MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           12 January 2000                   
	DOCKET NUMBER:   AR1999034185

	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.

	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Ms. Irene N. Wheelwright		Member	
	Mr. Luther L. Santiful		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:  Removal from his Official Military Personnel File (OMPF) of the Officer Evaluation Report (OER) for the period 6 June 1996 through 9 February 1997 and reconsideration for promotion to lieutenant colonel (LTC).

APPLICANT STATES:  That he believes the Officer Special Review Board (OSRB) erred when it determined there was insufficient evidence to overcome the “presumption of regularity.”  He believes the evidence shows he was not formally counseled on his OER support form within 30 days of assignment as required by regulation.  The rater then falsified the support form by writing the date of September 1996 as the date the initial discussion of duties took place.  After reporting this and other unethical conduct to the commanding general, the commanding general directed an Army Regulation (AR) 15-6 investigation be conducted.  The OER is also suspect because of the disparity between the numerical and check block ratings and the comments.  Had the report been referred, he would have had the opportunity for redress and it would not have been filed in his OMPF in time for the first LTC promotion board to see it.  

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from documents provided by the applicant.

On 24 December 1996, the applicant e:mailed his rater requesting “…I be formally counseled on my OER support form as required by regulation.  In fact, it should have taken place long ago.”  His rater set a date of 16 January 1997 for the counseling session.

The contested OER is a change of duty OER for the period 6 June 1996 through 9 February 1997.  The applicant signed the report verifying the administrative data on 27 February 1997, the rater did not sign the report, and the senior rater signed it 1 March 1997.  It apparently was “rush-processed” in time for it to meet the 5 March 1997 cutoff date for OMPF filing in order to be seen by the 10 March 1997 LTC promotion selection board.  Part IVa, Professional Competence, contains 1s (to the highest degree) in all 14 categories.  There are no comments in part IVb, Professional Ethics.  In parts Vb and Vc, the rater rated him as “always exceeded requirements” and wrote such comments as “…performed in a satisfactory manner…” and “promote ahead of contemporaries” with the comment “…should be considered for promotion to LTC,” respectively.  The accompanying support form contains the entry “Sep 96” in part II, verification of initial face-to-face discussion.  Page 2 of the support form is not available.

A letter of support dated 8 July 1999 from the former Chief of Staff of the Combined Arms Center, Fort Leavenworth, Kansas states he sat in on a meeting between the applicant and the commanding general in which the applicant alleged misconduct on the part of his rater and senior rater.  At that time, the commanding general directed an informal AR 15-6 investigation.  As a result of the investigation, no formal action was taken against any officer; however, the rater was admonished for her conduct prior to and during the investigation.

The applicant requested a copy of the AR 15-6 investigation but was informed a search revealed no records concerning the investigation.

The applicant appealed his OER.  On 25 August 1999, the OSRB returned his appeal without action because of insufficient evidence of a clear and convincing manner for the OSRB to consider it.  

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  It states that the first face-to-face discussion of the rated officer’s duties and objectives will be held within 30 days after the beginning of the rating period.  Part IVb will contain comments on strengths or weaknesses in the areas of professionalism.  Comments are mandatory only for rating of 4 or 5 in part IVa.  Reports will be referred to the rated officer when they contain negative remarks about his/her professional ethics and/or in the rating official’s narrative evaluations(s); when they contain a rating of 4 or 5 in any of the 14 attributes in part IVa; when a report contains an “often failed requirements” or “usually failed requirements” evaluation in part Vb or an evaluation of “do not promote” or narrative comments to that effect.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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.  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 the aforementioned requirement.

2.  The Board agrees with the OSRB’s determination that insufficient evidence has been provided to overcome the presumption of regularity.

3.  The regulation does not require a “formal” counseling session within 30 days after the beginning of the rating period, only a face-to-face discussion.  The applicant has provided no evidence that such a discussion however “informal” did not take place nor does he show how such an oversight would have created a material error, inaccuracy or injustice in the rater’s and senior rater’s evaluations.

4.  Comments in part IVb are not mandatory except under certain circumstances. The applicant did not meet those circumstances and presumably the rater felt he did not have any specific strengths or weaknesses in the areas of professionalism that needed to be elaborated upon.

5.  While the ideal, narrative evaluations are not required to “agree” with block evaluations.  The applicant’s OER came close to the end of the use of the DA Form 67-8 series, when evaluations had become so inflated that a new series was introduced the following year.  The Board concludes there is nothing exceptionally “wrong” with the disparity between the block evaluations and the narrative evaluations.

6.  The applicant provides no evidence of just what the AR 15-6 investigation discovered that would cause the rater to be admonished.  Even though the investigation itself is not available, a summary of the investigation could have been obtained from the investigating officer.  

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

__jns___  __inw___  __lls___  DENY APPLICATION

Karl F. Schneider
Director, Army Review Boards Agency

INDEX

CASE ID	AR1999034185	
SUFFIX		
RECON		
DATE BOARDED	20000112	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.