MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            7 August 2001
	DOCKET NUMBER:   AR2000049762

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Ms. Margaret K. Patterson		Chairperson	
	Mr. Thomas B. Redfern, III		Member	
	Ms. Regan K. Smith		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:  The removal of two officer evaluation reports (OER) covering the periods from 29 April 1990 to 6 January 1991 and 15 June 1991 to 14 June 1992 from his Official Military Personnel File (OMPF).

APPLICANT STATES:  In effect, that both of the reports were for non-active duty time while he was assigned to a United States Army Reserve (USAR) hospital in Minnesota, while at the same time residing in California and Utah.  He goes on to state that he had absolutely no contact or communication with his rater or senior rater (SR), that he performed annual training drill time at a local United States Government health facility in his home State during both periods, that he never received a copy of the reports, and that he only recently discovered their existence when he reviewed his OMPF (microfiche) in July 2000.  He contends that the reports are flawed, contain gross errors, omit his achievements and accomplishments during the rated periods and are unjustly damaging to his military career.  In support of his appeal he submits copies of the contested reports (without SR profile imposed) as well as numerous other documents outlining his achievements and accomplishments.  He also submits a partial copy of a divorce decree.

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

He initially enlisted in the Navy on 14 August 1964 and served until he was honorably released from active duty (REFRAD) on 28 October 1970 and was transferred to the Temporary Disability Retired List (TDRL).   He remained on the TDRL until 4 November 1974.  He was commissioned as a USAR second lieutenant in the medical corps on 24 August 1978.  He was promoted to the rank of first lieutenant on 24 August 1980 and upon graduation from medical school was promoted to the rank of captain on 22 June 1982 and ordered to active duty. He was promoted to the rank of major on 22 June 1988 and served on active duty until 30 November 1989 when he was honorably REFRAD and was transferred to the USAR Control Group (Reinforcement). 

On 9 April 1991, while assigned to a USAR Hospital at Fort Snelling, Minnesota and while residing in San Diego, California, the applicant received a change of rater OER evaluating him as a general medical officer.  The applicant signed the report in part IId, under authentication on 20 March 1991.   

In part IV under performance evaluation – professionalism, the rater gave the applicant a numerical rating of “2” under “Is adaptable to changing situations” and ratings of “1” in the remaining 13 areas.

In part V the rater gave the applicant a performance rating of “Usually Exceeded Requirements” and recommended that he be promoted with his contemporaries. He indicated that the applicant attended 16 of 32 drills and stated that mobilization came at a difficult time for the applicant but that he was sincere and conscientious in completing his obligation.  His usual employment working for a Department of Defense facility made him more valuable to the unit. 

In part Ve, under Potential, the rater indicated that the applicant’s professional obligations required not only medical skills but administrative expertise as well and he accomplished both in an outstanding manner.  The rater indicated that hopefully the applicant would seek out further military education.

In part VII under SR evaluation, the SR placed the applicant in the second block for potential evaluation, which placed the applicant in the center-of mass (COM) of the SR’s profile.  He indicated that the applicant was an outstanding medical corps officer, that he should be afforded the opportunity to develop leadership abilities and that he should be promoted.  The OER was forwarded to the applicant on 9 April 1991. 

On 12 July 1992, an annual OER (the second contested report) was rendered on the applicant for the period of 15 June 1991 to 14 June 1992 while serving as a general medical officer in a 1,000 bed hospital environment.  The applicant was still assigned to the hospital unit at Fort Snelling but was now residing in Utah.

The rater gave the applicant a “2” rating in part IV under “Maintains appropriate level of physical fitness” and “1” ratings in the remaining 13 areas.  In part V, he rated the applicant as “Usually Exceeding Requirements” and recommended that he be promoted with his contemporaries.  He indicated in his comments that the applicant had performed in a very satisfactory manner, that he possessed excellent clinical skills, and that his participation with the hospital had been limited due to the geographical separation between Minnesota and Utah.  However, despite the difficult situation, the applicant met the expectations of the command.  He further indicated that with completion of further military education and post-graduate training the applicant would be capable of performing as a chief of professional service and should receive serious consideration for command of a medical unit.

In part VII, the SR placed the applicant in the third block under potential evaluation, which placed him below the COM of the SR’s profile.  The SR indicated in his comments that the applicant possesses a high level of technical skill and that when his professional schedule allows for further dedication to the USAR Program, he will be a valuable asset to the Troop Program Unit.  The SR also indicated that the applicant did not complete a DA Form 67-8-1 (support form).

The applicant did not appeal any of the contested reports to the Officer Special Review Board (OSRB).  However, in the processing of the applicant’s appeal to this Board, his case was referred to the OSRB for an advisory opinion.  The OSRB opined that the applicant had failed to submit sufficient evidence to substantiate his claims of administrative error, substantive inaccuracies and failure by rating officials to execute their designated responsibilities.  The OSRB further opined that he had submitted no compelling evidence to justify granting an exception to the 5-year policy for appeals.

The advisory opinion was provided to the applicant, who is currently serving on active duty as a lieutenant colonel at the Landstuhl Regional Medical Center in Germany.  The applicant responded to the advisory opinion on 22 January 2001 contending that the OSRB did not have all of the evidence at the time they rendered their opinion and he provided additional evidence to support his case for review.  He also contended that his duty titles were incorrect, that there were misspelled words and incomplete sentences which indicate minimal time was spent in the preparation of the reports and that no mention was made of his accomplishments or awards because his rating chain did not know of them or him.  He also contends that he never met his rating officials nor did he visit his unit.  He goes on to state that at the time he signed the one contested report it was at a time when he had just left his medical practice to join his USAR unit for mobilization to go to war and was more concerned with taking care of all of the affairs of his family, to include a divorce and his military obligations than the administrative errors on the report.  He went on to state that he did not see the completed reports until sometime after May 1999.  He also states that his rating chain was more than a 1,000 miles away from where he lived, they never observed his work, spoke to him, saw him, counseled him, reviewed his records or were aware of his accomplishments.  Additionally, a review of his active duty file will show that the reports conflict with his actual record of performance and accomplishments.

The applicant’s rebuttal to the OSRB opinion along with the additional documents submitted were again referred to the OSRB for comment and the OSRB again opined, in effect, that there was insufficient evidence to substantiate his claims and that he still failed to provide compelling evidence to grant an exception to the 5-year appeal rule.  The OSRB also contended that the applicant has failed to make his case regarding the incorrect duty title, that he had an obligation himself, especially given his experience and years of service to establish communications with his rating chain if he was not comfortable with his situation, that he also had a responsibility to ensure his records were up to date and question any errors at the time instead of waiting 10 years after the fact.  The OSRB again opined that there was insufficient evidence to remove the reports from his records.

The OSRB opinion was again referred to the applicant for comment and he responded on 30 June 2001 to the effect, that the extenuating circumstances in his case warranted a waiver of the 5-year rule.  He goes on to state that he has not intended to deceive anyone by waiting to appeal the reports and that he believes the reports were improperly prepared, not because his rating chain intended harm, but because they did not know him.  He also states that if his accomplishments as a physician are taken into account it is clear that the contested reports do not accurately portray his performance.  In addition, at the time of the reports, he was facing huge distractions, in that his mother had just died and his 81 year old step father was reeling from the strain of her loss and the numerous medical bills and insurance forms he was left with after her prolonged hospitalization.  His (the applicant’s) wife was diagnosed with cervical cancer, accused him of abandonment, threatened him with divorce if he responded to a call up, and he had serious financial burdens due to the loss of his civilian medical practice caused by his return to active duty.  He contends that it is little wonder that he failed to take notice of poorly written and potentially career damaging reports. 

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Paragraph 4-6, under rated officer’s responsibilities, states, in pertinent part, that within the first 30 days of the evaluation period, the rated officer will have a discussion with the rater concerning duties, responsibilities and performance objectives.  It is the rated officers’s responsibility to keep and maintain a DA Form 67-8-1 (support form).  Correspondence and telephonic conversations may be used as alternatives because of geographical separation.  The rated officer will prepare a final up to date support form noting all accomplishments and submit it to the rater, in order for the rater to properly evaluate the rated officer’s performance and potential.  

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.

Section VI of that regulation provides the procedures used in the processing of the OER.  It provides, in pertinent part, that once a report has been determined to be administratively complete, the servicing personnel officer will forward a copy of the report to the rated officer.  The original OER will be forwarded to the Total Army Personnel Command (PERSCOM).  Reports are processed and SR profiles are applied as they are received from the field on a daily basis regardless of the “thru” date of the report or the SR’s signature date.  A copy is maintained at the servicing personnel office for 120 days. 

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(s), 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 contested OER appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records.

3.  The applicant’s contentions have been noted by the Board; however, he has not shown to the satisfaction of the Board that he was not rated properly or that the rating officials violated proper rating procedures.  He has failed to overcome the presumption that the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.

4.  The Board also notes the applicant’s contentions that he was unaware of the contested reports until recently, when he discovered them in his OMPF.  However, the copies of the reports provided to the Board by the applicant are copies that only the individual would have because they do not contain the SR’s profile, which is imposed on reports when they are received at the PERSCOM and entered into the OMPF.  Therefore, it is apparent that the applicant did receive the reports when they were forwarded to him by the servicing personnel office and was aware of the contents of those reports.

5.  The applicant’s contentions that his rating chain did not know him or communicate with him and failed to note his accomplishments on the contested reports also appears to be without merit.  Not only do the comments on the reports suggest that some form of communication was occurring, the applicant had a responsibility to submit a support form to his rater outlining his accomplishments.  He also had a responsibility to establish some type of communication and had he properly done so, he would have been able to ensure that his accomplishments were properly addressed in the reports.  It appears that he failed to do so.

6.  Accordingly, the Board finds that not only has the applicant failed to properly request a commander’s inquiry or submit his appeals in a timely manner at the time, he has now failed to submit substantive evidence to document his claims that the reports are in error and that he was unaware of the reports at the time.  

7.  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

__tbr____  ___mkp _  ___rks___  DENY APPLICATION

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

INDEX

CASE ID	AR2000049762	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/08/07	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0100/VOID OER	
2.		
3.		
4.		
5.		
6.