MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 July 2001                   
	DOCKET NUMBER:   AR2001053679

	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. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. Lester Echols		Member	
	Ms. Gail J. Wire		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 paperwork regarding his Officer Evaluation Report (OER) referral and appeal be transferred from the performance fiche to the restricted fiche of his Official Military Personnel File (OMPF).

APPLICANT STATES:  That the presence of this additional paperwork with the OER on his performance fiche puts him at a further disadvantage and a higher likelihood of getting passed over for promotion by drawing attention to a bad OER that reflects on a very small portion of his military career.  He provides no supporting evidence.

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

He entered active duty as a second lieutenant on 25 February 1991.  He was promoted to captain on 20 April 1995.

The applicant received an 8-rated month annual OER for the period 27 April 1994 through 26 April 1995.  Part IVa shows that he received a 2 rating (with a   1 being to the highest degree and a 5 to the lowest degree) in the area of displays sound judgment.  A related comment, “Exercised bad judgment and discretion in one incident which resulted in a reprimand by the Commanding General…,” is entered in Part IVb.  His performance was rated as “always exceeded requirements” in Part Vb.  His promotion potential was rated as “promote with contemporaries” in Part Vd.  His senior rater (SR) gave him a        2 block rating (3/2/0/0/0/0/0/0/0) in Part VIIa.  In Part VIIb, his SR made mostly commendatory comments except for the comment “…however, he carelessly allowed himself to become involved in an embarrassing situation that showed poor discipline and judgment.”  On 26 May 1995, this OER was referred to him as the SR determined it could have a negative impact on his career.  On 13 June 1995, the applicant provided rebuttal comments to the OER.  The referral letter and his comments are filed on his performance fiche.

The applicant received a 4-rated month permanent change of station OER for the period 27 April 1995 through 29 August 1995.  He received all 1 ratings in Part IV.  His performance was rated as “always exceeded requirements” in Part Vb.  His promotion potential was rated as “promote ahead of contemporaries” in Part Vd.  He received all commendatory comments by his rater and SR; however, his SR gave him a 2 block, below center of mass rating (3/1/0/0/0/0/0/0/0) in Part VIIa.  He appealed this OER, contending that his SR intended to place him at least center of mass; however, because of visibility over his profile the SR inadvertently rated him below center of mass.  His appeal is filed on his restricted fiche.  An 8 June 1999 memorandum from the U. S. Total Army Personnel Command (PERSCOM) to him stating the evidence did not justify altering or withdrawing the OER is filed on his performance fiche.

Army Regulation 600-8-104 prescribes the policies for the Military Personnel Information Management/Records Program of the Military Personnel System.
Table 2-1 describes the composition of the OMPF.  In pertinent part, it states that OERs will be filed on the officer’s performance fiche with any authorized enclosures.  It also states that the document that announces the Deputy Chief of Staff for Personnel Special Review Board or Commander PERSCOM decision that denies or partially denies an evaluation report appeal will be filed on the performance fiche.  Allied documents in an evaluation report appeal will be filed on the restricted fiche when a memorandum for record is filed on the performance fiche.

Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  Paragraph 5-37 states that no enclosures other than those specifically listed will be attached to the original OER when forwarded to Headquarters, Department of the Army.  The SR’s letter of referral and the rated officer’s acknowledgment and comments regarding a referred report are authorized enclosures.  Paragraph 9-5(e) states that the appeal reviewing agency notifies each appellant by letter of the decision on his or her appeal.  When an appeal is denied, a copy of the letter or memorandum of notification is filed in the performance portion of the OMPF.

In the processing of this case, an advisory opinion was obtained from the Department of the Army Suitability Evaluation Board (DASEB).  The DASEB opined that the documents were properly filed and recommended denial of the applicant’s request.

A copy of the advisory opinion was provided to the applicant for comment or rebuttal.  He did not respond within the given time frame.

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, 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 referral memorandum dated 26 May 1995 and the applicant’s response dated 13 June 1995 are properly filed with his OER for the period ending 26 April 1995.  The 8 June 1999 notification memorandum that his appeal of his OER for the period ending 29 August 1995 was disapproved is properly filed.  The applicant should have been aware when he prepared his appeal that the memorandum would be filed on his performance fiche if his OER appeal were denied.  It would be inequitable to remove the applicant’s referral memoranda or the OER appeal denial memorandum as all other individuals who receive referred OERs or submit OER appeals which are subsequently denied also have the related memoranda filed on their performance fiche.  

3.  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

__mdm___  __le____  __gjw___  DENY APPLICATION

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

INDEX

CASE ID	AR2001053679	
SUFFIX		
RECON		
DATE BOARDED	20010719	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	100.00	
2.		
3.		
4.		
5.		
6.