PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           16 May 2000                   
	DOCKET NUMBER:   AR1999033744

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Arthur A. Omartian		Chairperson	
	Mr. Van B. Cunningham		Member	
	Mr. Lester Echols		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that the Army National Guard (ARNG) Officer Evaluation Report (OER) for the period ending 15 July 1984 be removed from his Official Military Personnel File (OMPF), that the letter of input from his Operation Desert Storm period of service be filed with his OER for the ending period         28 May 1992, and that his records be considered by a Special Selection Board (SSB) for promotion reconsideration to lieutenant colonel.

3.  The applicant states that the contested ARNG OER did not cover a 120-day period.  His last drill with the Georgia ARNG was on 5 May 1984 and he officially signed out of the unit on that date.  The report was not even prepared until August 1984, when he was already on active duty and it was not even filed in his OMPF until 1989.  The letter of input was prepared by Brigadier General B___, his immediate supervisor while in Saudi Arabia and whose comments reflect his performance as commander of the C-12 Detachment during that period.  The letter was written to serve as a Letter Report but due to administrative error was titled “Letter of Input.”  He believes correction of these two errors will make his records more than competitive for promotion; therefore, he requests reconsideration for selection to lieutenant colonel.

4.  The applicant’s military records show that he enlisted in the U. S. Army Reserve (USAR) (Reserve Officer Training Corps) on 1 September 1979.  He was appointed a second lieutenant in the USAR on 16 May 1981 and appointed in the Georgia ARNG on 2 March 1982.  He was assigned to Detachment 1, Headquarters and Headquarters Company, 2/121st Infantry, 48th Infantry Brigade, Tifton, GA.

5.  Around May 1984, the applicant tendered his resignation from the ARNG and requested transfer to the USAR Control Group Annual Training.  On 29 May 1984, the applicant’s company commander endorsed his request.  On  31 May 1984, his battalion commander endorsed his request (the available copy of the endorsement is unsigned) and requested orders be issued with an effective date of 31 May 1984.  

6.  On 1 June 1984, the U. S. Army Reserve Components Personnel and Administration Center (RCPAC) published orders ordering the applicant to active duty with an accession month of July 1984 and a report date to the Infantry Officer Basic Course (IOBC) of 15 July 1984.  The additional instructions stated that he would be relieved from his present unit of assignment on the effective date of active duty.  The distribution list on the orders does not list Detachment 1, Headquarters and Headquarters Company 2/121st Infantry, 48th Infantry Brigade, Tifton, GA.  It does list Headquarters and Headquarters Detachment, 4th Brigade, 80th Division (Training), USAR Training Forces.

7.  On 4 June 1984, the applicant’s brigade commander recommended approval of his request for resignation.
8.  The contested OER is a 5-month (136-day) transfer-to-another-component OER for the period 2 March through 15 July 1984.  Part IVa8, Displays sound judgment and part IVa11, Sets and enforces high standards contain a 2 (1 being to the highest degree and 5 to the lowest).  Part Vb, Performance, is checked “Usually exceeded requirements” and Part Vd, Potential for promotion, is checked “Promote with contemporaries.”  The senior rater rated him as center-of-mass with accompanying lukewarm comments.  (The OER on file in his OMPF is annotated in the upper left-hand corner with the date 25 January 1989 and the initials “K. S.”  The U. S. Total Army Personnel Command, Officer Records Branch has stated that that means it was added to his OMPF on that date.)

9.  The applicant completed IOBC and the Rotary Wing Aviator course and continued to serve on active duty as an aviator.

10.  The applicant was assigned to the 207th Aviation Company, Germany when he volunteered to serve in Saudi Arabia.  Orders were published attaching him to the 1st Area Support Group, Saudi Arabia from 6 December 1991 through 5 April 1992.  He received a letter of input for his OER (for the ending period 28 May 1992) from the Commander, U. S. Army Forces Central Command (Forward).  After the applicant returned to Germany, he received a change of rater OER for the period 8 October 1991 through 28 May 1992.  In this report the senior rater incorporated one comment from the letter of input into his comments in part VIIb. A Letter Report was filed with this OER (and filed on his OMPF) from the 284th Support Battalion commander, who supervised all training functions of the 207th Aviation Company.  The applicant was the Company Training Officer.

11.  The applicant was promoted to major on 1 September 1994.  All of his OERs except the contested one show his senior raters rated him as center-of-mass with numerous top block (center-of-mass) ratings.  All his OERs contain very laudable comments.

12.  Army Regulation 623-105 sets policies and procedures for the Officer Evaluation Reporting System.  Both the current regulation and the version in effect in 1984 state that the rater must be designated and serve for at least 120 calendar days in order to evaluate an ARNG officer.  The current regulation also states that time spent in a conditional release status is non-rated time.  

13.  Army Regulation 623-105, both the versions effective 1 November 1985 and the one effective 30 April 1992, state that an officer is considered to be serving under dual supervision when he or she is supervised by, and assigned different duties by, two separate chains of command or supervision throughout the entire rating period.  When it is not practical to designate a nonparent unit supervisor as rater, intermediate rater or senior rater, this supervisor will submit written comments concerning the rated officer’s duty performance in the format of a Letter Report which will then be attached as an enclosure to the OER.  Both versions of the regulation also state that when an officer departs on temporary duty (TDY) or special duty (SD) to perform duties not related to his or her primary functions in his or her unit, and while on TDY or SD he or she serves under a different immediate supervisor for a period of 90 or more calendar days, that officer will receive an OER.  If the TDY or SD actually then does extend for at least 90 days under the same immediate supervisor, the TDY or SD supervisor will prepare a change-of-duty report and forward it to Department of the Army.

14.  Army Regulation 600-8-19 prescribes the policies and procedures for promotion of enlisted personnel on active duty.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous nonconsideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s nonselection by a promotion board and that, had such error been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.

CONCLUSIONS:
1.  The Board concludes that it is not appropriate to file the letter of input in the applicant’s OMPF.  The letter of input is not the same as a Letter Report (it did not cover the entire rated period) and is not authorized for filing.  Since the applicant was attached (SD) to Saudi Arabia for more than 90 days, what should have occurred was for his supervisor in Saudi Arabia to actually prepare a change-of-duty OER upon his departure, the period from 8 October through         5 December 1991 being non-rated time.  This was provided, of course, that he retained the same supervisor for at least 90 days.  Then instead of receiving a change-of-rater OER for the period ending 28 May 1992, the period from 3 April through 28 May 1992 would have been non-rated time on his next OER.  Since such an OER was not prepared, however, and since some comments from the letter of input were incorporated into the senior rater’s comments on the OER ending 28 May 1992, the Board concludes it would serve the applicant’s and the Army’s best interests to retain the OER for the period ending 28 May 1992, with its accompanying Letter Report, as is.

2.  The Board concludes that the evidence provided by the applicant regarding the ARNG OER for the period ending 15 July 1984 is sufficient to show that he did not serve in that position long enough to be rated.  The beginning date of that OER is 2 March 1984.  By 31 May 1984 he had tendered his resignation from the ARNG and requested transfer to the USAR and one of the endorsements noted the effective date of his resignation as 31 May 1984.  Although his request was still being processed on 4 June 1984 and the Georgia Guard’s approval is not available, the Board presumes it was approved for the requested effective date.  The period 2 March through 1 June 1984 is only 92 days and is insufficient time for an ARNG officer to be rated.  

3.  The Board concludes that the applicant had some responsibility to attempt to remove the OER for the period ending 15 July 1984 prior to now.  Since the evidence of record verifies that it was not filed in his OMPF until 1989 he would have had a case for appealing it as an exception to the 5-year rule.  Since he did not, his next logical point to request its removal would have been when he was being considered for promotion to major.  However, while his OERs do not show that he was an above-center-of-mass officer, neither do they show that he was below-center-of mass.  All his other OERs do contain very commendable comments.  The Board concludes that, for consideration for promotion to lieutenant colonel, if this one OER, which was also the first one to be seen on his OMPF, had not been filed on his OMPF, there may have been a reasonable chance that he would have been recommended for promotion.

4.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by removing from the applicant OMPF the OER covering the period ending 2 March through 15 July 1984.

2.  That following administrative implementation of the foregoing, his records be submitted to a duly constituted Special Selection Board for reconsideration for promotion to lieutenant colonel.

3.  That if he is selected for promotion his records be further corrected by promoting him to lieutenant colonel and assigning the appropriate date of rank with all due back pay and allowances or by assigning him the appropriate promotion selection number if he would not yet be due for promotion.

4.   That if he is not selected for promotion, he be notified accordingly.

5.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__aao___  __vbc___  __le____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			Arthur A. Omartian
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999033744	
SUFFIX		
RECON		
DATE BOARDED	20000516	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	131.00	
3.		
4.		
5.		
6.