MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           7 December 2000                   
	DOCKET NUMBER:   AR2000041043

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Mr. Ernest W. Lutz, Jr.		Member	
	Mr. John P. Infante		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 4 June 1993 – 18 March 1994 be corrected to show his senior rater (SR) gave him a 1 block rating; that his OER for the period 1 October 1997 – 2 September 1998 be corrected to show he served in an O-4 position; and that his records be reconsidered for promotion to lieutenant colonel (LTC) by a special selection board (SSB).

APPLICANT STATES:  That the erroneous SR rating on his OER for the period ending 18 march 1994 was prejudicial to his consideration for promotion.  In addition, two months later Aviation Branch sent a letter to all Aviation SRs warning that any rating other than a 1 block would put an officer at risk.  The timing of his OER was unfair.  Compared to his peers, he appeared below average.  He had sent a better official photograph in November 1998 to Aviation Branch but it never replaced the poorer quality, October 1998 photograph.  This gave the erroneous impression that he did not care enough to present to the promotion board a high quality photograph.  The job title of “Battalion S2/S3” on his 0-4 branch qualification OER for the period ending 2 September 1998 was misleading and prejudicial.  It was an 0-4 position yet the board members very likely perceived the position as that of an 0-3.  His record also did not benefit from recent Department of the Army guidance that changed the affirmative action and equal opportunity instructions to promotion boards.  As a white male he was treated unfairly by not being provided special consideration such as females and minorities were.  Supporting evidence is as listed on the attachment to the        DD Form 149.

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

He was appointed an Infantry second lieutenant out of West Point on 25 May 1983.  He completed the Officer Rotary Wing Aviator course in October 1987.  He was promoted to major on 1 January 1995.  

The applicant’s OER history for the OERs just prior to and subsequent to the contested report show he was given a “center of mass” rating in all instances (an * indicates the applicant’s rating):  

     OER ending 25 September 1992:  42*/0/0/0/0/0/0/0/0
     OER ending 3 June 1993:  5*/0/0/0/0/0/0/0/0
     Contested OER ending 18 March 1994:  1/5*/0/0/0/0/0/0/0
     OER ending 1 February 1996:  4*/2/0/0/0/0/0/0/0
     OER ending 15 October 1996:  5*/2/0/0/0/0/0/0/0
     OER ending 1 June 1997:  1*/0/0/0/0/0/0/0/0
     OER ending 30 September 1997:  10*/0/0/0/0/0/0/0

The applicant’s OER for the period ending 2 September 1998, under the new OER cycle 67-9 system, shows that he was given a center of mass rating.  Part III shows his principal duty title as Battalion S2/S3.  (Only the duty title is to be listed in this part; not the grade of the position.)

The applicant was considered for but not selected for promotion by the fiscal year 1999 LTC promotion selection board.  An Aviation Branch officer was a member of that board.

On 5 December 1999, the applicant’s SR stated that at the time of the applicant’s contested OER he maintained a strict profile as per Department of the Army guidance to clearly identify above-center-of-mass performers.  The applicant was a very effective troop commander and it was his intent that he be promoted to major as well as to LTC.  Because he placed the applicant in the second block, the SR felt he had clarified that (promotion) intent in his comments.  If he had known that his failure to place the applicant in the top block would hurt his chances for promotion, he would have given him a top block rating.

The applicant’s rater for the contested OER stated that he had advised the SR to give the applicant a top block rating.

The applicant’s former Aviation Branch assignment officer stated that Aviation Branch had sent a memorandum to all Aviation SRs on or about May 1994 warning them that under the “old” OER system any rating other than a top block would put an officer at risk.  He noted that he had discussed the contested OER with the applicant and had commented that the timing of the 2-block rating was unfortunate since it was processed shortly before the warning came out.  

In the processing of this case, an advisory opinion was obtained from the Officer Special Review Board (OSRB).  The OSRB opined that the applicant’s request for amendments of his OERs for the periods ending 18 March 1994 and              2 September 1998 and for promotion reconsideration for the fiscal year 1999 LTC promotion selection board were not warranted.  

The applicant rebutted the advisory opinion.  He noted that the SR had stated that he recommended that the necessary corrections be made to the applicant’s official records to provide for a fair evaluation of his potential for promotion to LTC.  The 2-block OER was certainly not consistent with the mainstream Army during which time most SRs awarded top blocks to the vast majority of their officers and illustrated the flaws of the old system.  The new, current OER system was created to restore SR accountability.  He continues to contend that the job title on the OER for the period ending 2 September 1998 is misleading and prejudicial.  He provides an extract from the Corps Air Traffic Services Battalion modification table of organization and equipment (MTOE) to show that he was in an S2/S3 04 position.  He provides email traffic as proof that he sent a photo taken on 16 November 1998 to PERSCOM and that it was received in time to be placed in his records yet it was not.
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.  In pertinent part, it states that one of the responsibilities of the SR is to evaluate the rated officer’s potential relative to his or her contemporaries.  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.  

Army Regulation 600-8-29 prescribes the officer promotions function of the military personnel system.  In pertinent part, it states that an officer will not be reconsidered for promotion by an SSB for a number of reasons including when an administrative error was immaterial or the selection board did not see an official photograph.

In 1999, the U. S. District Court for the District of Columbia and the U. S. Army agreed to settle a lawsuit by two Judge Advocate General’s Corps (JAGC) LTCs who claimed that the affirmative action portion of instructions used by the colonel’s promotion board violated their equal protection and due process rights under the Fifth Amendment to the Constitution.  The civil action was dismissed pursuant to those officers being reconsidered for promotion to colonel through an SSB.

On 5 June 2000, the U. S. Court of Federal Claims established, in a case concerning an officer selected by a Selective Early Retirement Board (SERB) for early retirement, that the Memorandum of Instruction used by the SERB was invalid because it was not narrowly tailored.  It also established that the Army’s tailoring of its policy to cover personal discrimination at both Phases I and II of the SERB process was unconstitutional.

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 this requirement.

2.  The SR’s statement that he recommended that the necessary corrections be made to the applicant’s records (i. e., that his 2-block rating be changed to a      1-block rating) to provide for a fair evaluation of his potential for promotion to LTC is insufficient to make that correction.  The SR’s responsibility was to evaluate the applicant’s potential relative to his contemporaries.  The SR stated that he maintained a strict profile to clearly identify above center of mass performers.  The implication is that the SR did not intend to identify the applicant as an above center of mass performer and so placed him in the 2 block (as he did the majority, 5 out of 6, of the officers that he senior rated).  Since he believed the applicant should still be promoted, he then attempted to clarify his intent to see him promoted to LTC with his SR comments.  

3.  The Board concludes that the applicant’s 2-block rating did not hurt his promotion chances.  He had already been selected for promotion to major.  Aviation Branch’s warning about block ratings came out in 1994 at the end of the OER 67-8 cycle when, as the applicant has stated, SR ratings were vastly over-inflated.  He was not considered for promotion to LTC until 1999, after the OER 67-9 cycle was introduced to restore senior rater accountability and after all senior officers, including those who sat on his promotion board, were fully informed of the previous system’s over-inflated ratings.  All his OERs subsequent to the 18 March 1994 OER showed that he was rated as a center-of-mass officer. 
The Board concludes that the members of the promotion board were sufficiently cognizant of the meaning of the 2-block rating to infer it meant the applicant was a center-of-mass officer.

4.  The Board concludes that the job title on the OER for the period ending          2 September 1998, showing the applicant was a Battalion S2/S3, was not misleading and prejudicial.  That was exactly the title as it was listed on the aviation MTOE.  The Board concludes that the members of the promotion board were sufficiently experienced to ask either the Aviation Branch member of the board or the U. S. Total Army Personnel Command for clarification if they had any questions concerning this issue.  

5.  The Board concludes that lack of the most up-to-date photograph in the applicant’s promotion file is insufficient reason to overturn regulatory guidance concerning official photographs and SSB consideration.

6.  In some previous cases, the Board granted the applicants promotion reconsideration based upon the1999 U. S. District Court for the District of Columbia case and reasons of equity.  The Court settlement involved JAGC LTCs non-selected for promotion to colonel; the Board’s cases involved JAGC LTCs non-selected for promotion to colonel by all or some of the same promotion boards that non-selected the individuals involved in the settlement.  In this case, the Board concludes that the same equity considerations do not apply.  The applicant is a major, not JAGC, who was non-selected for promotion to LTC so he was not considered by the same boards that considered the individuals in the U. S. District Court case.  The individual in the U. S. Court of Federal Claims case was considered by a SERB, not a promotion board.  In addition, the applicant’s records, as evidenced by his OER history, do not appear to be so meritorious as to convince the Board that the only reason he was non-selected for promotion was due to the equal opportunity instructions.

7.  Although the Chief Judge of the U. S. Court of Federal Claims has held the challenged equal opportunity board instructions unconstitutional in a SERB case, it is noted his decision operates only as the law of that particular case. 

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

__rvo___  __ewl___  __jpi___  DENY APPLICATION

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

INDEX

CASE ID	AR200041043	
SUFFIX		
RECON		
DATE BOARDED	20001207	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	131.01	
3.		
4.		
5.		
6.