MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:           12 April 2001                  
	DOCKET NUMBER:   AR2000049948

	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. Roger W. Able 		Chairperson	
	Mr. Richard T. Dunbar		Member	
	Mr. Donald P. Hupman		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 5-year limit for appeal of an officer evaluation report (OER) be excused in his case, and that the OER covering the period 11 August 1990 through 17 July 1991 be removed from his records.  He also requests, in effect, promotion reconsideration for chief warrant officer four (CW4) under 2000 criteria.

APPLICANT STATES:  The rater was only in the platoon leader position for 41 days and no type of required counseling ever took place.  His appeal to the Officer Special Review Board (OSRB), Deputy Chief of Staff for Personnel, was wrongfully denied based on the 5-year limit for filing appeals.  He contests he provided a strong case for excusing the time limit and his appeal of the report should be considered.  The rating officer clearly violated the OER regulation by giving him a “2” rating on the front of the report without providing the required counseling.  He states that the statements in the Commander’s Inquiry (CI) were compiled at the request of his commander in accordance with the regulation, but he was advised by his DA Branch Manager not to submit it because it was not wise to call attention to the OER, and to just let it alone.  He suggests that he was promoted to CW3 in spite of the OER because only three or four OER’s were reviewed, which did not include the contested OER, but that all OER’s are reviewed for promotion to CW4.  Thus, he was not selected for promotion to CW4 because of this unjust OER.  He also states he has a BS degree in Education and an excellent history of OER’s, military schooling and assignments. He submits a purported CI, statements from others, including his rater and intermediate rater, and other documentation in support of his request.

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

The applicant was appointed as a Reserve warrant officer effective 28 October 1986, Aviation, and attained the rank of CW2 effective 28 October 1988.  He had prior enlisted service.

The contested OER, ending on 17 July 1991, was completed by the rating officer (RO), the intermediate rater (IR) and the senior rater (SR) on 18 July 1991.  It was a change of rater report and the applicant was rated as an Instructor Pilot stationed at Fort Rucker, Alabama.  It was not an adverse report and it was placed on the performance portion of the applicant’s official record.

The RO was a CW3 serving as the applicant’s Platoon Commander.  With ratings ranging from “1” to “5”, with “1” the highest rating, the RO gave the applicant a “2” rating in Part IV (Professionalism), “Is adaptable to changing situations”, and “1’s” in all other 13 items.  The RO provided several positive comments concerning the applicant’s professional competence and ethics.  There were no negative remarks.  In Part V (Performance and Promotion Potential) he rated his 

performance in the top block as “Always exceeded requirements”, and his promotion potential in the top block as “Promote ahead of contemporaries”.  The RO provided positive remarks concerning the applicant’s performance and promotion potential, with no negative remarks.

The IR was a captain serving as the applicant’s Company Commander.  The IR provided positive remarks concerning the applicant’s performance and promotion potential, with no negative remarks.

The SR was a lieutenant colonel serving as the Battalion Commander.  In Part VII, Potential Evaluation, the SR rated the applicant in the second of nine blocks. The SR profile is shown as 31/82*/4/0/0/0/0/0/0, with appropriate comments.  The asterisk indicates the applicant’s position in the profile, within the center of mass.  The SR provided positive comments concerning the applicant’s performance and potential, and he indicated on the report that a completed DA Form 67-8-1, the rating support form, was received with the report and considered in his evaluation and review.

The applicant’s IR prepared a statement dated 12 February 1992 stating he believes the RO did not counsel the applicant, and he did not attempt to reflect a true picture of the applicant’s performance and potential.

The RO prepared a statement dated 3 March 1992 stating he supports the applicant’s request to delete the “2” rating and/or to delete the entire report.

The applicant’s following RO supervised the applicant in the absence of the RO for the contested report and prepared a statement dated 27 January 1992 in support of the applicant.  He stated he investigated the circumstances and learned that the RO rated other individuals the same as the applicant and without counseling, and in retrospect, the RO’s rating was incorrect and should be removed from the applicant’s records.

Three other individuals rated by the same RO prepared statements on 
18 October, and on 23 and 26 December 1991, stating they received similar evaluations from the RO without counseling.

The applicant did not appeal the report nor request a CI at the time in accordance with pertinent regulations.

A CI was not otherwise conducted at the time in accordance with pertinent regulations.

The applicant was selected and promoted to CW3 effective 1 November 1994, and he was appointed as a Regular Army warrant officer.

The applicant was considered but not selected for promotion to CW4 by the 2000 selection board that convened from 2 to 26 May 2000.  His records were complete and without material error when reviewed by the selection board.

On 3 October 2000 his appeal of the contested OER was not accepted by the OSRB based on the 5-year limit for filing OER appeals, and for his failure to provide exceptional justification.

The applicant’s OER history shows that since promotion to CW3 in 1994 he has been rated by all of his SR’s as a center of mass officer.

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 specifies that appeals must be submitted within 5-years of the appealed reports, and that only exceptional justification is acceptable to warrant waiving the 5-year limit.

The regulation does not require a counseling or comment for a “2” rating in Part IV of an OER.

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.  In these cases Commanders should appoint an appropriate disinterested official to conduct such an inquiry.  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.  The applicant is not entitled to be excused from the 5-year limit for appeal of an OER.  He is also not entitled to removal of the contested OER covering the period 11 August 1990 through 17 July 1991 from his records, or to promotion reconsideration for CW4 under 2000 criteria.  He has not shown sufficient error, injustice or inequity for the relief he is requesting.

2.  The applicant has not shown to the satisfaction of the Board 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.  The Board further notes that counseling or comment is not required for a “2” rating in Part IV of the contested OER.

3.  He has submitted relative statements in support of his request, however, he has not shown the OER to be invalid.  Notwithstanding his argument, this Board is not convinced the report is in error, unjust or inequitable.  His appeal to the OSRB was not acted upon based on extreme lateness.  This Board is in agreement with the OSRB determination.  The applicant’s excuse for not appealing the OER at the time is not acceptable, and he should not now expect officials to investigate the matter in his behalf at this late date.  The applicant erred in delaying his appeal until he was non-selected for promotion, nine years after the OER, an action he waited too late to initiate.  The Board also notes that the applicant’s offering of a CI not accomplished by an appointed and disinterested officer, is also not acceptable as an official CI conducted in accordance with pertinent regulations.  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.

4.  The Board does not dispute the applicant’s excellent record.  However, under promotion and retention standards, the competition for promotion is extremely keen and not all officers will be selected.  It is noted here that the selection board does not divulge the reason(s) for non-selection for promotion, therefore, the “2” rating on the contested report is not a compelling reason for the non-selection.  What is noted here concerning the selection board process is the applicant’s record in competition with all other CW3’s competing for the senior CW4 rank.  His SR’s show him as a center of mass officer, a key designation of his potential. That designated potential, coupled with assignments and other factors used in the promotion process does not indicate an automatic selection for promotion to CW4.  He has not shown he was not properly considered for promotion, that the “2” rating was unjust, or that he was improperly non-selected.

5.  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.

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

_ra_______  _rtd____  _dh____   DENY APPLICATION

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

INDEX

CASE ID	AR2000049948	
SUFFIX		
RECON		
DATE BOARDED	20010412	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	131.00	
3.		
4.		
5.		
6.