MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           21 December 2000
	DOCKET NUMBER:   AR199920816

	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. Carl W. S. Chun		Director	
	Mr. William Blakely		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Gail J. Wire		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 1 January 1992 through 15 October 1992 be removed from his official military personnel file and that he be considered by the next standby board for promotion to Colonel.  

In response to an advisory opinion in his case, on 1 December 2000, the applicant’s counsel further requested that an official commander’s inquiry be made by the Commander, Military District of Washington; that a Department of the Army Inspector General inquiry be made based upon the number and degree of irregularities and the gross departure from applicable Army Regulation; and that complete copies of all statements, documents or other matters be obtained by the staff of the Board and/or authors of the advisory opinion.

APPLICANT STATES:  That the rater and the senior rater did not meet the minimum time requirements to render the OER in question.  He states that the OER support form dated 17 March 1992 provides the correct rating officials. 
He states that he was assigned to his new duty position on 1 January 1992, reassigned to another unit on 15 October 1992, and his original rater’s last day of duty was 30 June 1992.  He states that it was improper for his new rating officials to render a report for the period 1 January 1992 to 15 October 1992.  Also, the new rating scheme was not published and he was not advised of the new rating officials until after the reorganization of his unit.  He states that he was ordered to return to his home of record on 13 August 1992 but was extended to 15 October 1992 in an obvious attempt by the rating officials to meet the time requirements to rate him.

He states that he participated in the preparation of the OER support form on 
17 March 1992.  Also, the rating officials were identified, job description and responsibilities discussed, but nowhere in his job description was he advised that he needed a top secret clearance.  He states that the OER was based upon the rating officials observing him at one drill or at a multiple unit training assembly.  He states that the comment by the senior rater that he was unavailable to authenticate the administrative portion of the report is untrue.  He states that if the report had been processed through the proper military personnel office where his presence was known instead of forwarding the OER to the Army Reserve Personnel Command (ARPERSCOM) OER Branch, the administrative and procedural errors could have been corrected. 

Finally, he states that the OER should have been referred in accordance with Army regulation and that the senior rater did not have the discretion to decide the referral of the report.  In support of his application he submits the contested OER, orders noting his unit of assignment, OER support form in support of duties, two letters of support from his initial rater, and a letter of support from the supervisor of his servicing military personnel office.

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

The applicant is a lieutenant colonel in the United States Army Reserve and his branch specialty is military intelligence.

The contested OER was a reassignment report for the period from 1 January 1992 to 15 October 1992.  It evaluated him as the mobilization plans officer.  The report was not considered adverse and it was not referred as such to him.
In Part IVa (Professional Competence) the applicant received a “1” rating in six categories, an “N/A” in two categories, a “2” rating in two categories (Demonstrates appropriate knowledge and Is adaptable to changing situations), and four “3” ratings (Performs under physical and mental stress, displays sound judgement, seeks self improvement, and sets and enforces high standards).

In Part IVb (Professional Ethics) the rater commented that the applicant was reassigned before the scheduled Army Physical Fitness Test, handles stressful situations in an average manner, displayed average judgement in handling senior/joint staff actions, demonstrated a marginal commitment to his unit, and on occasion appeared to place himself above the established standards.

In Part Vb (Performance During Rated Period) the rater checked “Met Requirements”.  In Part Vc (Comment On Specific Aspects Of The Performance), the rater commented that the applicant met requirements and was adequate in accomplishing unclassified assignments. Also, the applicant’s talents could not be fully exploited because he did not possess a top secret clearance.  His lack of security clearance dictated that his annual training be cancelled and that he be reassigned from the Office of the Chief, Army Reserve to the Army Reserve Personnel Center.  In Part Vd (Potential For Promotionl) the rater checked “Promote with Contemporaries”.

In Part Ve (Potential) the rater commented that the applicant’s duty performance was adequate and with additional experience this officer should be considered for future promotion.

In Part VIIa the senior rater placed the applicant in block “4” and marked “NO” that he did not receive and consider the appellant’s support form in preparation of the report. 

In Part VIIb the senior rater commented that the applicant’s performance was marginally acceptable and that he lacked initiative and a sense of commitment desired in his job.  The senior rater also stated that he did not recommend the applicant for promotion or advanced schooling at this time, that the applicant did not provide a completed support form prior to his departure, and that the applicant departed the unit before the report was initiated and was unavailable to sign the report. 
The letter of support dated 10 June 1994 provided by his initial rater indicates the applicant’s security clearance requirements were discussed.

In the processing of this case an advisory opinion was obtained from the Officer Special Review Board (OSRB).  The OSRB indicated that the applicant initially appealed the contested report to their office on 30 May 1997.  The appeal was rejected because it did not contain evidence that substantiated that the report was substantively inaccurate or unjust.

Further, as an exception to the 5 – year rule the OSRB reconsidered the applicant’s appeal based upon new evidence, i.e., a second statement from the previous rater who was familiar with the circumstances related to rendering the OER.  The applicant’s issues were both administrative and substantive.  The administrative issues were addressed by ARPERSCOM which opined that the applicant should have received a change of rater report for the period 1 January 1992 to 1 May 1992.  Also, the applicant’s OER was corrected to reflect “5” in item 1m and “920101-920501 Change of Rater” in item 1q.  The OSRB concluded that all issues raised were not substantiated by the evidence and/or were not considered to have overcome the presumption of regularity or invalidated the content of the report.  The OSRB recommended that the applicant’s request be denied. 

A copy of the advisory opinion was provided to the applicant through his counsel for comment.  His counsel responded that the advisory opinion is in error in material part because it ignores, misconstrues, and misapplies uncontroverted evidence that raises the standard of proof of error beyond that which is clear and convincing evidence to a standard that is violative of fundamental due process.  He contends that such uncontroverted evidence when applied to Army Regulation 623-105 meets the standard of proof and relief is warranted. 

Counsel contends that the advisory opinion erred in considering any evidence from the senior rater because the senior rater was not fully apprised of his OER appeal contentions when questioned, that the senior rater was not afforded the opportunity to refresh his memory of the facts and events, and the senior rater was never asked to define what were the extraordinary circumstances.  He contends that the advisory opinion erred as a matter of law in computing the applicant’s rating period and that the applicant’s rating period was extended to achieve the rater qualifications by counting time after the applicant had been relieved and including the time before the applicant’s knowledge of his rating chain.  He contends that the applicant’s rating chain was not published and distributed to the applicants in accordance with Army Regulation 632-105, paragraph 1-9.  He contends that the advisory opinion ignored the fact that if the report had been considered administratively incorrect, it would have been returned, and it was not.  

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraphs 3-2 and 3-10 provide that to be eligible for an evaluation report, a rated officer must complete 90 calendar days in the same position under the same rater, and the senior rater must normally serve in that capacity for a minimum of 60 days.

Paragraph 4-27 of the same regulation provides that an OER will be referred if it is a relief for cause report; any report with negative remarks about the rated officer’s professional ethics in Part IVb, and/or in the rating officials’ narrative evaluation(s); any report with a rating of 4 or 5 in any of the 14 attributes in Part Iva; any report resulting in a performance evaluation of “ Often failed requirements” or “Usually failed requirements” in Part Vb; any report with a potential evaluation in Part Vd of ”Do not promote” or narrative comments to that effect from any rating official; any report with a performance and potential evaluation in Part Vd of “Other,” where the required explanation has derogatory information; any report with a senior rater promotion potential evaluation in one of the bottom three blocks in Part VIIa; any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career; any report with an entry of “Fail“ in Part IVa, item 3, indicating noncompliance with AR 350-15; or an entry “NO” in Part IVa, item 12, indicating noncompliance with AR 600-9. 

Paragraphs 5-32 and 9-2 of the same regulation provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgement of the rating officials at the time of preparation.  Requests that an OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

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.

Current Departmental regulation and policy provides that soldiers may request Commander’s and Inspector General Inquiries on their own behalf.

The Army Board for Correction of Military Records reviews individual requests, including evidence submitted in behalf of applicants, individual military records and advisory opinions provided.
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 provided sufficient evidence to support his contention that the rating officials were not in accordance with Army Regulation 623-105, or that the rating contained erroneous information which rendered the report invalid.

2.  The Board concurs with the opinion and the administrative corrections by ARPERSCOM that the applicant should have received a change of rater report for the period 1 January 1992 to 1 May 1992.  Also, the applicant’s OER was administratively corrected to reflect “5” in item 1m and “920101-920501 Change of Rater” in item 1q.

3.  The Board found no evidence submitted by the applicant to substantiate his contentions that his rating officials extended his active duty to meet the time requirements to rate him and that the contested report was based upon one isolated observance.

4.  The applicant’s contentions that he was not advised of the new rating scheme, that the new rating scheme was not published, and that the OER was improperly processed do not serve as a basis for removal of the contested OER.

5.  The applicant’s contention that he was never advised that he needed a top secret clearance is without merit.  The Board notes that the letter of support dated 10 June 1994, provided by his initial rater indicates the applicant’s security clearance requirements were discussed. 

6.  The applicant’s contention that the contested report should have been referred by the senior rater is moot.  He has provided no evidence to dispute the inaccuracy of the comments or the rating rendered if the report would have been referred. 

7.  The applicant’s contentions that the senior rater was not fully apprised of his OER appeal contentions when questioned by the OSRB, the senior rater was not afforded the opportunity to refresh his memory of the facts and events, and the senior rater was never asked to define what were the extraordinary circumstances have been noted by the Board.  However, the applicant’s contentions provide no justification for deletion of the contested report in accordance regulatory guidance.

8.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

9.  The Board notes that it is the applicant’s responsibility to initiate a Commander’s Inquiry and a Department of the Army Inspector General’s inquiry, and that the responsibility of this Board is to review all of the available evidence, to include that submitted by or on behalf of the applicant.

10.  In considering this case, the Board reviewed the applicant’s application, including all evidence submitted, his military records, and the advisory opinion rendered in his case, to include his counsel’s rebuttal.  There are no other statements or documents to provide to his counsel.

11.  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

__KAK__  __EWL__  __GJW___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR1999020816	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001221	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.