PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  30 November 2000
	DOCKET NUMBER:  AR2000039544

	I certify that hereinafter is recorded the true and complete record of the proceedings 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. John N. Slone		Chairperson	
	Mr. Thomas Lanyi		Member	
	Ms. Celia L. Adolphi		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests removal of the officer evaluation report (OER) he received covering the period 1 August 1989 through 31 July 1990, from his official military personnel file (OMPF).

3.  The applicant states the signature of the rating officer (RO) is a forgery.  He submits a letter of support from the RO stating that while the remarks on the report are familiar he does not remember the block ratings, and the signature is not his signature.  The applicant also states the intermediate rater’s (IR’s) signature may also be a forgery.  He states the delay in appealing the OER is the fault of the RO who took a year to respond.

4.  The letter of support from the RO is dated 15 December 1995.  The RO states the comments on the report are aligned with his assessment of the applicant at the time, but he is certain he would have given him higher block ratings for potential and promotion.  He states the signature on the report is definitely not his signature.

5.  The applicant’s military records show that he was appointed as a Reserve chief warrant officer two, Aviation, effective 22 January 1989.  He had 8 years of prior service as a commissioned officer reaching the rank of captain.

6.  The contested OER was completed on 19 December 1990.  It was an annual report for his duties as a pilot.

7.  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 “1’s” in all areas of competence.  He received positive comments concerning ethics.

8.  In Part V, Performance and Potential Evaluation, the RO rated him below maximum in both areas.  He was rated in the second block for performance as usually exceeded requirements and in the second block for potential as promote with contemporaries.  RO comments in these areas were positive and commensurate with the block ratings.

9.  In Part VI, Intermediate Rater, the IR provided comments stating on many occasions the applicant excelled when given an assignment to instruct other pilots, and that he was a dedicated and loyal officer.

10.  In Part VII, Potential Evaluation, the senior rater (SR) rated the applicant in the third of nine blocks.  The SR profile is shown as 17/42/15*/2/0/0/0/0/0.  (The * indicates the applicant’s position in the profile.)  The SR’s comments were favorable, including “[Applicant] continues to contribute to the performance objectives of the unit”, and “He should continue to be given assignments that will realize his full potential as an aviator.”

11.  The OMPF shows the applicant received one report as a warrant officer prior to the contested report.  He received a maximum rating from the RO and a top block rating from the SR.

12.  He reentered active duty with a report date of 13 November 1990.
Effective 1 September 1994, he was promoted to CW3 and appointed in the Regular Army.

13.  After not being selected by the 1999 promotion board, he was selected by the 2000 promotion board for promotion to CW4.

14.  Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  The regulation provides for requesting reconsideration.

15.  Army Regulation 623-105 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.  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 action to correct an apparent material error or inaccuracy is warranted.

16.  The regulation provides for requesting a Commander’s Inquiry in cases when 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.”

17.  On 9 May 2000, the President of the Deputy Chief of Staff for Personnel, Special Review Boards (SRB), expressed the opinion the applicant’s appeal has not been supported by detailed documentary evidence and his evidence does not overcome the presumption of regularity.  He recommended denial.

18.  The opinion was forwarded to the applicant for his acknowledgment.  He did not respond.

CONCLUSIONS:

1.  Notwithstanding the opinion and recommendation of the SRB President, the evidence shows the signature of the RO on the contested report is apparently not that of the RO, and the report should be corrected accordingly.

2.  Based on this evidence, the Board concludes that the RO portion should be removed from the OER.

3.  The Board does agree with the SRB President concerning the remainder of the appeal.  The applicant has not previously requested a Commander’s Inquiry or appealed this report as provided for by pertinent regulations.  And he has not satisfactorily shown to the Board that the IR’s portion of the report should be changed or removed, and he has also not shown that the SR’s portion of the report should be changed or removed.  The Board concludes therefor, that the ratings of the applicant by the IR and SR should remain unchanged.

4.  It is noted that promotion policy provides procedures for requesting promotion reconsideration.

5.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing the rating officer’s rating in Parts IV and V, from the officer evaluation report of the individual concerned, covering the period 1 August 1989 through 31 July 1990.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__js____  ___tl____  __ca____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___John N. Slone___
		        CHAIRPERSON

INDEX

CASE ID	AR2000039544	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20001130	
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.