MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            20 October 1999
	DOCKET NUMBER:   AR1998013352

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. John H. Kern		Member	
	Ms. Barbara J. Ellis		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, that the officer evaluation report (OER) he received covering the period 1 June 1988 through 29 November 1988 be deleted from his records; that he be reconsidered for promotion to Major under the same criteria used by the Fiscal Year (FY) 94 Army Competitive Category Majors Promotion Board; and that he be reinstated to active duty.

APPLICANT STATES:  In effect, that new evidence regarding the Officer Special Review Board (OSRB) case summary is submitted for consideration.  The applicant contends that his rater who was the brigade executive officer (XO) placed him in a compromising position by requesting a personal loan of ten thousand dollars for a home purchase which the applicant refused.  The applicant goes on to state that the rater did not correctly assess his performance during the rating period because of the loan refusal and that the senior rater, acting on the advice of the rater, did not correctly rate his performance potential.

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

The applicant served on active duty as a USAR officer for 11 years, 8 months, and 1 day, from 15 June 1984 through 15 September 1995.  He was separated in the rank of captain under the provisions of Chapter 3, Army Regulation 635-100, Section XVI.  The documented narrative reason listed on the applicant’s 
DD Form 214 (Certificate of Release or Discharge from Active Duty) at the time of his release from active duty (REFRAD) and transfer to the USAR Control Group was the “Early Release Program-Voluntary Separation Incentive”.  

The contested OER is a permanent change of station (PCS) report for the period 1 June 1988 through 29 November 1988 evaluating the applicant as a captain while performing duties as a Personnel Control Facility (PCF), commander at Fort Ord, California.

The contested OER contained positive statements and ratings from both the rater and senior rater (SR).  The rater commented that the applicant had “superior potential for continued exceptional performance in positions of greater demands and responsibility…Select to attend Combined Service Staff School at the earliest opportunity.”  

The SR placed the applicant in the second block of part VIIa (potential evaluation) of the contested OER.  This placed the applicant in the center of mass (COM) of the SR’s profile (of 12 officers rated, 5 officers were in the top block, 6 officers were in the second block, of which the applicant was one, and 
4 officers were in the third block.  The SR also provided positive comments in part VIIb (comments) portion of the contested OER by stating that the applicant “had great potential and should be promoted ahead of his contemporaries and selected to attend C&GSC now.”  

On 30 November 1994, the applicant appealed the contested OER to the OSRB. In his appeal he stated that he had a deadline to decide whether or not to take one of the exit bonuses or compete for promotion again.  The applicant based his appeal on a substantive inaccuracy because the SR was attempting to accomplish an in-house profile restart and had he been placed in the top block his SR’s profile would have become a top block COM.  He claims that he was done a disservice due to the SR’s attempted in-house restart of his profile.  He also cited comments made by his branch managers at the Total Army Personnel Command (PERSCOM) who stated that the message sent with the contested OER is that there was some type of downturn in the applicant’s performance from his previous ratings.  He concludes his appeal request by indicating that the comments of the rater and senior rater on the contested report support a top block rating and there was absolutely no downturn in his performance during the period of the contested OER.  The applicant provided a statement from the SR with this action.

On 21 December 1994, the applicant’s OER appeal was returned without action by the OSRB based on the delay in the submission of the appeal without the sufficient justification required to waive the 5 year limit.  On 26 January 1995, the applicant resubmitted his appeal with supporting statements from his commanding general and a second statement from the SR.  The OSRB accepted the applicant’s appeal resubmission and reviewed the case on 1 February 1995.  

The SR provided two statements that in support of the applicant’s appeal to the OSRB, the first in 1994 and the second in 1995.  Both these statements indicate, in effect, that all three OER’s the SR rendered while the applicant was performing duties as the PCF commander were outstanding reports when he gave them and that they still are.  In his first statement he states that it was impossible to rewrite OER’s from almost 6 years ago or to alter his SR profile from that time; however, he also comments that he must stand on the outstanding report as it was written. In his second statement the SR provided, he states that he rendered three reports on the applicant while he was the PCF commander and his part VIIa ratings for these reports were second block, top block, and second block, respectively.  He goes on to indicate that on all the reports rendered the raters recommended the applicant’s promotion ahead of his contemporaries which was an assessment he agreed with and which he also recommended.  He further indicates that while his potential block rating changed from 1 to 2 on the applicant’s last report this was not the result of a downturn in his performance but was instead a reaction to guidance he received from PERSCOM that his profile was becoming top heavy.  The final conclusion arrived at by the SR in both statements he provided was that the evaluation he rendered on the applicant in the contested OER was meant to convey outstanding performance and potential and the written comments he made in his portion of the report supports that message.  

The OSRB opined that there was insufficient convincing evidence that the contested OER was inaccurate, unjust, or did not adequately reflect the applicant’s performance and potential.  In addition, it was found that the SR’s history proved he was involved in the proper management of his profile.

Army Regulation 623-105, in effect at the time, established the policies and procedures for the OER system.  Paragraph 4-16 stated, in pertinent part, that Part VII of the OER provides for evaluation of potential by the SR.  The evaluation is made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The evaluation is made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  Paragraph 5-32 stated, 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 stated, in pertinent part, that the burden 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, it is concluded:

1.  That the appraisal of the applicant’s potential contained in the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.  Therefore there is no basis for altering the report.

2.  The contention of the applicant that the SR evaluation contained in part VIIa of the contested OER was the result of tainted advice from the rater was not corroborated by either the evidence of record or the independent evidence provided by the applicant.  There was also no evidence supporting the claim of the applicant that the rater negatively impacted his evaluation because he had refused him a personal loan.  Even if this claim were true, there is nothing in the record to suggest this impacted the evaluation rendered by the rater on the contested report or that the potential evaluation rendered by the SR was impacted. 

3.  The applicant’s conclusion that the promotion board viewed the potential evaluation rendered by the SR on the contested OER as a downturn in performance was only his interpretation and was only arrived at based on an informal opinion advanced by his branch manager.  This was not an official finding of the promotion board and there was no evidence of record to show a material error in the promotion packet of the applicant that was reviewed by the 1994 promotion board.  Therefore, there is no basis for granting the applicant promotion reconsideration by a standby board or for his reentry on active duty.

4.  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.

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

___fkm__  ___be___  ____jhk__  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1998013352	
SUFFIX		
RECON		
DATE BOARDED	1999/10/20	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.		
3.		
4.		
5.		
6.