MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:             12 April 2000                  
	DOCKET NUMBER:     AR1999031246

	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. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. James P. Steuve		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:  Reconsideration of the Board’s denial of his request to have two Officer Evaluation Reports (OER’s) deleted from his records and promotion reconsideration to lieutenant colonel if his request to have his OER’s deleted is approved.

APPLICANT STATES:  He reiterates his prior contentions, contentions which were considered and rejected by the Board in its 28 August 1997 Memorandum of Consideration (MOC) (COPY ATTACHED).  His primary contentions are, in effect, that he was given a command for which he was not qualified since he was not qualified to fly his unit’s aircraft; that he was given the command over his objections and over an officer who was highly qualified for the command; that he was given that command because of political maneuverings by his rater; that he never saw his rater or senior rater for all intents and purposes so his rating chain was flawed; and that he was not given the equipment or latitude to successfully conduct his mission.  He cites several instances where he was required to use his own judgment in crisis situations, one of which resulted in a formal investigation, an investigation which cleared him of any wrongdoing.  The two main objections he has to the Board’s MOC are (1)  the statement that his lack of qualification in the aircraft he commanded should not have affected his ability to command the unit and (2) his rater’s statement that he had lobbied for the command was a lie.

COUNSEL CONTENDS:  Counsel reiterates the applicant’s contentions and contends that in the applicant’s case the third party statements should be accepted as grounds to overturn his two OER’s, contrary to the Officer Special Review Board’s (OSRB) stated position on that issue.  He reasons that those people were actually in a better position than the applicant’s rater and senior rater to view his performance.  Counsel challenges the logic and procedures of the OSRB.  Counsel concludes that the applicant was the victim of cronyism and jealousy and repeatedly brings into question the propriety of assigning the applicant as the commander of a unit in which he was not qualified to fly the aircraft he would command.

NEW EVIDENCE OF RECORD:  The applicant submits two new second party statements in his behalf and a combat tax exclusion.

In the processing of this case an advisory opinion was obtained from the OSRB.  The OSRB concluded that the applicant had not submitted any new relevant evidence.  The applicant was furnished a copy of this advisory opinion and elected not to submit any additional evidence or argument.

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, it is concluded:

1.  The applicant and counsel’s main contentions appear to be that his assignment was improper because he was not rated to fly the aircraft of the unit he was commanding, that his rater lied to the OSRB when he said that he had lobbied for the command, and that he was the victim of cronyism and jealousy.  However, neither the applicant nor his counsel have cited any rule or regulation which was violated in his assignment, and absolutely no evidence is given which would support their charge that he was the victim of cronyism or jealousy or that his rater lied.

2.  Officers are frequently given command of units where they are unfamiliar with the function of the unit.  A commander is a manager.  Therefore, the Board maintains its prior stated position that the fact that the applicant was not qualified to fly the aircraft of his unit had no bearing on his ability to command that unit.  There was a platoon leader who was qualified in the aircraft to give him any technical assistance necessary.

3.  The third party statements have been carefully considered by the Board.  While they clearly indicate that the applicant was a hard-working conscientious officer, they do not show that he was performing his duties to his rater’s expectations.  Absent such evidence, the third party statements are not sufficient to warrant granting the applicant’s request.

4.  The applicant’s other contentions were addressed in the Board’s original consideration of his request and need not be readdressed.

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

__rgh ___  ___bje  __  ___jps __  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999031246	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000412	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.04	
2.		
3.		
4.		
5.		
6.