MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:           7 September 2000         
	DOCKET NUMBER:   AR1999030788

	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. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Ms. Celia L. Adolphi		Chairperson	
	Mr. Walter T. Morrison		Member	
	Mr. Thomas B. Redfern III		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, removal of an Officer Evaluation Report (DA Form 67-8) for the rating period 960910-970407 (sic 970419) from his official military personnel file (OMPF).  

APPLICANT STATES:  In essence, that he was presented one copy of the report, signed by a Colonel (COL) “N” shortly before he left the overseas command to which he was assigned as a Reserve officer on active duty.  However, in September 1997, he received a second report.  This report was less favorable, he was rated by a Lieutenant Colonel (LTC) “M”, and senior rated by COL “N”, the officer who originally rated him.  Further, he had never been informed of a change in the rating scheme.  Additionally, the second report was received too late for him to initiate a "Commander’s Inquiry.”  He appealed the OER to the Army Reserve Personnel Center (ARPERCEN) on 7 April 1998.  The response was not favorable and he objects to the action.  He claims that the report dates are incorrect-through date of 7 April 1997 versus a through date of
19 April 1997, that he was not advised of a change in his rating scheme, and the rating was downgraded.  He also claims no performance counseling was conducted during the rated period.  He submits copies of the two OER’s in question, memoranda from three coworkers which note his outstanding performance of his duties during this rating period, and a copy of the denial of his OER appeal by the ARPERCEN.

EVIDENCE OF RECORD:  Only limited personnel records are available to the Board, primarily the Army Reserve Personnel Command’s (AR-PERSCOM’s) Personnel Electronics Records Management System (PERMS) file consisting of his OER’s and certain assignment/promotion documents.

Essentially, the applicant was serving on at least a 7-month period of active duty for Operation Joint Endeavor, as an Army Reserve (USAR) officer from September 1996-April 1997.  He was assigned to duties as a Medical Liaison Officer to the USAREUR Crisis Action Team (CAT), and represented the USAREUR Surgeon General.  He was a LTC, Medical Service Corps, with a date of rank of 1 July 1994.  His military specialty was 70H (Health Services Plans, Operations, Intelligence, Security, and Training). 

On 15 April 1997, a memorandum was issued by the Office of the Command Surgeon (USAREUR), subject:  Individual Released from Theater.  In this memorandum, signed by COL “N”, the Deputy Command Surgeon, Support Services, it is noted that the applicant was authorized to depart USAREUR for processing at Fort Benning, Georgia for release from active duty.  It noted that his OER was being processed and would be forwarded upon completion.  

The applicant claims that he was presented a copy of an OER, covering the rating period 960910-970419, a 7 month report, during his outprocessing from USAREUR in connection with his release from active duty (REFRAD).  The rater was shown as COL “N”, with the duty title Deputy Surgeon, Support Services. It was signed by the rater (COL “N”), but he did not date the form.  The senior rater was shown as Brigadier General (BG) “K”, the USAREUR Command Surgeon.  The applicant had also signed the report in Part II (Authentication), section d, but it is also not dated.  

Entries in Part IV-Performance Evaluation-Professionalism, 
section a (Professional Competence), were all “1’s” (1 being the highest, 5 the lowest) and in section b (Professional Ethics) the comments were all favorable.  In Part V-Performance and Potential Evaluation (Rater) he was rated in section b, that he “always exceeded requirements,” which was the highest rating.  The rating narrative comments in Part V-c were all highly complimentary.  In 
Part V-d, his promotion potential was marked “Promote Ahead of Contemporaries” and he was recommended for positions of higher responsibility. 

Part VI (Intermediate Rater) and Part VII (Senior Rater) on this report were not completed.

The applicant then submits a second OER for the same rating period.  In this report, for the same duties, he is rated by LTC “M” with a duty title of Chief, Plans and Operations.  The signature date is shown as 23 May 1997.   The senior rater is shown as COL “N,” Deputy Surgeon, Support Services.  The signature date is shown as 11 June 1997.  The report is not signed in Part II-d by the applicant.

In Part IV-a, he was given ratings of “2” in six of the 14 blocks in this section.  These entries include:  2.)  Demonstrates appropriate knowledge and expertise in assigned tasks;  5.)  Performs under physical and mental stress;  7.)  Clear and concise in written communication;  8.)  Displays sound judgement;  10.) Is adaptable to changing situations;  and 14.)  Clear and concise in oral communication.  In Part IV-b, the comments were favorable.  

In Part V, the rater placed the applicant in the second block of section b, indicating that he “usually exceeded requirements”, the second highest rating.  The rater’s comments in Part V-c were not as favorable as the remarks in the “first” report, noting that he “almost achieved requirements”, “sought additional guidance only after most avenues had been exhausted,” displayed a “satisfactory willingness to accept medical operations related responsibilities,” and “Although he made several operational errors, he learned from his mistakes.”  In Part V-d, his potential for promotion was shown as “Promote With Contemporaries,” the second highest rating.  

The senior rater, now COL “N”, placed the applicant in the third block (the first block the highest, the ninth block the lowest) in the Part VII-a (Potential Evaluation) section.  This was the only officer the senior rater had rated.  

In Part VII-(b) Comments, the senior rater stated that the applicant was willing to learn new concepts and accept challenges in the operational arena.  He went on to state that with appropriate mentorship and schooling, the applicant will “undoubtedly be ready to accept assignments of increased responsibilities.  He should be promoted with his contemporaries and work in his designated specialty.”

On 7 April 1998, the applicant appealed the OER to the ARPERCEN in accordance with Army Regulation 623-205 on the basis of substantive inaccuracy.  He essentially stated that at the time he departed the USAREUR, he completed his support form (DA Form 67-8-1), met with the rater, COL “N,” they had discussed his rating, he signed the report in his portion (Part II-d) and the rater indicated it would to be sent to BG “K” for completion of the report.  However, when he received the completed DA Form 67-8 in September 1997, it was significantly changed to include a new rater and senior rater.  He had never been contacted concerning this report by his former command.  His late receipt precluded any “Commander’s Inquiry” or other redress prior to filing of the report in his OMPF.  He claimed that a rating chain had not been published during his period of active duty.  He states that he originally thought that LTC “M” was his rater, but an OER Support Form was prepared by him and was sent to LTC “M,” but it was never returned.  He claims that COL “N” was aware of the rating chain at the time he and the applicant met shortly before the applicant redeployed  to the United States for separation from active duty.  He also commented on the derogatory comments in the report and that they were not supported by any counseling forms that were ever given to him.  He submitted three memoranda from coworkers.  Each of these officers discussed the applicant’s competence and their observations that the applicant performed his duties well.  However, none of these memoranda discuss the rating chain or who the rater and senior rater were for the applicant.  

On 16 June 1998, the applicant was notified by the ARPERCEN that the Officer Special Review Board (OSRB), in the Office of the Deputy Chief of Staff for Personnel, Department of the Army, had essentially denied his appeal.  This was based on a lack of substantive evidence to support his claim that the rating officials’ assessments were either inaccurate or unjust.  He had not provided any supporting statements from either the rating official (sic officials) or other senior officers in his chain of command during the rating period under review.  He had not submitted a copy of his support form, an official rating scheme, or any investigative reports from either an Inspector General or a Commander’s Inquiry. In other words, no evidence was provided by the applicant which overcame a “presumption of regularity.”  He was advised of the procedures to secure a copy of the OSRB’s case summary in his case.  He was advised that he could appeal to this Board.

Army Regulation 623-105, then in effect, established the policies and procedures for the OER system.  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 be administratively correct, 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 same regulation states that the burden of proof in an appeal of OER rests with the officer.  Accordingly, to justify deletion or amendment of an OER under that regulation, the applicant/officer must produce evidence that clearly and convincingly overcomes the presumptions referred to in the previous paragraph 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 notes that the applicant has essentially provided no new evidence other than that already submitted during his prior appeal process to the ARPERCEN/OSRB in 1998.

2.  The Board concurs with the OSRB opinion that the applicant has provided no convincing evidence that the rating chain was improper or that he was not rated by the appropriate rating officials.  It must be presumed that the rating he received accurately reflected his performance of duty as observed by his rater and his senior rater.  

3.  He also has not provided any evidence that the inclusive dates of the report in question (960910-970419) was inaccurate.

4.  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, in this case, has failed to submit evidence that would satisfy this requirement.

5.  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

__cla____  __wtm___  __tbr ___  DENY APPLICATION

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

INDEX

CASE ID	AR1999030788	
SUFFIX		
RECON		
DATE BOARDED	20000907	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	Director	
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.