MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  22 March 2001
	DOCKET NUMBER:  AR2000050086

	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:

	Ms. Shirley Powell		Chairperson	
	Ms. Regan K. Smith		Member	
	Mr. John P. Infante		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 Officer Evaluation Report (OER) covering the period 20 March 1993 through 19 March 1994, from his Official Military Personnel File (OMPF).

APPLICANT STATES:  The Army broke a contract to send him to promised schooling (Masters degree in acquisition related discipline) and program management required training to learn skills in a new branch.  He also states that the delay in his application should be excused by the Board to correct an injustice, and the Army should use this error as a “lessons learned” when formulating new branches and specialties.  He summits a copy of the OER appeal submitted to the Officer Special Review Board on 14 December 1999.

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

He was commissioned from West Point, Armor Branch, effective 27 May 1981.  He attained the rank of major effective 1 May 1993.  In addition to progressive Armor Branch assignments, he had training and experience in military combat/hardware contracting.

The contested OER covering the period 20 March 1993 through 19 March 1994 was a 12 month annual report completed by the Rating Officer (RO) and Senior Rater (SR) on 22 April 1994.  He was rated as a major, having been promoted to major during the rating period.  The report was for his duties as Research and Development Coordinator for the Abrams Tank System, Armored Systems Modernization, Warren, Michigan.  It was not an adverse report and was not referred to him as such.  It received a Departmental SR profile on 2 May 1994 and was placed on the performance portion of his OMPF.

The RO was a lieutenant colonel, Armor Branch, serving as a Program Executive Officer within the Abrams Tank System who gave the applicant a maximum rating, including “Always Exceeded Requirements” for performance, and “Promote Ahead of Contemporaries” for promotion potential, with appropriate favorable comments.

The SR was a colonel, Armor Branch, serving as a Program Executive Officer within the Abrams Tank System.  In Part VII, Potential Evaluation, the SR rated the applicant in the second of nine blocks.  The SR profile is shown as 3/5*/0/0/0/0/0/0/0, with appropriate favorable comments.  (The asterisk (*) indicates the applicant’s position in the profile, within 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 did not request a Commander’s Inquiry or appeal the report at the time.

He was not selected for promotion to lieutenant colonel.

He was selected for continuation on active duty until 30 June 2001, with eligibility for retirement at 20 years of service.

On 14 December 1999 he appealed the contested OER.  He also submitted justification for filing his appeal beyond the 5-year requirement.

He contended that upon selection for an Army Acquisition Corps assignment he was denied completion of required training and schooling accorded by the Defense Acquisition Workforce Improvement Act (DAWIA).  He was placed directly into an acquisition assignment, Abrams program management, without the prerequisite training.  He had to acquire the training on his own, on off duty time.  This was unnecessary and detrimental to his performance, and not being given the required “tools” to perform his duties directly resulted in an OER that did not reflect his true potential and performance which he believes cost him a promotion to lieutenant colonel.  He enclosed letters of support from his SR and his rater, both now general officers, documentation concerning the DAWIA, and other documentation in support of his request.

His SR noted that his assessment of the applicant’s performance during the rated period clearly indicated that he should be promoted to lieutenant colonel, and that “His performance at the time, relative to his contemporaries, did not warrant my assessing him at the top of the Majors whom I rated.”

On 11 February 2000 OSRB officials stated the appeal was not acceptable for adjudication due to the delay in submission and the lack of clear and compelling evidence.

On 17 February 2000 the applicant was notified by memorandum of the OSRB denial to adjudicate the appeal and the reasons therefor.

The applicant’s entire evaluation history, including the contested OER, shows he received maximum ratings from his RO’s, and that he was equally rated in the top two blocks by his SR’s, above and within the center of mass.

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 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 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 the circumstances in this case, the applicant is not entitled to removal of the contested OER covering the period 20 March 1993 through 
19 March 1994, from his OMPF.  He has not shown sufficient error, injustice or inequity for the relief he is requesting.

2.  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.

3.  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.  The applicant’s and his RO’s and SR’s branch was Armor and all were performing in the area of the Army Acquisition Corps duties during the period of the contested report.  He has not shown the rating was downgraded based upon non-completion of pre-conditional training or schooling.  His appeal to the OSRB was not adjudicated based on late submission and the lack of clear and compelling evidence.  This Board is in agreement with the OSRB determination.  The applicant’s appeal of the contested OER was not timely, and it now appears the only reason he appealed was because of the recent non-selection for promotion, not primarily because he previously felt the OER unfair or unjust.  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.

4.  The Board does not dispute the applicant’s excellent record and his potential for promotion to lieutenant colonel.  It is noted that the reasons for non-selection for promotion are not divulged by promotion boards.  It is also noted, however, that the contested report contains an excellent center of mass rating, similar to many other reports he has received, and it is concluded that the non-selection for promotion was likely based on his entire record, and the needs of the Army, not that single contested OER.  It is further noted that, as shown in this case, promotion and retention on active duty is not automatic, but includes a competitive process of a promotion board determining an individual's potential and ability, amongst his/her peers, to perform at the higher grade, and the needs of the service.  Particularly pertinent in this case is the competitiveness for promotion to lieutenant colonel.  Many officers will not be selected.  This is not injustice, it’s the competitive nature of promotion and retention of Army officers.

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

__sp___  __rs____  __ji______  DENY APPLICATION

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

INDEX

CASE ID	AR2000050086	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010322	
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.	110	
4.		
5.		
6.