MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           23 January 2001                   
	DOCKET NUMBER:   AR2000043258

	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. Luther L. Santiful		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas E. O’Shaughnessy, Jr.		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) for the period 16 March 1995 through 29 February 1996 be removed from his Official Military Personnel File (OMPF).  

APPLICANT STATES:  That the senior rater (SR) found the contended OER to be in error after it had been sent to the Military Personnel Office.  He attempted to retrieve and correct it but the Military Personnel Office would not return it.  The OER is ruining his career.  Supporting evidence is as listed on the DD Form 149.

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

After having had prior enlisted service, he entered active duty as a warrant officer on 1 March 1984.  He was promoted to Chief Warrant Officer Three (CW3) on     1 October 1993.  He holds military occupational specialty 153B (UH-1 Pilot).

The contested OER is a 12-month change of rater report for the period ending  29 February 1996.  His rater gave him “1s” in all 14 rated categories in Part IVa (“1” to the highest degree and “5” to the lowest degree).  His rater rated his performance as “always exceeded requirements” with no overtly negative comments although one comment, “Completed all projects with continuous command guidance,” could be considered negative.  His rater rated his potential as “promote ahead of contemporaries.”  His SR gave him a 2-block, below center of mass rating (7/*3/0/0/0/0/0/0/0, * indicating the applicant’s rating) with no negative comments.

The SR on the contested OER was the same SR on his previous OER for the period ending 15 March 1995.  On this OER the SR gave him a 2-block, below center of mass rating (3/*2/0/0/0/0/0/0/0).

The applicant’s records show that he had several other OERs wherein he received below center of mass ratings:

OER ending period		Senior rater profile

15 December 1987		1/0/2/*2/0/0/0/0/0
11 July 1993			10/16/*4/0/1/0/0/0/0
Contested Report
30 September 1997		7/*1/0/0/0/0/0/0/0 (he also received a “2” in Part IVa1, “possesses capacity to acquire knowledge/grasp concepts”)

The applicant’s records show that he had one OER wherein he received an above center of mass rating:

28 March 1990 		*8/23/2/0/0/0/0/0/0/

In 1997, the applicant appealed the contested OER.  He requested removal of the rater’s comments in Parts Vc and Ve and removal of the SR’s 2-block rating.  He provided, in addition to other evidence, a letter from his SR.  The SR stated that he had rated the applicant below center of mass based primarily on his perception that his performance during a particular aircraft phase maintenance was not to standard.  After an OER counseling with the applicant, he talked to the unit’s maintenance noncommissioned officer and determined that the applicant’s performance was appropriate and earnest.

The Officer Special Review Board (OSRB) determined that the evidence provided did not justify altering or withdrawing the OER.  The OSRB noted that the SR had rated the applicant as below center of mass on two consecutive OERs and noted that there had been no appreciable differences in the duty responsibilities rated by the two reports although there had been a duty title change.  The OSRB had contacted the SR.  The SR informed the OSRB that he had rated the applicant as he did based on what the company commander (the rater) had told him about the applicant’s duty performance.  During the OER counseling session, the applicant advised him of a personality conflict between himself and the rater but he did not try to verify the conflict with the rater, who had departed the command.  Had he known of the conflict, he probably would have top blocked him because higher headquarters was very concerned about ratings at that time.  The SR informed the OSRB that he had worked with one of the finest maintenance warrants prior to the applicant.  The OSRB stated that the SR maintained that the two below center of mass ratings were his true assessments of the applicant’s performance.

In the processing of this case, an advisory opinion was obtained form the OSRB. The OSRB returned the case without further action, noting that no new information was provided.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  The applicant stated that he requested a personal appearance before the Board but an appearance was not granted and no reason was given.  He stated that at a personal appearance he could have further explained the personality conflict between his rater and himself.  The third party statements provided were from individuals who had better insight to the issues – individuals who were in the same unit with the same rater and senior rater.  Had he been allowed to appear before the Board in person he could have described how the SR tried to stop his OER from going forward to correct it.  He knew that the warrant the SR referred to as one of the finest maintenance warrants was a Chief Warrant Officer Four (CW4).  He submitted that it was not fair to compare CW3s to CW4s.

Army Regulation 623-105 dated 15 November 1981 was in effect at the time and established the policies and procedures for preparing, processing and using the OER.  The regulation provided 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.  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.  Paragraph 9-9b(2)
stated that a personality conflict between the rated member and a rating official did not constitute grounds for relief; it must have been shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.  Paragraph 4-16b stated that the SR’s evaluation was made by comparing the rated officer’s potential with all other officers of the same grade or grade groupings in the case of lieutenants, warrant officer ones/chief warrant officers two and CW3s/CW4s.

Army Regulation 15-185, which governs the operation of the Board, states that applicants do not have a right to a hearing before the Board.  The Director or the Board may grant a formal hearing whenever justice requires.

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, 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 Board agrees with the OSRB that the applicant provided no evidence to justify altering or withdrawing the OER.

3.  The applicant states that there was a personality conflict between himself and his rater.  Yet, his rater rated his performance as “always exceeded requirements” and his potential as “promote ahead of contemporaries.”  The SR stated that had he known of the personality conflict he would have top blocked the applicant because higher headquarters was very concerned about ratings at that time.  However, he does not state that the personality conflict resulted in an 

inaccurate or unjust evaluation.  He did not explain what the “concern” was for.  A personality conflict alone is not grounds for removing the contested OER.  The Board concludes that the applicant has provided no evidence to show that the personality conflict resulted in an inaccurate or unjust rating. 

4.  The SR informed the OSRB that he had worked with one of the finest maintenance warrants prior to the applicant, implying that the applicant’s performance did not meet the highest standards and therefore did not justify giving him a top block rating.  The applicant’s 2-block rating is consistent with the SR’s previous rating of him.  He provides no evidence to show that his duty performance during the rating period of the contested OER was significantly better than it was during the period of his previous OER so as to justify a top-block rating.  It was proper, “fair,” and in accordance with regulatory guidance that the applicant’s duty performance be compared with a CW4’s duty performance.

5.  The applicant contends that had he been given a formal hearing he would have described how the SR tried to stop the contested OER from going forward in order to correct it.  The Board concludes that this is an important point; however, the SR never mentioned it either in his statement provided with the OER appeal nor in his conversation with the OSRB.  The Board is not convinced that a lieutenant colonel who believed it so unjust to have given the applicant a  2-block rating that he tried to change his rating before the OER left the Military Personnel Office would have failed to mention that fact without prompting by the applicant or the OSRB.  

6.  The Board is also not convinced that the contested OER alone is “ruining” the applicant’s career.  Besides the previous OER the SR of the contested report had given him, the applicant had received two earlier below center of mass ratings plus one subsequent below center of mass rating.  

7.  There is no statutory or regulatory right to a formal hearing.  The Board receives over 15,000 applications each year but normally grants fewer than 15 formal hearings a year.  Formal hearings are granted when the Board determines that a case is so complex or the records so incomplete that only sworn testimony can provide the necessary information.  The Board concludes that those circumstances are not met in this 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

__lls___  __wtm___  __teo___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043258	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.