MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000
	DOCKET NUMBER:   AR1999024772

	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
Mr. David H. Keller		Director
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:  That two officer evaluation reports (OERs), covering the periods 11 February 1991 through 10 February 1992 (OER #1) and 
11 February 1992 through 2 July 1992 (OER #2), be removed from his records.  He also requests his records be sent to a special selection board for promotion to lieutenant colonel; and if selected for promotion, that he be promoted with his peers, that he be awarded back pay and allowances from the date of promotion, and that he be given credit for time in grade from the date of his promotion for pay, promotion, and retirement purposes.

APPLICANT STATES:  In essence, that he disagrees with the center of mass ratings on both of the contested OERs rendered him by his senior rater.  He contends that the senior rater had far too many officers (average 100) serving under him to have intimate knowledge of the potential of all the officers.  He refers to three officers under his command (the applicant’s) which he rated as top-notch officers, one of them winning the apache Top Gun award for the entire Army, thus serving as testimony to his own leadership abilities.  

In support of his request, he submits copies of the two contested OERs, the OERs which he rendered on three of his own subordinate officers, an internet print-out of the lieutenant colonel promotion board selection results, an article from the Army Aviation magazine, and all OERs he received before and after the period of the two contested OERs.

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

He was appointed a Reserve commissioned officer in the rank of 2nd lieutenant, Infantry, on 23 July 1981.  He was promoted to his present rank of major on 
1 August 1993.

OER #1 is an annual report evaluating the applicant as an attack helicopter troop commander in a cavalry squadron at Fort Hood, Texas.  The rater (a lieutenant colonel) gave the applicant ratings of “1” in part IV, the performance evaluation portion of the OER, with favorable supporting comments.  In part V, the performance and potential evaluation portion, the rater checked the “always exceeded requirements” performance block, and checked the “promote ahead of contemporaries” potential block.  The rater’s supporting comments were highly favorable.

The senior rater (his brigade commander, a colonel) placed the applicant in the second block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant in the center of mass on the senior rater’s profile (21 officers were in the top block and 52 officers, of which the applicant was one, were in the 
second block).  The senior rater’s supporting comments were favorable. 

OER #2 is a change of rater report which evaluated the applicant’s performance in the same duty position, by the same rater and senior rater.  The rater again gave the applicant ratings of “1” in part IV, with favorable supporting comments, and checked the “always exceeded requirements” performance block and the “promote ahead of contemporaries” potential block in Part V.  The supporting comments were highly favorable.  The senior rater marked the applicant in the second block of part VIIa, placing him again in the center of mass on the senior rater’s profile.  As on the previous report, the senior rater’s comments were favorable.

On 3 August 1998, the applicant was informed by the Total Army Personnel Command that, although he was not selected for promotion to lieutenant colonel, he was approved by the Secretary of the Army for continuation in the grade of major until he was eligible for retirement.

There is no evidence that the applicant appealed the contested OERs to the Officer Special Review Board (OSRB).

Army Regulation 623-105, in effect at the time, 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, for inclusion 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 withdrawn will not be honored.  An exception is granted only when the information which was unknown or unverified when the OER was prepared is brought to light or verified that the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time it was prepared.

Paragraph 5-32 also states that an OER is presumed to represent the considered opinions and objective judgment of the rating official(s) at the time of preparation. 

Paragraph 9-3 states that timeliness of an appeal is important because OERs are used for personnel management decisions.  It is important to the Army and the individual officer that an erroneous report be corrected as soon as possible.

Paragraph 9-7 of the regulation states that the burden of proof in any 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.

Paragraph 4-27 outlines the criteria for referral of OERs.  It states, in pertinent part, that an OER will be referred to the rated officer by the senior rater when the officer is relieved for cause, when the officer receives a report with negative remarks about his or her professional ethics or a rating of 4 or 5 in any of the attributes in part IVa, a performance evaluation of having often or usually failed requirements, a potential evaluation of do not promote, or a senior rater potential evaluation in one of the bottom three blocks in part VIIa.

In the processing of this case, an advisory opinion (COPY ATTACHED) was obtained from the OSRB.  The OSRB found that, in light of his late submission for an appeal, the applicant had submitted no evidence to support either an exception to policy or substantiate his claim that the senior rater erred.  The board noted specifically that the applicant had provided no supporting documents, i.e., statements from either rating official, third party statements, or official documents he might have requested, such as commander’s inquiries or inspector general reports, which might justify or support his claims of senior rater inaccuracy at the time the reports were rendered.  The OSRB recommended his application be denied.

On 19 April 1999, the applicant was furnished a copy of the OSRB advisory opinion for comment or rebuttal.  He failed to respond within the imposed 30-day time limit offered him by this agency.

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, it is concluded:

1.  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 contested OERs from the applicant’s OMPF.

2.  The applicant’s contention that his record contradicted his senior rater’s center-of-mass rating, or that his senior rater did not have sufficient intimate knowledge of his officers to uniformly and fairly rate them, is not accepted.  He provides no results of any official investigation, e.g., inspector general, equal opportunity, or commander’s inquiry, which he requested which might substantiate his claim.

3.  The applicant did not appeal either of the contested reports at the time they were rendered.  Instead, he chose to appeal through an application to this Board only after he was notified of his nonselection for promotion.  The OER appeals process is not intended to be a means for attempting to reverse unfavorable results of promotion selection systems.

4.  Since there is no basis for granting the portion of the applicant’s request to remove the OERs from his record, there is likewise no basis for granting his remaining requests.

5.  The burden of proof rests with the applicant to submit relevant material and competent evidence to clearly and convincingly establish that his OERs were inaccurate and unjust.  He has failed to submit evidence that would satisfy the aforementioned requirement.

6.  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

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

INDEX

CASE ID	AR1999024772	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.