rated officers' grade or grade grouping and accepted as correct by DA. 16. Army Regulation 623-105, paragraph 4-27, stated the following reports would be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, DA (HQDA): * A relief for cause report submitted under the provisions of paragraph 5-18 * Any report with negative remarks about the rated officer's professional ethics in Part IVb, and/or in the rating officials narrative evaluation(s) * Any report with a rating of 4 or 5 in any of the 14 attributes in Part IVa * Any report resulting in a performance evaluation of "Often failed requirements" of "Usually failed requirements: in Part Vb * Any report with a potential evaluation in Part Vd of "Do not promote" or narrative comments to that effect from any rating official * Any report with a potential evaluation in Part Vd of "Other," where the required explanation has derogatory information * Any report with a senior rater potential evaluation in one of the bottom three blocks in Part VIIa * Any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer's career * Any report with an entry of "FAIL" in Part Iva, Item 3, indicating noncompliance with Army Regulation 350-15 (Army Physical Fitness Program); or an entry of "NO" in Part Iva, Item 12, indicating noncompliance with Army Regulation 600-9 (Army Weight Control Program) 17. Army Regulation 140-30 (Active Duty in Support of the USAR and AGR Management Program) prescribes policy and procedures for selecting, assigning, attaching, using, managing, and administering USAR Soldiers on active duty in the AGR Program. It establishes a personnel management system for managing AGR Soldiers through the following: (1) selection for accession and continuation in the AGR Program; (2) promotion; and (3) selection for schooling and training. Paragraph 1-15 of the regulation states that the Commanding General, AR- PERSCOM, will maintain a current list of approved AGR positions and positions vacancies, and announce when applications will be accepted for the AGR Program for positions to be filled from the centralized HQDA recommended list. 18. Paragraph 3-2 (Qualification requirements) of Army Regulation 140-30 states that to be eligible for the AGR Program, Soldiers entering on an initial or subsequent AGR tour must sign a DA Form 5646-R (Statement of Conditions of Service - Active Guard Reserve). 19. Paragraph 3-3 (Accession process) of Army Regulation 140-30 states the Chief, Army Reserve (CAR) will convene a DA accession board to recommend new Soldiers for the AGR Program. At a minimum, this will be done annually. The CAR may prescribe a number to be selected for grade and corps and specialty. The best qualified selection method will be used. The complete accession process consists of the following: (1) an announcement requesting applications for the AGR Program; (2) a signed and dated application from the USAR Soldier; (3) a recommendation for active duty through the appropriate selection process; (4) acceptance of an AGR attachment by the Soldier; and (5) orders to active duty in an AGR status with TDY en route to the Army Reserve Readiness Training Center, Fort McCoy, Wisconsin. 20. Paragraph 3-3g of this Army regulation also states that the names of Soldiers who are recommended by a DA accession board will be retained on the approved recommended list until one of the following actions occurs: a. they are ordered to active duty; b. they request their name be removed from the list; c. their name is removed or deleted from the list under paragraph 3-7e; or d. one year has elapsed since their name was placed on the list (emphasis added). DISCUSSION AND CONCLUSIONS: 1. The Court of Federal Claims on remand to the ABCMR asked it to re-examine four issues: * whether the senior rater’s block check was inconsistent with his comments * whether the OER should have been handled as a referred evaluation * whether the applicant was denied entry into the AGR program due to waiver requirements * whether the applicant’s case could be distinguished from another case in which another applicant’s records were corrected to show he entered the AGR program based on the need for a waiver 2. With respect as to whether the senior rater’s comments were inconsistent with the two-block rating on the applicant's 1996 OER: a. It appears the senior rater had a profile that indicates the applicant was a good officer whose performance during this rating period was slightly below that of the officers previously evaluated. However, being placed in the second block still indicates an above average rating that is consistent with the senior rater's comments. Such placement did not render the report inconsistent with the senior rater's comments. b. The senior rater's evaluation is made by comparing the rated officer's potential with all other officers of the same grade, or grade groupings. The senior rater's evaluation is based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern. The regulation, however, does not require adherence to a bell-shaped curve; rather, it states a "premise" upon which senior raters are to base their evaluations. c. But even if the senior rater in the applicant’s case failed to adhere to a bell-curve distribution, the Army anticipates, and compensates for, the fallibility of individual raters by requiring that each senior rater's personal profile (indicating the number of officers he or she has placed in each box during the rating period) be included in the OER of each officer he or she reviews. After all, the purpose of the profile is to place the rated officer's OER in perspective by revealing the senior rater's general rating tendency. d. A referred report is one that has an adverse impact upon the rated officer's military career. Such reports are referred to the rated officer so that he may respond to the allegations before the report is placed in his personnel file. Here, the OER shows the applicant was ranked as "Always Exceeded Performance," "Promote Ahead of Contemporaries," and contained highly laudatory remarks. A referred OER, as the name indicates, contains negative information. This is not the case here. e. A comparison of the contested OER with the applicable regulatory criteria that define referred reports failed to show any entries on the contested report that would qualify it as an adverse report under the regulatory criteria at the time it was submitted to DA. The applicant was rated in the second block from the top (only block checks in the bottom three blocks require referral), both the rater and senior rater inserted favorable comments, and the applicant was recommended for promotion. Therefore, this OER did not qualify for referral. 3. With respect as to whether the applicant was denied entry into the AGR Program due to his waiver requirement: a. Based on the applicant's years of service a waiver was required for his entry into the AGR Program. There is no evidence the applicant was denied entry into the AGR program due to a waiver requirement, simply because he was never offered a position. This is further confirmed by the letter, dated 22 January 1999 from the Director, FTSMD who stated that at the time, a position requiring the applicant's branch and functional area and commensurate with his grade requirement was not available. The applicant could not have been formally offered a position if a position was not available. This is in fact a key difference between the applicant's case and CPT MPJ's case. b. The available evidence shows that in response to his inquiry concerning his status in the AGR program prior to his one year eligibility expiring (December 1998), he was advised by an FTSMD official that had he been offered a job he pretty much would have been granted a waiver. However, without a valid job, a waiver was not required. c. There is simply no evidence to show a valid position existed for his accession into the AGR program or that he was wrongly or unjustly denied accession in the program at any time prior to his retirement in 2004. 4. With respect to the treatment of the applicant's case in comparison to a similar case: a. The Army accepted both applicants into the AGR program with a stipulation for obtaining waivers for their years in service if selected for a position and placed them on an OML through a board selection process. Counsel alleges that AGR assignments became available for which the two applicants were otherwise qualified, but for which AGR officials refused to place them because of the need to obtain the waivers. b. AGR officials in CPT MPJ's case asserted that despite his selection for the AGR program and OML ranking, assignment managers had the discretion to determine who was best qualified to fill a vacancy. A delay by the assignment manager that is caused by the need for a waiver was a valid basis to determine that an officer may not have been the best qualified for a specific position. After all, the OML was advisory only; it did not bind the assignment managers in determining who was best qualified for a particular position. c. In CPT MPJ's case, he was tendered an offer. Once an offer of a position was made, there was an expectation that the assignment manager would have processed a waiver. The failure to process the waiver was unreasonable. As such, the ABCMR determined that as matter of equity CPT MPJ’s records should be corrected to show retroactive placement in the AGR program contingent upon his selection for promotion by a promotion board. d. In the applicant's case, there is no evidence that a position existed for him or that an offer was made to him. The applicant's contact with Ms WXXXXXXX was prompted by the applicant's inquiry and was not made based on a firm commitment to make him an offer. Additionally, the assignment manager's refusal to process a waiver for the applicant is not unreasonable since he was never extended a job offer that would have required the processing of a waiver. e. Another key difference in the applicant's case is that although the applicant was not selected for promotion, he was selected to continue his military service, with his consent, until retirement in 2004. Even if this Board were to speculate that an error was committed by the Army in not offering him an AGR position, the issue is moot since he had been twice non-selected for promotion and his sole motivation for entry in the AGR program was promotion to MAJ. His selection for continuation on active duty would have served a similar purpose as that of service in the AGR. f. The letter, dated 10 January 1998, from the U.S. Army Reserve Personnel Center to the applicant - which was not previously available to the Board - simply notifies him that his name would be on the OML. It did not guarantee him entry into the AGR program or extend an offer to him. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ____X____ ____X____ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. __________XXX__________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. ABCMR Record of Proceedings (cont) AR20110023512 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110023512 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1