MEMORANDUM OF CONSIDERATION

	IN THE CASE OF: 

	BOARD DATE:  20 March 2001
	DOCKET NUMBER:  AR2000046993

	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	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. William D. Powers		Member	
	Mr. Raymond J. Wagner		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: Removal of the Senior Rater (SR) portion of the Officer Evaluation Report (OER) covering the period 11 August 1990 through 
10 July 1991, and reconsideration for promotion to major under fiscal year 1992 (FY92) criteria and to lieutenant colonel under FY99 and FY00 criteria.  He also requests removal of all documents related thereto from his Official Military Personnel File (OMPF), including the previous denial of his OER appeal, and his previous letters sent to promotion boards concerning the contested OER.

APPLICANT STATES:  In effect, he received bad counsel and did not timely appeal the now contested OER.  After his non-selection for promotion to major in 1992 he appealed the report to the Departmental Headquarters in 1993.  It was denied.  He was not selected for promotion to lieutenant colonel, and he now appeals to the Correction Board.  He also states he sent letters to the promotion board presidents calling attention to his previous OER appeal.  He now knows he should have immediately appealed to the Correction Board when the OSRB denied his first appeal.  He wrongly presumed that since he was selected for promotion to major in 1993 that he had overcome the bad OER.  He also states the OER is inaccurate based upon the unfair SR rating.  He and the SR had a personality conflict causing the poor rating.  His OER support form and his accomplishments clearly show he did an outstanding job but the SR later made erroneous statements and excuses to the OSRB for the rating he gave.  The SR gave no explanation for his rating differing widely from that of the Rating Officer (RO).  He believes that the SR “formed his opinions of me based on misperceptions and inaccurate interpretation of events rather than on actual facts or performance.”  This OER is the single reason for his promotion non-selections. His performance prior to and after the contested OER have been considered superior by his RO’s and SR’s alike.

He submits a copy of his appeal to the OSRB and a copy of the denial, including a letter of explanation and support from his RO, the Brigade S-3 at the time, and from two general officers, a copy of his OER support form, and a copy of an award for the Army Commendation Medal (1st Oak Leaf Cluster) in which the SR recommended approval.  All are dated in 1993.

He also submits copies of other OER’s, and his rebuttal of the comments the SR made to the OSRB.

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

He was commissioned from West Point, Corps of Engineers, effective 26 May 1982.  He attained the rank of captain effective 1 January 1986.

The contested OER covering the period 11 August 1990 through 10 July 1991 was completed by the RO and SR on 12 and 13 August 1991, respectively.  The report was for his duties as an Engineer Company Commander located in Hanau, Germany.  It was an adverse report not referred to the applicant for his acknowledgment and comment/rebuttal.

The RO was a lieutenant colonel serving as the Battalion Commander who gave the applicant a maximum rating, including “Always Exceeded Requirements” for performance, and “Promote Ahead of Contemporaries” for promotion potential, with appropriate comments.

The SR was a colonel serving as the Brigade Commander.  In Part VII, Potential Evaluation, the SR rated the applicant in the third of nine blocks.  The SR profile is shown as 19/19/8*/1/0/0/0/0/0, with appropriate comments.  (The * indicates the applicant’s position in the profile, below the center of mass)  The SR indicated on the report that a completed DA Form 67-8-1, a rating support form, was received with the report and considered in his evaluation and review.

The applicant was not selected for major by the FY92 promotion board.

On 10 May 1993 he appealed the contested OER.  

On 16 June 1993 OSRB officials denied the OER appeal by Case Summary.  The summary noted the support provided by the applicant in the appeal, including his RO’s communication to the OSRB during its investigation.  It also included the SR’s communication to the OSRB, explaining his reason for the rating.  The OSRB opined the applicant did not provide evidence to delete the SR’s profile or to otherwise amend the OER, and further indicated that the presumption of regularity is applicable in this case.

On 17 June 1993 the applicant was notified by memorandum of the OSRB appeal denial.

He was selected by the FY93 board and promoted to major effective 1 August 1994.

He was not selected for lieutenant colonel by the FY99 and FY00 promotion boards.  He provided letters to these boards and authorized access of the restricted portion of his OMPF, containing his OER appeal documentation, for review.

He was selected for continuation on active duty until eligible for retirement at 20 years of service.

The applicant’s overall evaluation history for the rank of captain, with the exception of the contested OER, shows he received maximum ratings from his RO’s, and he was rated in the top two blocks by his SR’s, all above and within the center of mass.  His evaluations for the rank of major were maximum reports from his RO’s, and top block above and within the center of mass ratings by his SR’s.

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   It provides 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.

The regulation defines a referred report, among other things, as any report 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.  It specifies that such a report will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to Departmental Headquarters.

The regulation also provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the 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.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and 

recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

Army Regulation 624-100/600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error 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 non-selection 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 non-selection.

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 view of all of the circumstances in this case, the applicant is not entitled to removal of the SR portion of the contested OER covering the period 11 August 1990 through 10 July 1991.  He has not shown sufficient error, injustice or inequity for the relief he is requesting.

2.  Based on the preceding, he is also not entitled to reconsideration for promotion to major under FY92 criteria or to lieutenant colonel under FY99 and FY00 criteria.  Also on this basis, he is not entitled to removal of all documents related thereto from his OMPF, including the previous denial of his OER appeal, and his previous letters sent to promotion boards concerning the contested OER.

3.  The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.

4.  He has submitted strong argument in support of his request, however, he has not shown the OER to be invalid.  Notwithstanding his argument, this Board is not convinced the SR’s rating is in error, unjust or inequitable.  His appeal to the 

OSRB was denied based on insufficient evidence to show the report in error or unjust, and based on the presumption of regularity that the report represents the considered opinion and objective judgment of the rating officials at the time of preparation.  This Board is in agreement with the OSRB determination. The Board also notes the applicant’s failure at the time to request a Commander’s Inquiry.  This is an individual’s available right and option concerning OER’s perceived to be unfair or unjust, and may have made a difference based on the freshness of the rating with all involved in place, to provide a concurrent investigation prior to the finalization of the report.  For whatever reason, this is now a dated case, and the applicant has not overcome his burden of proof to show error, injustice or inequity.

5.  The Board acknowledges the failure of the SR to refer the contested OER to the applicant as an adverse report.  He knew or should have known his comments and profile may have had an adverse impact on the applicant’s career.  Although an error of judgment on the SR’s part at the time, this Board does not conclude the error renders the report invalid.

6.  The Board does not dispute the contested OER may have caused the applicant’s non-selections for promotion.  It also does not dispute his excellent record.  However, under promotion and retention standards, the competition for promotion is extremely keen and not all officers will be selected.

7.  The Board has reviewed the applicant’s contentions and his entire request, including the letters of support he submitted with the application.  The copy of an award for the Army Commendation Medal (1st Oak Leaf Cluster) in which the SR recommended approval has also been reviewed.  It is noted here that the RO’s support of the applicant’s award at the time does not show the RO’s rating unjustified or invalid.

8.  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.

9.  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

__fe___  __wp___  ___rw___  DENY APPLICATION

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

INDEX

CASE ID	AR2000046993	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010320	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)	
REVIEW AUTHORITY		
ISSUES         1.	111	
2.	131	
3.		
4.		
5.		
6.