MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           4 September 2003
	DOCKET NUMBER:   AR2003088659

	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. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor 		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. Frank C. Jones		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:  In effect, that he be appointed to the Judge Advocate General's Corp (JAGC) and that his two nonselections for promotion to lieutenant colonel be removed from his official military personnel file. (OMPF)

APPLICANT STATES:  In a four page memorandum to the Army Board for Correction of Military Records (ABCMR), in effect, that the Army Personnel Command (PERSCOM) does not have the authority to void his JAGC appointment.  The applicant also contends that his records were considered "prematurely" by the Department of the Army Mandatory Promotion Board and that his records contained "records problems which amount to material error(s)." 

In support of this application, the applicant submitted a four page self-authored statement (Overview and background); an affidavit from the applicant; a chronology of events; an exhibit list for items 1 through 36; an annex A through V of cases previously considered by the ABCMR.

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

The applicant was commissioned as a second lieutenant on 22 May 1971 in the United States Army Reserve (USAR).  He completed the Quartermaster Officer Basic Course and subsequently served as a transportation officer.  The applicant was promoted to the rank of major on 7 June 1985.  He was separated by reason of two nonselections for promotion to major effective 16 April 1993 in accordance with Army regulation 135-175 [Separation of Officers].  He is currently serving as a staff sergeant in the USAR.

The applicant applied to the ABCMR on 19 April 1996.  Although his application is not available, other documents indicated that he requested, among several matters, appointment in the JAGC.  The staff of the ABCMR requested an advisory opinion from the Chief of the Army Reserve and provided it to the applicant for review and comment.  After receipt of the advisory opinion, the applicant elected on 14 May 1999 to withdraw his application and resubmit at a later date.  The ABCMR closed the applicant's case without prejudice and returned it along with the enclosures to him on 18 May 1999.

The ABCMR received the current application on 28 March 2003.

The applicant provided a profiled copy of an annual OER for the period 2 December 1985 through 1 December 1986 (hereafter referred to as contested OER #1) while serving as a major.  Part III [Duty Description] contains the entry AGR/USAR MAIN OPNS OFF [Active Guard Reserve/United States Army Reserve Maintenance Operations Officer]. 

In Part IVa (Professional Competence), the applicant received ratings of "1"
["1" is the highest rating and "5" is the lowest rating] in 11 of the 14 attributes. He received a "2" rating in #2 (demonstrates appropriate knowledge and expertise in assigned tasks), #4 (Motivates, challenges, and develops subordinates) and #7 (Clear and concise in written communication).

In Part Vb (Performance during this rating) the rater placed his "X" in the second box (Usually Exceeded Requirements). 

In Part Vc (Comments on Specific Aspects of Performance) the rater stated that the rated officer is currently on his first AGR tour in a position that he is unqualified for and that this assignment is unfortunate as his current position is very demanding with little time for education.  He continued that the rated officer has shown considerable improvement in maintenance management techniques and overall maintenance operations.

In Part Vd (Potential for Promotion to the Next Higher Grade) the rater placed his "X" in the second box (Promote with Contemporaries).

In Part Ve (Comment on Potential) the rater stated that the rated officer needs more experience in the staff position that he currently holds.

Part VII (Senior Rater) portion is left blank.

The applicant provided an unprofiled copy of a seven month Relief for Cause OER for the period 2 December 1986 through 4 June 1987 while serving as a major.  Block Part III [Duty Description] contains the entry "Maintenance Operations Officer." 

In Part IVa, the applicant received 4 ratings of "1", 7 ratings of "2" and 3 ratings of "3".

In Part Vb (Performance during this rating) the rater placed his "X" in the fourth box (Often Failed Requirements). 

In Part Vc (Comments on Specific Aspects of Performance) the rater stated that the relief for cause report was instituted by himself and the SR based upon reported lack of actions by the rated officer at Annual Training.  He continued that the rated officer failed to manage his section appropriately and in several instances left his section unmanned.   The rater stated that the rated officer was on one occasion late for a required briefing and when asked questions was unprepared.  He also stated that the rated officer's answers were so ambiguous that personnel in the headquarters were urged not have him attend any more briefings.  He concluded that the rated officer was totally out of his element in this position and that he did not have the maintenance expertise and recommended that it would be in the best interest of the Army to terminate the rated officer's tour in this battalion.

In Part Vd (Potential for Promotion to the next higher grade), the rater placed his "X" in the third box (Do Not Promote).

In Part Ve (Comment on Potential), the rater stated that the relief for cause OER necessitated the "Do Not Promote" and that the rated officer was aware of the reasons for relief.

In Part VIIa(Potential Evaluation), the senior rater placed his "X" in the 7th block. 

In Part VIIb (Comments), the SR stated that the rated officer was totally inept in both the leadership arena and technical areas associated with the position of Maintenance Operations Officer.  He continued that he discussed maintenance issues with the rated officer and although verbose in his responses, the answers were not correct or accurate.  The senior rater recommended that the rated officer not be retained in the AGR program.

The applicant appealed two officer evaluation reports (OERs) to the Deputy Chief of Staff for Personnel Officer Special Review Boards (OSRB).  The appeal was dated 2 June 1992 and received by OSRB on 5 January 1993.  

In addition, the OSRB case summary identifies the applicant as having been twice nonselected for promotion.

The "Discussion" portion of the OSRB case summary addressed the applicant's contentions that both of the OERs are substantively and procedurally inaccurate. The applicant specifically requested that the senior rater (SR) portion (Part VIIa (Potential Evaluation) and Part VIIb (Comments)) of contested OER #1 and the entire contested OER #2 be deleted from his records.

The OSRB contacted the rater by telephone.  Essentially, the rater stated that he remembered the applicant and his rating.  The rater provided the following information:

a.  The rater discussed his concerns regarding the applicant's performance and objectives with the applicant.  The rater stated that the discussions were not formal in nature but that the applicant definitely knew what was expected of him and how he was doing.  He continued that in retrospect that maybe there should have been more counseling.

b.  The rater explained the circumstances that led to the applicant being relieved of his duties.  Specifically he stated the battalion executive officer explained that there were problems with the applicant during annual training and that the "higher Headquarters" did not want the applicant to continue briefing.

	c.  The rater continued that he discussed the applicant's performance with the SR on numerous occasions and that the SR was not satisfied with the applicant's performance.

d.  The rater stated that he was not aware of the applicant requesting a commander's inquiry.

e.  The rater also stated that he was not aware of applicant's contention that he received contested OER #2 without the SR's portion completed and that the SR's signature date was earlier on contested OER #2 than that of the SR's signature date for contested OER #1.

The OSRB contacted the Supervisor Staff Advisor (SSA) by telephone.  Essentially, the SSA stated that he remembered the applicant and provided the following information.

	a.  The SSA stated that the rater visited the battalion at AT and after discussions with the executive officer (XO) decided to send the applicant home.

	b.  The SSA also stated that the applicant found out that he was relieved when the rater sent him home.

	c.  The SSA stated that he was not aware of the applicant requesting a commander's inquiry.

The OSRB was unable to contact the senior rater.

The OSRB concluded that in reference to the applicant's contention regarding contested OER #1, that the SR portion was not written until after the SR portion of contested OER #2 was completed.

The OSRB recommended that the appeal be partially approved.  Specifically, that the SR portion Part VIIa and VIIb be deleted from contested OER #1.

The OSRB did not recommend that the applicant's records be reconsidered by a Department of the Army Special Selection Board for promotion to lieutenant colonel.

In records provided by the applicant, he stated that he requested a commander's inquiry on 8 August 1987.  Evidence of record does not show that a request for commander's inquiry was received and/or processed by appropriate officials in accordance with Army Regulation 623-105.

On 26 April 1992, the applicant requested to transfer from his current branch, Quartermaster, to the Judge Advocate General's Corps.

Officials in the Office of the Judge Advocate General of the Army (OTJAG) notified the Commander, Total Army Personnel Command in a 1 October 1992 memorandum that the applicant was approved for appointment in the grade of major in the JAGC.  The memorandum also stated that the applicant must complete the Judge Advocate Officer Advanced Course within 24 months of the effective date of the appointment or be mandatorily discharged in accordance with Army Regulation 135-175 (Separation of Officer).

In a 1 October 1992 letter, the applicant was notified by OTJAG that he was approved for appointment into the JAGC and that he had an education stipulation as outlined above.

On 22 October 1992, the applicant was appointed as a Reserve Commissioned Officer of the Army under Title 10, USC 591 and 593.  The appointment memorandum states in paragraph 3:  "Execute the enclosed form for oath of office and return promptly to headquarters.  Your execution and return of the oath of office constitutes your acceptance of appointment.  Prompt action is requested since cancellation of the appointment is required if acceptance is not received within 90 days or as otherwise prescribed."

The applicant along with all other majors with a date of rank prior to 1 January 1986 were considered for promotion to lieutenant colonel by the 1991 Department of the Army Mandatory Promotion Board.  The applicant was not among those that were recommended for promotion. 

The applicant along with all other majors with a date of rank prior to 1 January 1987 were considered for promotion to lieutenant colonel by the 1992 Department of the Army Mandatory Promotion Board.  The applicant was not among those that were recommended for promotion.

The applicant was notified in 24 November 1992 memorandum that as a result of his second nonselection that he must be separated from the Army Reserve.

In an 18 February 1993 memorandum, the applicant was notified that Secretary of the Army approved the results of the DA Mandatory Board on 28 December 1992 and that he was not authorized to continue in an active drill status effective 26 March 1993. 
The applicant was given a 25 March 1993 suspense date to complete and return his election of options.  The applicant elected 2c (Discharge, as I do not fall into a category and am not eligible for transfer to Control Group (Retired Reserve)).

The applicant submitted a copy of a 16 March 1993 letter to the U.S. Total Army Personnel Command in which he stated that the 22 October 1992 appointment letter was sent to his former address and not initially received.  He continued that he intended to accept the appointment referred to in the 22 October 1992 letter; however, he requested a 30 day extension for him to accept the appointment. 

The applicant asserted that his request was verbally accepted and that his "card" was marked to show this change in status.

There is no information in the available records which show that the request for extension was received, processed and/or approved.

The applicant executed a DA 71 (Oath of Office) on 2 April 1993 and forwarded it to U.S. Total Army Personnel Command.

The applicant's records contain a copy of the DA 71 dated 2 April 1993 which have the word "VOID" handwritten twice on the document.

Department of the Army orders 134-005 dated 16 April 1993, discharged the applicant from the United States Army Reserve effective 16 April 1993.

In a 30 July 1993 memorandum to the U.S. Total Army Personnel Command, the applicant discussed his prospective JAGC appointment and the fact that his oath of office was voided based on his second nonselection by a DA Mandatory Board.  He requested that he be allowed to resubmit his oath of office and accept his JAGC appointment.

In a 24 January 1994 memorandum from the U.S. Total Army Personnel Command, the applicant was notified that his request for reappointment in the USAR was denied as a result of his discharge for being twice nonselected for promotion and that he was not eligible for reappointment. 

An advisory opinion was obtained from the Chief of the Personnel Division of the Army Reserve.

On 17 March 1999, the Chief of Personnel for the Army Reserve opined that the applicant was not eligible for appointment to the JAGC based on his two-time nonselection by a DA Mandatory Board in accordance with Army Regulation
135-100.

The Army Reserve advisory opinion continued that the applicant was aware of this regulatory requirement based on the fact that he recounts a conversation with a "senior officer from the JAG headquarters" in which he agrees with the assessment that there would little point in accepting my appointment only to be removed a few months later in the event of my second non-selection." 

The Army Reserve advisory opinion also stated that the applicant could have requested an exception in accordance with Army Regulation 135-100, paragraph 1-8b which authorizes the Secretary of the Army to grant a waiver for certain disqualifications.  He continued that it appears that the applicant did not request nor apply for such a waiver and that such a waiver would only have been granted by the Secretary of the Army based on a recommendation by the Chief, Army Reserve.

The Chief of Personnel opined that the applicant's file would not likely have warranted favorable recommendation and that they do not recommend a favorable recommendation at this time.  

In conclusion, the Chief of Personnel noted that even if the applicant was appointed to the JAGC, he would have to have been separated under Title 10 of the United States Code and that although the applicant may argue that he should not have been passed over for promotion, it is very clear that under the existing circumstances that the applicant should not have been appointed into the JAGC and it is also clear that the applicant was required to be discharged. 

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.

Army Regulation 623-105 provides for a commander’s inquiry in cases where it is brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a 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 of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.  

Paragraph 9-7 of Army Regulation 623-105 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 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.

Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time the contested OER was rendered, establishes the policies and procedures for the OER system.  Section I of Chapter 4 addresses evaluation principles.  Paragraph 4-1d specifically states that rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army.  Rating officials must make honest and fair evaluations of the officers under their supervision.  On the one hand the evaluation must give full credit to the rated officer for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.

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 be referred to the rated officer.

Paragraph 4-11c(4) of Army Regulation 623-105 (Officer Evaluation Reporting System) 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.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a standby promotion advisory board may only be based on erroneous nonconsideration or material error which 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, except where an individual is not qualified due to noncompletion of required military schooling.

Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers other than General Officers) sets forth the policy and procedures, in part, or consideration, selection and promotion of officers and warrant officers of the Army Reserve.  Paragraph 4-27 of this regulation specifies that nonselection for promotion for the first time will constitute a first passover for all grades other than warrant officer two, first lieutenant and colonel.  The regulation also states that a member who remains in an active status following a first passover will again be considered for promotion by the next regularly scheduled board considering his grade and branch. 

Title 10 United States Code, Section 14505 provides that an officer in the reserve grade of first lieutenant, captain or major who was considered but not recommended for promotion by two selection boards shall be transferred to the Retired Reserve if qualified and applies or shall be discharged from his reserve appointment if not qualified for transfer to the Retired Reserve.
Army Regulation 135-100 (Appointment of Commissioned and Warrant Officers of the Army) prescribes the policy and procedures for the appointment of commissioned and warrant officers in the Army National Guard of the United States and the United States Army Reserve.

Army Regulation 135-100 paragraph 1-7 lists those not eligible for appointment unless a waiver is authorized.  Specifically, paragraph 1-7c(4) states in pertinent part, that commissioned officers twice passed over for promotion or otherwise released from AD or active status are ineligible for appointment.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law, regulations and advisory opinions, it is concluded:

1.  The Board considered the applicant's contention that he should be appointed to the JAGC.  

2.  The Board determined that the applicant was not eligible for appointment in the JAGC based on his having been twice nonselected for promotion by a DA Mandatory Selection Board.

3.  The Board also determined that the applicant failed to render an oath of office within the 90 days prescribed by regulation; therefore, his appointment was cancelled.  Although, the applicant contends that he was given a 30 day extension to execute the oath of office, there is no evidence and the applicant has provided no evidence to support these claims.  In addition, the applicant did not render the oath of office until 2 April 1993 which was 153 days after the appointment offer.  Therefore, the Board determined that this claim is without merit.

4.  The Board noted the applicant's appeal to the OSRB seeking relief on two OERS.  The Board further noted that the OSRB granted partial relief on contested OER #1 by removing the SR portion of the report.  

5.  The Board noted that the OSRB did not recommend promotion reconsideration based on the partial approval of the OER appeal.  

6.  The Board determined that although there was a significant change to the overall OER that would warrant promotion reconsideration, the applicant's overall evaluations and performance do not merit promotion reconsideration.  

7.  The Board considered the applicant's contention that his two nonselections for promotion to lieutenant colonel be removed from his OMPF.  The Board determined that the applicant was in the zone of consideration for the 1991 and 1992 DA Mandatory Promotion Board for promotion to lieutenant colonel.  There is no evidence, and the applicant's has not provided evidence that shows that he was erroneously considered by the DA Mandatory Boards.  Therefore, this claim is without merit.

8.  The Board reviewed the applicable Army regulation that governs the policies and procedures for promotion of officers on active duty.  The Board determined that the applicant's records were correct as constituted; therefore, there is no basis for consideration by a Department of the Army Special Selection Board.

9.  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.

10.  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

_  RVO __  __  BJE_  ___FCJ   _  DENY APPLICATION

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

INDEX

CASE ID	AR2003088659	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030904	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	111.0000.0000	
2.		
3.		
4.		
5.		
6.