MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           23 September 1998                   
	DOCKET NUMBER:   AC98-10141

	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:

	Mr. Thomas D. Howard, Jr. 		Chairperson	
	Mr. Fred N. Eichorn 		Member	
	Mr. George D. Paxson 		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 inaccurate Officer Evaluation Report (OER) covering the rating period 13 June 1989 - 12 June 1990 be replaced with the official evaluation by his immediate supervisor during the rated period.

APPLICANT STATES:  The OER in question was done by a rater who did not physically work with or know him during the rated period.  She was at Letterman Army Medical Center and he was at the University of California.  He was misled that in-training OERs were not used for promotion purposes.  Recently, after being passed over for promotion, he has learned that they in fact are considered by promotion selection boards.  He submits statements from his immediate supervisor during his training, who was not his rater, and a statement from his rater, who states she inadvertently rated him incorrectly.

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

The applicant began medical training as a second lieutenant at the Uniformed Services University of the Health Sciences in 1982.  His Academic Evaluation Report (AER) for his first year as a medical student shows he successfully completed the first year of medical school in the lower third of the class.  His AER for his second year shows he successfully completed the second year in the bottom third of the class.  His AER for his third year shows he successfully completed the third year in the bottom third of the class.  His AER for his fourth year shows he successfully completed the fourth year in the bottom third of the class.

His first annual OER for the period 23 June 1986 - 22 June 1987, when he was a transitional intern, shows his rater rated his performance as “usually exceeded requirements” and his potential for promotion as “promote with contemporaries.” On his next two OERs his raters rated him as “always exceeded requirements” and “promote ahead of contemporaries”.  His senior raters gave him a center of mass rating.

The contested OER is an annual report for a 12-month period prepared while the applicant was in first year residency training at the University of California, San Francisco.  His rater rated him as “usually exceeded requirements” and his potential for promotion as “promote with contemporaries.”  The applicant authenticated this OER on 28 June 1990, verifying the administrative data in parts I and II, to include the rating officials, was correct.

He received an annual OER covering the period 13 June 1990 - 12 June 1991, while he was in his second year residency training at the University of California, San Francisco.  His rater rated him as “always exceeded requirements” and “promote ahead of contemporaries.”  His rater was the same individual who rated him on the previous report.  The applicant authenticated this OER on 19 June 1991.

All OERs subsequent to this period have the applicant rated as  “always exceeded requirements” and “promote ahead of contemporaries,” with the senior rater rating him as center of mass ratings in all but two instances, where he was rated above center of mass.

The applicant submitted an OER appeal in 1998.  The appeal was returned without action due to the delay in submission and lack of clear and compelling evidence.

The Officer Special Review Board reviewed this case for the Board.  The opinion of that board was that it should be denied as no new substantive evidence had been presented.

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.  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 addition, that regulation states that substantive appeals must be submitted within 5 years of the OER’s completion date.  This is because, as time passes, people forget and documents and key personnel are less available.

DISCUSSION:  Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, advisory opinion and applicable law and regulations, 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.  By signing the OER, the applicant authenticated the fact that he was being rated by the correct officials.  In addition, the same official who rated him on the contested OER rated him on his subsequent OER, under the same circumstances (he a resident at the University of California while she was at Letterman Army Medical Center) and he had no complaints about her rating him for that period.

3.  The rater signed the OER.  The Board does not believe that she signed it without reading it and understanding what she was signing.  Her written comments are not out of line with her ratings.

4.  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

                       DENY APPLICATION

						Loren G. Harrell
						Director