MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  19 September 2002
	DOCKET NUMBER:  AR2002069213

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Mr. Ronald E. Blakely		Member	
	Ms. Melinda M. Darby		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 Officer Evaluation Report (OER) for the period 971001-980531 be removed from his records and that his records go before a standby promotion board for reconsideration for promotion to lieutenant colonel (LTC).

APPLICANT STATES:  He appealed the subject OER based on administrative and substantive error.  The Officer Special Review Board (OSRB) agreed with the administrative error (the OER had not been referred and that the check mark indicating that he did not want to make comment was incorrect), but took no action on the substantive error (height/weight/body fat standard entries were wrong and lack of a promotion potential statement).  The appeal correspondence was placed on the restricted portion of his Official Military Personnel File (OMPF).  The OER was amended in accordance with the OSRB decision (marked as a referred OER and filed with the applicant's referral comments).  The errors now in question deal with incorrect height and weight data in Part IVc and related adverse comments in Part Vb, the rater's portion of the OER.  He provides a copy of his OER appeal documentation and OSRB responses that included the following:

The applicant's company commander from the period of the OER provided a memorandum, dated 4 June 1999, that states, "It is my belief that the height and weight data was entered on the OER incorrectly due to administrative error.  Based on company documents, the height and weight data on the OER was obtained from documents prepared after the rating period."

The warrant officer administrative technician who monitored the processing of the OER provided a memorandum, dated (no day) December 1999, that states, "I now know that subject report is in error regarding (the applicant) not meeting height/weight standards as reflected in part IVc.  (The applicant) was first determined to be overweight on 22 June 1998, well after ending date of subject report (31 May 1998).  At the time of processing the OER, I assumed that the rating chain had verified that rated officer was in fact overweight."  He states that the draft edition of the OER that the applicant signed showed that he met the height/weight standards.  The final form of the OER submitted showed that the applicant did not meet the height/weight standards.  He assumed that the applicant knew about the change when he signed the final form without making comment.  The applicant was entered in the weight control program on 22 June 1998.

The applicant's rater from the OER provided a memorandum, undated, that states, "It has since come to my attention that for the report period covered by this OER, the information I entered regarding (the applicant's) height and weight was in error.  Instead, he in fact met height/weight standards IAW AR 600-9.  …Had I known that (the applicant) was within height/weight standards for the 

period of subject report, I would have entered in my evaluation a recommendation for immediate promotion to LTC …"  The rater requests that: 
1) the OER height/weight/meets body fat standards entries be changed from 
"69 228 NO" to "70 192 YES;" 2) the phrase "(The applicant) is not in accordance with Army Regulation 600-9 and no progress has been made to this date," be deleted and the phrase added, "Unlimited potential to serve our soldiers at the grade of LTC.  Select immediately for promotion;" and, 3) delete the "X" indicating that the OER is a referred OER.

The subsequent commander for the unit to which the applicant belonged during the OER rating period provided a memorandum, dated 3 May 2000, that states that the Army Physical Fitness Test (APFT) scorecard for the period of the OER, which contained the applicant's height and weight data, was destroyed when it was full, according to requirements in Army regulation on records keeping.

A DA Form 705 (Army Physical Fitness Scorecard) provided by the applicant shows that on 31 July 1998, that he exceeded ("No Go") the Army height/weight standards with 216 pounds at 69 ½ inches tall (the Army Weight Control Program screening table weight limit for 70 inches tall is 192 pounds).  The form shows that on 28 January 1999, he met ("Go") the Army height/weight standards with 
190 pounds at 69 inches tall (the Army Weight Control Program screening table weight limit for 69 inches tall is 186 pounds).

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

That he is an Army chaplain (major) with a date of rank of 1 August 1994.  He was commissioned as a Reserve officer chaplain (first lieutenant) on 
2 September 1982.  He was ordered to active duty on 24 April 1985.  He was commissioned as a Regular Army chaplain (major) on 1 August 1994.

While serving as the brigade chaplain of the 8th Personnel Command in Korea, he received a change of rater OER for the period 971001-980531.  The OER showed his height and weight as 69 inches and 228 pounds and showed a "NO" indicating that he did not meet the Army weight standards.  The rater's comments in Part Vb of the OER stated, "(The applicant) is not in compliance with Army Regulation 600-9 and no progress has been made to this date.  (The applicant's profile does not hinder his job performance."  The OER was not referred to the applicant for comment as required by Army regulation.  The report signatures are dated 17 June 1998.

On 10 February 2000, the applicant appealed his OER to the OSRB contending administrative and substantive error in that the report had not been referred to him for comment, that he did not decline to make comment, that the height and 

weight data and related comments were incorrect, no recommendation was made for promotion, the signature dates were not accurate, and the consequent adverse OER resulted in his not being selected for promotion to LTC.  On 
21 March 2000, the U. S. Total Army Personnel Command (PERSCOM), Appeals and Corrections Branch, returned the appeal without action due to insufficient evidence supplied by the applicant to support his contentions.

On 10 April 2001, the applicant resubmitted his appeal adding his OER Support Form, an APFT scorecard for the two weigh-ins following the OER period, a statement from the company commander about the authorized destruction of the APFT scorecard for the weigh-ins during the period of the OER, and a 
DA Form 3349 (Physical Profile), dated 4 April 1998, granting a temporary profile until 4 August 1998, for right foot pain restricting him from running or walking exercises.

On 31 August 2001, the OSRB determined that the applicant should be given an opportunity to provide comment to the referred OER.  On 19 September 2001, the applicant provided such comment, reiterating the contentions he had made to the OSRB.  On 20 November 2001, the OSRB subsequently determined that the OER be corrected to show that he did provide comment to the referral and that his comments be filed with the OER in his record.  The OSRB determined that there was insufficient evidence to support the contention that the height and weight data and related comments on the OER were incorrect concerning the applicant exceeding the Army weight standards.  The OSRB also determined that the administrative error that was then corrected would not have affected his non-selection for promotion to LTC.

In the OSRB case summary, the OSRB reported a summary of the rater's comments made by telephone to the OSRB.  "He (the applicant) did not appear 'fat' and had the same appearance throughout the year.  He recalled the SR (senior rater) informing him a couple of days before his PCS (permanent change of station) that the (applicant) was overweight, however, this information did not affect his input, as he had already submitted his proposed entries for the OER for typing.  … He signed the Draft version of the report and the blank copies.  Subsequently, he was notified by the Admin Tech of the need to use one of the blank signed forms due to the requirement to add the overweight entries.  He did not weigh the (applicant); that was the company commander's responsibility.  He agreed to the changes to the Draft OER based upon a belief that the appellant was overweight for the rated period.  After reviewing the (applicant's) referral memorandum, he believes the changes (to the OER) based upon failing to meet height/weight standards were inappropriate because the appellant was not "overweight" until after the rating period.  He believes he would not have agreed to the height/weight changes made to the OER had he seen the appellant's 

referral response memorandum prior to officially processing the report.  He also stated that he believed his draft version of the report he submitted prior to PCSing had recommendation as to the promotion potential of the appellant in Part Vb.  He believes the sentence(s) about the (applicant's) promotion potential were replaced by the contested height/weight entries.  Therefore, he advocates deleting the contested height/weight entries and adding the statements on his memorandum concerning the (applicant's) promotion potential."

The OSRB reported a summary of the SR comments made by telephone to the OSRB.  "The (applicant) had previously looked overweight and (he) had discussed this concern with the (applicant) prior to the completion of the contested OER.  He (the SR) was surprised that he (the SR) did not comment about the appellant's overweight status in Part VIIc (SR comments on performance and potential).  He was also surprised the (applicant) did not contact him (the SR) about this (the OER) appeal.  …The SR could not recall or explain why the OER was not referred to the (applicant) as required by (regulation)."  When asked if he would have changed his entries (which contained no comment on height/weight data) on the OER if he had seen the applicant's referral response, he said 'no' but he would have forwarded the response to the rater for his consideration and determination if it warranted any changes in the rater's entries (which include the height/weight entries and the promotion potential entries).

In telephone conversation with the OSRB, the company commander stated that the applicant was a husky build individual and that he was able to meet the weight standards after a couple of months on the weight control program (which he entered 22 June 1998, which was after the end of the rating period on 
31 May 1998).  He said the company policy was to weigh personnel in conjunction with the APFT, which during the time of the contested OER was in April or May 1998.  He stated that because at the time, he was a captain and the applicant was a major, he left the initial notification of entry in the weight control and related counseling form on the appellant's desk for signature and return.

On 13 June 2000, the PERSCOM commander issued a memorandum to the applicant informing him that he had been considered for promotion to LTC as a chaplain but was not selected.  The memorandum also informed him that as a MAJ twice non-selected for promotion to LTC, he was subsequently considered by a board for continuation on active duty.  He was continued on active duty as a MAJ until he would become eligible for retirement.  According to his Officer Record Brief (ORB), dated 24 July 2002, he had as of that date 210 months and 9 days of active Federal service and his mandatory retirement date is 30 April 2005.

The applicant's OERs for periods before and after the OER in question (*) show a height and weight record as follows:

OER Period	Height	Weight	Screening Table Weight Limit
AR 600-9	Met Army Weight Standard	
950106-960105	70	192	192	Yes	
960106-960527	70	192	192	Yes	
960528-970527	70	192	192	Yes	
970528-970930	70	192	192	Yes	
971001-980531	69*	228*	186	No*	
980601-981120	70	195	192	Yes	
981121-990524	69	190	186	Yes	

Army Regulation 623-105 (Officer Evaluating Reporting System), paragraph 
3-19.1, states, "In the space after Height and Weight the rater will enter (typed) the rated officer's height and weight respectively as of the units last weigh-in. If there is no weigh-in during the period covered by the report, the rater will enter the officer's height and weight as of the 'thru' date of the OER.  …An entry of 'YES' or 'NO' will be placed in the space next to the weight to indicate compliance or noncompliance with AR 600-9 (The Army Weight Control Program).  For an officer who exceeds the screening table weight, a 'YES' entry may only be entered after a body fat measurement has been completed and he or she is found to be within body fat standards.  The rater will comment on a 'NO' entry, indicating noncompliance with the standards of AR 600-9 in Part Vb.  These comments should indicate the reason for noncompliance …  The progress or lack of progress in weight control programs should be indicated.”  Paragraph 3-32 states that any report with a rating of "NO" in Part IVa-c (which includes "No" indicating not meeting Army weight standards), will be referred to the rated officer by the senior rater for acknowledgment and comment before the report is sent to the Headquarters, Department of the Army.

Army Regulation 623-105, appendix C, provides guidance on OERs for chaplains.  Paragraph C-4 states, "When a chaplain is not in the rating chain a senior chaplain familiar with the rated chaplain's performance (if available) may be designated as intermediate rater. The provisions of paragraph 2-22b(2) may apply when it is not practical to designate a chaplain as intermediate rater."  Paragraph 2-22b(2) states, "When it is not practical to designate a nonparent unit supervisor as rater, intermediate rater or senior rater, this supervisor may submit written comments concerning the rated officer's duty performance to the designated rater for their use in developing the rater's evaluation.  These comments will address that portion of the rated officer's duties directed by this 

supervisor.  The nonparent-unit supervisor will evaluate on the DA Form 67-9 only if he or she has been a designated member of the published rating chain for a minimum of 60 calendar days prior to the 'Thru' date of the report.  If the dual supervisor has not been in the position for the required 60 day period to evaluate, the senior rater in his or her review capacity will so indicate in Part VIIc."  Chaplains are normally under dual supervision, technical supervision from a senior chaplain and command supervision from the commander for whom they work.

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.  There is insufficient evidence to support the applicant's contention that he weighed 192 pounds at the end of the rating period or at the most recent 
weigh-in during the rating period.  The contention that he was entered in the weight control program after the rating period does not prove that he was not overweight at the end of the rating period.  The company commander stated that the applicant was entered in the weight control program on 22 June 1998.  He also stated that it was the company policy to weigh personnel in conjunction with the APFT conducted in April or May.  These comments suggest that the applicant was weighed in April or May of 1998 during the rating period and the applicant's weight at that time resulted in his entry into the weight control program on 
22 June 1998.  The results of that weigh-in should have been attached to the memorandum placing the applicant in the weight control program as justification for the action as required by AR 600-9.  However, the applicant has not provided a copy of this weight control program documentation to show that his entry into the weight control program resulted from a weigh-in that occurred after the end of the rating period to support, in part, his contention that he was not overweight during the rating period.

2.  While the company commander stated that the applicant was not enrolled in the weight control program until 22 June 1998, and that he believed that the applicant's height and weight were recorded incorrectly on the OER, he did not state what the correct height and weight was or that the applicant was not overweight at the end of the rating period.  The rater stated that he did not know what the applicant's weight was and he left that up to the company commander.  Neither the rater, company commander, nor the applicant have provided any evidence to support the contention that he weighed 192 pounds at the end of the rating period or at the most recent weigh-in during the rating period.  While there may be some doubt that the applicant weighed 228 pounds during the rating period, there is no evidence to support his contention that he was not overweight or weighed 192 pounds.

3.  Although statements have been provided to verify the authorized destruction of the APFT scorecard that would have shown the weigh-ins that occurred in April or May of 1998, other records should exist to support the contention by the applicant and the rater that he weighed 192 pounds during or at the end of the rating period.  The applicant provided a copy of a temporary profile granted by medical authority on 4 April 1998.  Medical records would record the applicant's vital statistics at the time that the profile was given to include his height and weight.  The applicant has not provided a copy of these pertinent medical records to support his contention that he weighed 192 pounds.

4.  Since the applicant's weight was consistently reported at exactly the  screening table weight limit of 192 pounds for his height for the preceding three years, and his weight was reported to be 228 pounds only 22 days after the end of the rating period, it is not accepted that he did not exceed 192 pounds at the end of his rating period on 21 May 1998.

5.  Since the company commander and the rater both state that the applicant was not placed in the weight control program until 22 June 1998, after the end of the rating period, the comment on the OER in Part Vb, "…and no progress has been made to his date," indicating that no progress had been made in the weight control program, is an inappropriate comment.  However, no documentation has been provided to support the contention that the applicant was not placed in the weight control program until 22 June 1998.

6.  It is noted that the SR failed to refer the OER to the applicant as required by regulation.  The SR also stated that had he received referral comments from the applicant at the time that the OER was rendered, he would have provided them to the rater to clarify the issue of the weight.  Since this was not done as it should have been, it has placed the applicant, rater, and company commander at a distinct disadvantage in proving or correcting an error in the weight on the OER.

7.  It is noted that there was no senior chaplain officer as an intermediate rater on the OER in question as there had been on the applicant's preceding OER and was on the following OER while the applicant was in the same position as the brigade chaplain with the same position rater (chief of staff) and same position SR (brigade commander).  This is contrary to the guidance in the Army regulation on OERs for chaplains.  If the senior chaplain was not in the rating chain for the required 60 days, the SR was required to address this issue in his comments but no such comment was made.  However, in the absence of information on the published rating chain, this is not considered a fatal error.

8.  Since there is insufficient evidence to support a change to the OER, there is no basis to grant a reconsideration for promotion to LTC.

9.  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

__jl____  __rb____  ___md____  DENY APPLICATION

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

INDEX

CASE ID	AR2002069213	
SUFFIX		
RECON		
DATE BOARDED	20020919	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	123.07 – Removal from the Record - OER	
2.		
3.		
4.		
5.		
6.