MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 November 1999                   
	DOCKET NUMBER:   AR1998006203

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. Erin J. Olmes		Chairperson	
	Ms. Jennifer L. Prater		Member	
	Mr. James E. Anderholm		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 the Officer Evaluation Report (OER) for the period 16 February 1992 – 15 February 1993 be expunged from her records.

APPLICANT STATES:  That the OER contains both administrative and substantive errors.  Captain ____ was her rater for the first 46 days of the rating period but he was not afforded an opportunity for letter input to her OER.  The OER rating scheme dated June 1992 shows her previous senior rater, Lieutenant Colonel (LTC) W____ still as her senior rater.  It was not until February 1993 that LTC R____ was assigned to the Brigade Executive Officer (XO) position.  Her assigned position called for a 31A, Military Police (MP); she was 35A, Military Intelligence (MI).  She was accepted in that active guard/reserve (AGR) position despite the military specialty mismatch and it has become an issue noted in her OER.  She was refused the opportunity to attend either the MI Advanced Course (MIOAC) or the MPOAC.  The senior rater on the contested OER was her personnel management officer at the time she requested attendance at the MIOAC.  The circumstances point to a strong relationship between his failure to alleviate her military specialty qualification problem and his negative evaluation of her performance.  She includes 16 enclosures as supporting documentation:  1.  The contested OER; 2.  A unit manning report (UMR) prepared 5 February 1993; 3.  Her immediately preceding OER; 4.  Her support form; 5.  An OER rating scheme dated 27 June 1992; 6.  An OER rating scheme dated 1 April 1993;       7.  A UMR dated 27 August 1992; 8.  Letter input to OER from her previous senior rater dated 14 April 1993; 9.  Letter of Recommendation from her previous senior rater dated 1 February 1993; 10.  Request for attendance at MIOAC; 11.  Orders/revocation of orders assigning her to MIOAC; 12.  Memo regarding her request to enroll in MPOAC; 13.  Enclosure to memo regarding her request to enroll in MPOAD; 14.  Course completion certificate; 15.  Page one of an unprocessed recommendation for award; 16.  Certificate of Appreciation.

EVIDENCE OF RECORD:  The applicant's military records are not available.

At some time, the applicant voluntarily entered active duty in an AGR position.  

The applicant’s OER for the period ending 15 February 1992 shows she was an MI Branch officer assigned as the Assistant Operations and Training Officer (an MP position) with Headquarters, 8830th U. S. Army One-Station Unit Training Brigade, MP.  Her rater was the Operations and Training Officer and her senior rater the Brigade XO.  On this OER she was given all 1s (to the highest degree, a 5 being to the lowest degree) in the 14 areas of professional competence.  Her performance evaluation was checked as Always Exceeded Requirements (the highest rating) and her potential for promotion evaluation as Promote with Contemporaries (the second highest rating) by her rater.  The senior rater gave her a 2-block rating (center-of-mass; she was the only officer he had rated).  

A rating scheme prepared 27 June 1992 shows LTC W____ as her senior rater.
The contested OER is an 11-month annual report for the period 16 February 1992 – 15 February 1993.  The applicant’s duty position remained the same.  Her new rater was the Brigade S2/3 (S2 – Intelligence Officer; S3 – Operations and Training Officer) and her new senior rater was the Brigade XO.  On this OER she was given two 2s in the 14 areas of professional competence (“maintains appropriate level of physical fitness” and “seeks self-improvement” blocks).  Comments in this part included “Assignment out of MOS has not assisted in the professional development of this officer,” “Continues to seek improvement on semi-annual APFT,” and “…still not duty MOS conversant.”  Her performance evaluation was checked as Usually Exceeded Requirements (the second highest rating) and her potential for promotion evaluation as Promote with Contemporaries (the second highest rating) by her rater.  The senior rater gave her a 3-block rating (center-of-mass; she was the only officer he had rated). Comments by the senior rater included “…her performance was affected by not being able to focus her efforts to attention to detail and the established priority of assigned tasks.” 

A UMR prepared 8 August 1992 shows (in handwritten entries) LTC W_____ and LTC R_____ in the XO position.  An unknown person annotated the entry showing LTC R_____ as “excess posn.”

A rating scheme prepared 1 April 1993 shows LTC R_____ as her senior rater.

LTC W_____, in his letter of recommendation, notes “Enroute to my assignment with this Brigade I suffered a stroke.  As a direct result of my medical condition, Captain _____ (the applicant) was tasked with the duties of the Brigade Executive Officer in addition to her full-time Assistant…”

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Rating chains must correspond as nearly as practical to the chain of command and supervision within an organization.  Normally, a rated officer must complete 90 calendar days in the same position under the same rater.  The senior rater must normally serve in that capacity for a minimum of 60 calendar days.  Written comments may be provided under certain circumstances when an officer is under dual supervision.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

In the processing of this case, an advisory opinion was obtained from the Officer Special Review Board (OSRB) (SEE ATTACHED).  The OSRB recommended disapproval of the applicant’s request.  The OSRB contacted the applicant’s rating officials.  The rater informed the OSRB that he had assigned her duties commensurate with what he believed an MI officer should be familiar with, such as physical and operational security in the context of the Brigade S2/S3 shop and those duties normally required of all officers such as processing routine staff actions.  He stated there was no confusion as to who her senior rater was.  The previous senior rater’s health problems prevented him from performing the day-to-day duties and when LTC R____ arrived in August 1992, he immediately assumed the duties of the “full-time” Brigade XO.  The senior rater informed the OSRB that he worked very closely with the applicant on a daily basis.  He recalled that it was Army Reserve Personnel Center (ARPERCEN) policy not to assign an individual to the resident OAC until the initial AGR tour had been completed.  While it was not preferred that an officer of one branch serve in an AGR duty position specified for a different branch, it was not uncommon.  In addition, an AGR applicant had the right to refuse an assignment.  The permanent unit administrative specialist informed the OSRB that he recalled LTC R_____ assumed the duties of Brigade XO immediately upon his arrival and that he had replaced LTC W_____.  LTC W_____ remained assigned to the Brigade but was considered an administrative hold due to medical reasons.  His health problems eventually resulted in his medical retirement in February 1993.

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, 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.  Captain ____ was the applicant’s rater for only the first 46 days of the rating period of the contested OER.  A minimum of 90 days is normally required.  Written comments (“letter input”) are authorized only in certain circumstances involving dual supervision.  This did not apply in the applicant’s case.  

3.  The Board agrees that the applicant’s rating schemes were not updated as often as they should have been.  However, at all times during the periods of the contested OER and the one immediately preceding that OER she worked for the Brigade XO.  LTC W_____ in his letter of recommendation states that he suffered a stroke en route to his assignment with the Brigade and as a result the applicant was tasked with the duties of the Brigade XO in addition to her full-time duties.  He was later medically retired because of his medical condition.  The permanent unit administrative specialist recalled that LTC R_____ assumed the duties of Brigade XO immediately upon his arrival and that he had replaced LTC W_____.  The Board concludes that LTC R____’s immediate assignment as the Brigade XO was logical in light of LTC W____’s health problems and that the applicant knew she was senior rated by the officer who actually performed the duties of Brigade XO and not the person who held that position only on paper.  (The Board also wonders how the applicant could have been senior rated by LTC W____ previously when she performed the duties of the Brigade XO.)

4.  AGR personnel are voluntarily called to active duty.  The applicant did not have to accept assignment to an MP officer position.  

5.  The Board concludes the applicant was refused the opportunity to attend either the MIOAC or the MPOAC because of normal operating procedures having nothing to do with her senior rater.  Her request to the Army Institute for Professional Development to attend the MPOAC was turned down due to a restructuring of the course.  She states ARPERCEN refused her attendance because she was on her initial AGR tour and policy was not to send anyone to resident schools until they PCSd (permanent change of station) at the end of the tour.  The Board concludes this is a reasonable rationale based upon longstanding PCS-cost-constraint policies. 

6.  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

__ejo___  __jlp___  __jea___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998006203	
SUFFIX		
RECON		
DATE BOARDED	19991118	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.