MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           29 October 2002                  
	DOCKET NUMBER:   AR2002069529

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. Karol A. Kennedy		Chairperson	
	Mr. Thomas A. Pagan		Member	
	Ms. Barbara J. Lutz		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 his date of rank be changed to an earlier effective date.

APPLICANT STATES:  In effect, that several Officer Evaluation Reports (OERS) and his record of civilian education were not a part of his record at the time it was reviewed for the 1994 and 1995 promotion boards for captain.  He believes that it is an injustice not to afford him the earlier effective date now that these items are of record.

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

He was appointed a USAR second lieutenant on 24 June 1990.  He served as a first lieutenant during the Persian Gulf War and prior to the 1994 promotion board had received the Humanitarian Service Medal, the Joint Services Achievement Medal, the Army Commendation Medal, the Meritorious Unit Commendation, and two (2) Army Reserve Components Overseas Training Ribbons.

The record of education shows that he completed an Associate of Science Degree in June 1983, the Field Artillery Officer Basic Course in February 1988, a Bachelor of Arts Degree in December 1989, and the Civil Affairs Officer Advanced Course in August 1992.

The applicant's records were forwarded to the captain mandatory promotion board for the year of 1994, which was held 16 November 1993 through 17 December 1993.  He was non-selected for captain by the 1994 promotion board.  In accordance with statutory requirements, the reason for non-selection is not of record.  His records were again reviewed by the 1995 promotion board and the applicant was selected for promotion to captain.

During the processing of this case, the Total Army Personnel Command, Office of Promotions, Reserve Components provided an advisory opinion.  The opinion, noted that the absent OERs were not completed and/or did not cover the period of service that was considered by the 1994 promotion board.  Their absence is not a basis for reconsideration by a special selection board.  The only OER that was relevant dates from 1991 and that it is incomplete because it lacked the senior rater's profile.  Attempts to obtain a complete copy were unsuccessful.  The Chief of Special Actions reviewed the evidence of record and the applicant's contentions and stated that no relief was warranted.  

The advisory opinion was referred to the applicant and he disagreed with it's findings.  He continued to state that due to the absence of the OERs the 1994 board did not promote him, and to not adjust his date of rank only continues an injustice.

Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's nonselection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for nonselection.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity 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.

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 concurs with the advisory opinion that all but one of the OERs that the applicant requested be considered should not have been available to the 1994 promotion board and that the remaining incomplete OER does not warrant forwarding his case to a special selection board.

2.  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.

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

__KAK __  __TAP__  ___BJL __  DENY APPLICATION

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

INDEX

CASE ID	AR2002069529	
SUFFIX		
RECON		
DATE BOARDED	20021029	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.05	
2.		
3.		
4.		
5.		
6.