MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:           1 September 1999                   
	DOCKET NUMBER:   AR1999029201

	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. Loren G. Harrell		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. James E. Anderholm		Member	
	Mr. Kenneth L. Wright		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 his Officer Evaluation Report (OER) for the period 5 June 1993 – 4 June 1994 be corrected to reflect the rank of Major (MAJ) and to change the senior rater comments.  He also requests that his Board application AC98-09905 (concerning his OERs for the periods 16 June           1986 – 15 June 1987 and 16 June 1987 – 22 October 1987) be reconsidered in light of his modified request that he be promoted to Lieutenant Colonel (LTC) with his peers and placed on the next available aviation battalion command list.

APPLICANT STATES:  That on 11 March 1994, the Officer Special Review Board (OSRB) granted his appeal of his OERs for the periods 16 June           1986 – 15 June 1987 and 16 June 1987 – 22 October 1987.  On 16 November 1994, this Board further corrected those OERs and directed he be placed on the next Command and General Staff College (CGSC) attendance list.  However, despite 11 straight years of top block ratings on his OERs, attendance at resident CGSC, two master’s degrees and numerous recommendations for below zone promotion and battalion command, he was passed over for selection to LTC by the March 1998 and March 1999 promotion boards.  On 2 September 1998, the Board denied his application to correct the promotion board’s prejudicial treatment of the successfully appealed 1986 and 1987 OERs.  The OSRB should have corrected his OER for the ending period 4 June 1994 because sufficient new information later came to light.  Regarding Board case AC98-09905, he has provided letters of support that provide evidence, based upon expert opinion, that the reason for his non-selection by the promotion board was the negative assessment rendered by the board against the successfully appealed 1986 and 1987 OERs in question.

COUNSEL CONTENDS:  Counsel makes no contention.

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

He was commissioned a second lieutenant, Armor Branch on 19 April 1980.  He transferred to Aviation Branch in 1983 or 1984.  He was promoted to Captain on 1 July 1985.  His senior rater profile is as follows (* indicates applicant’s rating):

     OER Ending Period	Senior Rater Profile

20 August 1985		6*/25/23/2/1/0/1/0/0
23 February 1986		11*/31/27/2/1/0/1/0/0
15 June 1986		17*/38/29/2/1/0/1/0/0
15 June 1987		appealed, senior rater profile deleted
22 October 1987		appealed, senior rater profile deleted
30 May 1988			9*/21/4/0/0/0/0/0/0/0
(Infantry Officer Advanced Course Academic Evaluation Report)
29 June 1989		12*/23/7/1/0/0/1/0/0
25 May 1990			20*/36/5/0/0/0/0/0/0
20 September 1990		senior rater unable to evaluate
20 September 1991		4*/1/2/0/0/0/0/0/0/0
11 June 1992		14*/0/0/0/0/0/0/0/0
30 September 1992		2*/0/0/0/0/0/0/0/0/0
4 June 1993			unavailable
4 June 1994			19*/27/0/0/0/0/0/0/0
4 June 1995			14*/15/2/0/0/0/0/0/0
(CGSC Academic Evaluation Report)
7 June 1997			18*/0/0/0/0/0/0/0/0
30 September 1997		16*/0/0/0/0/0/0/0/0
18 June 1998 (new system)  center of mass rating

In 1992, the applicant appealed the OERs for the ending periods 15 June 1987 and 22 October 1987 to the OSRB regarding the senior rater profiling of those two reports.  By the time the OSRB granted his appeal in March 1994, he had been twice passed over to MAJ.  The OSRB directed that the senior rater profile (which had been 21/22/22*/1/0/0/0/0/0 and 18/19/16*/1/0/0/0/0/0, respectively), but not the senior rater’s potential evaluation, be removed and he be reconsidered for promotion.  The altered OERs were placed in his file along with a standard memorandum for record that the action should not be considered prejudicial to any future personnel action.

The applicant was reconsidered for promotion to MAJ and in September 1994 he was notified that he had been selected for promotion with a date of rank of          1 November 1993.  (His OER for the period ending 4 June 1994, of course, showed his rank as CPT and his date of rank as 1 July 1985 because he was not selected for promotion to MAJ until after the ending date of the report.)

On 16 November 1994, the Board approved the applicant’s request to remove the senior rater’s potential evaluation and directed that he be scheduled for attendance at the next available CGSC (since there is no process for CGSC reconsideration).

In 1998, the applicant additionally requested the Board delete the senior rater comments on the OERs for the ending periods 15 June 1987 and 22 October 1987, that he be promoted to LTC and that his name placed on the next aviation battalion command list.  The Board denied his request, noting that the senior rater portion of those contested OERS contained no adverse remarks and reflected his service as a CPT.  The Board also noted that his branch chief’s belief that the only possible explanation for his non-selection for promotion was that the promotion board viewed the appealed OERs as a show-stopping discriminator and assumed the blocked out profiles to be derogatory was viewed as speculation by an individual who was not a member of the promotion board.

In 1998, the applicant appealed his OER for the period ending 4 June 1994 to the OSRB.  He contended that the rank throughout the report should be changed from CPT to MAJ to correspond with his date of rank and to replace the last sentence of the senior rater narrative with “After completion of CGSC, assign as attack/cavalry battalion S-3 and then select for battalion command.”  He contended that based on his reconsideration to and promotion to MAJ, he would have been a MAJ during that company command and, since the company was authorized a MAJ for commander, it would have led to having two branch-qualifying jobs as a MAJ and improved his promotion potential.  As for changing the narrative, the regulation states that if rating officials become aware of information that would have resulted in a higher evaluation of a rated officer, they will take action to alter the report.  His senior rater provided a statement wherein he noted that he had rated the applicant’s potential based on the fact he was a twice passed over CPT awaiting the results of a re-look board.  Had he known the applicant would be selected for MAJ when he rated him, he would have recommended him for selection to battalion command.

The OSRB denied the applicant’s request (SEE ATTACHED).  

The applicant provided five letters of support with this application.  His current senior rater stated the applicant is one of his best officers with outstanding potential and that, with only a few minutes to spend per file, it was easy to see how the board could have wrongfully concluded that the blocked out profiles equate to a derogatory rating.  His former branch chief stated his file was above average.  His file had a top block company command OER where the two block was the clear center of mass.  In his expert opinion, the board definitely viewed those two OERs as derogatory “show stoppers” based on the strength of his file. A former promotion board member stated that, in his expert opinion, there was no question that the two OERs were the problem areas which might account for his non-selection.  He also stated that the limited time allotted board members to review hundreds of files sometimes results in accidental disregard of instructions, like the “no prejudice” memorandum in this case.  The applicant’s current deputy commanding general stated that despite top block performance the only reason for his non-selection appeared to be the two successfully appealed OERs from 12 years ago.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 623-105, paragraph 5-33 states that if rating officials become aware of information that would have resulted in a higher evaluation of the rated officer, they will take action to alter or remove the report.  Paragraph 5-32 provides the basic rule for modifying a previously submitted report.  Requests to alter an accepted report will not be honored except when information which was unknown or unverified when the report was prepared is brought to light or verified.  Paragraph 4-3b states that evaluations of potential are assessments of the rated officer’s ability to perform in positions of greater responsibility in higher grades.  This assessment of potential applies to all officers regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty. 

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

2.  Regarding the OERs for the periods 16 June 1986 – 15 June 1987 and        16 June 1987 – 22 October 1987.  The Board concludes there is no evidence to show that the LTC selection board was negatively biased by the “no prejudice” memorandum or equated the blocked out profiles to a derogatory rating.  These same documents were in the file seen by his MAJ selection board and there was no contention that that board was negatively biased.  Even the former promotion board member qualified his expert opinion by stating the two OERs might have accounted for his non-selection.

3.  The Board concludes the LTC selection board did not necessarily see the applicant’s file as above average, as his former branch manager saw it.  The Board notes that, except for his earlier OERs which do indicate an above-center-of-mass senior rater profile, the applicant’s ratings have been generally center-of-mass.  His current senior rater, who has stated the applicant is one of his best officers with outstanding potential, placed every one of his total of 16 ratings in the top block.  In his previously submitted OER, his senior rater had placed every one of his total of 18 ratings in the top block.  The Board concludes the applicant’s senior raters did not provide a clear message to the board members that the applicant had “outstanding potential” and, in a time of downsizing, that may have been the discriminating factor in his non-selection.

4.  The Board concludes that the command selection boards may have used the same reasoning when the applicant was not selected for aviation battalion command.  In any event, the Board will not second guess the qualifications Aviation Branch requires for its command assignments.

5.  Regarding the OER for the period 5 June 1993 – 4 June 1994.  The Board concludes the OSRB’s decision was correct.  Requests to alter an accepted report will not be honored except when information which was unknown when the report was prepared is brought to light.  The Board concludes the regulation means for such information to have existed at the time a report was prepared but was unknown.  The applicant’s promotion to MAJ was not just “unknown” at that time; it did not exist.

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

__sk____  __jea___  __klw___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999029201	
SUFFIX		
RECON		
DATE BOARDED	19990901	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	131.10	
3.		
4.		
5.		
6.