MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           5 February 2002                  
	DOCKET NUMBER:   AR2001064814

	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. G. E. Vandenberg		Analyst	

  The following members, a quorum, were present:

	Ms. June Hajjar		Chairperson	
	Ms. Karol A. Kennedy		Member	
	Mr. Roger W. Able		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 his Officer Evaluation Report (OER) for the period 4 July 1985 through 3 July 1986 be moved to the restricted portion of his Official Military Personnel File.  He requests that once this is done that his file be sent to a Special Selection Board (SSB).

APPLICANT STATES:  In effect, that he was placed at a disadvantage in selection for promotion because his first OER was as a first lieutenant (1LT) and that, unlike those of his counterparts, it was not transferred to his restricted fiche. He states that the Army’s policy of moving only second lieutenant’s (2LT) OERs to their restricted fiche after they are promoted to captain is arbitrary in nature.  He also states that the OER in question covered was primarily for service as a 2LT but that since he was a 1LT at the time it was written it was not moved to his restricted fiche, as were those of his contemporaries.  He states that by not having his first OER masked, as were those of his contemporaries, he was passed over for attendance in the residency portion of the Command and General Staff College (Phase II) and for promotion to lieutenant colonel (LTC).

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

The applicant was commissioned a Reserve 2LT in May of 1983.  He received an educational delay in reporting to complete his degree and entered active duty in March of 1985.  He was promoted to first lieutenant on 13 May 1986 and subsequently promoted to captain and major.

The applicant completed Combined Arms and Services Staff School in May 1992 and Command and General Staff College (CGSC), Phase 1 in May 1998.

His first annual OER (4 July 1985 through 3 July 1986) shows the applicant was evaluated as a 1LT.  He received maximum ratings from his rater, however the senior rater ranked him in the third block, which was the center of mass.  The applicant’s records contain 19 evaluations.  He was rated at above the center of mass on 4 and at the center of mass on 15.  Six of these were top block center of mass ratings.  

There is no documentation of the applicant’s reported denial of the attendance at the residency portion of the CGSC (Phase II) or his being non-selected for promotion to LTC.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander’s Inquiry or to appeal disputed reports.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion 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.
An advisory opinion was obtained from the US Total Army Personnel Command that opined that it would be impossible to make an exception to established policy without jeopardizing consistency in the board process.

A copy of this opinion was forwarded to the applicant and he rebutted the opinion by indicating that without relocating his first OER he was not given the same “fair and level playing field” than officers whose first OERS were relocated.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were non-selected for promotion may request reconsideration by a special selection board.  The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

Military Personnel (MILPER) Message Number 97-149, in pertinent part, directs that the first OERs of 2LTs be relocated to their restricted fiche after their promotion to captain.  It states that this action is done to remove information from an officer’s performance file, which may simply be a reflection of an initial learning curve, and thereby preclude its use for personnel management decisions later in an officer’s career.  Personnel Command (PERSCOM) was to begin masking the reports effective 1 October 1997 with a masking of 2LT reports for those officers eligible for consideration by the fiscal year 1998 resident CGSC selection board.

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.  MILPER Message NR 97-149 provides for the masking of OER for a 2LT only.

2.  Given the applicant’s overall record, the Board concludes that he has not shown that this first OER should be removed or that the removal of this OER would affect his selection for further education or consideration for promotion.

3.  The applicant did not exercise reasonable care in this matter as is required by Army Regulation 600-8-29.  He is not entitled to a reconsideration for promotion.

4.  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

__JH____  __KAK__  ___RWA_  DENY APPLICATION

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

INDEX

CASE ID	AR2001064814	
SUFFIX		
RECON		
DATE BOARDED	20020205	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	131.09	
3.		
4.		
5.		
6.