PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            26 July 2000                  
	DOCKET NUMBER:    AR2000042106

	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. W. W. Osborn, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. John D. Miller		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Margaret K. Patterson		Member	
	Mr. Thomas B Redfern, III		Member	
	Ms. Carol Jo Suiter		Member	

	The applicant and counsel 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)
	Exhibit C – Transcript of Testimony from previous 
  formal hearing

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, in effect, reconsideration of his previous appeals to promote him to major and reinstate him to active duty by entering a recently completed senior rater option officer evaluation report (OER) into his record in place of the 1983 OER as a company commander that has been removed from his record.

3.  He states that he believes the lack of a command OER has been the major factor in his not being promoted.  He believes, in effect, that the recently completed senior rater option OER reflects an accurate evaluation of his performance as a company commander and that the support of numerous senior officers shows his true potential.

4.  The applicant and his supporting witnesses appeared at a personal appearance hearing on 29 September 1999.  At that time, it was called to his attention that two of the Board members had been involved with, at least, one of his earlier appeals.  He was asked if he objected to their serving.  He replied that he did not, that he trusted their ability to make a fair and impartial decision.  Subsequently, the applicant complained to a member of congress that he had felt unduly pressured to accede because, in effect, he could not conceive of how he could handle a rescheduling.  The Deputy Assistant Secretary , Army Review Boards, directed that a new panel should reexamine the evidence previously presented.   

5.  The applicant served on active duty in an enlisted capacity from February 1974 to June 1976 and was promoted to pay grade E-5.  He attended Officer Candidate School, was commissioned in June 1976,  entered active duty and progressed normally.  The applicant was twice (1985 and 1986) non-selected for promotion to major.  In June 1987 the Officer Special Review Board (OSRB) considered the applicant’s appeals of the original OER as a company commander and an earlier one (for the period I May 1981 through 22 January 1982 when he was a battalion S-2).   Except for a “minor administrative correction” to the rater’s comments on the earlier OER, the appeals were denied.

6.  In September 1987 the OSRB again considered the case and denied further action on the earlier OER.  However, relative to the second OER (as company commander), it accepted the applicant’s contention that the rating officials had possessed insufficient personal knowledge to adequately evaluate his performance and granted the appeal.  His OER as a company commander was accordingly deleted from his Official Military Personnel File (OMPF).  A special selection board reconsidered the applicant for promotion to major under the 1986 criteria.  He was again non-selected and was released from active duty on 
29 September 1987. 

7.  On 13 May 1989 this Board considered and denied the applicant’s request for restoration to active duty and promotion to major.

8.  On 4 October 1989 this Board reconsidered the applicant’s requests.  He submitted an evaluation form completed by his 1983 battalion commander and former Deputy Group Commander, both retired.  The latter explained that he had not had time to complete a “senior rater option OER” because he had been retired on short notice.  The former Deputy Group Commander offered the document to show how he would have rated the applicant, if he had exercised the senior rater option.  The applicant requested the Board to place this evaluation (hereafter referred to as the “Command OER”) into his OMPF to cover his period of company command.  He also contended that an additional six OERs should be amended or deleted from his record and that he should be reconsidered for promotion and restored to active duty.  He contended that the OSRB directed changes had not been accomplished before he was reconsidered for promotion.  At the request of this Board, the applicant’s promotion was reconsidered by a special selection board with the corrected first OER in place and with the proffered senior rater option company command OER entered into his record.  The applicant was again non-selected.  This Board denied the applicant’s requests.

9.  The applicant submitted letters supporting his request as indicated below.

a. In an 11 November 1994 letter the retired colonel, who signed the above OER as senior rater, reports that he was the applicant’s senior rater for the first 7 months of the subject command tour of duty.  He relates that the applicant “did everything right” but through no fault of his own he has been haunted by the period.  He reports that he, himself, was much too pressured to wrap up his own active duty period and retire to exercise the senior rater option and prepare an OER for the applicant.  He wanted to do so, but did not have time.  In a 24 September 1999 letter he repeated his support and observes that he would have rated the applicant in the top 10 percent.

b.  Another retired colonel writes that the applicant served with him in one of his (Reserve) tours with the Deputy Chief of Staff for Intelligence (DCSINT).  He also observed the applicant’s work in other assignments and the applicant’s performance was outstanding in each case.
 
c.  A retired lieutenant general writes that he is aware of the circumstances surrounding the applicant’s receipt of a poor OER for his command tour and believes that the applicant was the victim of those circumstances.  He recommends that the applicant be promoted and returned to active duty.

d.  Another retired lieutenant general writes that he has known the applicant since he was an enlisted man and supported his attendance at OCS.  While DCSINT, he supported the applicant’s Reserve assignment to the staff and extended him three times to work on a joint project for the Secretary of Defense.  He also considers the applicant’s educational experience in the Middle East to be an asset.  He believes that the applicant was a victim of circumstance because his immediate rater was relieved and notes that the rater successfully appealed that relief for cause OER.

e.  A retired major general writes that the applicant is experienced in a critical specialty as the result of his graduate work since leaving the Army.  He points out that three former DCSINTs and a former Chief of Staff have supported the applicant’s appeal.

f.  A retired sergeant major, who served in the applicant’s command, indicates that he is aware of the supporting statements of others and is in wholehearted agreement.  He believes that the reconstructed “Command OER” is an accurate evaluation of the applicant’s performance.

 10.  The applicant testified under oath that he was grateful to the many senior officers who had encouraged his efforts and provided him with the several letters of support.  He believes that these letters accurately depict the circumstances that existed when he was a company commander, correctly describe his performance of duty (then and subsequently) and demonstrate that the requested relief is warranted.  He stated that the situation came about because his rater was relieved for cause which changed the applicant’s rating chain and resulted in a low OER.  Ultimately, his former rater’s relief for cause OER was removed from his record.  Then, the applicant’s own OER was removed from the record by the OSRB.  He pointed out that despite the low OER he was awarded an Army Commendation Medal for his performance as a company commander.  Subsequently, the former senior rater, who had not exercised the senior rater option because his retirement was “short fused,” prepared the reconstructed “Command OER.”  He has sought to have that interred into the record because that course of action had been suggested to him by the senior legal advisor at the Total Army Personnel Command.  He relates that 90 percent of his contemporaries by rank and specialty had been promoted to major.  He related that, although he had interesting, challenging assignments while in the Reserve, he had to terminate his affiliation in order to further his education. Finally, he testified that, because of his graduate studies at Hebrew University in Jerusalem and his travel in the Middle East, he believes that he can make a significant contribution as a foreign area officer.

11.  A retired brigadier general testified to the effect that he had known the applicant since the early 1980s when the applicant was a battalion intelligence officer.  He had done a difficult job under adverse circumstances and was selected to command a company.  He later supported the applicant’s appeal of his OERs.  He considers the applicant the most tenacious officer he has ever met.  He later observed the applicant’s performance directly when he was assigned Reserve duty to the DCSINT.  He believes that the applicant had been treated unfairly and that he would make significant contributions if allowed to return to active duty.

12.  A retired colonel testified that the applicant had worked for him as a Reservist on the Army staff.  His work had been so impressive that he had been extended in the position.  The applicant is an exceptional officer who produced exceptional work in a very difficult and demanding environment.  He believes that the applicant’s efforts to correct his record are no less significant than the fact that he also went on and furthered his education.   He believes that the applicant was wronged, that he should be restored to active duty and that he would make significant contributions if he were reinstated.

13.  The applicant submitted a 20 July 2000 letter that was essentially a rebuttal of the conclusions and recommendation of the previous formal hearing plus a brief summary of the applicant’s latest academic experience. The conclusions and recommendation of the previous formal hearing panel were not made available to this panel of the Board. 

14.  Army Regulation 624-100 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 nonconsideration 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  nonselection 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 boards are not required to divulge the proceedings or the reason(s) for nonselection.  

CONCLUSIONS:

1. The applicant avers that he followed the advice given to him in not appealing the OERs earlier.  However, he has offered no evidence of this.  Officers are taught, advised, counseled and cautioned that they need to pay meticulous and timely attention to their own records and that everyone is their own best (and most interested) career manager.  Yet, the applicant waited until he had been twice non-selected for promotion to major before he appealed the two OERs and until 1989, well after he had been released from active duty, to appeal an additional six OERs.

2.  The Board notes this belated action and concluded that this failure to pay appropriate attention to his own record reflects unfavorably upon his judgement and potential at that time.

3.  The errors or injustices in the applicant’s record were corrected when the first appealed OER was modified and when the second appealed OER was removed from his record and the period was declared nonrated and his promotion was reconsidered by a special selection board.

4.  The Board notes that at the time he was non-selected for major by special selection boards his record contained (under the modern evaluation system) seven center of mass (COM), two below COM and no above COM OERs.  

5.  The Board also notes the impressive support obtained from numerous senior officers.  However, aside from the “Command OER” period , most of the specific information, including the direct testimony, relates to his more recent performance and potential.  However, it is the applicant’s performance and potential at the time he was considered and non-selected for promotion to major that is at issue here.

6.  Placing the years after-the-fact senior rater option into his record is extraordinary relief for which there is no regulatory provision.  Neither was there any regularity provision for doing so at any time after the retiring senior rater chose not to exercise the senior rater option.   The Board specifically concludes that the requested relief is not warranted.  Because, in the judgment Board, had this “Command OER” been in his record at the time the applicant was originally considered, there is not a reasonable chance he would been recommended for promotion.  He would still have been an undistinguished, a COM officer and the “Command OER” would have been insufficient to outweigh the two below COM evaluations, one of which occurred after his command tour. 

7.  Although the applicant has repeatedly stated that serving in the Army is his greatest ambition, the Board notes that he voluntarily terminated his affiliation with the Army Reserve.

8.  The Board, after reviewing the previously presented testimony from the applicant and his witnesses and reviewing his supporting documentary evidence and his official records, determined that his overall performance was not so meritorious as to warrant any part of the requested 
 
9.  In view of the foregoing findings and conclusions the Board is of the opinion that the applicant has failed to submit sufficient evidence to warrant the relief requested.  

RECOMMENDATION:

That the applicant’s requests be denied.

		__    _John D. Miller______
		        CHAIRPERSON

INDEX

CASE ID	AR2000042106	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000726	
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.