MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           14 September 2000                   
	DOCKET NUMBER:   AR2000043611

	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	
	Ms. Margaret K. Patterson		Member	
	Mr. Elzey J. Arledge, 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:  In effect, that part VIIa of his Officer Evaluation Report (OER) for the period 1 August 1996 through 1 July 1997 be deleted.

APPLICANT STATES:  That the potential evaluation rendered by the senior rater in part VIIa of the contested OER is unjust and inaccurate.

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

After having had prior enlisted service, the applicant was appointed a warrant officer one and entered active duty in 1985.  He was promoted to Chief Warrant Officer Three (CW3) on 1 August 1993.

The contested OER is an 11-month change of rater report for the period ending  1 July 1997.  In part VIIa, the senior rater (SR) gave him a below center of mass second block rating (2/1/0/0/0/0/0/0/0).  Comments in part VIIb included “…is the exceptional performer who can be relied upon for superb results in all that he does.  He is one of the best and most promising…is committed…has great potential.  He should be promoted and selected for the Warrant Officer Senior Course.”

In November 1999, the applicant appealed the OER and requested first priority processing as he was a two-time non-select for Chief Warrant Officer Four (CW4).  He based his appeal on substantive inaccuracy, stating counseling with his rating officials during the entire rating period consistently centered around his outstanding job performance and that here were no counseling sessions addressing sub-standard performance at any time.  He included several statements of support, including one from Chief Warrant Officer Five (CW5) G___.

The Officer Special Review Board (OSRB) denied the applicant’s appeal.  The OSRB contacted the applicant’s rating officials.  The SR stated his decision to place the applicant in the second block was a deliberate one.  He was attempting to send a message to the applicant that he needed to improve his duty performance, particularly in regards to a large dining facility for which he was responsible but did not seem to be interested in its management.  The SR recalled he had talked to the applicant about this and had also asked a senior warrant officer to talk to him concerning his management style.  The SR considered the other warrant officers in the applicant’s peer population to be superior to the applicant in both duty performance and potential.  The OSRB contacted CW5 G___, who confirmed that the SR had talked to the applicant about the SR’s dissatisfaction with his management of the dining facility.  CW5 G___ stated that he considered the report, as written, to be a fair and accurate evaluation of the applicant in comparison to the other warrant officers rated.  The OSRB reviewed the top block reports rendered by the SR on the other CW3s in his profile during the timeframe coinciding with the contested report.  The OSRB stated that a clear distinction in the quality of the SR’s comments in part VIIb was revealed.  One of the two CW3’s OER had comments such as “…his potential is without limit.”  The other CW3’s OER had comments such as “Select him for immediate promotion…”  The OSRB felt the SR did not portray the applicant as being distinctly superior to his contemporaries in terms of either performance or potential.  The OSRB noted that while the third party statements provided spoke highly of the applicant’s performance, none of those individuals were in a position to fully understand the expectations of the SR for the applicant.  The OSRB felt that there was insufficient convincing evidence that part VIIa of the contested OER was inaccurate, unjust or did not adequately reflect the applicant’s demonstrated performance and potential.

In February 2000, the applicant resubmitted his appeal to the OSRB (SEE ATTACHED).  

On 29 February 2000, the applicant was mandatorily retired as a result of being a two-time nonselect for promotion.

On 14 April 2000, the OSRB returned the applicant’s appeal without action as he had failed to provide sufficient “new” evidence to warrant reconsideration (SEE ATTACHED).

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.  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, 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 statement provided by the SR to the OSRB showed that the second block rating given to the applicant represented the considered opinion and objective judgment of the SR at the time of preparation of the contested OER.  The Board agrees with the OSRB’s determination that a comparison of comments on the applicant’s contested OER with comments on OERs of the other two CW3s rated by the SR indicate the SR honestly felt the applicant’s potential was not on a par with those other two CW3s.

3.  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___  __mkp___  __eja___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043611	
SUFFIX		
RECON		
DATE BOARDED	20000914	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.