MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000                   
	DOCKET NUMBER:   AR2000037527

	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. Robert J. McGowan		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 the Officer Evaluation Report (OER) that he received for the period 940616-950604, along with all other related document, be removed from his Official Military Personnel File (OMPF).

APPLICANT STATES:  That the senior rater comments, Block VIIb, refer to a “repeated judgement error regarding family relations” and that this statement is incorrect.  He adds that only one instance of domestic altercation was reported, and that he and his wife deny the allegation.

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

He is a United States Army Reserve officer serving on active duty in the rank of captain.  During the period of the subject OER, he was a captain serving as the Chief, Adjutant General Team, Fort Devens, Massachusetts.

On 23 September 1994, Social Work Services at Fort Devens received a report of an August 1994 incident of spouse abuse against the applicant.  A DD Form 2486, Child/Spouse Abuse Incident Report, was initiated and the report was listed as substantiated.  Fort Devens authorities performed a check with the Army’s Central Registry at Fort Sam Houston, Texas which revealed that the applicant was the subject of a similar report (spouse abuse) in January 1993 while stationed in Korea.

When the subject OER was rendered upon the applicant’s reassignment from Fort Devens, the senior rater chose to mention the spouse abuse incident in his narrative comments in Block VIIb, stating “However, CPT [applicant] has made a repeated judgement error regarding family relationships that question his ability to deal with stressful situations.”  The senior rater referred the otherwise good report to the applicant because of the potential adverse impact it might have on his career.

The applicant appealed the subject OER to the Officer Special Review Board (OSRB) on two occasions, in January 1996 and November 1999.  In his appeals, he contended that the OER was administratively and substantively incorrect.  He stated that the senior rater made reference to an incident (the January 1993 spouse abuse incident) that occurred outside of the rating period of the subject OER, and that the term “repeated” was inaccurate and misleading.  The OSRB contacted the senior rater who stated that when the incident was brought to his attention, he was also apprised of the 1993 incident.  He, therefore, felt justified in using the term “repeated” in describing the applicant’s actions.  The OSRB denied both of the applicant’s appeals.

In the processing of this case, the Board requested an advisory opinion from the OSRB.  The OSRB returned the request without action citing its two previous appeal denials and recommended that the applicant’s request to the Board be denied.  The applicant was afforded the opportunity to review and rebut the OSRB’s recommendation.  He basically repeated his previous allegations that no multiple incidents occurred at Fort Devens and that the Korea incident should not have been mentioned in the subject OER.  He added that the Devens incident never occurred and provided a sworn statement from his wife to that effect.

Army Regulation 623-105, then in effect, established the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provided 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, 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 also states that OERs must stand alone, must not refer to prior reports, nor remark on performance or incidents occurring outside the rating period.

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(s), it is concluded:

1.  The applicant has not shown that the contested report contains any serious administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.

2.  The senior rater was apprised of a substantiated spouse abuse incident by the applicant and the fact that the applicant had previously been the subject of a spouse abuse report.  The Board concurs with the OSRB determination that the senior rater’s use of the word “repeated” was not in violation of the regulation governing the OER process.

3.  The applicant has not shown that the contested report contains either substantive inaccuracies or administrative deficiencies, or that it was not prepared in compliance with applicable regulations and policy.  The report appears to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

4.  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	AR2000037527	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0000	
2.	111.0500	
3.		
4.		
5.		
6.