PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            6 March 2001
	DOCKET NUMBER:   AR2000044861

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelly		Chairperson	
	Mr. Ernest W. Lutz, Jr. 		Member	
	Mr. Harry B. Oberg		Member	

	The applicant and counsel if any, 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)

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 removal of the “CORRECTED COPY” of an Officer Evaluation Report (OER) for the rated period 12 May 1996 to 27 July 1996 from his Official Military Personnel File (OMPF) and reconsideration for promotion to lieutenant colonel by the appropriate Standby Selection Boards (SSB).

3.  The original DA Form 67-8 (Officer Evaluation Report) rendered on the applicant on 30 August 1996 for the rated period 12 May 1996 to 27 July 1996 is henceforth known as contested OER #1.  Contested OER #1 was amended by the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB) effective 10 March 2000 based on appeal by the applicant.  The action by the OSRB resulted in a “CORRECTED COPY” of contested OER #1.  This “CORRECTED COPY” of contested OER #1 is henceforth referred to in these Proceedings as contested OER #2 and is the OER which the applicant wants the Army Board for Correction of Military Records (ABCMR) to remove from his OMPF.

4.  The applicant submitted three attachments with a total of 66 enclosures in support of his application.  The documents submitted by the applicant are listed on attachment 1 (TAB 1), dated 6 June 2000; attachment 2 (TAB 2), dated 6 June 2000; and attachment 3 (TAB 3), dated 9 August 2000, to his application.

5.  Attachment 2 (TAB 2) states the applicant’s primary contentions and requests for relief.  In this attachment, he states that the OSRB removed the original senior rater (SR) [a brigadier general] from contested OER #1 and designated the rater [a colonel] for contested OER #1 as both the rater and SR for contested OER #2.  He contends that the published rating chain identified a lieutenant colonel (his battalion commander) as his rater and that there was no published change identified at any time.  In attachment 3, dated 9 August 2000, the applicant states that he has appealed his non-selection to lieutenant colonel by the 1998 and 1999 Reserve Component Selection Boards, requested continuation in the U.S. Army Reserve (USAR) as a result of his appeal being considered by the ABCMR, and requested that his appeal to the ABCMR “be upgraded for review” based on his two non-selections and the fact that his first OER appeal “consumed” almost four years. 

6.  The applicant also states that he was unaware of a colonel being authorized to hold both duty positions [rater and SR] for any rating period, that there is no signature of the SR on contested OER #2 and a signature cannot be provided due to the fact that the SR for contested OER #2 is no longer within the USAR system.  He also contends that the colonel who is the SR for contested OER #2 is unaware of the change to this OER and was never presented contested OER #2 for signature prior to it being submitted for the record.  The applicant also finds it “questionable” as to why the SR for contested OER #1 is changed since this general officer is still within the system.  

7.  The applicant also contends that Part VII (Senior Rater) of contested OER #2 indicates that he did not submit a DA Form 67-8-1 (OER Support Form); however, he claims that no request or directive was ever given to him for such submission.  He continues that Part VII (Senior Rater) of contested OER #2 further shows that he was counseled on the reason for his relief on 27 July 1996. The applicant claims that this session never took place, that there is no record or hard copy to support the SR’s statement and that 27 July 1996 was the first date of his rating period with his new unit of assignment.  

8.  The applicant also contends that certain incidents occurred while he was assigned as executive officer of the military police battalion which either involved him directly or were brought to his attention by members of the battalion staff and that these incidents (cited in enclosures 6 through 11 to attachment 2) represent a separate agenda and provide background for the relief of the battalion commander and himself.  Enclosures 6-11 are memoranda with attachments most of which are written by the applicant and provide his views resulting from involvement in duty related personnel actions and conversations during the period March and May 1995 and February and July 1996.  These matters include professional conduct of the unit senior staff administrator (SSA), establishment of performance evaluation criteria, removal of official personnel records from the workplace by the SSA, selection and assignment of personnel, the events at the unit’s 1996 Annual Training, and a conversation indicating that the relief action was the result of the Commanding General’s “unwritten policy” that either the battalion commander or the executive officer would be “Afro-American.” 

9.  The applicant’s military records show that, at the time in question, the applicant was a major in the USAR assigned as the executive officer of the 327th Military Police Battalion which is a Troop Program Unit of the Army Reserve.

10.  The brigadier general in command of the 300th Military Police Command (USAR), relieved the battalion commander and the battalion executive officer (the applicant) of the 327th Military Police Battalion for cause on 27 July 1996.  

11.  On 30 August 1996, the applicant was rendered a relief for cause OER (contested OER #1) covering the period 12 May 1996 to 26 July 1996, evaluating him for duties as the executive officer of the 327th Military Police Battalion.

12.  Part II (Authentication) of contested OER #1 shows the rater is a colonel in the position of Deputy Commander of the 300th Military Police Command and the SR is brigadier general in the position of Commanding General of the 300th Military Police Command.  The rater authenticated his portion of contested OER #1 on 20 August 1996 and the SR authenticated his portion of contested OER #1 on 30 August 1996.  Part IId (Signature of the Rated Officer) shows the entry “REFUSED TO SIGN” with the date “2 Aug 96.”
13.  In Part IVa (Professional Competence) of contested OER #1, the rating official evaluated the applicant with a “3” [authorized ratings range from 1 to 5 with “1” being the highest rating] under “Demonstrates appropriate knowledge and expertise in assigned tasks” and the applicant also received a rating of “2” under “Clear and concise in written communication”.  He received ratings of “1” in all of the remaining 12 blocks under Professional Competence.

14.  In Part IVb (Professional Ethics), the rater commented:  “Has not displayed the necessary knowledge to function as the Battalion XO”; “Briefings were very difficult to understand”; “Unquestioned dedication to his unit and its soldiers”; and “Unwavering loyalty to his Commander.”  The rater evaluated the applicant’s performance by placing his “X” in the block indicating “Often Failed Requirements”.  

15.  In Part Vd (Potential for Promotion), the rating official placed his “X” in the block indicating “Do Not Promote”.  In Part Ve (Comment on Potential), the rater wrote: “[The applicant] needs additional development as a staff officer before he once again assumes the duties of a Battalion XO.”

16.  In Part VIIa (Potential Evaluation), the SR placed his “X” in the fifth block with the resulting SR profile (the asterisk indicates the applicant’s position in the SR profile):  13/26/8/3/1*/0/0/0/0. 

17.  The SR also commented in Part VIIb (Comments) that “[The applicant’s] duty performance as the Battalion Executive Officer has not merited continued service in that position.  The administrative posture of the unit is on average at the bottom of all of my units, the ability of the staff to brief is nonexistent and his ability to convince me of his technical competency is also suspect.  Potential for promotion at this time is non-realistic and continued Troop Program Unit participation is questionable.  Another assignment outside the 300th Military Police Command must occur if this officer is to be retained on active Reserve status.  No DA Form 67-8-1 was received as had been directed by myself for him to complete in late July 1996.”

18.  The SR referred contested OER #1 for comment to the applicant on 30 August 1996.  The applicant submitted an appeal of contested OER #1, dated 16 September 1996, as his rebuttal to the referral.  On 24 September 1996, the applicant submitted a request to the U.S. Army Reserve Command Inspector General for a Commander’s Inquiry, based on a “substantially inaccurate” relief for cause OER.

19.  The Commanding General of the U.S. Army 88th Regional Support Command subsequently reviewed contested OER #1 because the SR for this OER was the officer who relieved the rated officer (the applicant).  The reviewing official wrote on 11 October 1996 that he conducted the review of contested OER #1 in accordance with paragraph 5-29 of Army Regulation 623-105 and concluded that contested OER #1 “presents clear, accurate, and complete provisions for the Relief for Cause and is fully in accordance with Army Regulation 623-105.”  Subsequently, contested OER #1 was forwarded to the U.S. Army Reserve Personnel Center (ARPERCEN) for inclusion in the applicant’s OMPF.  ARPERCEN has since been redesignated the Army Reserve Personnel Command (ARPERSCOM) and is henceforth referred to as ARPERSCOM.

20.  By memorandum dated 21 March 1997, ARPERSCOM returned contested OER #1 with guidance on referral of OER’s to the Commanding General of the U.S. Army 88th Regional Support Command, who in turn forwarded it to the Commanding General of the 300th Military Police Command for correction.  After correction, contested OER #1 was referred on 4 September 1997 by the SR to the applicant a second time for comment.

21.  The applicant responded to this second referral on 25 September 1997 by making reference to his 25 November 1996 OER appeal, by stating that counseling on reasons for relief cited in the SR narrative did not take place, and that “refielf [sic] actions for [my] battalion commander and [myself] were the order of business.”  The applicant also stated that “no formal relief documents were produced/provided at that time and absolutely no review of his performance/duty position requirements/responsibilities was discussed” and that he “was never provided any document stipulating to the content of any such counseling alluded to in that sentence.”  

22.  After receipt of the applicant’s comments to the referral, the SR forwarded contested OER #1 for filing at ARPERSCOM.

23.  The applicant appealed two OER’s to the OSRB, contested OER #1 and one other OER.  He contended that both reports were substantively inaccurate, unjust and did not accurately reflect his performance or potential during the rating periods.  These appeals were received by OSRB on 6 January 1999.

24.  The applicant’s appeal of contested OER #1 is dated 16 September 1996.  He essentially contended that:  (1) the rating officials are incorrect and unqualified;  (2) the rating officials’ narrative comments and rating of his performance contain inaccurate entries and demonstrated an undocumented “downturn” in his performance from previous evaluations;  (3) there was an unreasonable delay in processing this report; and  (4) the rating officials failed to counsel him.  

25.  The second appeal is dated 25 November 1996 and concerns the OER covering the rated period 12 May 1995 to 11 May 1996.  Appeal of contested OER #1 and this second OER were discussed in the same OSRB Case Summary, dated 10 March 2000.  This second OER is not presented as an issue in the application now under consideration by the ABCMR; therefore, this OER, its appeal, and denial of this appeal by the OSRB are not discussed further in these Proceedings.

26.  During its deliberations, the OSRB considered all of the applicant’s contentions, all evidence submitted and statements obtained by the OSRB from the rater and SR for contested OER #1.  Both officers stated, in effect, that their ratings were valid and represented their considered opinions and objective judgment of the applicant’s performance at the time contested OER #1 was rendered.  The rater and SR acknowledged that they had departed from the published rating scheme.  When asked by the OSRB the Deputy Commander of the 300th Military Police Command stated that “had he been both the rater/SR on OER #2 [contested OER #1] he would not changed [sic] a word he wrote or anything stated by the SR in narrative comments or his block check he [the SR] rendered.”

27.  On 10 March 2000, the OSRB determined that the applicant was entitled to relief in regard to contested OER #1 because the Commanding General of the 300th Military Police Command was not the correct SR for contested OER #1.  As a result, the OSRB directed amendment of contested OER #1 by deleting all portions of that OER completed by the Commanding General of the 300th Military Police Command as the senior rating official for contested OER #1, to include his SR block check in Part VIIa (Potential Evaluation) and his narrative comments in Part VIIb (Comments).

28.  The OSRB then directed deletion of the brigadier general’s name and duty position from Part IIc (Name of Senior Rater) and changed Part IIc to show the name of the Deputy Commander of the 300th Military Police Command who was also the rater for contested OER #1.  The OSRB required that Part VIIa remain blank [resulting in no SR “X”] and that Part VIIb show the following entry: 

	“Serving as both rater and Senior Rater due to the relief of the rater per paragraph 3-16, AR 623-105.  The Group Commander counseled [applicant] on the reasons for his relief on 27 July 1996.  No DA Form 67-8-1 was received as directed by the Group Commander before this report was completed.”  

29.  In conclusion, the OSRB determined that promotion reconsideration was not warranted as a result of these changes to the applicant’s file.  The OSRB directed that the contested OER #1 be “obliterated” and a copy of the modified report (contested OER #2) be filed in the performance portion of the applicant’s OMPF.  Further, the OSRB directed that documents related to the appeal were to be placed on the restricted portion of the applicant’s OMPF.

30.  The applicant was notified of the OSRB’s decision and that promotion consideration was not warranted by the changes to contested OER #1 in an ARPERSCOM memorandum, dated 27 March 2000.  

31.  The applicant was considered twice, but not selected, for promotion to the rank of lieutenant colonel by the Army Reserve Components Mandatory 
Selection Boards which convened in September 1998 and in September 1999.  On 24 May 2000, ARPERSCOM notified the applicant that he had been twice nonselected for promotion to the rank of lieutenant colonel and that he must be separated in accordance with Section 14506, Title 10, U.S. Code.  ARPERSCOM records currently list the applicant as assigned to the Individual Ready Reserve.

32.  Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system.  Paragraph 5-18 provides that an officer evaluation report is required when an officer is relieved for cause.  The regulation further defines relief for cause as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  Paragraph 5-29 of Army Regulation 623-105 requires that relief reports be referred to the rated officer in accordance with paragraph 5-28.  

33.  Army Regulation 623-105 provides, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army. Paragraph 5-28b of this regulation specifically requires the rated officer to acknowledge receipt of the referred OER.  This paragraph also states that the rated officer may make comments if he or she believe that the rating or remarks are incorrect, but the comments must be factual, concise and limited to matters directly related to the evaluation on the OER.

34.  Paragraph 5-28c of Army Regulation 623-105 specifies that the rated officer’s comments to referral of an OER do not constitute an appeal and that appeals are processed separately in accordance with Chapter 9 of this regulation.

35.  Paragraph 5-28d of Army Regulation 623-105 requires that if an evaluation report is changed, but still requires referral, the report must again be referred to the rated officer for acknowledgement and new comments.  

36.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

37.  Chapter 7 (Unique Instructions for USAR) of Army Regulation 623-105 selectively modifies the policy and procedures of the Army Regulation 623-105 for officers of the United States Army Reserve (USAR), including officers not on active duty assigned to troop program units or as individual mobilization augmentees, the Individual Ready Reserve, or the Standby Active List.  Paragraph 7-3 requires that the original OER for all USAR officers, except those in a Regular Army enlisted status will be filed in the rated officer’s OMPF at ARPERSCOM.

38.  Paragraph 7-12 of Army Regulation 623-105 states that Chapter 9 provides policies and procedures for appeals, but that ARPERSCOM is responsible for screening and acting on all appeals submitted in ratings received during USAR service.

39.  Chapter 3 of Army Regulation 623-105 provides policies and procedures regarding the establishment and responsibilities of the rating chain.  Paragraph 
3-16 of this chapter states that, when a rating official is relieved or incapacitated, he or she will not be permitted to evaluate his or her subordinates.  It further states that if a SR assumes the role of rater, (due to loss of rater by relief or incapacitation) he or she will serve as both rater and SR.  Chapter 7 (Unique Instructions for USAR) does not modify the provisions of paragraph 3-16.

40.  Paragraph 2-4 of Army Regulation 623-105 provides that, at the end of the rating period, the rated officer completes his or her portion of the DA Form 67-8-1, verifies the administrative data on the DA Form 67-8, signs and forwards both forms through the rater, to the SR.  The rater completes his portion of the DA Form 67-8-1 and also evaluates the performance and potential of the rated officer on the DA Form 67-8.  The SR uses the information provided on the DA Form 67-8 and DA Form 67-8-1, as well as any information he or she gets through direct or indirect contact with the rated officer and other members of the rating chain. 

41.  Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which 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, except where an individual is not qualified due to noncompletion of required military schooling.

CONCLUSIONS:

1.  The applicant was tendered a relief for cause OER (contested OER #1) after he and his battalion commander (who was the designated rating official for the applicant) were relieved from duties in the 327th Military Police Battalion by the Commanding General of the 300th Military Police Command.  The rating official for contested OER #1 was the Deputy Commander of the 300th Military Police Command.  The SR for contested OER #1 was the Commanding General of the 300th Military Police Command.

2.  Although a copy of the rating chain in effect at the time of the relief for cause is not in the records available to the Board, the applicant’s OER immediately preceding contested OER #1 shows the applicant’s rater as the lieutenant colonel in command of the 327th Military Police Battalion and the SR as the colonel in the position of Deputy Commander of the 300th Military Police Command.  The OSRB also determined that the Deputy Commander of the 300th Military Police Command was the designated SR for the applicant at the time of the applicant’s relief and that no official change to the rating scheme had been published prior to the date contested OER #1 was rendered.

3.  Contested OER #1 was properly referred to the applicant, and he submitted an appeal of contested OER #1 as his comments in rebuttal.  

4.  In accordance with regulation governing processing of relief for cause OER’s, contested OER #1 was reviewed by the next higher superior of the officer directing the relief.  The major general in command of the U.S. Army 88th Regional Support Command reviewed contested OER #1 and found that contested OER #1 “presents clear, accurate, and complete provisions for the Relief for Cause and is fully in accordance with Army Regulation 623-105.”

5.  Contested OER #1 was subsequently forwarded to ARPERSCOM for filing.  ARPERSCOM returned contested OER #1 for correction and it was referred to the applicant again for comment.  The applicant responded and contested OER #1 was eventually filed in the applicant’s OMPF by Department of the Army officials at ARPERSCOM. 

6.  The appeal of contested OER #1 was considered by the OSRB.  The OSRB found that the Commanding General of the 300th Military Police Command was not the correct SR for contested OER #1.  Instead, the OSRB determined that regulation required that the colonel in the position of Deputy Commander of the 300th Military Police Command, who was designated as the applicant’s SR on the existing rating scheme, should have acted as both the rater and SR for contested OER #1.

7.  Based on its determinations, the OSRB directed appropriate corrections to contested OER #1 which resulted in a “CORRECTED COPY” of contested OER #1 which is contested OER #2 and is the OER which the applicant wants the Board to “obliterate” from his records.

8.  The Board considered the applicant’s contentions regarding his rating chain for contested OER #2, specifically that the name of the general officer who was the SR for contested OER #1 was removed and that a colonel who was the rater for contested OER #1 acted as both rater and SR.  The Board noted that the governing regulation for officer evaluations states that if a SR assumes the role of rater (due to loss of rater by relief or incapacitation) he or she will serve as both rater and SR.  Removal of the brigadier general’s name, his SR “X” and his SR comments and substitution of the name of the Deputy Commander of the 300th Military Police Command was properly directed by the OSRB in accordance with regulation in effect at the time.  Therefore, this contention by the applicant is not a basis for removal or amendment of contested OER #2 as requested by the applicant.

9.  The Board considered the applicant’s contention regarding the absence of a SR signature on contested OER #2 and his contention that the SR was not aware of the change directed by the OSRB.  Evidence of record shows the rater authenticated his portion of contested OER #2 and did not personally prepare or render any senior ratings in Part VIIa (Potential) or Part VIIb (Comments).  Records confirm that the rater for contested OER #1 testified he would not have changed any of the Commanding General’s senior ratings or comments in contested OER #1 had he been placed in the position of both rater and SR for that OER.  Finally, Part VIIb of contested OER #2 contains only the entry directed by the OSRB.  Based on these facts, the Board finds that the absence of a signature by the SR in Part IIc does not render contested OER #2 invalid and does not indicate the rater/SR for contested OER #2 was unaware of the changes proposed or executed by the OSRB.  Therefore, these contentions are not a basis for amending contested OER #2 or removing it from the applicant’s OMPF.

10.  The Board considered the applicant’s contentions that Part VIIb (Comments) of contested OER #2, which indicated that he did not submit a DA Form 67-8-1, is in error and that no request or directive was ever given to submit his OER Support Form.  However, the Board noted that, in accordance with the regulation governing OER’s, it is the rated officer’s responsibility at the end of the rating period to complete his or her portion of the DA Form 67-8-1, to verify the administrative data on the DA Form 67-8, and sign and forward both forms through the rater to the SR.  The Board also noted the applicant’s records contain other OER’s which show that he submitted DA Forms 67-8-1 for these evaluations.  Therefore, the Board concluded that the governing regulation requires completion of the support form, the applicant knew of the requirement, and he had previously submitted DA Forms 67-8-1.  Therefore, this contention is without merit and is not a basis for amendment or removal of contested OER #2 as requested by the applicant.

11.  The Board considered the applicant’s contentions that no counseling session took place on 27 July 1996 as stated in Part VIIb of contested OER #2 and that there is no record or hard copy to support this statement.  The Board noted that the OSRB directed that the comment regarding counseling on 27 July 1996 be placed in Part VIIb (Comments).  The copy of contested OER #1 in the OSRB Case Summary shows the entry in the SR comments that “[The applicant] was counseled on the reasons for his relief on 27 July 1996.”  Contested OER #1 was authenticated and dated by the colonel [the Deputy Commander of the 300th Military Police Command] as the rating official and the brigadier general [the Commanding General of the 300th Military Police Command] as the SR.  The After-Action Report for Annual Training 1996, written by the applicant states on page 3 that he and the battalion commander met with the Commanding General and the Deputy Commander of the 300th Military Police Command on 27 July 1996 (0050 hours) at which time the Commanding General stated the reason for relief and addressed other issues.  The OSRB Case Summary shows at Item #63 that the applicant was notified by a memorandum (dated 17 September 1996 and signed by the Commanding General of the 300th Military Police Command) of the reasons for the applicant’s relief, the recommendation for the applicant’s involuntary assignment to the Individual Ready Reserve and initiation of the relief for cause OER.  While there is no written notice of counseling dated 27 July 1996, it is clear that the Commanding General verbally advised the battalion commander and the applicant of his reasons for their relief in the presence of the Deputy Commander and provided those reasons in writing on 17 September 1996 to the applicant.  Based on these facts, the Board finds that contrary to the applicant’s contention, the applicant was properly counseled on the reasons for his relief.  Therefore, these contentions are not a basis for amendment or removal of contested OER #2.

12.  The Board noted the applicant’s inferences in memorandums and his statement in his 25 September 1997 comments to the second referral of contested OER #1 that “[relief] actions for my Battalion Commander and myself were the order of business.”  The applicant has provided no evidence, other than self-authored statements reflecting his views, that his relief was the result of a policy or a plan by officials at higher headquarters to remove him or to replace him with a minority group officer.  Further, the applicant has provided no evidence of any investigation, inquiry or other official review which confirms that the applicant’s relief was the result of anything other than the Commanding General’s stated loss of confidence in the applicant’s ability to perform, the substandard performance of the battalion staff which the applicant supervised, and the questionable capability of the unit to perform.  Therefore, the Board concludes that these inferences by the applicant have no basis in fact and are not a basis for amendment or removal of contested OER #2.

13.  Based on all of the foregoing, the Board found that the applicant was afforded all of his rights to comment, request review and appeal throughout the preparation and submission of contested OER #1 and contested OER #2.  The applicant also received the relief to which he was entitled when the OSRB acted to correct the error in contested OER #1.  Finally, this Board considered all of the applicant’s contentions with regard to the processing and submission of contested OER #2 and found no facts in these contentions which would warrant amendment or removal of contested OER #2.  In the absence of compelling information which shows that contested OER #2 was improperly prepared or is now improperly filed, the Board finds that contested OER #2 is correct as filed and will not be removed from the applicant’s OMPF.

14.  The Board reviewed the OSRB’s determination that the applicant was not entitled to promotion reconsideration based on the changes to contested OER #1.  This Board does not concur with that determination for the following reasons. 

15.  The Board clearly understands the regulatory premise that promotion reconsideration should occur when correction of errors would result in a reasonable chance the individual would have been recommended for promotion. The Board also understands that promotion reconsideration will not necessarily result in the applicant’s selection for promotion in this case.  However, the Board finds that the OSRB’s determination that promotion reconsideration is not warranted in this case does not sufficiently recognize that the changes to contested OER #1 directed by the OSRB are substantial, particularly the removal of the adverse senior rating and the very adverse SR comments of the general officer who relieved the applicant.  Further, contested OER #2 covers a very short period of time and its impact may have been diminished within the context of the applicant’s entire performance file when the general officer’s comments were removed.  The Board also noted that it required approximately 27 months (October 1997 to January 1999) for the applicant’s appeals, dated 16 September 1996 and 25 November 1996, to be screened and forwarded by ARPERSCOM to the OSRB and an additional 14 months for the OSRB to consider these appeals. In view of these matters, the Board has determined as a matter of equity that the applicant is entitled to promotion reconsideration with contested OER #2 in his OMPF instead of contested OER #1 which was seen by the 1998 and 1999 Reserve Component Selection Boards.

16.  In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by reviewing the applicant’s OMPF to insure the contested OER #2 (the OER with corrections directed by the OSRB) has been properly filed and that contested OER #1 has been “obliterated” as directed by the OSRB; and

	b.  by submitting the applicant’s records to the appropriate SSB’s for reconsideration for promotion to the rank of lieutenant colonel under the same procedures in effect for the Army Reserve Components Mandatory Selection Boards which considered him, but did not select him, in September 1998 and in September 1999; 

2.  That, if selected for promotion to lieutenant colonel, then he be promoted with an appropriate date of rank and payment of all appropriate back pay and allowances due him as a result of this promotion.

3.  That, if not selected for promotion, then he be so notified. 

4.  That, upon conclusion of the actions directed above, the documents related to his application to the ABCMR be filed in the restricted portion of his OMPF.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__SK___  __EWL__  __HBO__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Mr. Stanley Kelly___
		        CHAIRPERSON

INDEX

CASE ID	AR2000044861	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010306	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT 	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	111.0100.0000	
2.		
3.		
4.		
5.		
6.