MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           18 October 2001                  
	DOCKET NUMBER:   AR2001052118

	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	
	Mrs. Joyce A. Hall		Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Ms. Barbara J. Ellis		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:  In effect, correction of his military records by removing his Officer Evaluation Report (OER) covering the rating period 4 April  to 9 July 1998.

APPLICANT STATES: In effect, that he believes that the OER was in error because of substantial flaws in the supervision process.  For example, the rater Major N____ was not his true supervisor and rater.  Major G____, the Executive Officer was supposed to be his rater.  The command climate for supervision was such that several Army Regulations (AR) in AR 623-105, the OER system, were not followed.  There was not a published rating chain for OERs and NCOERs.  The OER support forms 67-9-1 were initiated at the end of the assignment.  The intermediate rater signed the OER without ensuring that the rater was correct.  He further states that he attempted to contact all three of his raters, however he was only able to reach the intermediate rater.  The intermediate rater wrote a supporting statement of facts.  The applicant appealed to the DCSPER Officer Special Review Board (OSRB).  The OSRB did not adjudicate his appeal in the applicant’s favor.  The intensity of the deployment which led to the lack of supervision, the following of Army procedures for supervision, writing OERs and ensuring fairness to the officers that were being supervised.  The applicant believes that the OER dated (4 April - 9 July 1998), end his career as an active duty Army chaplain.  The applicant includes as supporting documentation a statement of the events leading to his unjust and inaccurate OER and supporting statements from his intermediate rater, another officer and a noncommissioned officer.

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

The applicant’s military record shows that he was appointed as First Lieutenant, Chaplain Corps, U. S. Army Reserve in 1989.  He entered active duty as a Captain in 1993.

The applicant’s OER history prior to the contested report shows that he was rated as a center of mass officer from 1989 to 1998, in most instances.

The contested OER (4 April to 9 July 1998) is a change of rater evaluation report for a 3-month period.  Part V – Performance and Potential Evaluation, the rater gives the applicant a “2” block for performance and potential and a rating of “Satisfactory Performance, Promote.”  Part VII the senior rater gives him a “2” block performance and potential evaluation rating of “Fully Qualified.”  (It should note that this makes it a “center of mass” rating).  Neither the rater nor the senior rater makes any negative comments.

The applicant’s last two OER shows that he was rated center of mass for the period ending 24 February 1999.  His OER ending 4 February 2000 shows a rating of above center of mass.

The applicant submitted an OER appeal in February 2000.  The basis of this appeal was substantial errors and flaws in the supervision process for performance related counseling.  On 21 March 2000, the Special Review Board (OSRB) reviewed the applicant’s appeal.  After reviewing the applicant’s appeal, the OSRB returned the appeal as unacceptable for adjudication.  The OSRB endorsement stated in effect, that the applicant did not provide sufficient evidence of a clear and convincing nature to warrant consideration.  A favorable decision could not be rendered based upon the evidence submitted.  An entry of an appeal denial would only serve to highlight further reports in the applicant’s OMPF.  (An extract of the OSRB comments is enclosed). 

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provided that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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 removal of the contested OER.  The applicant has not convinced this Board that any corrective action is necessary in this case.

2.  All of his contentions have been considered; however, they are not sufficiently supported by his application or the evidence of record.  It is concluded the contested OER represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  The applicant has not convinced this Board that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

3.  The contested OER is a “center of mass” OER, just as all but one of the OERs shown above are, even though he may have been given a top block rating on some of his ratings.  The senior rater’s comments are all positive, but they are not so superlative as to support anything other than a “center of mass” rating.  Notwithstanding the letters of supports, there is insufficient evidence to show that the rating on the contested report was unfair.  
4.  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.

5.  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

__fne___  __mhm___  __bje___  DENY APPLICATION

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

INDEX

CASE ID	AR2001052118	
SUFFIX		
RECON		
DATE BOARDED	20011018	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.0000	
2.		
3.		
4.		
5.		
6.