MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 16 August 2001
         DOCKET NUMBER: AR2001059647

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Ms. June Hajjar		Chairperson
Mr. Thomas F. Baxter		Member
Mr. John T. Meixell		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 his officer evaluation report (OER) for the period 2 July 1992 – 30 June 1993 be removed from his records.

APPLICANT STATES: That the rater was abusing drugs during the rating period and his subsequent inability to soundly rate him should not be held against him. Because of his drug use, his rater was unqualified to continue his practice of medicine. It follows that he was also incapable of performing his duties as an officer, including the rating of a subordinate officer, due to his impairment. The reason for the delay in his OER appeal was the time required to obtain the documentation of his rater’s impairment. Also, the rating took place the year he was selected for promotion to lieutenant colonel. Thus, the effect of this rating was not apparent until he was nonselected for promotion to colonel six years later.

EVIDENCE OF RECORD: The applicant's military records are not available. The information contained herein was obtained from alternate sources.

The contested OER is an annual report for an 11-month rating period from 1 July 1992 – 30 June 1993. The applicant was a staff internist, Internal Medicine Clinic. His rater was the Chief, Internal Medicine Service.

In Part IVa of the contested OER, the applicant received “2” ratings in the areas of motivates, challenges and develops subordinates; encourages candor and frankness in subordinates; seeks self-improvement; and sets and enforces high standards. In Part IVb, derogatory comments were made about his dedication and responsibility. His performance was rated as “usually exceeded requirements” in Part Vb with some derogatory comments in Part Vc. His potential for promotion was rated as “promoted with contemporaries.” His senior rater gave him a 3-block rating. The senior rater’s rating profile is not available. Senior rater comments were “lukewarm.”

The OER was referred to the applicant by the senior rater for comment. The applicant provided a 3-page rebuttal.

A letter dated 3 July 1995 from the Medical Board of California indicates that the applicant’s rater received a public letter of reprimand. A preliminary investigation by the Medical Board of California concluded that from 1992 through early 1994 he had prescribed for his own use excessive quantities of the controlled substances Fiorinal, Valium, and Darvon-N. The reprimand was issued in Lieu of Accusation in its entirety provided he surrendered his physician’s and surgeon’s certificate to the board immediately upon the issuance of the letter of public reprimand.

The applicant appealed his OER to the Officer Special Review Board (OSRB), apparently in 2000 or 2001. The OSRB noted that exceptional justification is required to warrant waiving the 5-year limit in submitting an OER appeal. The OSRB noted that the applicant did not provide any verification of release of the rater’s personal documents from the identified officer under the Freedom of Information Act and that the applicant’s contention was that his rater’s “abusing drugs” caused his “subsequent inability to soundly rate (the applicant).” The OSRB noted that the applicant provided no evidence from either rating official which might invalidate the rating they rendered or substantiate that they did not execute their designated responsibilities in accordance with regulatory guidance. The OSRB noted that it is the individual’s responsibility to seek relief through the appeals process at the time he believes that an OER is inaccurate or unjust and not wait to use the process as an attempt to reverse unfavorable results of the personnel selection system. The OSRB found that all the factors in his appeal did not justify waiving the 5-year limit.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER. 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. Because evaluation reports are used for personnel management decisions, it is important to the Army and the individual officer that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals must be submitted within 5 years of the OER’s completion date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption.

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 Board is not as firmly tied to the 5-year appeals time limit as the OSRB is and if evidence of an injustice were provided the Board would consider granting the relief requested. However, as noted by the OSRB, the applicant provides no evidence to show that his rater was incapable of performing his duties as an officer, including the rating of a subordinate officer. Being unqualified to continue the practice of medicine is not the same as being incapable of practicing medicine. The rater’s letter of reprimand stated he prescribed excessive quantities of controlled substances for his own use but did not specifically state that he was physically or mentally impaired by this use.

3. The Board presumes that the applicant was not his rater’s only subordinate officer. If his rater had been incapable of rendering an objective rating due to his use of controlled substances, presumably that incapacity would have surfaced in OERs other than the applicant’s own. The applicant provides no evidence that
his rater was so handicapped that other officers suffered because of the rater’s “inability to soundly rate.” In addition, he provides no evidence from his senior rater to the effect that the senior rater noticed an impairment of the rater’s judgment or capacity, either medically or administratively. The applicant provided a rebuttal to his senior rater at the time and there is no evidence that his senior rater acknowledged that there was some justice in the applicant’s rebuttal. Any statement from the senior rater taken 8 years after the fact would not be as convincing as a more timely acknowledgment.

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____ __tfb___ __jtm___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001059647
SUFFIX
RECON
DATE BOARDED	20010816
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.