MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 February 2000                  
	DOCKET NUMBER:   AR1999022889

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Lester Echols		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) that he received for the period 920418-920831 be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that the subject OER is substantively and administratively inaccurate; that the OER does not properly reflect non-rated time during the report period; that the senior rater was not in his duty position for the entire rating period and that he did not have sufficient opportunity to evaluate the applicant’s performance; that the senior rater did not properly manage his senior rater profile and was influenced by the rater in making his evaluation; that the rater was disloyal to the applicant by illegally drawing attention to the applicant’s non-promotable status from first lieutenant to captain.

In support of his application, he provides a 10 February 1999 letter to the Board; a copy of a memorandum from PERSCOM, dated 15 December 1998; a copy of a memorandum from the Officer Special Review Board (OSRB), dated 10 December 1998; a copy of a memorandum from PERSCOM, dated 22 April 1992; a copy of his Officer Record Brief with a brief date of 9105; a copy of his official photograph; a copy of DA Form 4187, dated 4 June 1992, in which the applicant requests TDY to appeal his non-selection to captain; a copy of a memorandum for record, dated 17 November 1998, supporting his appeal; a copy of a letter, dated 15 November 1998, supporting his appeal; a copy of a memorandum for PERSCOM, dated 16 November 1998, requesting a special review of the applicant’s case; a copy of letter, dated 20 January 1999, supporting his appeal; a copy of an undated letter from a captain supporting his appeal; a copy of a memorandum for PERSCOM, dated 13 November 1998, requesting a special review of the applicant’s case; a copy of a memorandum for PERSCOM, dated 18 November 1998, supporting the applicant’s OER appeal.

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

He is a captain.  At the time of the subject OER, he was a first lieutenant serving as an Infantry platoon leader in an Infantry company in Germany.  The report was a 4-month, change of duty report.  His company commander, a captain, rated him, and his battalion commander, a lieutenant colonel, senior rated him.

In Part IV, Professionalism, the Rater gave the applicant the highest ratings for professional competence (Part IVa), and stated that he was “Strong willed” and unafraid to openly dissent with his superiors.  He also stated that he was a meticulous communicator.  In Part V, Performance and Potential, the Rater checked “Always Exceeded Requirements”, “Promote Ahead of Contemporaries” and stated that he performed his duties in a “satisfactory” manner.  He stated that the applicant had potential for “. . . continued active federal service.”

The Senior Rater (SR) gave the applicant a “below center of mass” rating in Block 4 of his SR Profile, with five officers rated above him and none rated below him.  His narrative comments were lackluster in nature.

It appears that the applicant did nothing about the subject OER until he failed to be selected for promoted to the rank of major in 1998.  On 18 November 1998, he filed a formal appeal of the subject OER.  The OSRB returned the appeal without action on 10 December 1998, citing untimeliness (the appeal was not within the 5-year time limit) and lack of evidence.

In the processing of this case, an advisory opinion was obtained from the OSRB (COPY ATTACHED) in which the appeal was adjudicated as an exception to policy.  On 13 July 1999, the OSRB opined that the applicant submitted insufficient evidence to support his contentions that the subject OER was administratively and substantively inaccurate.  The opinion was provided to the applicant for rebuttal on 22 July 1999, but none was received.

Army Regulation 623-105, then in effect, established the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provided that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, was 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 stated 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.

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 has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant received a below average OER from his rater and senior rater; he did not appeal this report within the 5-year time limit established by AR 623-105.  It was only after he failed to be selected for promotion to major that he attempted to appeal the subject report.  In July 1999, the OSRB reviewed the OER and found it to be administratively and substantively correct.  The senior rater was contacted and stated that he created his senior rating of the applicant (not the rater) and that he stood by that rating.
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 remove the OER from the applicant’s OMPF.  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.

4.  The OER appeals process is not an adjunct of the Army promotion selection system, but a distinctly separate process designed to encourage timely efforts to seek relief when an OER is believed to be inaccurate or unjust.  The rated officer is responsible for making that determination; initiating a timely appeal is a part of his or her responsibility for career management and development.  The appeals process is not intended to be a method for reversing an unfavorable personnel selection action, especially when the rated officer allowed the report to be considered an accurate evaluation of his or her performance and potential for more than 5 years.

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

__CMF__  __JEA__  __LE_____  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR1999022889	
SUFFIX		
RECON		
DATE BOARDED	20000202	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0100	
2.	111.0100.0003	
3.	111.0100.0010	
4.		
5.		
6.