MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           15 March 2001
	DOCKET NUMBER:   AR2000047510

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. Ernest M. Willcher		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Thomas E. O’Shaughnessy, 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:  That he be advanced on the retired list to pay grade W-4.  He also requests that Part IVa (Professional Competence) of his Officer Evaluation Report (OER) for the period 27 November 1987 through 26 November 1988 be amended.

APPLICANT STATES:  That the ratings in blocks 5 and 7 in Part IVa (Professional Competence) of his OER unduly reflects an adverse and unjust numerical rating as a result of his medical condition.  He states that his rater was aware of his medical condition due to the numerous consults with the Embassy nurse.  He states that pay grade W-4 was the authorized position in the Defense Attache System before being revised in 1997 and he should have retired in that pay grade.  He states that the contested OER was the basis for his non-selection to pay grade W-4.  In support of his application he submits a DD Form 214 (Certificate of Release or Discharge From Active Duty), the contested OER, and a copy of the article appearing in the Army Echoes regarding advancement on the retired list to the highest grade held.  Also, the applicant submitted medical documentation that his mental, physical, and behavior suffered from stress.

COUNSEL CONTENDS:  Counsel concurs in the applicant’s presentation and requests all reasonable doubt be resolved in the applicant’s favor. 

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

The applicant honorably retired on 31 January 1996 in pay grade W-3.  

The contested OER was an annual report for the period 27 November 1987 through 26 November 1988.  It evaluated him as operations coordinator.  In Part IVa (Professional Competence) the applicant received a “1” rating in 12 categories, and a “2” rating in two categories (Performs under physical and mental stress and Clear and concise in written communication).  In Part IVb (Professional Ethics) the rater commented that the applicant was dedicated to the goals, objectives, and work plan of the mission and the Army, possesses moral courage and strong personal convictions, and constantly demonstrated selflessness.

In Part Vb (Performance During Rated Period) the rater checked “Usually Exceeded Requirements”.  In Part Vc (Comment On Specific Aspects Of The Performance) the rater provided favorable comments.  In Part Vd (Potential For Promotion) the rater checked “Promote with Contemporaries”.  In Part Ve (Potential) the rater commented that the applicant had the potential to serve as the Deputy Chief, Army Attache Support Division or as an instructor in the Defense Intelligence Agency.

In Part VII the senior rater placed the applicant in block “2 and provided favorable comments. 
Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER System.  Paragraphs 5-32 and 9-2 of the same regulation provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgement of the rating officials at the time of preparation.  Requests that an OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

Paragraph 4-27 of the same regulation provides that an OER will be referred if it is a relief for cause report; any report with negative remarks about the rated officer’s professional ethics in Part IVb, and/or in the rating officials’ narrative evaluation(s); any report with a rating of 4 or 5 in any of the 14 attributes in Part Iva; any report resulting in a performance evaluation of “ Often failed requirements” or “Usually failed requirements” in Part Vb; any report with a potential evaluation in Part Vd of ”Do not promote” or narrative comments to that effect from any rating official; any report with a performance and potential evaluation in Part Vd of “Other,” where the required explanation has derogatory information; any report with a senior rater promotion potential evaluation in one of the bottom three blocks in Part VIIa; any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career; any report with an entry of “Fail“ in Part IVa, item 3, indicating noncompliance with AR 350-15; or an entry “NO” in Part IVa, item 12, indicating noncompliance with AR 600-9

Paragraph 9-7 of that same 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.

Title 10, United States Code, Section 3964, provides that a retired enlisted member or warrant officer of the Army who is retired with less than 30 years of active service is entitled, when his active service plus his service on the retired list totals 30 years, to be advanced on the retired list to the highest grade in which he served on active duty satisfactorily, (or, in the case if a member of the National Guard, in which he served on full-time duty satisfactorily), as determined by the Secretary of the Army.

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.  The contested report appears to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.

2.  The medical evidence submitted by the applicant to support his contention that his rater was aware of his medical condition at the time the OER was rendered has been noted by Board.  However, this contention does not show an unfair or unjust rating.  The applicant’s “2” rating in two categories (Performs under physical and mental stress and Clear and concise in written communication) in Part IVa (Professional Competence) of the contested report is not adverse and it was not referred to him in accordance with regulatory guidance.

3.  The applicant has failed to show through the evidence submitted or the evidence of record sufficient justification to warrant altering the OER as requested.

4.  The applicant’s contention that the contested OER was the sole reason for his non-selection to pay grade W-4 is not supported by the evidence of record nor the evidence submitted by the applicant.

5.  The applicant retired in the pay grade of W-3, the highest grade he held satisfactorily while on active duty; therefore, he is not eligible for advancement on the retired list.  Service in a higher position does not qualify for advancement on the retired list nor serve as a basis for changing his retired grade.

6.  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

__EMW__  __RTD__  __TEO___  DENY APPLICATION

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

INDEX

CASE ID	AR2000047510	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010315	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.		
3.		
4.		
5.		
6.