MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           26 April 2000                   
	DOCKET NUMBER:   AR2000035981

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Curtis L. Greenway		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 2 June 1996 through 1 June 1997 be removed from his records.

APPLICANT STATES:  In effect, that the OER contains substantive and administrative inaccuracies in parts IV8 and IV10; part IVb (b.2); parts Vb, Vd and Ve; and part VIIa.  In addition, part VIIb states he refused to sign the OER on 13 June 1997 and part IId shows he refused to sign on 15 June 1997.  He was enroute to Germany on 13 June and arrived in Germany on 15 June, so how could he refuse to sign on that date?  Supporting evidence is as listed on the enclosure to the DD Form 149.

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

He accepted a commission in the U. S. Army Reserve and entered active duty on 7 April 1984.  He was released from active duty on 6 April 1987.  He was called to active duty during Operations Desert Shield/Storm.  He was voluntarily ordered to active duty in an AGR status on 25 September 1994 and assigned to Headquarters and Headquarters Company, 926th Engineer Group, Montgomery AL.

The contested OER is a 12-month annual report for the period 2 June 1996 through 1 June 1997.  Parts IV8 (Displays sound judgement) and IV10 (Is adaptable to changing situations) contain a 2 (1 being to the highest degree and 5 to the lowest).  Part IVb(b.2) contains the comment “…must take into account the broader implications of his actions.”  In part Vb, the rater rated his performance as “Usually exceeded requirements” (evaluations ranging from “Always” down to “Usually exceeded,” Met,” “Often failed” and “Usually failed requirements”).  In part Vc, the rater commented “…obtaining his Master’s Degree in Science.”  In part Vd, the rater rated his potential as “Promote with contemporaries” (evaluations ranging from “Promote ahead of” down to “Promote with contemporaries” and “Do not promote”).  Part Ve contains lukewarm comments on his potential.  In part VIIa, the senior rater gave him a 3-block rating (a dual center-of-mass rating, with 2 officers being rated as 1-block and 2 officers rated as 3-block).  The senior rater also commented in part VIIb that he refused to sign the OER on 13 June 1997.  Part IId shows he refused to sign the OER on 15 June 1997.  

The applicant provides a DA Form 31, Request and Authority for Leave that shows he signed out on permanent-change-of-station leave at 12:01 a. m. on   13 June 1997 and signed in to his new unit at 8:00 a. m. on 14 June 1997.  (On 17 April 2000, the Full Time Support Management Directorate could not verify his report date to his new unit but confirmed that several reassignment orders all show his report date as 15 June 1997.)

The applicant provides three prior OERs as supporting evidence to show that the contested report was not an accurate portrayal of his performance.  The OER for the period 11 September 1994 through 6 January 1995 shows he received all 1s in part IVa with commensurate commendable comments; “Always exceeded requirements in part Vb with commensurate ratings; and “Promote with contemporaries” in part Vd.  The senior rater gave him a 2-block, center-of-mass rating (4/17/5/1/0/0/0/0/0).  The rater on this OER was the senior rater on the next two OERs.  The OER for the period 7 January 1995 through 6 January 1996 shows he received all 1s in part IVa with commensurate commendable comments; “Always exceeded requirements” in part Vb with commensurate ratings; and “Promote ahead of contemporaries” in part Vd.  The senior rater gave him a 1-block, above-center-of-mass rating (2/5/0/0/0/0/0/0/0).  The OER for the period 7 January 1996 through 1 June 1996 shows he received all 1s in part IVa with commensurate commendable comments; “Always exceeded requirements” in part Vb with commensurate ratings; and “Promote ahead of contemporaries” in part Vd.  The senior rater gave him a 1-block, center-of-mass rating (5/6/1/0/0/0/0/0/0/0).  The rater on these two OERs was the senior rater on the contested OER.

On 18 August 1995, the applicant wrote to the Full Time Support Management Center complaining of the abusive treatment he had received from his supervisor (who apparently was not his rater) since being assigned to the unit.  The Full Time Support Management Center advised the applicant to discuss the matter with his command’s Inspector General.

The applicant appealed the contested OER.  The Deputy Chief of Staff for Personnel, Special Review Board denied the applicant’s appeal except for an administrative correction to Part Vc (changing “…”Master’s Degree in Science” to “…Degree of Master of Science in Human Resources Management.”)  The Special Review Board noted that the statement from the Group Commander that now his perception was that he and his rater “did not see eye to eye” was not considered “new” or “official” evidence.  His self-authored statement and personnel documents and memoranda of support from third parties failed to provide substantive evidence to support his claim.  He failed to provide supporting statements from his rating official or results from an Inspector General investigation into his allegations that his rater was biased or adversely influenced.

On 3 January 2000, the applicant rebutted the appeal action.  He included as additional evidence a 22 August 1994 memorandum from the Commander, 926th Engineer Group directing that all raters of AGR personnel would obtain letter input from the supervisory staff administrator prior to preparing an OER and base the rating in large part on that input.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation 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.  Paragraph 4-11 of the version of the regulation in effect on 30 April 1992 stated that the rated officer would sign and date the report after completion of parts I, II and the Army Physical Fitness Test and height and weight data in part IV before sending it to the rater.  If the rated officer was unable or failed to sign the OER, the senior rater would explain why in part VIIb.  The date the rating officials signed the OER would not be prior to the date of the rated officer’s or any preceding rating official’s signature.

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.  The Board agrees with the Special Review Board that the applicant has provided no evidence to show substantive inaccuracy.  He contends that his supervisor (presumably the supervisory staff administrator) unduly influenced the rater to give him a substandard rating.  He provides a 22 August 1994 memorandum from the Group’s commander directing raters to use letter input from the supervisory staff administrator in preparing an AGR’s OER as evidence. He also provides an 18 August 1995 letter he wrote to the Full Time Support Management Center complaining of abusive treatment he had received from (presumably) this supervisor.  However, he then provides three OERs that cover this time period (from the date of the 22 August 1994 memorandum through his 18 August 1995 letter of complaint and to the period of the contested OER) to show how he should have been rated.  The Board concludes that it is not reasonable for the applicant to contend that the supervisor unduly influenced the writing of the contested OER without providing evidence to show why that influence was not used with previous OERs.  

3.  The Board also is not convinced from the evidence provided that the applicant was not asked to sign his OER on 13 June 1997 and refused to do so on that date.  The DA Form 31 shows that he signed out at 12:01 a.m. on 13 June 1997; however, that is not proof that he departed the unit area at that time.  The DA Form 31 also shows that he signed in to his new unit in Germany at 8:00 a.m. on 14 June 1997; almost 24 hours before he states he signed in.  The Board concludes that the DA Form 31 is not credible evidence.  

4.  The Board notes that there is an administrative error in part IId of the contested OER (the rating officials cannot sign an OER prior to the rated officer.  In addition, since the applicant did not sign the report, it is not appropriate to enter a date in the date signed block.  Part VIIb provides any required explanation).

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.

NOTE: The Army Review Boards Agency, Support Division, will be directed to administratively correct the applicant’s OER for the period ending 1 June 1997 by deleting the date “15 Jun 97” in part IId. 

BOARD VOTE:

__sk____  __kak___  __clg___  GRANT

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR2000035981	
SUFFIX		
RECON		
DATE BOARDED	20000426	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.