RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:  8 January 2004
	DOCKET NUMBER:  AR2003085716

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Stephanie Thompkins		Analyst	

  The following members, a quorum, were present:

	Ms. Kathleen A. Newman		Chairperson	
	Ms. Linda M. Barker		Member	
	Mr. John T. Meixell		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests, removal of an officer evaluation report (OER) for the period 4 November 1995 through 3 November 1996.  She also requests that a statement be placed in her records to show that the gap in her OER’s from 2 January 1995 through 12 March 1999 was through no fault of her own and that her unit was negligent.  She further requests removal of all reference to her hardship discharge with entitlement to retirement point credit for the 12 missed unit training assemblies.

2.  The applicant states, in effect, that an administrative review of the contested OER was not completed.

3.  The applicant provides supporting documents through her attorney.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 

1.  Counsel requests review of the applicant’s appeal by the Army Board for Correction of Military Records (ABCMR).

2.  Counsel states, that initially the Army Reserve Personnel Command (AR-PERSCOM) denied the applicant’s appeal and she was personally advised to take the matter to the ABCMR.  That due to the ABCMR and that of the AR-PERSCOM pointing fingers at each other, the applicant has been passed over for lieutenant colonel and is in danger of a second pass over.  The AR-PERSCOM initially denied the appeal and she was personally advised to take the matter to the ABCMR.  However, the ABCMR advised her by letter dated 13 February 2002, that the applicant had not exhausted all administrative remedies and should resubmit her request to remove the OER with the proper evidence to support her claim to AR-PERSCOM.  The applicant’s request was refiled with AR-PERSCOM and they have been sitting on the matter, without comment or explanation.

3.  Counsel further states that AR-PERSCOM’s delay is tantamount to denial, and the matter is past ripe for review by the ABCMR. 

4.  Counsel provides copies of his 13 February 2002 letter from the ABCMR, the applicant’s DD Form 149 (Application for Correction of Military Records), the applicant’s preliminary statement, the applicant’s statement of facts, the applicant’s resume, the applicant’s Placement Credentials for Teachers College, Columbia University and the applicant’s memorandum for appeal of the contested OER to AR-PERSCOM dated 23 March 2000 and the Deputy Chief of Staff of Personnel (DCSPER), AR-PERSCOM denial dated 12 June 2000 in support of this request.

CONSIDERATION OF EVIDENCE: 

1.  The applicant’s military records were not provided to the ABCMR.  Information herein was obtained from documentation submitted by counsel and an official with the Office of Promotions, Reserve Components, Human Resources Command, St. Louis, Missouri that show she was appointed in the Reserve, Army Nurse Corps (ANC), as a captain effective 1 August 1989, with 7 years construction service credit.

2.  She attained the rank of major effective 31 July 1996.

3.  The rater and senior rater completed the contested OER covering the period 4 November 1995 through 3 November 1996 on 11 January 1997 and 12 January 1997, respectively.  The report was for the applicant’s duties as a Medical Surgical Nurse with the 343rd Combat Support Hospital (CSH), Fort Hamilton, New York.  It was an adverse report given to the applicant on 12 August 1997 for her acknowledgment and comment/rebuttal.  The applicant refused to sign the report.

4.  The rating official gave the applicant a rating of “Met Requirements” for performance, and “Promote With Contemporaries” for promotion potential, with appropriate comments.

5.  The senior rater rated the applicant in the third of nine blocks.  The senior rater profile is shown as 01/05/05*/0/0/0/0/0/0, with appropriate comments.  (The *indicates the applicant’s position in the profile, below the center of mass)  The senior rater indicated on the report that a completed DA Form 67-8-1, a rating support form, was received with the report and considered in her evaluation and review.  The senior rater also commented that the officer refused to sign the OER.

6.  On 23 March 2000, the applicant appealed the contested OER with AR-PERSCOM.

7.  On 12 June 2000, the DSCPER, Special Review Board, AR-PERSCOM officials denied the OER appeal by Case Summary.  The summary noted the applicant’s appeal did not provide sufficient evidence of a clear and convincing manner.  The case summary stated that the applicant provided no supporting statements from either rating official or any senior officers in her chain of command who might support her claims and the evidence submitted did not justify altering or withdrawing the OER for the period 4 November 1995 through 3 November 1996.  Officials also further indicated that the presumption of regularity was applicable in this case.

8.  On same date the applicant was notified by memorandum of the denial for insufficient evidence.

9.  In October 2001, the applicant submitted an application to the ABCMR requesting removal of the contested OER.  On 13 February 2002, the ABCMR advised the applicant that she had not exhausted all of her administrative remedies and her concerns should be directed to the Chief, Evaluations Support Branch, AR-PERSCOM.

10.  On 3 June 2002, through counsel the applicant submitted an appeal to the Office of the Deputy Chief of Staff G-1, Officer Special Review Board (OSRB).

11.  The appeal was received on 10 December 2002.  In a case summary, the OSRB stated that this was the first appeal of an annual OER while the applicant was assigned as a Medical Surgical Nurse, with the 343rd Combat Support Hospital.  It was a referred report and a commander’s inquiry was not requested. The case summary also stated that the applicant contended that the OER was both administratively and substantively incorrect and should be removed from her file.  Further, the applicant requested a statement be added to her OMPF indicating that no promotion or retention board should draw an adverse inference for missing OER’s that the unit failed to generate during her assignment.  The OSRB contacted the rating officials for the contested OER. 

12.  In response to the OSRB, the senior rater indicated that both she and the rater had regular contact with applicant and that she counseled the applicant on her job performance on several occasions.  The senior rater definitely remembers using the support form to complete the applicant’s OER at the end of the rating period.  The senior rater stated that she took part of the senior rater narrative right from the applicant’s achievements highlighted on the applicant’s support form and the senior rater indicated that the OER was more than fair and could have been worse if the rater had not toned it down.

13.  In response to the OSRB, the rater was also contacted and stated that she recruited the applicant and the applicant reported to duty in either November or December 1995.  She, the rater, and senior rater personally went over the objectives of the symposium with the applicant and made it clear whom she worked for.  The rater stands by her evaluation of the applicant.

14.  The OSRB concluded that there was not sufficiently convincing evidence that the contested OER was substantially inaccurate or bias.  The OER did reflect the performance and potential of the rated officer and did meet the actual intent of the rater and senior rater at the time of the evaluations.  The OSRB recommended partial approval of the appeal to administratively change the 

following:  the grade in Part Ic of the OER from captain to major, the date of rank in Part Id from 890801 to 960731, all reference to the applicant’s rank in Parts IV, V, VI and VII from captain to major, and correction to the senior rater profile in 
Part VIIa based on the rank of major rather than captain.  It was further concluded the appeal correspondence would be filed on the R-fiche of the applicant’s OMPF.

15.  The applicant’s overall evaluation history was not provided to the ABCMR.  Her records also do not show she received a hardship discharge.

16.  The applicant was considered and not selected for promotion to lieutenant colonel by the 2002 and 2003 Reserve Components Selection Boards.  She has been identified for consideration by the 2004 lieutenant colonel RCSB.

17.  On 15 August 2003, the OSRB corrected the applicant’s contested OER by correcting her grade in Part Ic from captain to major; her date of rank in Part Id from 1 August 1989 to 31 July 1996 and changed all references to the applicant as a captain to major; and the senior rater profile was corrected to 01/01/01*/0/0/0/0/0/0 based on the rank of major rather than as a captain.

18.  On 20 August 2003, the applicant’s counsel was advised of the administrative correction to her OER and provided a copy of the OSRB’s case summary.  Counsel was also advised that if additional evidence is gathered, the applicant may resubmit an appeal to the OSRB or apply to the ABCMR.

19.  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.  It provides that an OER accepted by Headquarters, Department of the Army (HQDA), 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.

20.  The regulation defines a referred report, among other things, as any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s 

career.  It specifies that such a report will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Departmental Headquarters.

21.  The regulation also provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s OMPF for clarification purposes.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant is not entitled to removal of the OER covering the period 4 November 1995 through 3 November 1996.

2.  The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.  The contested report appears to represent a fair, objective and valid appraisal of her demonstrated performance and potential during the period in question.

3.  The applicant and counsel have submitted strong argument in support of this request; however, they have not shown the OER to be invalid.  The applicant’s appeal of the OER to the OSRB was denied based on insufficient evidence to show the report in error or unjust, and based on the presumption of regularity that the report represents the considered opinion and objective judgment of the rating officials at the time of preparation.  The applicant failed at the time to request a Commander’s Inquiry.  This is an individual’s available right and option concerning OER’s perceived to be unfair or unjust, and may have made a difference based on the freshness of the rating with all involved in place, to provide a concurrent investigation prior to the finalization of the report.  For whatever reason, this is now a dated case, and the applicant has not overcome her burden of proof to show error, injustice, or inequity.

4.  The applicant nor counsel has submitted sufficient evidence to support her requests for placement of a statement in her OMPF regarding the gap in her OER’s from 2 January 1995 through 12 March 1999 was through no fault of her own and that her unit was negligent and removal of all reference to her hardship discharge with entitlement to retirement point credit for the 12 missed unit training assemblies.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__kn____  __lb____  ___jm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

		___Kathleen A. Newman___
		        CHAIRPERSON

INDEX

CASE ID	AR2003085717	
SUFFIX		
RECON		
DATE BOARDED	20040108	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.0005	
2.	111.0100	
3.		
4.		
5.		
6.