MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            13 April 2000
	DOCKET NUMBER:   AR2000038555

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Fred Eichorn		Chairperson	
	Ms. Celia L. Adolphi		Member	
	Ms. Sherri V. Ward		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:  In effect, reconsideration of two previous denials of this Board, which were rendered in 1993 and 1999, pertaining to the removal of an Officer Evaluation Report (OER) he received for the period 24 February 1983 through 14 July 1983.  He also requests promotion to the rank of lieutenant colonel (LTC), under the criteria used by the 1989 LTC promotion selection board, with the assignment of an appropriate date of rank, and all back pay and allowances that result.  He indicates his willingness to waive back pay and allowances, and requests that he simply be retired in the rank of LTC.

APPLICANT STATES:  In effect, that he is submitting new material evidence which substantiates his case.  The new evidence provided by the applicant is a letter of support from the senior rater (SR) of the contested OER.  He claims this letter shows that the SR failed to accurately reflect his outstanding performance and potential, which should have placed him in the top block.  He also contends that this new statement, when coupled with the previous statements he has submitted in support of his application, should be enough to correct his records.  He has also included with his application, two OER’s, with top block SR evaluations, rendered by two different four star generals; a copy of his official photograph that was reviewed by the promotion board; and a recommendation for the Legion of Merit (LOM).  He indicates that this LOM recommendation shows that he performed in a LTC position his last 7 years of service, and that he was selected over four other LTC’s for this position as the Sixth Army Deputy Chief of Staff for Personnel (DCSPER).

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

On 1 February 1974, he was appointed a 2nd lieutenant of the Infantry in the USAR.  On 23 February 1974, he entered active duty with an immediate branch transfer to the Adjutant General’s Corps.  He continuously served on active duty until his length of service retirement, in the rank of major, on 28 February 1994. On 1 March 1994, the day following his retirement, he was placed on the Retired List as a major.

The contested OER was completed on 26 August 1983 and was forwarded to the applicant on 30 August 1983.  It was not designated as a referred report by the SR and was not forwarded to the applicant for acknowledgement and comment/rebuttal at the time.  

In Part IV (performance evaluation), of the contested report, the rater assigned the applicant a score value of 2 in judgement, with 1’s in all other areas of professional competence, and added the appropriate comments of explanation.  In Part V (performance and potential evaluation), the rater placed the applicant in the top block (always exceeded requirements) in the performance area, and in the second block (promote with contemporaries) of the promotion potential area. The rater also provided appropriate comments to support these evaluations.  
In Part VI (Intermediate Rater) of the contested report, the Intermediate Rater (IR) provided generally good comments but did add a comment on the applicant’s problem in judgement.  

In Part VII (Senior Rater) of the contested report, the SR placed the applicant in the third block of Part VIIa (potential evaluation).  This placed the applicant below the center of mass of the SR profile.  Of the 19 other officers included in the SR’s evaluation profile, 15 were evaluated above the applicant and 4 were evaluated the same as the applicant, none were evaluated below the applicant.  The SR also provided appropriate comments concerning the applicant’s performance of duty in the remarks portion of his evaluation.  

There is no evidence of record to show that, at the time, the applicant ever requested a commander’s inquiry concerning the contested OER.  On 
14 September 1983, the contested OER was accepted for filing by Department of the Army and on 9 February 1984, it was placed on the performance portion of the applicant’s official military personnel file (OMPF).  On 1 November 1984, well after this report was included in his OMPF, the applicant was selected for promotion to major.

On 11 May 1987, the applicant submitted an appeal, of the contested OER, to the Officer Special Review Board (OSRB).  This appeal was denied on 29 July 1987.  He again appealed the report to the OSRB on 21 June 1989, and his second appeal was also denied.  In both cases, the OSRB cited the applicant’s failure to provide clear and convincing evidence to support his contentions as the basis for denying his appeals.  

The applicant has provided two OER’s he received covering the periods 4 July 1987 to 15 June 1988 and 16 June 1988 to 15 June 1989 respectively.  Both reports evaluated him as an Installation Club Manager and he was placed in the top block of Part VIIa (potential evaluation) by the SR on both reports.  The SR on each of these reports was an Air Force four star general.  

In August 1989, the applicant was considered for promotion to LTC by the 1989 LTC selection board; however, he was not selected.  He was again considered for promotion to LTC by the 1990 selection board and was again not selected.  He was, however, selected for continuation on active duty for completion of 
20 years of service.  This selection was based on his being a Regular Army major with over 15 years of active service.  The evidence of record shows that his records were complete and without material error when reviewed by both the 1989 and 1990 LTC selection boards.

On 28 May 1992, the OSRB again considered removal of the 1983 OER, and his additional appeal of a 1986 OER.  It was concluded that there was no basis for changing or removing the either of the contested reports. 

On 8 January 1993, the OSRB again reviewed the applicant’s entire case file, which included his rebuttal of one of their prior reviews.  The OSRB again determined that there was no basis to change or remove any of the contested OER’s.  The OSRB further concluded there was not a sufficient reason to grant the applicant promotion reconsideration for LTC.

On 31 March 1993, a panel of this Board denied the applicant’s original request for amendment and removal of this contested OER, along with other contested reports, and promotion reconsideration.  The statute of limitations was cited in regard to the portion of his application dealing with appeals to the contested 1983 OER, and to another contested OER for 1989, which was not addressed as part of this application.  The portion of his original request dealing with an appeal to a 1989 OER and his nonselections for promotion to LTC and advanced military schooling, were considered and denied based on the merits of the case.  

The applicant has included with his application a Department of the Army Form 638 (Recommendation for Award), dated 8 December 1993, which recommended him for the Legion of Merit in conjunction with his retirement.  This recommendation covered the period 1 March 1984 through 28 February 1994 and showed that the applicant was currently serving in a LTC position as the Deputy Chief of Staff for Personnel for Sixth Army, Presidio, California and that he had served in various LTC positions since December 1986.  

On 28 February 1994, the applicant was retired for length of service and on 
1 March 1984, he was placed on the Retired List in the rank of major.  

On 18 July 1995, OSRB officials reviewed the applicant’s request for reconsideration of his denied application, and in an advisory opinion to this Board at the time, determined that amendment of the contested 1983 OER was warranted.  The OSRB officials found that the IR’s portion of the contested report may have reflected undue SR influence and they elected to delete the IR’s portion of the contested 1983 OER. 

Based on this change to the contested report, the OSRB president evaluated the applicant’s case to determine if promotion reconsideration was warranted and found he was not convinced that there would have been a reasonable chance the applicant would have been selected for promotion to LTC had the record been changed before he was considered.  Therefore, the OSRB president recommended that the applicant’s request for promotion reconsideration be denied. 

On 26 June 1996, the applicant’s request for reconsideration of the original decision of this Board was denied.  This denial included all his new requests, which included:  promotion to LTC based on the criteria used by the 1989 LTC selection board; selection for senior service school; voiding of his retirement from the Regular Army; reinstatement in the rank of LTC; and other appropriate relief deemed appropriate.  

On 19 August 1999, the applicant’s case was again reconsidered by this Board and his requests to modify or remove various OER’s from his records, to void his retirement, and to reconsider him for promotion to LTC and advanced military schooling were all denied.  The decisional document produced by this Board panel shows that it was found that the contested OER’s were properly and fairly completed in accordance with applicable regulations.  The Board found that the applicant was not entitled to promotion reconsideration to LTC because there was no evidence that material error existed in his record when he was considered for promotion by the 1989 and 1990 LTC selection boards. 

The 1999 Board findings also stated that it appeared the applicant’s nonselection for promotion to LTC was based on a combination of factors, not just one OER.  Further, the Board panel commented that promotion and retention in the Regular Army was keenly competitive and many officers with good records were not selected for promotion to LTC.  This panel of the Board finally concluded, based on the overall merits of the case, that there was an insufficient basis for the Board to reverse its previous decision.

The SR has now provided a letter of support to the applicant, dated 30 January 2000, pertaining to his portion of the contested OER.  In this statement the SR comments that during the period of the contested OER the applicant used the chain of command to seek relief from an assigned additional duty that he perceived conflicted with his normal mission.  In this process, the applicant initially gained the support of the SR’s, superior officer, and although the SR was able to reverse this initial support of his superior, he was angered by the applicant’s actions.  This he claims caused him to rate the applicant lower than he should have been.  

The SR also states that, in retrospect, he now sees that the evaluation he rendered failed to accurately reflect the applicant’s outstanding performance and potential, which would have placed him in the top block of the potential section of the SR evaluation.  He goes on to comment that his performance evaluation should not have prevented the applicant’s promotion and negatively affected his overall professional career.  The SR also comments that the applicant’s overall performance of duty, during the entire period he worked for him, was sufficient to sustain that he had sound judgement, performed at a level better than most, and that he deserved to be promoted ahead of his contemporaries.  

Army Regulation 623-105, establishes the policy and procedures for the OER system.  It provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports.  Section 3 provides guidance on the modification of previously submitted reports.  Paragraph 3-57(a) provides that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

Paragraph 3-57(b) states, in pertinent part, that requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored.  It specifically indicates that statements from rating officials that they underestimated the rated officer or that they did not intend to rate an officer as they did will not be used to alter or withdraw a report; neither will they be included in the OMPF.  Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the OER prior to signing that report.  

Paragraph 3-58 (Newly Received Favorable Information) 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 in accordance with the appeal procedures stated in chapter 6.  Rating officials should precisely specify the new information, how it was obtained, whether it was factually confirmed, or how it would change the evaluation had it been considered in writing the original report.

Paragraph 6-10 (Burden of Proof and Types of Evidence) of the 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 an action to correct an apparent material error or inaccuracy is warranted.  

Appendix F-2 (Preparing an Appeal) indicates that statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection or other unfavorable personnel action claimed to be the sole result of the contested report.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Supporting statements from rating officials should show the discovery of new information that would have resulted in an improved evaluation and the and should contain the necessary supporting information as defined in Paragraph 3-58 of this regulation. 

Army Regulation 624-100, in effect at the time, prescribed the policies and procedures for promotion of officer’s on active duty.  This regulation specified that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary 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 judgement of the reviewing official, it caused an individual’s nonselection by a promotion board and, that had such error been corrected at the time the individual considered, a reasonable change would have resulted that the individual would have been recommended for promotion.

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.  After carefully examining the evidence or record and the new independent information and argument submitted by the applicant, the Board found no new evidence which would call into question the previous 1993 and 1999 denial decisions of this Board.

2.  The Board found that the 1983 contested OER was properly and fairly completed in accordance with the applicable regulation and was properly accepted for filing by Department of the Army.  Therefore, the Board found no foundation to support either further modification or removal of the contested OER from the applicant’s record.

3.  The Board determined that the statement of support provided by the SR is the result of retrospective thinking on his part, based on the applicant’s nonselection to LTC, as he freely admits in his letter.  This statement fails to demonstrate how any of this new information provided by the SR would have changed the original evaluation he rendered on the contested report, which, by regulation, is required to support a successful OER appeal.

4.  The Board found that the new information submitted by the applicant failed to produce clear and convincing evidence that establishes that the presumption of regularity provided by the regulation should not be applied to the contested report under consideration.  Given the Board found no reason to recommend removal or modification of the contested OER, there is no basis to grant the applicant’s request that he be promoted to LTC under the criteria used by the 1989 LTC selection board.  

5.  In the opinion of this Board, the applicant’s nonselection for promotion to LTC, by both the 1989 and 1990 LTC selection boards, was not the result of a material error existing in his records at the time.  In addition, there was no evidence to suggest that his nonselection can be solely attributed to the contested OER.  The record shows that the positive OER’s provided by the applicant in support of his application, and the information he submitted pertaining to his filling various LTC positions, were part of the official record reviewed by the LTC selection boards.   

6.  Promotion to LTC in the Regular Army is keenly competitive and every year many officers with good records are not promoted.  It appears to the Board that the applicant’s nonselection to LTC was based on his relative standing with his peers, which was based on the collective best judgement of the members of the selection boards.  Therefore, the Board determined there was no basis to refer the applicant’s records to a special LTC selection board for promotion reconsideration.

7.  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.

8.  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

___sw___  ___fe ___  ___cla __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR200038555	
SUFFIX		
RECON	(1) 1999/08/19   (2) 1993/03/31	
DATE BOARDED	2000/04/13	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.000	
2.  310	131.000	
3.		
4.		
5.		
6.