MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           11 February 2001                   
	DOCKET NUMBER:   AR2000046986

	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. James E. Anderholm		Member	
	Ms. Barbara J. Lutz		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 memorandum, Subject:  Evaluation Report Appeal (950607 – 950928) dated 28 October 1998 be moved to his restricted fiche.

APPLICANT STATES:  That the memorandum draws undue attention to his OER for the period 7 June – 28 September 1995 that is a below center-of-mass (COM) rating which in turn contributed to his first-time non-select to major.  His branch manager advised him that without the memorandum he would have been selected for major in the primary zone as he has a total of 81 months of service of which 56 months were rated above COM, 22 months rated at COM, and only  3 months below COM.

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

He was appointed a second lieutenant in the Air Defense Artillery on 31 May 1990.  He was promoted to captain on 1 September 1994.  His branch changed to Transportation Corps around 1994.  

The applicant’s OER for the period 7 June 1995 – 28 September 1995 was a     3-month change of rater report.  Both his rater and his senior rater made highly commendable comments; however, the senior rater rated him as below COM.  He appealed the report, contending that the senior rater rated him thusly only because of visibility over his senior rater profile.  His senior rater had provided a statement indicating it was not his intent to rate the applicant below COM.  The applicant’s OER appeal was denied, presumably because the Officer Special Review Board believed the senior rater’s comment was retrospective thinking.  A memorandum dated 28 October 1998 was filed next to the OER on the performance portion of his OMPF.  The memorandum was addressed to the applicant and informs him that his OER appeal was denied.  It also informs him that his appeal correspondence was filed on the restricted portion of his OMPF and a copy of this notification letter was filed on the performance portion of his OMPF.

The applicant’s OER history as shown from OERs on the performance portion of his Official Military Personnel File (OMPF) is as follows (* indicates the applicant’s rating):

Period Ending		Senior Rater Profile		Rating Category

15 January 1993		*14/18/1/1/0/0/0/0/0		Above COM
14 June 1993		*29/26/3/1/0/0/0/0/0		COM
6 December 1993		*2/0/0/0/0/0/0/0/0		COM
15 May 1994			*7/8/3/0/0/0/0/0/0		dual COM
5 December 1994		*1/6/0/0/0/0/0/0/0		Above COM
28 September 1995		4/*2/0/0/0/0/0/0/0  		Appealed OER
12 June 1996		*7/2/0/0/0/0/0/0/0		COM
11 December 1996		*1/0/0/0/0/0/0/0/0		COM
30 September 1997		*37/19/1/0/0/0/0/0/0		COM
26 March 1998		Center of mass		
24 July 1999			Above center of mass

Army Regulation 600-8-104 prescribes the policies for the Military Personnel Information Management/Records Program of the Military Personnel System.
Table 2-1 describes the composition of the OMPF.  In pertinent part, it states that the allied documents in an evaluation report appeal that announce the Special Review Board’s decision that denies or partially denies an evaluation report appeal will be filed on the restricted fiche when a memorandum for record is filed on the performance fiche.

Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  Paragraph 6-8 states that when an appeal is denied, a copy of the memorandum of notification is filed in the performance portion of the OMPF.

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 memorandum dated 28 October 1998 is properly filed.  The applicant should have been aware when he prepared his appeal that it would be filed on his performance fiche if his OER appeal were denied.  It would not be a matter of equity to remove the memorandum as all other individuals who submit OER appeals which are subsequently denied also have the letter of notification filed on their performance fiche.  

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

__lls___  __jea___  __bjl___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046986	
SUFFIX		
RECON		
DATE BOARDED	20010201	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.