MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 April 2002
         DOCKET NUMBER: AR2001060047

         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. W. W. Osborn. Jr.		Analyst

The following members, a quorum, were present:

Mr. Arthur A. Omartian		Chairperson
Mr. Roger W. Able		Member
Ms. Karen Y. Fletcher		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: In effect, that his record be reconstituted to include two officer evaluation reports (OERs) that were not timely completed and that he be reconsidered for promotion to major.

APPLICANT STATES: His record was incomplete when he was considered for promotion. The Army Reserve Personnel Command informed him that “the promotion package wasn’t opened because it was received too late even though it was postmarked by the date relate as the cutoff date.” He “went to great lengths to get it in on time even though I had just returned from Command and General Staff College.” His unit advisor told him, falsely, that he had been promoted. He was informed that he was not selected because his OERs for his tour as Commander, Headquarters and Headquarters Company (HHC), 917^th Support Group weren’t in his promotion package. “The Deputy Commander, Lieutenant Colonel G____ and the Group Commander, Colonel W____ refused to do them.…[I]only received it after a congressional investigation and consultation with attorneys. It came two years and nine months late and I am still owed a Change of rater Officer Evaluation report…My statement with the OER and the full congressional investigation should relate these men’s actions in
full.…Mr. G____ even threw in a retaliatory statement because he was forced to correct his negligence.…The whole chain of command violated Title VI of the Civil Rights Act. I was the only Company Commander at the 917^th Support Group that wasn’t given his OER on time even though I did the most to rebuild the headquarters company.…The Congressional investigation will be my evidence.…”

COUNSEL CONTENDS: Counsel concurs in the applicant's presentation and requests that all reasonable doubt be resolved in the applicant's favor.

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

He had enlisted service from 1976 to 1979, was released from active duty and transferred to the Army Reserve (USAR) in pay grade E-5. He was discharged with an honorable characterization of service in March 1982. He earned a Bachelor of Arts in classical studies from Ohio State University, was appointed a USAR second lieutenant on 24 August 1983 and completed the Armor Officer Basic Course in September 1984.

An OER for the period from July to December 1985 reported on the applicant’s performance as a battery executive officer. His rater quantified his professional performance with all1s (with 1 being high and 5 being low) and indicated that the applicant usually exceeded requirement and that he should be promoted with his contemporaries. The senior rater placed his potential in the 3^rd block, a Center of Mass (COM) rating.

From May 85 to June 86 he received all 1s, and was considered to always exceeded requirements. He was recommended for promotion with his contemporaries. His senior rater ranked him in the 3^rd Block as the sole ratee.

He was promoted to first lieutenant with an effective date of 31 August 1986 .

He received an OER for his performance of duty as assistant battery motor officer from December 1985 to July 1986. His rater indicated that his professional competence was characterized by 1s and 2s, that he met requirements and that he should be promoted with his contemporaries. His senior rater marked his potential in the 5^th Block, a below COM rating.

His performance as a training group staff officer was reported in an OER for the period of June 87 to June 88. His rater gave him 1s and 2s and indicated that he usually exceeded requirements and should be promoted with his contemporaries. The senior rater marked his potential in the 4^th Block in the bottom half of a dual COM rating.

A June 88 to June 89 OER again reported on his performance as training group staff officer. He received 1s and 2s, was considered to have met requirements and to be promo table with his contemporaries. His senior rater placed him in the 3^rd Block as the sole ratee.

On an OER for the period from June 1989 to June 1990 the applicant received predominately 1s, usually exceeded requirements, and promote with contemporaries ratings. The senior rater placed him in the 3^rd Block, at the COM.

On 25 September 1989 he was transferred from B Company, 1^st Battalion, 340^th Regimental Training Support Brigade, Aurora, Illinois to the 425^th Transportation Brigade, Fort Sheridan, Illinois.

He was promoted to captain with an effective date of rank of 30 August 1990.

His performance was rated in an OER for the period from June 1990 to April 1991. His rater quantified his professional competence with all 1s and indicated that he usually exceeded requirements. The rater noted that the applicant received excellent marks in his Transportation Officer Advanced Course but also noted that he had attended 36 of 44 scheduled assemblies. The rater indicated that the applicant should be promoted with his contemporaries . The senior rater marked him in the 3^rd Block in a COM rating.

In April 1991 the applicant was transferred at his own request from the 425^th Transportation Brigade, Fort Sheridan, Illinois to the 348^th Transportation Battalion, Houston, Texas.

An OER for the period from April 91 to April 92, reported on the applicant’s performance as a transportation battalion ammunition officer. His professional competence was characterized as 1s and 2s and his rater also indicated that the applicant met requirements and should be promoted with his contemporaries. The senior rater rated his potential in the 5^th Block, in the bottom half of a dual COM rating. The senior rater offered uncomplimentary comments such as “leadership qualities not developed,” will “not proceed without specific guidance” and “I do not recommend command until….“

On 2 June 1992 the applicant was transferred from the 348^th Transportation Battalion, Houston, Texas to the USAR Control Group (Reinforcement).

He received an academic evaluation report (AER) June 92 showing he achieved course standards in the First Phase-Ordnance Reserve Component (RC) Officer Advanced Course,

A March 93 AER shows he achieved course standards in the Third Phase-Ordnance RC Officer Advanced Course.

On 5 December 1995 the applicant was transferred from the USAR Control Group (Reinforcement) to 326^th Area Support Group, Kansas City, Kansas.

On 1 March 1996 he was transferred from HHC, 326^th Area Support Group to HHC, 917^th Support Group, Belton Missouri.

In February 1997 he received a completion certificate for the RC Combined Arms and Service Staff School (CAS3).

In a 4 March 1997 letter the applicant resigned, effective 1 April 1997, as company commander, HHC, 917^th Support Group and requested transfer to the Individual Ready Reserve (IRR). He stated that he would be unable to perform his duties because he was to start a Doctor of Osteopathy in September 1997.

A 6 June 1997 letter from the Total Army Personnel Command notified the applicant that he had been considered and non-selected for promotion to major. The letter noted that selection boards did not disclose the reasons for
non-selection.

A March 1999 letter from a Member of Congress forwarded to the Chief of Legislative Liaison a copy of a 30 November 1998 letter from the Headquarters, 917^th Support Group, which notified the applicant that the Headquarters was “not able to verify if OERs were ever completed” and that the command “is prepared to create or recreate” the OERs. Headquarters 917^th Support Group was ready to do this upon receipt of his OER support forms (DA Form 67-8-1). Attached to this letter is a copy of the applicant’s support form and a statement to the effect that he would not sign Part II (Verification of Face to Face Discussion) because the applicant had been unable to speak to his rater about it and that the rater had refused to speak to him about the support form on 1 March 1997. A registered mail receipt for mail addressed to Headquarters, 917^th Support Group is attached.

The Congressional correspondence was forwarded to the Board together with an Application for Correction of Military Records (DD Form 149) dated 22 November 1998. The application requested that he “be given two good OERs by LTC W____ and I be promoted to Major.” The Board received that application on 3 March 1999. The case was administratively closed because administrative relief was available. There was no evidence that the subject OER(s) had been completed or that the applicant had requested reconsideration through normal administrative channels. The Member of Congress was so advised.

The applicant was discharged from the USAR in July 1999.

The report of the Congressman’s investigation is not available.

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.

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration. Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the

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individual would have been recommended for promotion. The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except if an individual is not qualified for non-completion of required military schooling.

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. There is no available evidence that the subject OERs were ever completed or submitted for inclusion in the applicant’s OMPF.

2. Given that the applicant was not assigned to HHC, 917^th Support Group until 1 March 1996 and that he resigned his command position 1 April 1997, it is impossible to determine that more than one OER is actually missing, although the actual date of his assignment as company commander is not known. There is no evidence to show that the applicant ever submitted a timely OER support form or to substantiate that he was denied an opportunity to discuss his performance with his rater.

3. There is no substantiating evidence to show that the applicant’s “promotion package” was not opened or that it was submitted in a timely manner or that the absence of the subject OER(s) was the reason for his nonselection.

4. The Board notes that the applicant had no senior rater evaluations above the 3^rd Block and he never had an above COM rating. He had only two OER’s as a captain and in one of those his senior rater placed him in the 5^th Block and made nearly derogatory comments. Furthermore, the applicant resigned from his only command tour. Given these circumstances the Board concludes that the absence of the subject OER(s) was not a material error.

5. The applicant offered no supporting argument or evidence to demonstrate a violation of Title VI of the Civil Rights Act.

6. 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.

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7. 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

__AAO__ ___RWA _ ___KYF _ DENY APPLICATION

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

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INDEX permanently

CASE ID	AR2001060047
SUFFIX
RECON
DATE BOARDED	20020404
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.