MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           19 June 2003                  
	DOCKET NUMBER:   AR2002080992

	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:

	Mr. John N. Slone . 		Chairperson	
	Ms. Lana E. McGlynn		Member	
	Mr. William D. Powers		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 the Officer Evaluation Report (OER) for the period 10 November 1997 through 2 February 1998, be removed from his record or moved to the restricted portion of his record.  He also requests reconsideration for promotion to major.

APPLICANT STATES:  In effect, the adverse OER was given to him as a reprisal to his filing a complaint against his command for improper actions.  He states that this OER is the only reason that he was not selected for promotion to major.

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

The applicant was commissioned a second lieutenant in the Army Reserve (USAR) on 31 July 1987.  He was promoted to captain on 30 July 1995.

The applicant received a sixth block, below center of mass OER for the period of 10 November 1997 through 2 February 1998.  The senior rater stated that the applicant was not technically or mentally capable of performing the duties for which he was selected; that the applicant had been relieved of his position due to inappropriate behavior toward superiors and subordinates; that the applicant had improperly departed from his place of duty and improperly filed a complaint against the command.

The applicant nonconcured with the OER and appealed to the Officer Special Review Board (OSRB) on 26 July 2002.  The OSRB review found no merit to the applicant’s contentions that he had not been aware of who his rater was, that the OER was on the wrong form, that the rater comments in Part IVb were inappropriate, that he had not been counseled during that rating period or that this OER was written as a reprisal for the applicant’s actions in filing a complaint. With the exception of removing a phrase from the senior rater’s comment, the OSRB found no merit to the applicant’s contentions.

The applicant has received 10 OERs during his period of service; two, including the evaluation in question, rated him at of below center of mass, six at center of mass and two at above center of mass.

Army Regulation 623-105 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, and included in the official record of an officer, is presumed to be administratively correct, 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.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The applicant has provided no evidence that the OER in question was given as a reprisal to any action on his part.

2.  There is no available evidence to show that this challenged OER is the sole reason that he was non-selected for promotion.  The Board notes that out of 10 OERs the applicant had two below and two above center of mass with the remainder at center of mass.  The Board is of the opinion that his overall performance record is a more likely reason for non-selection than this single OER he is appealing. 

3.  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 this requirement.

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

__JNS __  __LEM __  __WDP__  DENY APPLICATION

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

INDEX

CASE ID	AR2002080992	
SUFFIX		
RECON		
DATE BOARDED	20030619	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	Remove OER	
2.		
3.		
4.		
5.		
6.