MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           17 May 2000       
	DOCKET NUMBER:   AR1999024223

	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.

	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler		Chairperson	
	Mr. Fred Eichorn		Member	
	Mr. Raymond J. Wagner		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:  Promotion to Chief Warrant Officer Five (CW5) with back pay.  

APPLICANT STATES:  That he is represented by civilian counsel who will present his contentions.  

COUNSEL CONTENDS:  In effect, that there are three possible reasons the applicant was nonselect for promotion to CW5.  First, three errors existed in his promotion jacket:  (1) his outstanding officer evaluation report (OER) covering the period 5 June 1991 to 27 May 1992 was missing from his Official Military Personnel File (OMPF); (2) his OMPF omits crucial physical fitness data found in the OER covering the period 5 June 1991 to 27 May 1992; and (3) the Army Achievement Medal (period 10-29 October 1991) is not reflected in his promotion records.  Next, he contends that the applicant’s raters thought he and other similar warrant officers had reached the pinnacle of their careers at Master Warrant Officer Four (MW4), that the rank of CW5 (created in 1992) did not then exist, so senior raters (SR) handed out two-blocks to the applicant and others to improve their profiles.  Finally, he claims that the applicant was the victim of age discrimination.  In support of the application, counsel submitted a ten-page brief, a copy of the applicant’s OER covering the period 5 June 1991 to 27 May 1992, a Summary of MOS/Medical Retention Board Proceedings dated 6 November 1991, a Record of MOS/Medical Retention Board Proceedings dated
27 November 1991, a copy of an award certificate for the Army Achievement Medal (period 10-29 October 1991), copies of three OER’s (covering the periods 2 December 1988 to 12 June 1989, 4 July 1988 to 1 December 1988, and 
12 December 1987 to 3 July 1988), information paper which discusses senior ratings of MW4’s, and an excerpt titled “Crusty Old Warrant” from the United States Army Warrant Officers Association Newsliner dated July 1994.      

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

The applicant’s military records show that he completed over 34 years of active duty on 31 January 1993 when he retired in the rank of MW4.

While serving as a CW4, the applicant received three change of rater OER’s covering the periods 12 December 1987 to 11 June 1989 evaluating him as a support maintenance technician of two combat heavy engineer battalions operating in various locations throughout the Republic of Korea.  He received maximum ratings and extremely laudatory comments from his three raters (two captains and a major). 

In part VII under SR potential evaluation, the applicant received three ratings in the two-block from the same SR (a lieutenant colonel) on all three OER’s.  Only two officers were rated in the SR profile on each OER.  The SR comments on each OER were complimentary of the applicant’s performance and potential and recommended early attendance at the MW course in one OER and recommended that the applicant be assigned to a MW position in the following OER. 

The OER’s were not adverse in accordance with regulations in effect at the time. Therefore, they were not referred OER’s.

There is no evidence in the applicant’s records that he appealed the three OER’s in question to the Officer Special Review Board.

On 6 November 1991 the 2d Infantry Division MOS/Medical Retention Board (MMRB) recommended that the applicant be retained in his PMOS [primary military occupational specialty] despite his permanent physical profile as a result of bilateral high frequency hearing loss.  On 22 November 1991 the findings and recommendation of the MMRB were approved.  On 27 November 1991 the applicant was notified that he would be retained in his current PMOS and that his permanent medical condition does not preclude satisfactory performance of his PMOS physical requirement in a worldwide field environment.  These documents were posted in his OMPF on 10 August 1992.

The applicant provided a copy of an award certificate, dated 19 December 1991, which shows that he received the Army Achievement Medal for the period
10 October 1991 to 29 October 1991.  This award is not shown on the applicant’s OMPF.

The applicant was nonselect for promotion to the rank of CW5 by the Fiscal Year (FY) 1992 Chief Warrant Officer Five Promotion Selection Board which convened on 19 May 1992.

On 3 June 1992 the applicant received a change of rater OER covering the period from 5 June 1991 to 27 May 1992, evaluating him as a support maintenance technician.  This OER was processed by Department of Army officials on 25 June 1992 and was posted to his OMPF on 16 July 1992.  The applicant’s records also show that his prior OER covering the period 20 January 1991 to 4 June 1991 was for performance in the same duty assignment.

There is no evidence the applicant’s rater opted for a complete-the-record report to be submitted prior to the FY 1992 Chief Warrant Officer Five Promotion Selection Board which convened on 19 May 1992.

There is no evidence in the applicant’s military records which shows he was the victim of age discrimination during the promotion board review process.

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, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted 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 also 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 error or inaccuracy is warranted.  

Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time in question provides, in pertinent part, that at the option of the rater, a report may be submitted on a rated officer who is about to be considered by a Department of the Army board for promotion (in or above the zone), project manager, school (CGSC or SSC), or command (battalion or brigade level).  However, provided the rated officer has not received a report for performance in the same duty assignment for which this report is to be submitted.  This requirement is waived if an officer’s performance shows a marked change since the previous report in the same duty position.  The senior rater, in this case, must attest to the change.  

Army Regulation 623-105 (Officer Evaluation Reporting System) in effect at the time in question also provides, in pertinent part, that the rater will enter (typed) the Army Physical Fitness Test (APFT) results of the rated officer in Part IVa, item 3.  In the space after the phrase “Maintains appropriate level of physical fitness,” the rated officer will enter (typed) “PASS” or “FAIL” and the year and month of that APFT result; or “PROFILE” and the year and month the profile was awarded.     

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.  The applicant was nonselect for promotion to the rank of CW5 by the FY 1992 Chief Warrant Officer Five Selection Board which convened on 19 May 1992.
 
2.  The Board noted counsel’s contention that the applicant’s OER covering the period 5 June 1991 to 27 May 1992 was missing from his OMPF at the time of his promotion board on 19 May 1992.  However, there is no evidence the applicant requested or the rater agreed to submit a complete-the-record report to the promotion board in question.  Also, in accordance with the governing regulation, a complete-the-record report may not be submitted on a rated officer that has received a report for performance in the same duty assignment.

3.  Contrary to counsel’s contention that this OER contained crucial physical fitness data, the Board notes that Part IVa(3) merely shows the applicant passed his APFT in January 1992.  The applicant’s two prior OER’s show he had a profile; however, the rater commented that the profile does not interfere with the performance of his duties and that the profile in no way inhibits his ability to perform in an outstanding manner.  The regulation only requires comments on “PROFILE” entries if the rated officer’s ability to perform his/her duties is affected. 

4.  The applicant’s contention that the Army Achievement Medal (for period covering 10-29 October 1991) is not reflected on his OMPF is valid.  The applicant’s OMPF does not reflect this award.  However, the Board notes that an officer has the responsibility to review his records on a reoccuring basis to ensure that they are accurate and up to date in order to ensure that decisions regarding his career are based on accurate records.  It appears that the applicant failed to do so in this case.
 
5.  The Board noted the applicant’s contentions pertaining to the SR on his three two-block OER’s.  However, the applicant has not shown to the satisfaction of the Board that he was not rated properly or that the SR violated proper rating procedures.  Furthermore, he has also not submitted any evidence to show that he appealed the OER’s or that the OER’s contained errors or constituted an injustice.  

6.  The applicant’s contention that he was a victim of age discrimination appears to be without merit.  There is no evidence available to the Board, and the applicant has provided no evidence, to support this contention.    

7.  It is a well known fact that promotion boards do not reveal their reasons for selection or nonselection; therefore, the contentions by the applicant and his counsel are at best speculative.

8.  While the Board understands the applicant’s concerns regarding his reasons for nonselection, the Board is not an investigative body and in the absence of evidence to show otherwise, the Board must presume that the applicant was properly considered and nonselect for promotion in accordance with the applicable laws and regulations governing the conduct of promotion boards.

9.  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.
10.  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___  FE______  RJW_____  DENY APPLICATION

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

INDEX

CASE ID	AR1999024223	
SUFFIX		
RECON		
DATE BOARDED	20000517	
TYPE OF DISCHARGE	(HD)	
DATE OF DISCHARGE	19930131	
DISCHARGE AUTHORITY	AR 635-100 Para 4-14  	
DISCHARGE REASON	For length of service	
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	131.0000	
2.		
3.		
4.		
5.		
6.