MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  16 November 2000
	DOCKET NUMBER:  AR2000036974

	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		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison		Chairperson	
	Ms. Martha E. Schuler		Member	
	Mr. James E. Anderholm		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:  Removal of the officer evaluation report (OER) he received for the period 3 October 1993 through 15 April 1994, and all documents related thereto, from his official military personnel file (OMPF), and promotion reconsideration for major.

APPLICANT STATES:  His non-selection for promotion to major resulted from this OER.  He acknowledged the adverse OER and submitted comments disputing the rating.  However, since he did not receive a response to his comments, he believed his raters agreed with him and would remove the OER.

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

The applicant was appointed a Reserve second lieutenant, Infantry, effective 
20 December 1985 from the Reserve Officers Training Corps at the University of Texas.  He was appointed in the Texas Army National Guard effective 3 October 1986.  He was promoted to first lieutenant effective 19 December 1988 and to captain effective 27 April 1993.  At the time of his application he was on active duty with Operation Joint Forge (Bosnia).

The contested OER was completed by the rating officer (RO) 27 May 1994 and by the senior rater (SR) on 8 August 1994.  It was a change of duty report for his duties as Company Commander for a 6 month period.  

It was designated as an adverse report by the SR and it was referred to the applicant for his acknowledgment and/or possible rebuttal.  He acknowledged the report and submitted a rebuttal.  The report received a Departmental profile and was placed in the performance portion of his OMPF microfiche, with copies of the referral and acknowledgment.

In Part IV of the OER, Performance Evaluation – Professionalism, on a scale of 
1 – 5, with 1 the highest rating, the RO rated the applicant with “2’s” in four areas of competence concerning knowledge and expertise, motivation of subordinates, performance under physical and mental stress, and adaptability, and with “1’s” in the remaining 10 areas of competence.  He received a positive comment concerning dedication, responsibility, integrity and moral standards.  There were no negative comments in the professional competence area.

In Part V, Performance and Potential Evaluation, the RO rated him below maximum in both areas.  He was rated in the third block for performance as met requirements and in the second block for potential as promote with contemporaries.  RO comments in these areas included a weak leadership style and potential for battalion staff level duties.

In Part VII, Potential Evaluation, the SR rated the applicant in the fifth of nine blocks.  The SR profile is shown as 6/12/39/21/14*/1/0/0/0.  (The * indicates the applicant’s position in the profile.)  The SR’s comments showed he was replaced as company commander due to the failure of the unit to respond to his leadership.

The RO was the applicant’s SR on the next OER for the period 16 April 1994 through 31 August 1994.  The SR profile is shown as 3/10/4*/1/0/0/0/0/0 on this report.

The available OER’s in the OMPF provided show the applicant’s overall evaluation history as a captain.  With the exception of the contested OER and one other report, he received less than maximum ratings from his RO’s.  His SR evaluations show he was below the center of mass on all but two reports where he was rated within the center of mass.

The applicant did not request a Commander’s Inquiry or appeal the contested OER as provided for by pertinent regulations.

He was considered but not selected for promotion to major by the 1999 Reserve Components Selection Board.  His records were without material error when reviewed by the board.  The non-selection was not based on education and the reason for the non-selection was not divulged by the board.

On 13 November 2000 an official of the office of the Chief, Reserve Promotions and Notifications Branch, Total Army Personnel Command advised the analyst in this case that the applicant was considered and selected by the 2000 RCSB.

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  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 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 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 material error or inaccuracy is warranted.

The regulation specifies that OER’s may not be appealed beyond 
5 years unless the delay can be clearly substantiated.

The regulation also specifies that reports with adverse ratings will be referred to the rated officer by the SR for acknowledgment and remarks/rebuttal.

The regulation provides for requesting a Commander’s Inquiry in cases where a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

Army Regulation 624-100/600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that, except for the lack of required education, promotion boards are not required to divulge the proceedings or the reason(s) for non-selection.

Effective 1 October 1996, under the Reserve Officer Personnel Management Act, promotion policy provides for individuals to apply directly to promotion officials for promotion reconsideration based on erroneous non-consideration, unlawful promotion board actions, or non-selection for promotion based on material error in the record at the time of consideration.

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 view of all of the circumstances in this case, the applicant is not entitled to removal of the contested OER he received covering the period 3 October 1993 through 15 April 1994, including the acknowledgment and rebuttal, from his OMPF, or to reconsideration for promotion to major under 1999 criteria.  He has not shown error or injustice for the relief he has requested.

2.  The applicant’s contentions have been noted; however, they are not supported by his application or the evidence of record.  He has not shown the OER or non-selection for promotion unfair or unjust.

3.  The applicant did not request a Commander’s Inquiry or appeal the contested OER as provided for by pertinent regulations; however, it is now considered here in the interest of time.  The report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question, and the applicant has not shown that the contested report contains any serious administrative deficiency or was not prepared in compliance with applicable regulations and policy.  The Board cannot accept the applicant’s naivete, that since he did not receive a response to his rebuttal, the raters must have agreed with his rebuttal and the report would have been removed from his record.  This occurred in 1994, and the report has been in his OMPF since that time.

4.  The Board also concludes that the applicant received proper consideration for promotion by the 1999 RCSB and there is no reason for reconsideration.  There was no material error in his records at the time of consideration.  He has not shown otherwise.

5.  The Board notes the subsequent selection of the applicant for promotion to major.  The selection is deemed fortunate for the applicant, but it does not show the contested report or the 1999 promotion non-selection invalid.

6.  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 this requirement.

7.  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

__wm___  __ms___  ___ja____  DENY APPLICATION

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

INDEX

CASE ID	AR2000036974	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001116	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.