MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           25 April 2002
	DOCKET NUMBER:  AR2001060558

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. George D. Paxson		Member	
	Mr. Charles Gainor		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:  Reconsideration of her request that the senior rater portions of her Officer Evaluation Report (OER) for the period 29 January 1993 through 26 October 1993 [hereafter referred to as the contested OER] be expunged.  In this request for reconsideration, the applicant through her counsel now requests that the contested OER be expunged and replaced by a statement that this period was a “non rated period”; that her corrected records be placed before appropriate special selection boards (SSB); that if selected for promotion, then her promotion be made retroactive with payment of all back pay and allowances.

APPLICANT STATES:  Through her counsel that the contested OER is fatally flawed because it is a “below center of mass OER which pursuant to AR 623-105 should have been referred and was not, and therefore denied the applicant an opportunity for a commander’s inquiry.”  Counsel presents the applicant’s request for reconsideration and new request for relief, evidence contentions, and conclusions in a ten-page memorandum to the Army Board for Correction of Military Records (ABCMR) with numbered TABS 1 through 3 and with lettered TABS A through E.

Counsel further contends the contested OER described a principal duty which the applicant “did not occupy, except briefly, during the term of the OER and therefore is not descriptive of her duty performance and both the Rater and Senior Rater rated Applicant on nonexistent duty criteria and performance.”

Counsel for the applicant addresses the “new evidence standard” of the Army Board for Correction of Military Records (ABCMR) and argues that new evidence includes both new factual evidence and not previously introduced to the ABCMR and new legal argument “which is outcome determinant and not previously argued before the Board.”  Counsel contends that the ABCMR should not deny applicants the right to explore all legal arguments and concludes that the new evidence in this case is both new fact and new legal argument.  Counsel requests that the Board “specifically rule upon this point if the Board chooses to deny relief on the ground that no new evidence is presented.”

Counsel then discusses the contested OER noting that it covered nine months; that it contained the principal duty title of “Assistant Brigade S-3 Imagery Operations Officer”; that the narrative in Part IIIc states the applicant’s duty was “Imagery Operations Officer”; and that the contested OER stated at Part Vc (Comments on Specific Aspects of the Performance) everything the applicant did during the period of the contested OER was related to “Imagery Operations.”  Counsel concludes that only the fact the contested OER covered nine months is accurate and, in effect, that the duty title, narrative statement of the applicant’s duties and comments on her performance are not accurate.
Counsel then introduces the 2 February 2001 memorandum from a senior Department of the Army Civilian (DAC) employee who worked at a military intelligence battalion subordinate to the military intelligence brigade headquarters to which the applicant was assigned.  Counsel contends that this DAC was “intimately familiar” with the applicant’s duties during the period of the contested OER and summarized the DAC’s comments essentially as follows:

	a.  The applicant was initially assigned as the brigade Imagery Operations Officer.  

	b.  The brigade Counterintelligence Officer [also identified hereafter as CPT T] departed Korea in March or April 1993 due this wife’s health and did not return for seven months which coincided with the ending date (October 1993) of the contested OER. 

	c.  The applicant’s rater [also identified hereafter as LTC A] “was an expert in imagery.”  The applicant’s “prior activities had been in CI” [Counterintelligence].

	d.  When the brigade CI officer [CPT T] departed Korea, the applicant’s rater “assumed Imagery responsibilities” and the applicant was made the “Brigade S3 CI Officer, a duty which she performed for the duration of the rating period.  The CI position was full time and under no circumstances could Applicant have been both the Imagery Officer and the CI Officer.”

	e.  The applicant had daily contact with the DAC regarding CI matters during the rating period and, based on his [the DAC] observations, the applicant “would have had no time to do assignments outside the CI arena.”

Counsel also contends that the dates on the contested OER are not accurate and the “sequence of events occasioning this OER have not been fully explained.”  The counsel asserts essentially:

	a.  The rater [LTC A] “pinned on” [was promoted to lieutenant colonel] just as he was leaving Korea.

	b.  In fact, when the applicant received this OER, the rater had been reassigned to Japan, and the contested OER was not given to her by him.

	c.  Upon receiving the contested OER, the applicant immediately confronted the SR with the fact that the contested OER did not reflect her proper duty assignment as the brigade S3 CI Officer.

	d.  The SR advised the applicant that he could do nothing about it as the rater was gone and the SR would have to forward the contested OER to LTC A in Japan for signature.

	e.  “Under no circumstances did Applicant execute the OER on 26 Oct 93, the thru date.”

Counsel also contends that the applicant’s DA Form 67-8-1 (OER Support Form) was given to the rater, but is no longer in the applicant’s possession.  Counsel asserts that this form, which showed the applicant’s CI activities, “was ignored by the Rater and never seen by the Senior Rater, notwithstanding the Senior Rater’s representations to the contrary.”

Counsel also contends that the SR placed the applicant below center of mass (BCOM) “without advising Applicant that the OER was referred.”  Counsel further states that, although Army Regulation 623-105, paragraph 4-27, did not at that time require referral of the contested OER, the regulation did urge SR to refer “ratings…are so derogatory that the report may have an adverse impact on the rated officer’s career.”  Counsel argues that the Army was drawing down its strength and any reasonably prudent SR knew that the contested OER was career fatal.  Further, he asserts that, by not referring the contested OER, the SR denied this very young officer notice of a problem which could have been addressed by a Commander’s Inquiry.

Counsel also contends that it is clear that the applicant was involved in CI activities and that under paragraph 4-12 of Army Regulation 623-105, the rater was obligated to “include principal duties and significant additional duties.”  He also asserts that the rater “failed to meet this regulatory requirement” and that “to believe there was no factual requirement is to believe that [DAC’s name omitted], a career counter intelligence officer is lying.”

Counsel then sets forth his analysis of the Officer Special Review Board (OSRB) case summary and ABCMR Memorandum of Consideration (Docket Number AR2000043560, dated 22 August 2000).  He contends that the “OSRB, as it is inclined to do, talked around the issue of what job Applicant actually did saying at TAB B, page 9 that:

	i.  By signing the OER Applicant agreed with her duty description and attendant narrative elements relating to it;

	ii.  Because Applicant could not produce a DA Form 67-8-1 support form showing her CI work, her claim was somehow deficient;

	iii.  Totally ignored was a letter from [DAC’s name omitted] at Exhibit I, TAB C which said without the detail provided in his Exhibit III letter that Applicant was in CI; 

	iv.  The Board should note that although the OSRB contacted both the Rater and Senior Rater, it did nothing to contact [DAC’s name omitted], whose information was at least as probative of the truth.”

Counsel then addresses the ABCMR Memorandum of Consideration.  He points out that the ABCMR said the SR “stated while she made substantial contributions to CI her principal duties were as the Imagery Intelligence Officer.”  He contends that “nowhere in the record can this utterance be found by the Senior Rater or, for that matter, the Rater.”

In regard to the ABCMR Memorandum of Consideration, counsel asserts:  ”At TAB E the Senior Rater wrote that [DAC’s name omitted] said she [the applicant] was the CI Officer.  The Senior Rater made no independent statement.  The Board has misstated a fact and reached a conclusion adverse to Applicant based on that misstated fact.”

Counsel then states that “relying upon what the Rater or Senior Rater had to say appears to be a fools game.”  He then presented a comparative analysis of the statements by the rater and the SR to the OSRB and by the SR in his letter to the ABCMR.  

TOPIC		RATER			SENIOR RATER

Job Description	a.  Could not remember 		a.  Could not remember
			details.				her ever changing her duty
								position.

			b.  If duty changed the 		b.  Did not know that 
			job description would 		Applicant was CI from the 
			be changed.				67-8-1 or job description.

			c.  Said nothing about		
			CI work-nothing.

DA 67-8-1		Could not remember.		He saw the 67-8-1

Counseling		a.  Counseled Applicant 		a.  Could not recall
			several times 

			b.  Could not ever 			b.  Convened and 
			remember counseling 		participated in a number 
			Applicant with Senior Rater.	of formal counseling 
								sessions between 
								Applicant and Rater.

Duty Assignment	a.  Made no specific 		a.  No memory
			statement as to Applicant’s
			duty assignment and 		b.  Aware CPT T was out 
			specifically did not mention 	of Korea.
			CI.

After displaying this information, counsel summarizes his chart.  He states that the rater could not remember or did not know that the applicant’s principal duty was CI and the SR knew that CPT T was out of Korea, but did not know who filled his position.  Counsel further states that the rater and SR counseled the applicant on multiple occasions and contends that they certainly did not talk about the job the applicant was doing.  He points out that the SR says he saw a OER support form, but the rater cannot remember.  Counsel concludes his argumentation on this point with a series of questions:

	How can any Senior Rater not know that Applicant was the Brigade CI?  How much of a rush must a Rater be in to not take the time to accurately portray a ratee’s duty assignment?  Most importantly, how can a Senior Rater conclude that Officer’s performance was poor when he has no idea what that officer was doing?

Counsel asserts this “entire circumstance becomes a farce” and then presents his version of the “truth”:

	“a.  After weeks as the Imagery Officer, Applicant took over as the CI officer.  This was a full time position.

	b.  [Rater’s rank and name omitted], who was an imagery expert took over the duties of the Imagery slot, but never altered Applicant’s job description as he was required to do by regulation.

	c.  [DAC’s name omitted] account accurately portrays that development.

	d.  Neither Rater nor the Senior Rater counseled Applicant regarding her duty performance during the period of this OER.

	e.  The Rater PCSed [Permanent Change of Station] and as he left hurriedly, did Applicant’s OER with no thought for her actual duties.

	f.  Applicant did supply a support form showing CI work.  This was never seen by the Senior Rater.

	g.  Applicant did complain to the Senior Rater about the job description, but because the rater was gone nothing was done.

	h.  The Senior Rater created a referral OER without informing Applicant of the disastrous consequences associated with it.

Counsel then presents what he cites as our “last point of new evidence and perhaps one of the most telling”:  

	“a. The Rater and Senior Rater were also the Rater and Senior Rater to [CPT T] as the CI Officer who left Korea for seven months and returned in Oct 93.

	b.  [CPT T] received a Rater and Senior Rated OER from the Applicant’s Rater and Senior Rater with a close out date identical to the Applicant.

	c.  During the rating Period [CPT T] was on duty for no more than two of the nine months.

	d.  The Senior Rater and Rater had to know that [CPT T] was gone and that the was the CI Officer.  Further, they had to know that Applicant filled that CI slot and filled it admirably. 

	e.  Shockingly [CPT T], who served for just two months received a center of mass OER for not performing at all.  Applicant, who did [CPT T’s] job, received below center of mass.  Both the Rater and Senior Rater have much to hide in this matter.

	f.  Neither the Rater nor Senior Rater in this case have established sufficient credibility to be believed".

Counsel concludes by restating his principal contentions and request for relief:  

	“The failure to comply with AR 623-105 by not disclosing significant duty assignments, by not rating those duty assignments, and by not referring the OER makes it defective as a matter of law.  It should be expunged.”

In support of the request for reconsideration, counsel submitted his 10 page memorandum, dated 26 January 2001; a U.S. Total Army Personnel Command memorandum, addressed to the applicant and dated 28 January 2000, which responds to her appeal of the contested OER; a 19 October 1998 memorandum from the applicant appealing the contested OER; a copy of the contested OER; a copy of the 30 December 1999 OSRB Case Summary; a copy of an 8 October 1998 memorandum from a senior DAC supporting the applicant’s OER appeal; a copy of a 16 October 1998 memorandum from a Brigadier General who was formerly the commanding officer of the 501st Military Intelligence Brigade in support of the applicant’s OER appeal; a copy of a 5 November 1998 memorandum in support of the applicant’s OER appeal from a colonel who was formerly the applicant’s battalion commander; copies of six OER’s; a copy of the applicant’s Officer Record Brief with a date of 7 October 1998; a 19 June 2000 memorandum from the applicant to the ABCMR; an undated and unsigned DD Form 149 (Application for Correction of Military Record); a copy of a 2 February 2001 memorandum to the ABCMR by the senior DAC which supplements his 8  October 1998 memorandum; a copy of the ABCMR Memorandum of Consideration (Docket Number AR2000043560), dated 22 August 2000; a copy of an 8 June 2000 letter from the SR of the contested OER to the ABCMR with a copy of the contested OER and the 8 October 1998, the 16 October 1998 and the 5 November 1998 memoranda of support attached.

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (Docket Number AR2000043560) on 22 August 2000.

Of all documents submitted with the request for reconsideration, only the 2 February 2001 memorandum from a senior DAC which supplements his earlier statement, dated 8 October 1998, is new evidence.  The Board will consider this memorandum.

Counsel contends that the applicant’s job description is incorrect.  This contention was considered by the Board during its deliberations in the applicant’s case on 22 August 2000; therefore, it is not new argument.

Counsel contends that failure to comply with AR 623-105 by not disclosing significant duty assignments, by not rating those duty assignments, and by not referring the contested OER makes the contested OER defective as a matter of law.  This is new argument and will be considered by the Board.

The Board reviewed the 2 February 2001 memorandum submitted by the senior DAC which essentially describes the applicant’s assignment as the brigade’s Imagery Intelligence Officer, the fact the brigade’s CI officer returned to the United States, and that the CI slot, which was a full time position, was vacant.  The DAC stated “there was no such thing as a part time CI officer in that Brigade in Korea.  He further stated that the rater [LTC A] “assigned the applicant to the CI officer position” and he “personally took over imagery and no imagery Officer was brought on board or appointed.”  The senior DAC concluded his statement by asserting:

	“I personally worked with [applicant’s rank and name omitted] on a daily basis involved in matters that are classified and which, therefore do not allow for their description here.  Suffice it to say that she worked long hours that could not have gone unnoticed.  Further, most of those hours were spent in my physical presence at Battalion or in the conduct/coordination of the classified duties we worked together.  It is not possible that the rating chain knew that she was not at Brigade but did not know why.”

Records show that the applicant was among those officers considered by the CY 1999, Major, Army Competitive Category, Promotion Selection Board which convened on 20 April 1999 and adjourned on 19 May 1999.  She was not among the officers selected for promotion.

Records show that the applicant was among those officers considered by the CY 2000, Major, Army Competitive Category, Promotion Selection Board which convened on 18 April 2000 and adjourned on 16 May 2000.  She was not among those officers selected for promotion.

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Paragraphs 4-4 through 4-8.1 of Army Regulation 623-105 (Officer Evaluation Reporting System) describe the purposes, preparation, and uses of the DA Form 67-8-1 (Officer Evaluation Report Support Form).  The regulation states that the purposes of the support form are to encourage communication process between the rater and the rated officer and to permit the rated officer to describe his or her principal duties, objectives and significant contributions.  It also describes a process whereby the rater and the rated officer meet face-to-face to discuss the rated officer’s duties, responsibilities and objectives and commit them to a working copy of the support form.  The rated officer keeps the working copy of the support form and will update it to reflect changes in duties and objectives as they occur.  At the end of the rating period the rated officer will use the working copy of the support form as a basis to prepare a final DA Form 67-8-1 for use by the rating officials in making their evaluations.  The regulation states that it is the rated officer’s responsibility to meet with the rater to develop the support form, to maintain the working copy of the support form with duties and objective throughout the rated period, to make additions and deletions as they occur, and to prepare the final copy of the support form.  The regulation also requires the rated officer to enter the duty title and position code that most accurately describes the principal duty performed, that the description of duty must be clear and concise, and that the normal requirements of the duty position should be describes as opposed to changing requirements associated with the position.  The regulation also required that the DA Form 67-8-1 be considered by the rating officials in preparing the DA Form 67-8 (Officer Evaluation Report (OER)).

Paragraph 4-7 of Army Regulation 623-105 describes the rater’s responsibilities in regard to the DA Form 67-8-1 (OER Support Form).  Essentially, the rater helps the rated officer develop his or her duties, responsibilities, and objectives; identifies the complete rating chain; discusses new or altered duties and objectives with the rated officer; and reviews the final DA Form 67-8-1 when completing the DA Form 67-8.  

Paragraph 4-8.1 of Army Regulation 623-105 describes the senior rater’s responsibilities in regard to the DA Form 67-8-1 (OER Support Form).  Essentially, the senior rater reviews the draft OER support form to be familiar with the rated officer’s responsibilities and objectives.  The senior rater is also required to review the completed DA Form 67-8-1 when he or she is preparing the rated officer’s OER and the senior rater is required to ensure that the DA Form 67-8-1 is returned to the rated officer when the completed DA Form 67-8 is forwarded to Headquarters, Department of the Army.  

Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army.  Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative.  Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.

Paragraph 4-27h of Army Regulation 623-105 provides that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 4-28 and 5-30 provide the opportunity and describe the procedures followed to request a Commander's Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide 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.

Article 138 (Complaints of Wrongs) of the Uniform Code of Military Justice provides that any member of the Armed Forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress may complain to any superior commissioned officer.  This Article requires further that the superior officer shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom the complaint is made.  The officer exercising general court-martial jurisdiction will then “examine into the complaint” and take proper measures for redressing the wrong complained of.  The general court-martial authority will forward to the Service Secretary involved a true statement of the complaint with the proceedings regarding the complaint.

Paragraph 4-11c(4) of Army Regulation 623-105 provides that the rated officer signs and dates the OER before sending it to the rater.  The rated officer's signature verifies the accuracy of the administrative data in Part I (except item o), the rating officials in Part II, and the APFT [Army Physical Fitness Test] and height and weight data in Part IV.  This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board.  The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

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 Board considered counsel’s contention that by not disclosing significant duty assignments and by not rating those duty assignments makes the contested OER defective as a matter of law.  Counsel’s arguments in support of these contentions were also noted, specifically that the OER described a principal duty title which the applicant did not occupy, except briefly, that the OER is not descriptive of her duty performance and both the rater and SR rated her on “nonexistent duty criteria and performance.”

2.  In the contentions related to the issue of job description, the Board noted several key facts:

	a.  Regulation dictates that the job description on the contested OER should have been derived from the DA Form 67-8-1 (OER Support Form) prepared by the rated officer.  Regulation also places the burden squarely on the rated officer for keeping the working copy of the support form current as duties, responsibilities and objectives change and for submitting a final copy of the support form for use by the rater and SR.  

	b.  The SR stated that he used the support form in the preparation of the SR portion of the contested OER.  

	c.  The applicant and her counsel rely on the observations of one person, the senior DAC, who was not in the applicant’s rating scheme as a basis for claiming the job description on the contested OER was incorrect and the applicant was not given credit for all the duties that she performed.  However, the preponderance of the evidence which includes the contested OER itself, the statement of the rater and the statement of the SR contradicts the statement of the senior DAC.  Additionally, this senior DAC makes assertions that “there was no such thing as a part time CI officer in that Brigade in Korea”; that the rater [LTC A] “assigned the applicant to the CI officer position” and that the rater “personally took over imagery and no imagery Officer was brought on board or appointed.”  There is no evidence presented to support these statements, there is no evidence that the senior DAC inquired into the assigned duties of the applicant, and/or discussed any of these matters with the applicant’s rater or SR, and it is clear that he was not in a position to know the duties, responsibilities, and objectives which were established by the rater and the applicant on the DA Form 67-8-1.

	d.  Further, the Board noted that the applicant also had the opportunity to address any matters related to her job description when she authenticated and submitted her DA Form 67-8-1 to her rater.  She also could have addressed this matter with the rater and SR during counseling, in a commander’s inquiry and/or under Article 138 of the Uniform Code of Military Justice, but the applicant did not invoke any of her rights in this matter at the time she received the contested OER in November 1993.  

	e.  The Board also noted that the applicant did not appeal the contested OER on the basis that her duties and performance were incorrectly described in the contested OER until 19 October 1998 which is almost five years after the contested OER was rendered.  

3.  Based on the foregoing, the Board determined that the applicant and her counsel have not presented sufficient evidence and/or argument to overcome the preponderance of evidence which shows that the applicant was rated properly on the duties which she performed during the rated period. 

4.  The Board considered counsel’s contention that the contested OER should have been referred by the SR and failure to do so rendered the contested OER defective under the law.  Counsel’s arguments in support of this contention were also noted, specifically that any “prudent” SR knew that an OER such as the one tendered to the applicant was “career fatal” and that by denying this then very young officer notice of a problem which could have been addressed by a commander’s inquiry.

5.  In the contentions related to the decision of the SR not to refer the contested OER, the Board noted several key facts:

	a.  Regulation specifically allows the SR to refer an OER, when in his or her opinion, ratings or comments are so derogatory that the report may have an adverse impact on the rated officer’s career.  Obviously, the SR determined, in his opinion, that referral of the contested OER was not necessary in this case.

	b.  The applicant did not object to the decision of SR not to refer the contested OER at the time it was rendered or at the time of her appeal of the contested OER on 19 October 1998.

	c.  Counsel’s contention that failure to refer the OER denied the applicant the opportunity to request a commander’s inquiry has no basis in fact.  The applicant alleges that she met with the SR to contest entries on her OER and that the SR told her that he could not do anything because the rater had transferred.  In the absence of resolution of these matters, the applicant could have requested a commander’s inquiry at that time, specifically on or about November 1993.

	d.  The SR in his 8 June 2000 letter to the ABCMR states that it was never his “intent to render a Senior Rating which, in itself, would deny [the applicant’s name and rank omitted] further advancement in the Officer’s Corps.”

6.  In regard to the contentions that the contested OER should have been referred by the SR and failure to do so rendered the contested OER defective under the law, the Board found that the SR exercised his judgment in this matter on 15 November 1993 and disagreement with that decision at this late date is without merit, particularly since the applicant took no action to argue this point until the request for reconsideration, dated 26 January 2001, was submitted to the ABCMR.  Therefore, the Board concluded that the SR and the applicant really did not consider this report “career fatal” at the time it was rendered and that failure to refer the contested OER did not preclude a commander’s inquiry and did not then and does not now render the contested OER defective under the law.

7.  The Board noted counsel’s contention that “[u]nder no circumstances did Applicant execute the OER on 26 Oct 93, the thru date.”  Regulation requires that a rated officer authenticate Part IId of an OER and sign the DA Form 67-8-1 prior to submitting it to the rater.  There is no reason why the applicant could not have signed her name in Part IId on 26 October 1993 and there is no evidence that the applicant has ever contested this point.

8.  The Board noted counsel’s statement that the applicant’s DA Form 67-8-1, which showed the applicant’s CI activities, is no longer in her possession and “was ignored by the Rater and never seen by the Senior Rater, notwithstanding the Senior Rater’s representations to the contrary.”  

	a.  However, the Board believes that it is abundantly clear that the reason the regulation requires the DA Form 67-8-1 be returned to the rated officer and the reason a commander’s inquiry and an OER appeal should be executed in a timely manner is precisely to avoid situations similar to that in which the applicant currently finds herself.  Specifically, there is no evidence which supports the contention by the applicant and recollections regarding this matter are not clear.  

	b.  The Board noted that, contrary to counsel’s contention, the evidence of record shows that, on 15 November 1993, the SR indicated in Part VIIa (Potential Evaluation) that he received a DA Form 67-8-1 in conjunction with the contested OER and he considered it in his evaluation.  Furthermore, regulation required the SR to provide comments in Part VIIb (Comments) if a DA Form 67-8-1 was not submitted by the rated officer.

	c.  The Board also noted that the applicant states that she no longer has the DA Form 67-8-1 in her possession, thereby indicating that one existed.  

	d.  Based on the foregoing and in the absence of evidence to the contrary, the Board concluded that the applicant’s DA Form 67-8-1, which supported the contested OER, was forwarded and was considered by rating officials in this case. 

9.  The Board noted counsel’s contention that the ABCMR said the SR “stated while she made substantial contributions to CI her principal duties were as the Imagery Intelligence Officer.”  He contends that “nowhere in the record can this utterance be found by the Senior Rater or, for that matter, the Rater.”  The Board found that, in his 8 June 2000 letter, the SR paraphrased the senior DAC’s remarks in paragraph 2 as follows:

	“…recollections of [name of senior DAC omitted], according to which [the applicant’s rank and name omitted] made substantial contributions to the Counterintelligence component of the 501st MI Brigade’s Theater intelligence mission while, and in addition to serving as, the Brigade’s principle Imagery Intelligence officer.”

10.  The Board noted counsel’s comparative analysis of statements by the rater and SR and his conclusions based on his comparative analysis.  Counsel’s contention “that this entire circumstance is a farce” fails to recognize that five years had elapsed between ending date of the contested OER and the statements by the rater and SR.

11.  The Board noted counsel’s version of the “truth” regarding how this entire circumstance came about, specifically that the applicant became the brigade’s CI officer, that the rater never altered her job description as he was required to do, the rater left hurriedly and gave no thought to the applicant’s duties, the applicant provided a support form which showed her CI duties which the SR never saw, and the SR created a referral OER without informing the applicant of its disastrous consequences.  Aside from the statements by the senior DAC, the counsel and the applicant do not provide any evidence to support their version of the circumstances in this case.  Furthermore the rated officer, not the rater, is responsible for maintaining the working copy of the OER support form which shows the changes in duties, responsibilities, and objectives.

12.  The Board noted counsel’s contention that CPT T who served for just two months received a center of mass OER for not performing at all while the applicant, who did [CPT T’s] job, received below center of mass OER.  Counsel has provided no evidence to support this contention.  Furthermore, the fact that a third party received a center of mass senior rating OER while the applicant received a below center of mass OER is not a basis for amending the contested OER as requested by the applicant.

13.  In order for this Board to remove or amend the contested OER, the applicant and her counsel must provide evidence which conclusively proves that the contested OER did not correctly describe her duties, was not prepared by the properly designated rating officials, does not otherwise represent the considered opinion and objective judgment of the rating officials at the time of preparation and/or was not properly referred or processed.  

	a.  This Board has determined, based on all of the foregoing, that the applicant and her counsel have failed to provide conclusive evidence and/or compelling argument which are sufficient as a basis for this Board to reverse the decision of the ABCMR in Docket Number AR2000043560, dated 22 August 2000, not to expunge the SR evaluation and SR narrative comments from the contested OER.  

	b.  Additionally, this Board has determined that the applicant and her counsel have not provided sufficiently conclusive new evidence or compelling new arguments in their 26 January 2001 request for reconsideration to warrant amending or removing the contested OER.  

	c.  In the absence of amendment or removal of the contested OER, the Board determined that the applicant’s records were correct as constituted at the time of her promotion considerations by the CY 1999 and CY 2000, Major, Army Competitive Category, Promotion Selection Boards; therefore, there is no basis for submission of the applicant’s records to SSB’s for promotion reconsideration.

14.  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 either requirement.

15.  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

___CG__  __JHL___  __GDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2001060558	
SUFFIX		
RECON		
DATE BOARDED	20020425	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	310.0000.0000	
2.		
3.		
4.		
5.		
6.