MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999029441

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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:  The removal of an officer evaluation report (OER) from his records, promotion reconsideration to the rank of major, reconsideration for attendance at the Command and General Staff Course (CGSC), and placement in his records of a statement indicating that he will not be penalized for not having obtained a master’s degree. 

APPLICANT STATES:  In effect, that he was nonselected for promotion to the rank of major because he received a two-block center of mass (COM) rating from his senior rater (SR) on the OER covering the period from 11 November 1993 to 9 June 1994.  He goes on to state that because other officers received a top-block COM rating on their OERs, he was severely disadvantaged for promotion consideration and selection.  He goes on to state that because SR’s were not held accountable for having inflated profiles, those officers who received inflated top-block COM reports were given undue and unfair advantages over those officers who were rated by SR’s who rendered their ratings in accordance with the guidance and spirit of the regulations.  Accordingly, the Army recognized that the rating system had become over-inflated and initiated a new rating system that would prevent a top-block COM from ever occurring.  However, for those good officers who may have had a two-block COM report and weren’t selected for promotion, the change to new OER system offers no relief.  He provides a detailed analysis of his theory of what occurred during the promotion board selection process and contends that if the Board were to investigate the matter he has outlined, it will come to the same conclusion that he was unjustly penalized by the corrupted evaluation system and the promotion selection process that further compounded the problem by giving undue weight and consideration to incorrect SR profiles which had top-block COM ratings.  He also contends that he was unjustly denied the opportunity to apply for and participate in the Advanced Civil Schooling (ACS) program and should not be penalized for not having an advanced degree.  Additionally, he states that he has decided to submit his resignation in order that he may participate in the AGR program because if he is twice non-selected he will be unable to participate in that program or continue his Army career.  He also submits a letter of support from his SR on the contested OER.

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

On 20 June 1994, while serving as a captain, he received a change of rater OER covering the period from 11 November 1993 to 9 June 1994 evaluating him as a company commander of an engineer company at Fort Hood, Texas.  He received maximum ratings and extremely laudatory comments from his rater (a lieutenant colonel).

In part VII under SR potential evaluation, the applicant received a two-block rating from the SR (a colonel) which placed him in the COM of the SR’s profile (there were ten ratings in the top block, seventeen in the second block of which the applicant was one, and one in the third block).  The SR’s comments were complimentary of the applicant’s performance and potential and recommended that he be promoted to the rank of major and selected for attendance at the CGSC.  The report was not considered adverse and as such was not referred to the applicant.

The applicant was nonselected for promotion to the rank of major by the Fiscal Year (FY) 1998 Majors Promotion Selection Board.  On 4 June 1999 he submitted an appeal of the contested OER to the OSRB citing essentially the same issues as he has cited to this Board.  The OSRB returned the applicant’s appeal without action because the applicant had failed to submit sufficient convincing evidence or supporting documents in support of his appeal.

A review of the applicant’s records failed to reveal that the applicant applied for advanced civil schooling or that he was denied advanced civil schooling.

The supporting statement from the SR submitted by the applicant with his application states, in effect, that it would be wrong to deny the applicant promotion to the rank of major because of the two-block COM report he gave the applicant simply because the evaluation system became flawed.  He applauds the applicant’s performance and supports his appeal.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions 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.  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 the aforementioned requirement.

2.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his records.

3.  It is a well known fact that promotion boards do not reveal their reasons for selection or nonselection; therefore, the applicant’s contention that the two-block COM rating he received on the contested OER is at best speculative on his part.

4.  While the Board understands the applicant’s concerns regarding his reasons for nonselection, the Board is not an investigative body and in the absence of evidence to show otherwise, the Board must presume that the applicant was properly considered and nonselected for promotion in accordance with the applicable laws and regulations governing the conduct of promotion boards.

5.  The Board receives many such requests for promotion reconsideration in which applicant’s are searching for an explanation of why they were not selected for promotion.  However, only the members of the promotion board that viewed the files know the answer to that question.  Unfortunately, in a time in which the Armed Forces are drawing down, many very qualified officers are not being selected for further promotion.  This in itself does not mean that those officers are not worthy of promotion but simply that the Department has limited allocations available and must make a decision as to which officers will best fill the needs of the Department in an era of limited resources.  The nonselection of a good officer in itself, simply does not constitute error or injustice, nor does it constitute promotion reconsideration.

6.  The applicant’s contention that he was unjustly denied advanced civil schooling appears to be without merit.  The applicant has not only not provided any evidence to support his contention, he has also not shown that he was entitled to advanced civil schooling.  While the Board recognizes that some officers are selectively afforded the opportunity to participate in such programs, there does not appear to be an automatic entitlement by the Department to provide it to every officer.

7.  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

__sk____  __fkm ___  __rvo ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999029441	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221 	111.0005/VOID OER	
2.  310 	131.0000/STAB	
3.		
4.		
5.		
6.