MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            15 February 2001
	DOCKET NUMBER:   AR1999030791

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		Member	
	Mr. Melvin H. Meyer		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, correction of an officer evaluation report (OER) covering the period from 16 September 1985 to 5 May 1986 and promotion reconsideration to the rank of lieutenant colonel (LTC).

APPLICANT STATES:  In effect, that the OER for the period of 16 September 1985 to 5 May 1986 was administratively and substantially inaccurate and contributed to her initial nonselection to the rank of LTC.  She further states that at the time, she signed blank OER forms because she was being reassigned on a permanent change of station (PCS) and she was incorrectly rated and profiled as a promotable first lieutenant (1LT (P).  Although she was promotable at the time, she was occupying a 1LT position and should have been rated and profiled as such.  She goes on to explain that her being incorrectly rated as a 1LT (P) and profiled as a captain (CPT), placed her below center of mass (COM) on the senior rater’s (SR) profile and as such, deemed the report as derogatory.  She further states that had the report been referred to her, she would have known that it was derogatory and could have made her aware of the negative impact the report would have on her career and she could have requested a commander's inquiry.  However, it was not until she was initially nonselected for promotion to LTC that she was advised by her career advisor that the report was adverse and more than likely was the resultant cause of her nonselection. 

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

She was commissioned as a United States Army Reserve (USAR) second lieutenant (2LT) on 3 January 1983 and entered active duty on 11 April 1983.  She successfully completed the Medical Service Corps (MSC) basic course at Fort Sam Houston, Texas and was transferred to a medical detachment in Germany.

Her initial OER covering the period from 11 June 1983 to 1 January 1984 evaluated her for duty as a platoon leader.  In part IVa, under Performance Evaluation – Professionalism, her rater assigned her a “2” under displays sound judgment.  She assigned her “1’s” in the remaining 13 areas.  In part V, under Performance and Potential Evaluation she rated her performance as “Usually Exceeded Requirements” and under potential she deemed that she be “Promoted with Contemporaries”.  

In Part VII, the SR placed her in the fourth block which placed the applicant below COM on the SR’s profile of 3/10/2/1*/0/ (three officers were in the top block, 10 were in the second block, two were in the third block and 1 was in the fourth block (*the applicant was in the fourth block)).  The supporting comments from the SR indicate that her initial performance was marred by incidents which demonstrated a lack of exercising sound judgment.

The report was not considered adverse and as such was not referred to her.  There is no indication in her records that she ever appealed the OER.

The applicant received a third OER on 8 November 1985 covering the period of 13 January 1985 to 15 September 1985 while assigned to a different unit from her initial and second report.  She received maximum ratings from her rater and a two-block (above COM) rating from her SR.

On 10 June 1986, the applicant’s fourth OER (PCS), which is the contested OER, was prepared for the period of 16 September 1985 to 5 May 1986.  She was still in Germany and was assigned as a platoon leader to the same unit as her previous report.  Her OER shows that she was evaluated as a 1LT(P) by the same rating officials as her previous above COM report and she was profiled as a CPT.

In Part IV her rater assigned her a “3” under displays sound judgment and “1’s” in the remaining 13 areas.  She was deemed to have “always exceeded requirements” and was recommended for promotion with her contemporaries.  Her rater indicated in her comments that the applicant was an exceptional officer who lacked (at that time) the maturity to put it all together.

The SR placed the applicant in the fourth block of his profile which placed the applicant below COM on his profile (0/3/3/1*/0/1).  His comments indicate that recent evidence of inappropriate off duty activities indicate a need for additional maturity.  The report was not considered adverse and as such was not referred to her.  There is no indication in the available records to show that she ever submitted an appeal of that OER as well.

She remained on active duty and was promoted to the rank of major on 1 March 1994.  She was nonselected by the 1999 LTC Selection Board but was selected the following year.  She was promoted to the rank of LTC on 1 June 2000.

In the processing of this case a staff advisory opinion was requested from the Officer Special Review Board (OSRB).  Inasmuch as the applicant had never appealed the contested OER to the OSRB, the OSRB accepted her application to this Board and in doing so adjudicated her appeal.  The OSRB determined that in accordance with the applicable regulation, the report was not required to be referred to the applicant unless the SR deemed it necessary.  However, partial approval of the applicant’s request was warranted because it had been established that she was incorrectly rated as a 1LT(P) and profiled as a captain.  Therefore the OSRB determined that since the SR’s profile for lieutenants was also below COM, it would be more appropriate to simply delete the SR profile from the report and change the rank to 1LT.  The OSRB further opined that the administrative changes directed by the OSRB did not warrant promotion reconsideration and provided the case summary to the Board for review.
The advisory opinion and case summary were provided to the applicant for comment and she responded to the effect that the contested OER had an adverse effect on her career and therefore should have been referred to her so that she could have responded accordingly or requested a commander’s inquiry. She further contended that her appeal correspondence should not be made a matter of record in her OMPF because it was partially approved and that promotion reconsideration is warranted. 

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 5-33, states, in pertinent part, that a report will be referred to the rated officer for acknowledgement and comment when it contains negative comments about the officer’s professional ethics in Part IVb or the narrative comments or if a rating of “4” or “5” is given in part IVa.  Additionally, any report in which the SR places the rated officer in the bottom three blocks or in the opinion of the SR contains comments and/or ratings that are so derogatory that they may have an adverse impact on the rated officer’s career will be referred. 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, and advisory opinion(s), 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 this requirement.

2.  The contested OER, as amended by the OSRB, appears to represent a fair, objective and valid appraisal of her demonstrated performance and potential during the period in question.  Therefore, there is no basis for further corrections or removing it from her records. 

3.  The Board notes the applicant’s contentions that the contested OER should have reflected that she was rated and profiled as a 1LT vice being rated as a 1LT(P) and profiled as a captain.  While the applicant is correct in this assessment, the actions by the OSRB in deleting the profile instead of placing the 1LT profile of the SR served to remove the below COM rating from the view of selection boards.  Had the 1LT profile been properly placed on the contested OER, she would still have had a below COM report.  The actions by the OSRB serve, in effect, to remove the below COM rating she in fact received. 

4.  The Board also finds that the report was not required to be referred under the regulation in effect at the time.  Therefore, her contention that the report was not properly referred to her is without merit.

5.  The Board further finds that it the report had been correctly rated and profiled as a 1LT instead of a CPT, she still would have had a below COM report.  Therefore, the Board finds that there is no basis to grant her promotion reconsideration.

6.  Additionally, the Board finds her contention that the contested report was the contributing factor in her initial nonselection to LTC to be at best, speculative on her part.  The applicant had two below COM reports in her records at the time she was selected and promoted to the rank of major, that contained similar remarks from different rating chains.  She was also selected and promoted to the rank of LTC on the second look.  Inasmuch as promotion boards do not reveal the basis for selection or nonselection, it must be presumed that she is speculating that only one of the two below COM reports was the basis for her initial nonselection.  However, she has failed to convince the Board that such was the case.

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

__mkp __  ___fe ___  ___mm__  DENY APPLICATION

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

INDEX

CASE ID	AR1999030791	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2001/02/15	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  211	111.0200/ALTER SR PROFILE	
2.  312	131.0200/RELOOK	
3.		
4.		
5.		
6.