MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 May 2000
	DOCKET NUMBER:   AR1999031643

	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
Mr. David H. Keller		Director
Analyst	

  The following members, a quorum, were present:

	Ms. Margaret K. Patterson 		Chairperson	
	Mr. George D. Paxson		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:  That an officer evaluation report (OER) for the period 26 April 1997 through 30 September 1997 be expunged from his records, and that his file be referred to a special selection board for reconsideration for promotion to captain.

APPLICANT STATES:  That he was apprehended by German authorities in July 1997 for suspicion of driving under the influence of alcohol (DUI) and the matter was referred to military authorities for disposition.  On 6 August 1997, he was given a general officer memorandum of reprimand (GOMOR) for drunk driving and, on 2 December 1997, he received the contested OER upon returning to his unit from temporary duty.  Subsequent to his receipt of the contested OER, he was administered nonjudicial punishment (NJP) in January 1998 for the DUI incident.  He contends that the subject OER preceded final NJP action on his alleged DUI and, therefore, contains references to unproven derogatory information.  Also, he contends that the OER is internally inconsistent regarding its stated points of evaluation.  In part IV (performance evaluation), he received a 
“2” rating for displaying sound judgement, with an accompanying bullet remark stating, “Received DUI in July 97.”  Yet, in part V (performance and potential evaluation), he was checked as “Always exceeded requirements” and “Promote ahead of contemporaries.”

He adds that his commanding general (CG) directed the filing of the GOMOR in his official military personnel file (OMPF).  The CG’s decision was based in part on the written recommendations made by his chain of command.  His chain of command then later initiated NJP action under Article 15, UCMJ, for the same incident.  He consented to the action, and a hearing was held wherein the CG determined he was guilty of the offense.  At the hearing, his battalion commander argued strenuously and persuasively for filing the NJP on the restricted portion of his OMPF and the CG agreed.  If his chain of command had presented the same recommendation on the reprimand as they did on the NJP, the CG would not have filed the reprimand on his performance fiche.

He appealed to the Department of the Army Suitability Evaluation Board (DASEB) to have the GOMOR removed from his OMPF.  Initially his appeal was denied; however, a second appeal resulted in the DASEB approving the transfer of the GOMOR to his restricted fiche.  The transfer was not retroactive and therefore, did not constitute grounds for referral to a special selection board for previous nonselection to captain, despite the fact that the reason he was not selected was because of the GOMOR in his file, as well as the contensted OER. Therefore, he argues, circumstances and timing played a major part in his nonselection for captain.  Accordingly, he submits that he has been unfairly prejudiced because the contested OER was allowed to stand.  He adds that his senior rater (SR) agrees that it was improper to reference the DUI in the contested OER and recommends removal of the OER.

In support of his request, the applicant submits a copy of the contested OER, a memorandum of support from his former CG, a memorandum from his former SR, and copies of two subsequent OERs.

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

He was appointed a Regular Army second lieutenant, Quartermaster Corps, from the US Military Academy on 3 June 1995.  He was promoted to first lieutenant effective 3 June 1997.

On 6 August 1997, the Commanding General, 21st Theater Army Area Command, a major general, issued the applicant a GOMOR for operating a vehicle under the influence of alcohol on 4 July 1997 at Wuerzburg, Germany.  The applicant was given the opportunity to make a statement in his own behalf.

On 15 September 1997, the applicant submitted a statement wherein he accepted full responsibility for his actions involving the DUI.  He requested that the reprimand only be filed locally.

On 26 September 1997, the commanding general reviewed the applicant’s response and directed that the GOMOR be filed in his official military personnel file (OMPF).

The contested OER is a close out report evaluating the applicant as the executive officer of a quartermaster detachment in Germany.  The rater (a captain) gave him ratings of “1” in part IV, the performance evaluation portion of the OER, except for a “2” rating under “Displays sound judgment.”  The supporting comments by the rater were favorable, except for the statement that he “Received a DUI in Jul 97.”  In part V, the performance and potential evaluation portion of the OER, the rater checked the “Always exceeds requirements” performance block, and checked the “Promote ahead of contemporaries” potential block.  The rater’s supporting comments were favorable, although the Board notes that the comments were void of any reference to promotion or school selection.

The senior rater (a lieutenant colonel) placed the applicant in the second block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the center-of-mass on the senior rater’s profile -- 64 officers were in the top block and two officers, of which the applicant was one, were in the second block.  The senior rater’s supporting comments were favorable, except for the statement, “With the exception of a momentary lapse in judgement off duty, (the applicant’s) duty performance has been exceptional.”

The applicant appealed the contested OER to the Officer Special Review Board (OSRB) on 14 April 1998.  The reasons cited for the appeal were essentially the same as he submitted to this Board.  Included with the appeal was a memorandum of support from the senior rater, stating that the report contained inaccurate information which reflects a lack of objectivity or fairness from the rater and the senior rater (himself).  He went on to say that he knew the applicant would be overly harmed by the OER in his file and would like to have it removed from his performance fiche.

The OSRB, after a careful review of the appeal, and contacting both the rater and senior rater, concluded that the applicant did not provide, and the OSRB did not find elsewhere, the necessary evidence to delete or amend the OER.  The OSRB denied the applicant’s appeal on 12 February 1999.

Army Regulation 623-105, in effect at the time, establishes 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, for inclusion in the official record of an officer is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  This is known as a “presumption of regularity.”  Requests that an accepted OER be withdrawn will not be honored.  An exception is granted only when the information which was unknown or unverified when the OER was prepared is brought to light or verified that the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time it was prepared.  

Paragraph 9-7 of the regulation states that the burden of proof in any 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 error or inaccuracy is warranted.

Paragraph 4-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated officer with their obligations to the Army.  Rating officials must make fair and honest evaluations of the officer under their supervision.  They are likewise obligated to the Army to be discriminating in their evaluations so that Army selection boards and career managers can make intelligent assignments and career management decisions.  Specifically, the paragraph addresses the rater’s responsibilities, stating in part, “With due regard for the rated officer’s current grade, experience and military schooling, evaluations should cover failures as well as achievements.  However, evaluations will normally not be based on a few isolated minor incidents.”

Army Regulation 623-105 also states that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing a report.

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 OSRB did an extensive and thorough review of the facts and evidence and came to the proper conclusion that there was insufficient evidence to delete the contested OER.

2.  The Board rejects the applicant’s contention that the contested OER contains references to unproven derogatory information.  The record shows that during the period of the evaluation, he was reprimanded by a general officer for driving under the influence.  The applicant also admitted his wrongdoing by accepting full responsibility for his actions involving the DUI.

3.  The applicant’s contention that the OER is internally inconsistent regarding its points of evaluation is also rejected.  The rater’s reference to the DUI in part IV of the report indicates that he considered it a serious incident; however, his rating in part V reflected his overall evaluation of the applicant and that such overall evaluation was not negatively influenced by the DUI incident.

4.  The senior rater’s support of the applicant in his OER appeal process is clearly an example of retrospective thinking, and is not accepted by the Board as a basis for withdrawing the report.  Both the senior rater and the applicant provide no new information in their statements.  Based on the supporting evidence and the absence of new information that overcomes the presumption of regularity, the senior rater’s contention that he erred is without merit.

5.  The applicant’s contention that the transfer of the GOMOR and NJP to the restricted portion of his OMPF supports, or otherwise justifies removal of the contested OER is not accepted by the Board.  The GOMOR and NJP are separate actions and are not supportive in determining the validity of the OER and where it is filed.

6.  The burden of proof rests with the applicant to submit relevant material and competent evidence to clearly and convincingly establish that his OER was inaccurate and unjust.  He has failed to submit evidence that would satisfy the aforementioned requirement.

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___  __gdp___  __tbr____  DENY APPLICATION

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

INDEX

CASE ID	AR1999031643	
SUFFIX		
RECON		
DATE BOARDED	20000510	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.