MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:            9 December 1998                  
	DOCKET NUMBER:   AC98-10556

	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. David H. Keller		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar 		Chairperson	
	Mr. Fred N. Eichorn		Member	
	Mr. Thomas B. Redfern, III		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 an officer evaluation report (OER) covering the period 14 May through 24 October 1996 be expunged from his records.

APPLICANT STATES:  That the subject OER is a clear case of retaliation.  He contends that the report is a negative evaluation; that while the OER says nothing bad about him, it also says nothing good.  That since his rater was the only conduit of information between himself and the rest of his rating chain, their evaluations also reflected her bias.  He then alleges that the rater lied, told half truths and grossly exaggerated her comments about him, both in the OER and during a commander’s inquiry into the matter.

In support of his request, the applicant submits a comprehensive eight-page continuation sheet of his application, outlining his contentions and bases for his position.  He attaches numerous enclosures(exhibits) and tabs to his request, including statements from fellow officers and coworkers, two previous OERs, and the commander’s inquiry relative to the subject OER.

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

That, with prior enlisted service in the National Guard, he was appointed a Reserve commissioned officer in the rank of first lieutenant, Judge Advocate General’s Corps, on 14 May 1985.  He was integrated into the Regular Army on 3 February 1993 in the rank of major.

The contested OER is a permanent change of station (PCS) report evaluating the applicant as Chief, Administrative Law, for the 10th Mountain Division and Fort Drum, New York.  The rater (a major) gave the applicant ratings of 1 in part IV, the performance evaluation portion of the OER.  Her supporting comments were favorable.  In Part V, the performance and potential evaluation portion, the rater checked the “always exceeds requirements” performance block, and checked the “promote ahead of contemporaries” potential block.  Again, the rater’s supporting comments were favorable.

The intermediate rater (a lieutenant colonel) also made favorable comments about the applicant’s performance and potential.

The senior rater (a colonel) placed the applicant in the top block of part VIIa, the potential evaluation portion of the OER.  (The senior rater potential evaluation portion contains nine blocks.  A rated officer’s placement in the top block determines that he possesses greater potential than an officer placed in the second through ninth blocks.)  The supporting comments by the senior rater were favorable.

On 1 May 1997 the applicant requested the Commanding General, 10th Mountain Division, conduct a commander’s inquiry into the subject OER.  The applicant alleged that he was the victim of a vindictive reprisal by his rater for testifying in the investigation she initiated against the former Staff Judge Advocate (SJA).  That his testimony in some instances was favorable to the former SJA and in others was unfavorable to his rater.

On 6 June 1997 the commanding general informed the applicant that he conducted a commander’s inquiry as requested and found insufficient evidence to support his allegation.  The inquiry did review and consider all the third party memoranda which he now provides with this application.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the Officer Special Review Board (OSRB).  The applicant’s appeal was returned without action because the applicant failed to provide sufficient evidence of a clear and convincing manner which refutes the evaluation by substantiating his claims of bias and retaliation by the rating officials.  He provided no supporting statements from the intermediate rater or senior rater, nor official results from Equal Opportunity/Inspector General inquiries that he initiated which might substantiate his contentions.  It was noted that the commander’s inquiry found no validity to the applicant’s claims of substantive inaccuracies.  The only new evidence submitted is his unsupported speculation regarding the circumstances of his job and his assessment of his rating officials’ motives to render what he considers an unjust evaluation.  The OSRB recommended the applicant’s request be denied.

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, for inclusion in the official record of an officer is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be withdrawn will not be honored.  An exception is granted only when the information which was unknown or unverified when the OER was prepared is brought to light or verified that the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time it was prepared.  Paragraph 5-32 also states that an OER is presumed to represent the considered opinions and objective judgment of the rating official(s) at the time of preparation.

Paragraph 9-7 of the regulation states that the burden of proof in any 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 error or inaccuracy is warranted.

Paragraph 4-17 of the regulation further states that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance of incidents occurring before or after the rating period.

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(s), it is concluded:

1.  The applicant has not convinced the Board that the subject OER is a negative evaluation.  To the contrary, the report reflects the highest marks and numerical ratings possible; the applicant is displeased that the rating officials’ comments are not as “glowing” as he feels they should be.

2.  The commander’s inquiry, after a thorough investigation, found no validity to the applicant’s claim that he was the victim of vindictive reprisal and bias.

3.  The OSRB did an extensive and thorough review of the facts and evidence and came to the proper conclusion that there was insufficient evidence to expunge the OER from his official records.

4.  The burden of proof rests with the applicant to submit relevant material and competent evidence to clearly and convincingly establish that his OER was inaccurate and unjust.  He 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

________  ________  ________  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	YYYYMMDD	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.		
2.		
3.		
4.		
5.		
6.