2. The applicant requests removal of the officer evaluation reports (OER) covering his performance for the periods 11 September 1986 through 9 April 1987 (OER #1), 10 April 1987 through 9 April 1988 (OER #2), 10 April 1988 through 9 April 1989 (OER #3), and 27 January 1994 through 7 October 1994 (OER #4) from his Official Military Personnel File (OMPF).  Also, he requests that the OER covering his performance for the period 1 December 1994 through 10 March 1995 (OER #5) be administratively corrected and filed in his OMPF.  Further, he requests reinstatement.

3.  The applicant served in the U.S. Navy from 28 December 1978 through 27 December 1983, and was separated in pay grade E-5.  Subsequently, he enlisted in the Army National Guard and was ordered to active duty for training.  On 10 September 1986, he was released from active duty for training, in pay grade E-5, and discharged from the Army National Guard and as a Reserve of the Army.  On 11 September 1986, he was appointed as a Reserve officer of the Army as a warrant officer one (WO1).

4.  On 14 September 1988, he was ordered to active duty, as a WO1, for 4 years.  He was transferred to the Inactive National Guard effective 15 July 1989.  On 4 February 1991, he was separated from the Army National Guard and assigned to the U.S. Army Reserve Control Group, U.S. Army Reserve Personnel Center, St. Louis, Missouri.  On 8 February 1991, he was ordered to active duty, as a WO1, for 4 years.

5.  On 23 March 1991, the applicant applied to this Board to correct his date of rank (temporary and permanent).  Based on this Board’s action in July 1992, his records were corrected to show that he was promoted to chief warrant officer two (CW2) effective 11 September 1989.  (Note:  He did not request that this Board remove any National Guard OERs on that application).

6.  On 14 April 1994, the applicant received a temporary profile for back strain for 30 days.  On 5 May 94, he received a temporary profile for mechanical low back pain 
for 30 days.  On 27 June 1994, he received a temporary profile of 11T3111 for low back pain-disc bulging for 30 days.

7.  A Department of the Army (DA) Form 4186 (Medical Recommendation for Flying Duty), completed by the Flight Surgeon’s Office, Fort Sill, Oklahoma, indicated that simulator duties were allowed for the applicant effective 3 October 1994, and that the date the clearance expired was 31 January 1995.  A DA Form 4186, dated 8 November 1994, indicated, in effect, that the applicant had a permanent disqualification, and that he could not perform any flying duties.

8.  On 13 April 1995, the applicant was given a temporary profile of 11T2111 for mechanical low back pain.

9.  On 26 April 1995, the applicant wrote to the Inspector General (IG), Fort Sill, covering the events of his tour of duty in Korea from 15 March 1994 to 10 March 1995, and asking questions in order to get clear answers and/or understanding to the events.  He alleged that all of the National Guard OERs were supposed to be removed from his records after he came back on active duty when this Board corrected his date of rank.  He indicated that someone else signed his name to these OERs, his social security number was wrong, and some of the information was missing.  Also, he alleged that he had asked for a Commander’s Inquiry on one of the OERs.

10.  On 18 September 1995, the U.S. Total Army Personnel Command (PERSCOM) advised the applicant’s command, in effect, that, as a result of the Fiscal Year 1995/CW3/4/5 Promotion Selection Board, the applicant had received his second nonselection for promotion; that he was required by law to separate from active duty no later than the 1st day of the 7th month after the month the Secretary of the Army approved the promotion board that constituted his second nonselection for promotion; and that, since the Secretary of the Army approved the Fiscal Year 1995 Promotion Board results in August 1995, a mandatory separation date of 1 March 1996 was established for the applicant since he had received his second nonselection for promotion.  In the notification to the applicant, he was advised of the foregoing.  Also, he was informed that warrant officers who by the required release date would be within 2 years of retirement qualification could be retained on active duty so as to retire upon completion of 20 years of Active Federal Service.

11.  A statement, dated 22 September 1995, by the Battalion S-4 recommended that the applicant be considered for reclassification and retention in a non-flight military occupational specialty (MOS); that the applicant’s experience and training had proven to enhance the capabilities of his unit and the battalion as a whole; that the applicant had shown consistently that he had the ability to grasp the technical knowledge to successfully complete any mission; that the applicant’s attention to detail and ability to learn the technical aspects of the supply arena had ensured the success of his unit; and that the applicant’s unit had never failed to meet all the standards required to properly manage their unit budget.

12.  On 28 September 1995, the IG, Fort Sill, advised the applicant that his allegation that he did not receive proper treatment for his back was not substantiated; that his allegation that he did not receive proper credit for simulator flight time while at Fort Sill from August to October 1994 was not substantiated; that his allegation that he was not permitted an “up” status based on “up” slips from different flight surgeons was not substantiated; that his allegation concerning the improper mental evaluation was neither substantiated nor nonsubstantiated; that his allegation that he was improperly put on the duty roster as a form of punishment was not substantiated; that his allegation that he received an improper OER could not be addressed by an IG; that the proper form of redress was the appeal process described in Army Regulation 623-105; that the allegation that he did not receive due process regarding the stoppage of his flight pay was substantiated; and that the allegation that he did not receive due process in the form of prompt administrative processing of his medical condition was substantiated.  The IG indicated, in effect, that, on 8 November 1994, the applicant’s flight surgeon recommended a permanent profile, MOS/Medical Retention Board (MMRB), and permanent disqualification; that the flight surgeon and the commander shared the responsibility to see those recommendations through to their administrative conclusions; that this was not done from the time of the physical on 8 November 1994 to the applicant’s departure from Korea on 15 March 1995; that there was no evidence at that time to show the issuance of a permanent profile; that no MMRB was conducted by the personnel in Korea; that the permanent disqualification was actioned by the personnel at Fort Rucker, Alabama, on 31 March 1995; and that this was generally a normal processing time when considering mail time from Korea to the Continental United States and the seasonal holidays.

13.  A statement, dated 3 October 1995, by the Battalion Operations Officer recommended that the applicant be retained on active duty with a MOS reclassification; that the applicant’s abilities as a supply technician had been well documented; that the applicant’s supply section had consistently been selected as the finest in the brigade and continued to enjoy an outstanding reputation; and that, although the applicant had been found medically disqualified to continue performing duties as an Army aviator, he possessed outstanding abilities to continue to serve the Army as a supply technical warrant.

14.  On 4 October 1995, a permanent profile of 11P3111 was approved for the applicant for chronic low back pain.  His assignment limitations were no flying duties.  He was permanently grounded from performing flight duties.

15.  On 29 November 1995, a MMRB was convened at Fort Sill to evaluate soldiers with permanent medical conditions or impairments and determine if they could perform satisfactorily in their primary MOS (PMOS) in a worldwide field environment.  The Summary of the MMRB Proceedings, dated 11 December 1995, indicated that the MMRB found that, because of the limitations imposed by the physical profile on the applicant, he should not be retained in his PMOS.  
The MMRB recommended that the applicant be reclassified into a less physically demanding MOS in which the Army had a requirement.

16.  A Decision Paper, dated 11 January 1996, indicated that the applicant signed the notice of the MMRB on 27 November 1995; that the MMRB decided on 29 November 1995 that, due to medical condition:  chronic low back pain, assignment limitations:  no flying duties, and the personnel records showed that the applicant was passed over twice for promotion, to allow the applicant to submit for a reclassification in another PMOS; that this decision was made because the applicant stated that he had received a bad OER and was not afforded the chance to go to a MMRB when he first received his profile; that, had this happen, the promotion board might have looked at his case in a different way and he might not have been passed over; and that the applicant did not submit a rebuttal.  Subsequently, the findings and recommendation for the MMRB were approved by the general court-martial convening authority.

17.  On 1 February 1996, the applicant’s command advised the PERSCOM that a MMRB evaluated the abilities of the applicant to perform the physical requirements of his PMOS 154C 
(CH-47D Pilot) on 29 November 1995; that, based on a thorough review of the most recent permanent profile and all other pertinent records and reports, the MMRB determined that the applicant should not be retained in his PMOS; that it appeared that the applicant possessed the background, attitude, physical capability and potential to be retained and reclassified into a less physically demanding MOS in which the Army had a requirement; and that reclassification into MOS 920B or 920A as requested by the applicant was recommended.

18.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates that he was honorably released from active duty on 1 March 1996, in pay grade 
W-2, under Army Regulation 600-8-24, paragraph 2-41 
(nonselection, permanent promotion).  He had completed a 
total of 11 years and 2 months active military service, and 6 years, 6 months, and 16 days inactive service.  He received separation pay of $34,322.76.

19.  The applicant’s available OERs are as follows:  DA Form 67-8:  (Rating system depicted below has six entries:  the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's standing in a bell-shaped distribution pattern of 100 officers of the same grade (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of officers ranked above, equal to, and below the applicant. The abbreviation “BCOM” means “below center of mass.”)

	Period		 Type of Rating		Score

11 Sep 86- 9 Apr 87	 Change of Rater	I/II/Top3/0/2/2*
10 Apr 87- 9 Apr 88	 Annual			I/I/Top3/2/7/2*
10 Apr 88- 9 Apr 89	 Annual (BCOM)		I/II/Top4/11/2/0*
29 May 91-28 May 92	 Annual			I/I/Top2/7/10/2
29 May 92-28 May 93	 Annual			I/I/Top2/16/43/9
29 May 93-26 Jan 94	 Change of Duty	I/I/Top/0/22/56
27 Jan 94- 7 Oct 94	 Change of Rater	I/I/Top3/2/0/0*
				   (BCOM)
 1 Dec 94-10 Mar 95	 Permanent Change	I/I/Top2/0/0/0* **
				   of Station
11 Mar 95- 1 Mar 96	 Release from 		I/I/Top/0/14/8
				   Active Duty
__________
*Contested OER’s.  The copies of the first three contested OERs in his OMPF indicate that his social security number was corrected.

**Copy in OMPF fiche shows the period from 8 Oct 94 through 10 Mar 95.

20.  On 23 April 1996, a member of Congress was advised by the PERSCOM authorities that the applicant’s request for an extension on active duty beyond his mandatory release date of 29 February 1996 was not favorably considered; that, as a two time nonselect for promotion to CW3, he was required by law to separate from active duty; that, although a MMRB recommended the applicant for reclassification as a supply warrant officer, this action was taken 4 months after he had been a nonselect for promotion for a second time, by the Fiscal Year 1996 Promotion Board; that the application was considered in the correct specialty of a CH-47 Pilot and unfortunately was not selected; that his request for reclassification was received 2 weeks prior to his mandatory release from active duty and was returned without action due to his career status; that the applicant’s OERs received from the National Guard were forwarded to the National Guard 
Bureau for consideration and were returned to him due to insufficient evidence; and that the applicant could apply to this Board if he felt an injustice had been done.

21.  The Officer Special Review Board (OSRB) in the Office of the Deputy Chief of Staff for Personnel reviewed the applicant’s appeal of the contested OERs.  The OSRB indicated that the applicant had provided sufficient evidence to show that his social security number recorded in Part I, Item b, on OER #1, OER #2, and OER #3 was incorrect; that he did not sign Part II, Item d on OER #1, OER #2, OER #3, and OER #5; that his contention that OER #1 was signed later than the mandated 120 days was correct; however, this was not a basis to delete the report; that this alone was not considered a “fatal flaw” which invalidates OER #1; that the applicant has not provided evidence to substantiate the fact that the evaluations by the rater and senior rater were not signed by them on OER #1, OER #2, and OER #3; that the applicant’s contention that the senior rater did not receive and consider a completed DA Form 67-8-1 (OER Support Form) during completion of OER #2 and OER #3 is not substantiated by the evidence provided; that the applicant’s contention that Part I, Item m, is incorrect on OER #2 and OER #3 is substantiated, and the reports should be corrected to show 12 months vice the currently recorded 26; that the fact that Part IV, Item a.9, on OER #3 was blank suggest carelessness/disregard on the part of the rater, senior rater, and military personnel office (MILPO); that, notwithstanding, there is no basis at this time to record any rating in this block; that the applicant has provided clear and convincing evidence to refute the presumption of regularity as applies to OER #4; that OER #4 does not accurately represent an evaluation of the duties that he was performing; that the absence of the data required in Part IVa.3 and a.12 of OER #5 does not invalidate the evaluation; that the applicant’s contention that Part I, Item o, should have been completed by the MILPO is correct; however, this lack of edit/quality control by the MILPO is noted but does not constitute the basis to amend/delete OER #5; that the applicant has not provided supporting evidence to amend Part IVa.12; and, that in the absence of supporting data, the entry will be left blank.  The OSRB recommended deletion of the OER (OER #4) covering the period 27 January 1994 through 7 October 1994.  However, the OSRB only recommended that the other four OERs (OER #1, OER #2, OER #3, and OER #5) be amended.

22.  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, DA, 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.

CONCLUSIONS:

1.  The applicant has not shown that the rating officials’ evaluations for the contested OERs covering the periods 11 September 1986 through 9 April 1987 (OER #1), 10 April 1987 through 9 April 1988 (OER #2), and 10 April 1988 through 9 April 1989 (OER #3) represented other than their objective judgment and considered opinions at the time they prepared these contested OERs, or that they exercised faulty judgment in evaluating him as they did.
2.  The contested reports covering the periods 11 September 1986 through 9 April 1987 (OER #1), 10 April 1987 through 9 April 1988 (OER #2), and 10 April 1988 through 9 April 1989 (OER #3) appear to represent a fair, objective, and valid appraisal of his demonstrated performance and potential during the periods in question.  Therefore, there is no basis for removing them from his OMPF.

3.  Notwithstanding the foregoing, the applicant has shown that OER #1, OER #2, OER #3, and OER #5 covering the period 1 December 1994 through 10 March 1995 do contain certain administrative deficiencies.  However, the Board concludes that these administrative deficiencies are not “fatal flaws” which would invalidate the OERs.  Accordingly, it would be appropriate to correct these four OERs (OER #1, OER #2, OER #3, and OER #5) by amending them, but only as shown in the Recommendation.

4.  The evidence of record indicates that there is sufficient documentation to show that the OER (OER #4) covering the period 27 January 1994 through 7 October 1994 is inaccurate, unjust, and does not adequately reflect his performance and potential.  Therefore, it should be removed from his OMPF.

5.  There is no evidence in the record, nor has the applicant provided any evidence, to show that the contested OERs were the sole basis for his nonselection for promotion to the rank of CW3.  The Board must presume that the applicant’s overall record of service, when compared to those of his contemporaries, simply was not strong enough to place him among those selected for promotion.

6.  Notwithstanding the previously mentioned corrections, the Board considers the applicant’s overall OER record to be average to mediocre.  Therefore, the Board concludes that there would not have been a reasonable chance for his selection had the changes been made to the contested OERs before he was considered, and that his record is not sufficiently meritorious to overcome his nonselection 
for promotion.  Therefore, there is no basis to refer his records to a special selection board for reconsideration for promotion to the rank of CW3.

7.  The Board notes that a MMRB determined that the applicant should not be retained in his PMOS in view of his permanent profile and all other pertinent records and reports; that it appeared that he possessed the background, attitude, physical capability and potential to be retained and reclassified into a less physically demanding MOS; and that he should be reclassified into MOS 920B or 920A.

8.  Based on the available evidence, the Board concludes that the applicant cannot be reinstated in his PMOS.

9.  In view of the foregoing, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected:

	a.  by amending Part IId on the OER (OER #1) covering the period 11 September 1986 through 9 April 1987 of the individual concerned by deleting his signature and adding the statement “Rated officer not available for signature;”

	b.  by amending Part I, Item m, on his OER (OER #2) covering the period 10 April 1987 through 9 April 1988 by deleting the entry “26” and adding the entry “12;”

	c.  by amending Part IId on his OER (OER #2) covering the period 10 April 1987 through 9 April 1988 by deleting his signature and adding the statement “Rated officer not available for signature;”





	d.  by amending Part I, Item m, on his OER (OER #3) covering the period 10 April 1988 through 9 April 1989 by deleting the entry “26” and adding the entry “12;”

	e.  by amending Part IId on his OER (OER #3) covering the period 10 April 1988 through 9 April 1989 by deleting his signature and adding the statement “Rated officer not available for signature;”

	f.  by amending Part IId on his OER (OER #5) covering the period 1 December 1994 through 10 March 1995 by deleting his signature and adding the statement “Rated officer not available for signature;”

	g.  by amending Part IVa.3 on his OER (OER #5) covering the period 1 December 1994 through 10 March 1995 by adding “Profile 9510;” and

	h.  by removing from his OMPF the OER (OER #4) covering the period 27 January 1994 through 7 October 1994 and all documents related thereto.

2.  That an appropriate nonprejudicial statement explaining the absence of the OER (OER #4) covering the period 27 January 1994 through 7 October 1994 be placed in his records.

3.  That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

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

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
					        CHAIRPERSON