MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 2000           
	DOCKET NUMBER:   AR1999021486

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson. 		Chairperson	
	Mr. George D. Paxson		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:  In effect, removal of two DA Forms 67-8 (US Army Officer Evaluation Report) (OER) for the rating period 910525-920524 and 920525-930524 from his records, referral of his records to a promotion standby advisory board (STAB) for promotion reconsideration to the rank of lieutenant colonel (LTC), and if selected, restoration to active duty with the appropriate pay adjustments.  

APPLICANT STATES:  In a brief prepared by counsel for presentation to the Officer Special Review Board (OSRB), in the Office of the Deputy Chief of Staff for Personnel, that the reports were prepared in based on an incorrect interpretation of Army regulations, which caused him to be rated below center of mass (BCOM) on both reports.  He is a highly qualified nuclear medicine officer (physician), that his other OER evaluations show him as being extraordinarily competent.  The comments on the OER’s by the senior rater are highly inconsistent with the service of the applicant; that the senior rater, in a memorandum to the applicant, indicates that the reason for ratings BCOM was his failure of two physical training tests (known at that time as Army Physical Readiness Tests (APRT’s)); that as a physician he is in a special category not subject to separation for APRT failures (he cites DOD Directive 1332.l8 (4 Nov 96), part 3, para D.2., as the basis for this statement); that the senior rater, by use of this criteria, “…violated his responsibility to rate future potential and failed to recognize the physical standard by which medical officers are measured.”  The application goes on to note that the officer corrected his deficiency and his subsequent OER’s are “outstanding.”  His award of the Army Commendation Medal for his service during this period, as reinforced by a subsequent award of the Meritorious Service Medal for the same period of service, is inconsistent with two referred OER’s.  His application contain copies of the OER’s in question, as well as subsequent OER’s, his resume of his qualifications as a physician, his certification for medical privileges from Walter Reed Army Medical Center, and copies of his award recommendations (DA Forms 368).   

COUNSEL CONTENDS:  That the applicant’s case was sent to the OSRB, but his appeal was denied because the case was submitted past that Board’s 5-year rule for processing OER appeals. 

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

The applicant was appointed and commissioned as a captain, Army Reserve (USAR), later corrected to major, Medical Corps, on 21 February 1991.  His specialty was 60B (Nuclear Medicine Officer).  After completion of his initial training, he was assigned to duties as a Nuclear Medicine Officer, at Walter Reed Army Medical Center in May 1991.  He remained assigned to that position for his entire period of service.

On 9 October 1997, the applicant was notified by the US Total Army Personnel Command (PERSCOM) that he had twice been considered, but not selected, for promotion to the rank of LTC.  He was informed that in accordance with Army Regulation 600-8-24, Chapter 5, that he would be released from active duty not later than 1 February 1998, for twice being not selected for promotion.  This date was in accordance with the cited regulation which states that officers in the applicant’s category, who are twice not selected for promotion would be separated not later than the first day of the 7th month after the Secretary of the Army approved the promotion list (July 1997 in this case).  He was encouraged to become affiliated with a USAR or National Guard organization in order for him to continue his Army affiliation and serve his country.

On 1 February 1998, the applicant was honorably separated from active duty, in the rank of major, and was transferred to an Army hospital in Baltimore, Maryland, a unit of the Reserve components.  He was credited with 6 years, 
11 months and 24 days active service.  His awards and decorations included the Meritorious Service Medal, the Army Commendation Medal, the Army Achievement Medal, the National Defense Service Medal, the Army Service Medal and the Army Superior Unit Award.

During the rating periods in question, the applicant received two OER’s.  Both reports were annual reports.  The first report, prepared by a major, for the rating period 920525-930524, shows in Part IV, Section a (Professional Characteristics), Item 3 (Maintains Appropriate Level of Physical Fitness) the entry:  Fail 91/10 and gave him a numerical rating of 3 (1 being the highest rating, 5 being the lowest).  In Item b, the rater commented:  “a.3.  Did not pass PT test.  Maj (applicant’s name) is in a remedial course making progress.”  The rater, in Part V (Performance and Potential Evaluation), showed in Section B that the applicant usually exceeded requirements, and in Section C, noted that the applicant had served “competently” during the rated period.  The rater covered several accomplishments of the applicant during the year.  In Section D, the rater recommended that the applicant be promoted with his contemporaries and that he had potential to become a senior Nuclear Medicine Officer.  

The senior rater, a colonel, Chief of the Nuclear Medicine Service of the Medical Center, in Part VII-Senior Rater, Section A (Potential Evaluation), rated the applicant in the fourth block, the first block being the highest, the ninth block being the lowest.  In his comments in Section B, the senior rater noted that applicant performed his duties in an outstanding manner.  He covered several accomplishments of the applicant and noted that he would make an excellent staff Nuclear Medicine Physician. 

On 22 May 1992, the report was referred to the applicant for comment as to the adverse comment in the report that he “Failed PT Test.”  The applicant acknowledged receipt of the report, but indicated that he would make no comments.  

On 24 May 1993, a second annual OER was completed on the applicant for the rating period 25 May 1992 through 24 May 1993.  He had the same rater and senior rater, in the same duties.  In Part IV, Item a.3., the rater commented that the applicant had failed the APRT, this time in October 1992,  In Item b, the rater commented; “a.3.  Did not pass PT Test.  This does not interfere with his ability to perform his duties.”  

In Part V, the rater again noted that he usually exceeded requirements, covered several aspects of his duty accomplishments, and again noted that the applicant had performed his duties competently.  The rater again recommended that he be promoted with his contemporaries and that he had the potential to advance to more senior positions with additional administrative responsibilities.  

The senior rater again rated him in Part VII, Section A, in the fourth block.  In part B, the senior rater stated:  “I concur with the rater’s evaluation of Major (applicant’s name).  He has performed his duties competently during this rating period.”  The senior rater then went on to state that the applicant had assumed additional administrative duties related to day-to-day operations and that he had the potential to perform successfully as a Nuclear Medicine Officer.  He also commented:  “His failure of the ARPT (sic) is a persistent performance problem.”

The report was again referred to the applicant because of the remarks concerning the failed APRT.  The applicant did not make any comments on the referred OER.  

The following is a record of the applicant's available OER's and School Academic Evaluation Report from March 1991 through September 1997.  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:

		       Score/    
Period	Rater/SR Profile	Type of Report

Mar 91-May 91	Exceeded Course 	Academic-
		Requirements	AMEDD Basic
		
May 91-May 92	II/II/Top 4/61/7/10 (BCOM)	Annual  *

May 92-May 93	II/II/Top 4/61/7/10 (BCOM)	Annual  *
		       Score/    
Period	Rater/SR Profile	Type of Report

May 93-May 94	I/I/Top 2/0/1/0	Annual

May 94-May 95	I/I/Top 3/2/1/0	Annual

Jul 95-Sep 95	Achieve Course 	Academic-
		Standards	AMEDD Advanced

Sep 95-Sep 96	I/I/Top/0/4/2	Annual

Sep 96-Jun 97	I/I/Top/0/5/2	Change of Rater

Jul 97-Sep97	I/I/Top/0/67/3	Close Out

   * =  Contested OER’s
BCOM-Below Center of Mass

Army Regulation 623-105 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, 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.

DOD Directive 1332. 18, dated November 4, 1996, is entitled:  Separation or Retirement for Physical Disability.  The directive is not divided into sections.  Further, paragraph D refers to RESPONSIBILITES.  Paragraph D2 discusses the responsibilities of the Assistant Secretary of Defense for Health Affairs, under the Under Secretary of Defense for Personnel and Readiness.  Nowhere in that paragraph does it specify, as stated by the applicant and his counsel in their brief to the Board, any separation criteria for physicians who fail their physical training tests.  In fact, the entire directive is devoted to processing physicians in the DOD Disability Evaluation System (DES), that is physicians with a diagnosed medical condition which warrants award of a disability rating that may result in a determination of unfitness for duty and separation or retirement from active duty. 

Title 10, United States Code, Section 618F, prohibits promotion selection boards from divulging the reasons for selection or nonselection of any officer for promotion.  
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.  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 applicant failed the APRT two years in a row.  As an officer in the Army, it was his responsibility to prepare himself for the tests and to keep himself in sufficient physical condition to pass these tests.  

3.  The cited DOD directive in no way provides a basis for a determination that separation was or was not based on failure of his APRT.  In fact, separation was as the result of the operation of law, more than 3 years after the OER’s were rendered.  

4.  The contested reports appear to represent fair, objective and valid appraisals of his demonstrated performance and potential during the periods of service for which they were rendered. Therefore, there is no basis for removing of these reports from his official records.  

5.  Further, the Board is not inclined to substitute its judgement in the place of the two promotion selection boards which determined that the applicant’s record did not support promotion to the rank of LTC.  

6.  Finally, the applicant had the opportunity to rebut both reports.  In each case, he chose not to do so.  

7.  In the absence of evidence to the contrary, the Board concludes that the applicant was properly considered and twice nonselected for promotion to the rank of LTC.  Therefore, the directed separation action as an officer on active duty, not just as a physician, was proper and there has been no basis established to return him to duty in an active status.

8.  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

_MKP___  __GDP__  __TBR___  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999021486	
SUFFIX		
RECON		
DATE BOARDED	20000211	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.01	
2.	131.10	
3.	110.03	
4.		
5.		
6.