MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        
        


         BOARD DATE: 6 December 2001
         DOCKET NUMBER: AR2001055061

         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
Ms. Rosa M. Chandler		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas A. Pagan		Member
Mr. Harry B. Oberg		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)

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APPLICANT REQUESTS: That her DA Form 67-9, Officer Evaluation Report (OER), for the period 19990430-19991210 be corrected by removing the phrase, "After some work on a clinic staff, . . ." from Part VIIc (Senior Rater - Comment on Performance/Potential), and that her corrected record be referred to a special selection board for reconsideration for promotion to captain.

APPLICANT STATES: In effect, that once she indicated her intention to leave the Army at the end of her service obligation (January 2000), her chain of command developed animus towards her. In a three-page attachment to her application for correction of her military record, she enumerates a litany of complaints ranging from being sent on a deployment to Germany, to being berated by her new battalion commander, to not being afforded the opportunity to clear her hand receipts when out-processing from her unit. She adds that she did not leave active duty in January 2000 because of a service obligation incurred for funded training (which the Army would not let her buy back). When her records went before the FY2000 Captain, Army Medical Department (AMEDD) Promotion Board, she was not selected for promotion. She attributes her nonselection to the above phrase in the subject OER and adds that clinical experience is not a requirement for her particular area of concentration (AOC).

In support of her request, the applicant submits a copy of the subject OER; a copy of her OER initial appeal packet, with 10 enclosures; a copy the Officer Special Review Board (OSRB) memorandum returning her appeal without action; and an extract from DA Pam 600-4 (AMEDD Officer Development and Career Management), dated 9 June 1995.

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

She was appointed a Reserve commissioned officer in the rank of second lieutenant, Medical Service Corps, on 24 January 1997. She had a 3-year active duty service obligation. She was promoted to first lieutenant on 14 September 1998. During the period of the contested OER, she was serving as Treatment Platoon Leader, Company E (Medical Company), 704^th Main Support Battalion, Fort Hood, Texas.

The contested OER is a change of rater report covering an 8-month period. The rater, a captain (company commander) gave the applicant favorable ratings of "Yes" in Part IVa 1-7 (Character - Army Values). In Part IVb (Leader Attributes/
Skills/Actions), the rater also gave the applicant favorable ratings of "Yes." The rater indicated that the applicant's greatest attribute was "emotional;" her greatest skills were "conceptual" and "technical," and her greatest actions were "communicating, planning, and learning." In Part Va (Performance and Potential Evaluation), the rater annotated the "Outstanding Performance - Must Promote" block. In Part Vb (Comments on Specific Aspects of the Performance and Potential), all of the rater's comments were praiseworthy and she recommended that the applicant be, "Promote[d] and sen[t] to the AMEDD Officer Advance Course. Select for command and a fully funded graduate program in Health Care Administration."

In Part VIIa (Promotion Potential), the senior rater annotated the "Best Qualified" block. In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the senior rater placed the applicant in the "center of mass" block. In Part VIIc (Comment on Performance/Potential), the senior rater stated, "An impressive officer," and she went on to say, "[applicant] has shown superb duty performance during this rating period. As the treatment platoon leader, she faced a daily barrage of varied and complex missions. She deftly managed her platoon's missions despite severe personnel shortages and constant mission flux. She deployed to Germany in support of Task Force Anvil and provided unsurpassed support as the medical regulating officer. [Applicant] is an intelligent officer with a considerable amount of potential." The rater then added the disputed comment, "After some work on a clinic staff, promote her to captain, send her to the advanced course, then place her in command."

In part VIId (List 3 Future Assignments for Which This Officer is Best Suited), the rater stated, "Company Commander; Clinic Administration OIC; Assistant Chief of Managed Care."

When she was nonselected for promotion to captain, the applicant e-mailed her former senior rater. She expressed her concern that the senior rater's comment about affording the applicant work on a clinic staff before promoting her had caused her nonselection. She asked the senior rater for an explanation. In reply, the senior rater indicated that she made the statement because she believed the applicant lacked professional maturity at the time; that she had no particular interest in remaining in the tactical environment. Given that she wished to serve in a clinic environment, and given that she had no aspirations towards continued military service, the senior rater recommended that the applicant work in a clinic. She believed that, based upon the applicant's level of professional maturity at that time, she was not ready for promotion to captain. Although clinic work is not required in the applicant's AOC, since the applicant expressed a desire to do that type of work, she believed that the applicant would gain professional maturity from such an experience.

In an undated letter, the applicant appealed the contested OER to the Officer Special Review Board (OSRB). The reasons cited for the appeal were essentially the same as submitted to this Board. After a careful review of the appeal, the OSRB returned the applicant's request without action stating that the applicant had failed to provide sufficient evidence to warrant review. Rather than deny the appeal, thereby drawing undue attention to the OER, the OSRB returned the appeal without action.

Army Regulation 623-105, in effect at the time establishes the policies and procedures concerning modifications to previously submitted OER's. Paragraphs 5-25 provides that an OER accepted by Headquarters, Department of the Army, for inclusion in the official record of an officer is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation. This is known as a “presumption of regularity.” Requests that an accepted OER be withdrawn or altered will not be honored. An exception is granted only when the information which was unknown or unverified when the OER was prepared is brought to light or verified that the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time it was prepared. Paragraph 6-10 of the regulation states that the burden of proof in any 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 error or inaccuracy is warranted.

Paragraph 3-2(h) defines the role of the rating officials. Rating officials have the responsibility to balance their obligations to the rated officer with their obligations to the Army. Rating officials must make fair and honest evaluations of the officer under their supervision. They are likewise obligated to the Army to be discriminating in their evaluations so that Army selection boards and career managers can make intelligent assignment and career management decisions.

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 this requirement.

2. The OSRB, after reviewing the facts and evidence presented by the applicant, came to the conclusion that there was insufficient evidence to warrant changing the OER.

3. This Board rejects the applicant's contentions that her senior rater's personal biases and unfounded opinions led to her receiving an unfair evaluation. The senior rater's comments are consistently favorable and the senior rater believed the applicant had the potential to serve well in a clinical environment given her perception that the applicant did not desire to continue to serve in a tactical environment. This Board will not comment on the validity, or lack thereof, of the senior rater's perceptions of the applicant.

4. This Board concludes that there is insufficient evidence to meet the regulatory criteria that would require the removal of the contested phrase from the applicant's OER. By extension, there is no need to direct that the applicant's record be referred to a special selection board for reconsideration for promotion to captain.

5. 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

__FNE__ ___TAP__ ___HBO_ DENY APPLICATION




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

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INDEX

CASE ID	AR2001055061
SUFFIX
RECON
DATE BOARDED	20011206
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.