MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           22 August 2000                   
	DOCKET NUMBER:   AR2000043560

	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. Edward Williamson		Chairperson	
	Ms. Margaret V. Thompson		Member	
	Mr. Kenneth W. Lapin		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 senior rater (SR) portions of her Officer Evaluation Report (OER) for the period 29 January through 26 October 1993 be expunged.

APPLICANT STATES:  That the rating did not reflect her true duties in counterintelligence performed for seven of the nine rated months.  Newly received information from her SR reveals his rating would have been more favorable had he been made aware of her true duties.

COUNSEL CONTENDS:  Counsel makes no additional contention.

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

After having had prior service, she entered active duty on 26 October 1988 in the Military Intelligence Branch.  She was assigned to Korea in 1989.  She was promoted to captain on 1 April 1993.

The contested OER is a nine month change of rater report for the period           29 January through 26 October 1993.  Part IIIa shows her principal duty title as Assistant Brigade S-3 Imagery Operations Officer.  Part IIIc describes her duties as an Imagery Operations Officer.  In part Vc, her rater describes her performance as an Imagery Operations Officer.  In part VIIa, her SR rated her below center of mass (3/3/1*/0/0/0/0/0/0; * is the applicant’s rating).  The SR checked that he had received and considered a completed support form with the report.  In part VIIb the SR commented “…Her natural abilities make her best suited for future assignments in the HUMINT and Counterintelligence fields…”

The applicant had signed the OER on 26 October 1993.  Her raters signed the OER in November 1993.

There is no evidence to show that the applicant requested a commander’s inquiry on this OER.

On 19 October 1998, the applicant appealed the OER.  She contended that she was rated as the Assistant Brigade S-3 Imagery Operations Officer whereas for seven months of the nine-month rating period she was actually performing duties as the Assistant Brigade S-3 Counterintelligence/Human Intelligence (CI/HUMINT) Operations Officer.  No comments about her duties as the CI/HUMINT were made in the OER.  She did not have the opportunity to confront her rater since he had already left the unit without showing her what he wrote.  The entire OER was contaminated in that the SR did not have direct dealings with her, nor did he know of her duties, and in fact had only met her once at the time of the senior rating.  She had complained to the SR about the error but he advised her that she had to sign the OER acknowledging that she saw it and that the administrative data was correct.
The Officer Special Review Board (OSRB) had contacted the applicant’s rating officials.  The rater had stated that he had difficulty remembering details due to the passage of time but did recall that the applicant was not technically oriented.  He stated he did prepare “draft” comments for the SR’s use but felt confident the SR wrote his narrative comments himself.  The rater had not recommended a block check.  The rater could not recall receiving a support form with her HUMINT duties annotated and that it had been “ignored or lost.”  The rater could not recall if he discussed his potion of the OER with the applicant but he had been reassigned about the time her report was due.  He had counseled her several times during the rating period.  The SR informed the OSRB that he recalled the HUMINT position was filled when the applicant was assigned and that she was placed in the imagery job to broaden her experience.  He did not remember her changing her duty position.  He recalled the applicant had performance problems throughout the rating period.  He stated it was his practice to have a monthly counseling program wherein both rating officials met with the officer and discussed her performance, objectives and progress towards achieving the desired results.  He did conduct a final counseling session with the applicant but did not recall if the inaccuracy of her job description was a topic.  He concluded that he deliberately rated her as he did and that the report was an accurate reflection of her demonstrated duty performance and potential at the time the report was rendered.  The OSRB denied her appeal.  

After obtaining a further statement from her SR concerning the contested OER, the applicant applied to this Board for relief.  In his statement, the SR acknowledged that the applicant had evidence to show she made substantial contributions to the CI component of the unit’s mission while, and in addition to, serving as the principle Imagery Intelligence Officer.  Had he been made aware that she was the defacto CI officer while concurrently serving as the Imagery Intelligence Officer, he would have rendered a more favorable rating.  In rating her as the Brigade Intelligence Officer, it was his judgment that her performance, particularly in the areas of professional maturity and judgment relative to that of her peers, was lacking.  Throughout the rating period, he convened and participated in a number of formal counseling sessions between her and her rater which focused on these specific shortcomings.  It was his determination at the time of his rating that she continued to lag behind her peers in these specific performance areas.  He intended his rating to convey to the applicant that she needed to continue to improve if she were to compete successfully with her peers.  Having reviewed the applicant’s subsequent OERs, it was clear to him that she has matured to become a Military Intelligence officer of note.  He concluded that his rating served its intended purpose and it was not his intent that the OER have a continuing deleterious affect on her career.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also 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 the primary purpose of a 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.  It is not intended to substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  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.  

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 Board concludes that the SR statement the applicant provides in support of her application refutes much of what she has contended.  She contended in her OSRB appeal that the senior rater did not know of her duties and had only met her once at the time of the senior rating.  The SR stated that he convened and participated in a number of formal counseling sessions between her and her rater throughout the rating period.  Since the applicant accepts the SR’s statement, the Board finds it difficult to believe that while her raters were counseling her on her shortcomings in specific performance areas she failed to inform them that they were counseling her on shortcomings in duties she was not performing.  

3.  The applicant contended that she worked in CI/HUMINT after only a few weeks of work as an Imagery Intelligence Officer.  The SR stated that while she made substantial contributions to CI her principle duties were as the Imagery Intelligence Officer.  

4.  The SR contradicts himself when he stated that had he been made aware that she was the defacto CI officer while concurrently serving as the Imagery Intelligence Officer, he would have rendered a more favorable rating.  (The Board would accept this statement if it believed the applicant failed to inform the SR during the counseling sessions that she was not working as an Imagery Intelligence Officer.)  The SR stated the applicant was counseled that her professional maturity and judgment relative to that of her peers was lacking.  These are generalized shortcomings and the SR does not relate them specifically to her duties as an Imagery Intelligence Officer.  He stated it was his determination at the time of his rating that she continued to lag behind her peers in these specific performance areas and it was his intent to use his rating to convey to the applicant that she needed to continue to improve if she were to compete successfully with her peers.  His intent now, now that she has improved, to ensure that his rating does not have a deleterious effect on her career does not negate the fact it was his intended rating at the time it was rendered.  

5.  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

__ew____  __mvt___  __kwl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043560	
SUFFIX		
RECON		
DATE BOARDED	20000822	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.