MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 June 1999                  
	DOCKET NUMBER:   AC95-08229A
                                              AR1998000784

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Mr. Ernest W. Lutz, Jr.		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, through his United States Senator, reconsideration of his prior request that that two DA Forms 67-8 (Officer Evaluation Reports), for the rating periods 19820612-19821121 and 19821122-19830412 be removed from his records and that he be reinstated on active duty with the rank of major.  

APPLICANT STATES:  In essence, that his prior request was denied because his Official Military Personnel File (OMPF) could not be found.  A copy of the Board’s prior action, dated 23 October 1996, is included with the current action.  He submits a copy of his OMPF which he obtained from the Total Army Personnel Command (PERSCOM) in 1995.  He believes his personnel file still exist at the PERSCOM or at the Army Reserve Personnel Command (AR-PERSCOM).  His original request, dated May 1995, notes that he was twice non-selected for promotion to the rank of major while on active duty.  The two OER’s in question should not have been considered by the promotion selection boards that did not select him for promotion because the reports were not referred to the applicant for comments.  They are the only two “adverse elements” in his OMPF.  He states that his assignment officer reviewed his records and he was rated as being an above center of mass (COM) officer.  He submits an article from his career branch (Adjutant General Corps (AGC)) concerning a review of Year Group 1982 officer records.  He, the applicant, has a better record than at least one of the officers still on active duty.  

He appealed these two reports (copies of the reports also included with his packet), and it was denied because the denying official at the PERSCOM stated that since the senior rater (SR) did not feel the reports warranted referral, there was no basis established for the appeal.  (A copy of the denial of appeal is enclosed with the application).  He discusses his rationale for not filing an earlier appeal, which was based on two factors: 1) that he did not realize the real damage these two reports did to his file until he was scheduled for discharge; and 2) he did not appeal based upon recommendations of senior officers.  The rationale was that a denied appeal in his records would look worse than no appeal whatsoever.  His final submission is a copy of his Officer Record Brief.  

EVIDENCE OF RECORD:  A microfiche copy of the applicant’s entire OMPF has now been obtained by the Board.  His military records show:

He was appointed and commissioned as a second lieutenant (2LT), AGC, Army Reserve (USAR), from a Reserve Officers’ Training Corps (ROTC) program on 19 May 1982. He was ordered to active duty on 24 May 1982, to his first duty station at Fort Riley, Kansas.  He was sent from that post to Fort Benjamin Harrison, Indiana for the AGC Officer Basic Course(OBC) from 14 June-
12 August 1982.  While at the OBC course, he was appointed and commissioned as a 2LT, AGC, Regular Army, as a Distinguished Military Graduate from his

ROTC program.  He exceeded course standards and was one of the top 
20 percent of graduates from his course.  

The applicant was promoted to the rank of first lieutenant on 25 November 1983 and to captain on 1 December 1985.  He completed the AGC Officer Advanced Course in June 1987, the Combined Arms and Staff Services (on a temporary duty residency basis) in October 1990 and the Command and General Staff College, on a non-residency basis in August 1991.  

His duty assignments included service as the executive officer of a replacement detachment (during which the reports in question were rendered), then a deputy chief of the Administrative Services Division and Chief, Levy Section, Adjutant General’s Office, then as an Assistant Secretary of the General Staff, all at the 1st Infantry Division, Ft. Riley, Kansas from May 1982-September 1986; then, after his officer advanced course, he was assigned to the USAISC-South, in Panama as the Adjutant/Chief Resources from June 1987 through May 1989; then as operations officer of a Manpower Entrance Processing Station (MEPS) in Iowa from May 1989 through August 1991; and, finally, as a company commander of a Replacement Battalion at Fort Benning, Georgia, from August 1991 through February 1994, when he was separated from active duty.  

The following is a record of the applicant's available officer evaluation reports (OER's) (DA Forms 67-8) from June 1982 through February 1994, the last OER during the period of active duty under review.  Note that, for the DA Form 67-8, the rating system depicted below has six entries:  the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant:

Period                      Rater/Senior Rater Profile               Type of Report

Jun-Aug 82		Exceed Course Standards		(DA Form 1059) Academic
Jun 82-Nov 82*	I/I/Top4/3/0/0				Change of Rater
Nov 82-Apr 83*	I/I/Top3/3/1/1				Change of Duty
Apr 83-Jan 84	I/I/Top2/1/2/0				Change of Rater
Jan 84-Apr 84	I/I/Top2/2/4/0				Change of Duty
Apr 84-Feb 85	1/1/Top2/4/12/0			Change of Rater
Mar 85-Aug 85	Non-Rated Period			Dept of Army (DA) Action
Aug 85-June 86	1/1/Top2/11/51/37			Change of Rater
June 86-Sep 86	1/1/Top2/11/56/38			Senior Rater Option
Sep 86-Jun 87	Exceed Course Standards		Academic
Period                      Rater/Senior Rater Profile             Type of Report
(Continued)

Jun 87-Jun 88	1/1/TopBlock/0/1/6			Annual
Jun 88-May 89	1/1/TopBlock/0/1/1			Change of Rater
May 89-May 90	1/1/Top2/1/8/5			Annual
May 90-Jan 91	I/I/Top2/9/26/5		 	Senior Rater Option
Jan 91-Aug 91	I/I/TopBlock/0/9/7			Perm Change of Station
Aug 91-Jun 92	1/1/Top2/48/67/4			Complete the Record
Jun 92-Apr 93	1/1/Top2/1/1/1			Change of Duty
Apr 93-Feb 94**	1/1/Top2/0/0/0			Change of Rater

*---Reports in Question
**--DA directed correction.  No promotion
         reconsideration authorized.  

Information concerning the applicant’s request is contained in the opinion (COPY ATTACHED) from the Total Army Personnel Command (PERSCOM).  The opinion basically stated that the applicant’s request was not submitted on a timely basis;  that the reports did not meet the criteria which required mandatory referral; and that he did appeal another OER (19930416-19940203) which was corrected.  However since this report was for a period of service outside of the period for which he was considered and nonselected for promotion (a period of service after he was nonselected for the second time), there was no basis for promotion reconsideration.  Finally, the opinion noted and provided the regulatory requirements for mandatory separation in cases where an active duty officer is twice nonselected for promotion.  

The opinion was provided to the applicant for his review and possible comment.  He responded (COPY ATTACHED) that he found the opinion to be objectionable. He stated that as a senior personnel officer, the senior rater for the two reports in question, should have known that these reports would have an adverse effect on his career and should have been referred.  Therefore he, the rated officer, believes his records are incomplete because the reports were added to his OMPF without referral.  He claims that:  “For years the Army has used these reports inappropriately to assign me to new postings, determine my eligibility for personnel actions and finally to establish my promotion eligibility.”  

He also contends that the 5-year requirement for OER appeals does not apply in his case and cites a Federal court-case to support his claim.  He also objects to the comment that he, the applicant, should have contacted his senior rater to see what his intent was at the time.  The comment from the senior rater would not be accepted as the ruling could be made that the comment was “…without relevance because it was disconnected in time from the evaluation.”  

The applicant then goes on to state that the current appeals system is flawed and does not provide an effective remedy.  Essentially, he claims that if an officer appeals a report, that “scars” are left on the record, whether a favorable action is taken or not taken.  As a selection board officer, he would find it hard to disregard two corrections to records right at the beginning of an officer’s career record and also the selection board officers are not sworn to disregard multiple OER appeals in a file.  He contends that the PERSCOM official’s comments on his 1995 appeal of his last OER on active are not germane to his case and even more so demonstrates, in essence, that there is a record of the appeal in his records.   

The applicant then notes that the Letter of Instruction to Departmental selection boards (He submits a copy of a 5 August 1992 memorandum from the Secretary of the Army to the President, Fiscal Year 1992 Major, Army Promotion Selection Board, SUBJECT:  Selection Board Instructions), contains instructions which deny him equal protection under law.  He essentially claims that the “instructions” make provisions for an automatic “quasi-appeal” of the tentative results when a female or minority is not selected for promotion.  These officers have no requirement to prove or even to claim discrimination or injustice.  He believes this additional review should happen to all officers records who are initially non-selected for promotion.  The reports in question fall squarely into a category where there is clear evidence of potential injustice.  

The applicant was honorably separated from active duty, with the rank of captain, on 1 June 1994, under the provisions of Chapter 3, Section XIII, Army Regulation 635-200, by reason of failure of selection for permanent promotion.  He was credited with 12 years and 8 days active service.  He was appointed and commissioned as a captain, USAR on that date and was transferred to a troop program unit (TPU) in the USAR.  He was promoted to the rank of major, USAR on 12 September 1996, with an effective date of promotion (the date from which his next promotion in the USAR would be computed) of 1 December 1993.  He served for 7 months on active duty with the 1st Personnel Command in Germany in connection with Operation Joint Endeavor from January through August 1996.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provided that an OER (also an AER) accepted by Headquarters, DA, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof 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.

That same regulation, at paragraph 4-27, then in effect, provided the criteria for referral of OER’s to a rated officer by the senior rater.  Reasons for referral included a relief for cause report; a report containing negative remarks about the officer’s professional ethics or in the rater’s or senior rater’s narrative evaluations; any ratings of 4 or 5 in the l4 items of professional competence; if the officer is not recommended for promotion, or failed or often failed to meet requirements;  a potential rating of “Other,” when negative comments are present; any report with senior rater potential in one of the three bottom blocks (top 8 or top 9 or the bottom block in Part VII a; any report where the officer fails a physical evaluation test or fails to meet weight standards; and finally, on any report that is referred by the senior rater because he believes that any ratings or comments are so adverse that the report may have an adverse impact or the rated officer’s career. 

Army Regulation 624-l00, at paragraph 2-5f, then in effect, precluded promotion selection boards from divulging reasons for selection or nonselection of officers for promotion or other matters of the board's proceedings.  Members of the promotion selection boards took an oath to this effect.

Federal statute, as amplified by Army regulations (Army Regulation 635-100, Chapter 3, then in effect), provided that Regular Army commissioned officers (except commissioned warrant officers, which operate under their own set of laws) twice not selected for promotion to the next higher rank, except to the ranks of colonel and general, would normally be separated from active duty within 
7 months of the approval of their second nonselection by the Secretary of the Army.

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.  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, in this case, has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The Board notes that the two OER’s in question were the first two reports rendered on the applicant.  There were no adverse comments by either the rater or the senior rater.  In fact, the remarks were highly complementary.  The senior rater saw fit to mark the applicant in the 4-block for the first report, which was a below COM report.  However, the next report was a 3-block report, and while still below COM report, it was an improvement.  Thereafter, his reports at Fort Riley were all 2-block reports, and were clearly COM reports in a variety of duty positions, to include more than 1 years as an Assistant Secretary of the General Staff, a very important duty position with very high visibility.
3.  Therefore, the Board concludes that the reports were not incomplete nor did they warrant referral to him for formal comment.  If he believed the reports so adverse, then he still had the option to appeal the reports under the appeal process outlined in Army Regulation 623-105.  

4.  The Board also can find no proof that the OER’s in questions affected other personnel actions in his career.  He completed three levels of military schooling after the completion of the reports and was apparently a very gifted student.  His duty assignments after departing Fort Riley appear to be consistent with a young AGC officer, with increasing levels of responsibility at the captain level.  

5.  The Board finds a questionable logic on the part of the applicant as pertains to not appealing questionable OER’s because it would “mar” his records.  There are at least two appeals in his records at this point, albeit one was after he was twice non-selected for promotion to major.  That is the purpose of the OER appeal process, to provide an officer, or a noncommissioned officer, with the ability to appeal OER’s that they believed were in error or unjust.  If the appeal is denied, he or she may appeal to this Board, as has been done in this case.  In any case, the denial of appeals to this Board or substantive appeals to the Officer Special Review Board (OSRB), in the Office of the Deputy Chief of Staff for Personnel, are not made a matter of record in an officer’s performance fiche, rather they are filed on the officer’s restricted fiche, which is not normally made available to promotion selection boards and to career managers.  Denials of administrative appeals are returned to the individual and are not made a matter of record in the OMPF.  Of course, if corrective action is directed by the OSRB, this Board, or administrative corrections are required, a record of the corrections would be shown on the performance fiche and the actual OER’s in question would be corrected.  

6.  The applicant has likewise failed to prove to the Board that his record was not properly evaluated by the appropriate Departmental promotion selection boards appointed in 1992 and 1993 to consider him for promotion to the rank of major.  The Board will not speculate as to the operation of the selection board and the fairness of their deliberations.  The memorandum of instruction to the promotion selection board, a copy of which was provided by the applicant, clearly addresses a specific problem, which the Secretary of the Army believes must be closely monitored.  A careful reading of the memorandum also shows that these special reviews only come into play if the selection board does not select a fair proportion of female or minority officers.  This Board finds these special instructions do not seriously affect the selection process.  

7.  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

__EWL__  ___JLP__  __TAP___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AC95-08229A/AR1998000784	
SUFFIX		
RECON	19961023	
DATE BOARDED	19990617	
TYPE OF DISCHARGE	HD	
DATE OF DISCHARGE	19940601	
DISCHARGE AUTHORITY	AR135-100, C3	
DISCHARGE REASON	A82.00	
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	144.00	
2.	111.00	
3.		
4.		
5.		
6.