MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 May 2002
         DOCKET NUMBER: AR2001063809

         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. David E. Weightman		Senior Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor, Jr.		Chairperson
Mr. John P. Infante		Member
Ms. Paula Mokulis		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, change of the Senior Rater's (SR) rating in Part VIIa. (SR's evaluation of promotion potential), and removal of the last two sentences from Part VIIc. (SR's comments on performance/potential), concerning his Officer Evaluation Report (OER) covering the period 1 October 1997 through 30 September 1998, and promotion reconsideration for colonel.

APPLICANT STATES: He received an inaccurate OER from a SR who committed a significant error in judgment concerning his physical disability, and which caused his non-selection to colonel. The SR's rating for promotion potential of "FULLY QUALIFIED" in Part VIIa., places him in the bottom five percent of all Medical Corps (MC) officers. The SR should have rated him as "BEST QUALIFIED", the top rating, based on his potential for promotion to colonel. The SR used poor judgment by stating, "assign to future positions consistent with his physical disability. Promote as a due course officer." These statements are viewed by the Total Army Personnel Command (PERSCOM) as a "red flag" for promotion and potentially a good case for appeal. He received no oral or written counseling. His performance during this period does not justify this rating as evidenced by OER counseling, his rating officer (RO), and third party statements. The Army G-1 Officer Special Review Board (OSRB) returned his appeal without action, stating it was unacceptable for adjudication. In the prior report (through 30 September 1997) the same SR rated him as top block for potential, and best qualified in the subsequent report (through 14 June 1999) (sic), stating "select for promotion to Colonel now." (sic) During the rating period he performed all of his duty requirements and passed his alternate Army Physical Fitness Tests (APFT) as prescribed by his permanent profile. His RO gave him maximum ratings. His military personnel office and the Judge Advocate advised him at his assignment at Fort Knox, Kentucky, to not initiate a commander’s appeal or Equal Opportunity or Inspector General complaint until his next year’s evaluation because there were no other instances of bias against him to indicate a trend. Since receiving the subsequent report he was then advised by both a PERSCOM official and the Judge Advocate General's office at the Walter Reed Army Medical Center to appeal the OER directly to the PERSCOM and now to the Army Board for Correction of Military Records.

In support of his request, the applicant submits his own statement (14 September 2001); a statement from his RO (8 February 2001); a medical statement
(20 February 2001); four statements from others (27 November 2000 to 16 April 2001); a copy of his OER appeal (12 June 2001); the OSRB's denial to take any action on his appeal (24 July 2001); copies of the disputed OER and the prior and subsequent OER's; a copy of his OER Support Form for the disputed report; his own memorandum (9 November 2000) concerning his conversation with the SR; a copy of his physical profile approved on 22 July 1994; and a copy of approval of his Physical Evaluation Board Action finding him fit for active military service (7 October 1994).

The applicant's own statement details his case, including his medical condition.

The RO's statement shows he rated the applicant in Part Va. in the top block for promotion potential as "Outstanding Performance, Must Promote", and stated in Part Vb., for specific aspects of performance and promotion potential, "Promote as soon as possible to reach his full potential." The RO reaffirmed his evaluation and comments made at the time.

A colonel, MC, Walter Reed Army Medical Center – Rheumatology, completed the medical statement. He indicated the applicant has received care for rheumatoid arthritis since 1987, and that during the rating period in question, the applicant was fully capable, both mentally and physically, of carrying out the duties and responsibilities within his assigned specialty. In July 1994 he was given a permanent medical profile (233111) and he was found fit for active military service. He stated that the applicant has great potential in the MC. While his assignment limitation condition excludes military units (TO&E) and deployment, he should not be limited to receive greater responsibilities and promotion.

The four statements are from MC officers who show the applicant has performed his various duties in a superior manner, accrued further qualifications for his specialties, and has great potential for promotion and assignment to positions with greater responsibility. They concurred with his application.

The applicant's appeal of the disputed OER to the OSRB was based on substantive inaccuracy, specifically based on a significant error in judgment of his performance and potential because of his physical disability of rheumatoid arthritis. This resulted in receiving a rating from his SR in item VIIa. of "FULLY QUALIFIED", evidenced by the last two sentences in item VIIc. as "[The applicant] has great potential and should be assigned to future positions that are compatible with his physical ability. Promote as a due course officer." He stated he always passed his alternate APFTs and he was able to perform all of his job assignments at three different duty stations since receiving his profile in 1994; and that the SR, after stating he would recommend him for a fitness evaluation, subsequently decided not to initiate the fitness evaluation.

The OSRB President advised the applicant that after a review of his appeal, that under Army Regulation 623-105 (The OER System) it was determined that he did not provide sufficient evidence of a clear and convincing manner for consideration. He had not shown error or bias, or that the SR did not give him a fair rating, and his evidence did not invalidate any portion of the contested OER. He stated the burden of proof for the contentions presented rested squarely with the applicant, and that "clear and convincing evidence must be strong and compelling in nature, not merely proof of the possibility of administrative error or factual inaccuracy."
The applicant's memorandum concerning his conversation with the SR states he advised the SR that he was not selected for promotion to colonel and that the most serious deficiency in his record was the disputed OER, and that his MC Branch official told him the fully qualified rating put him in the bottom five percent of all officers. He wrote that the SR stated he stood by his rating. He stated he advised the SR that the RO gave him an outstanding rating. He stated the SR stated that he did not object to his appeal of the OER and that when he saw the appeal he may put in a good word for him and that his most recent OER's were the most important for board consideration.

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

The applicant was born on 14 April 1959. He graduated from Johns Hopkins University, Baltimore, MD, with a BA degree on 29 May 1981 and from the George Washington University, Washington, DC, on 24 May 1985 with a Doctor of Medicine degree.

On 3 June 1985, the applicant was appointed as a Reserve Captain, MC officer, and entered active duty. He was promoted to major on 22 June 1991 and to lieutenant colonel on 22 June 1997, and he was appointed in the Regular Army on 23 June 1997. His records were subsequently corrected to show he was promoted to major on 22 June 1990 and to lieutenant colonel on 22 June 1996.

The applicant was assigned a permanent physical profile of 2/3/3/1/1/1 on
22 July 1994. The medical condition was "Systemic sclerosis manifested by scleroderma, Nodular erosive inflammatory arthritis, recurrent cutaneous necrotizing vasculitis, E. coli septic knee, hypertension. His assignment limitations were no pushups and alternate physical training/test of biking, swimming or walking. He was found qualified for retention on active duty. In addition to the foregoing, the medical statement submitted with his application indicates that his assignment limitation condition excluded assignment to TO&E units and deployment, with no limitation to greater responsibility in his specialty or promotion potential.

The contested OER, covering the period 1 October 1997 through 30 September 1998, was completed on 23 November 1998 and a copy was forwarded to him on 24 November 1998. It was an annual report for his duties as Chief, Preventive Medicine Services, at the Army Medical Department Activity (MEDDAC). It was not an adverse report and it was not referred to him as such, and it was filed in his official records on 30 November 1998.

This OER, the DA Form 67-9 series, is the first report the applicant received under the updated regulatory system procedures. The previous series was DA Form 67-8.

The RO was a lieutenant colonel (Promotable), MC Branch, serving as the Deputy Commander, Clinical Services, and gave the applicant a maximum rating for his performance and potential in Part IV and V, respectively.

The SR was a colonel, MC Branch, serving as the Commander, who rated nine lieutenant colonels, and rated the applicant in the second block as "FULLY QUALIFIED" in Part VIIa., and within the "CENTER OF MASS" (COM), in Part VIIb. He provided appropriate comments concerning performance and potential in Part VIIc., including a "highly motivated military officer who has performed effectively during this period…..has great potential and should be assigned to future positions that are compatible with his physical ability. Promote as a due course officer." The Departmental profile for this report shows the applicant within the COM, with a total of eight ratings by this SR.

The OER Support Form prepared by the applicant shows his rating chain counseled him on four occasions within the rating period. The RO initialed the support form accordingly but made no additional comment. The SR initialed the support form accordingly. A comment is not required from the SR. The SR indicated he considered the support form when completing his rating of the applicant.

The applicant did not request a Commander's Inquiry concerning the contested report.

The previous report referred to by the applicant covered the period 13 June 1997 through 30 September 1997. It was a 2-month report since the applicant was on leave and travel status during the period for approximately 2 months. It was a DA Form 67-8 series OER and it was a closeout evaluation for this series. The rating chain and duties for this OER were the same as for the contested OER. It was not an adverse report and not contested by the applicant. The RO gave the applicant a maximum rating. The SR rated the applicant in the top block for the potential evaluation, a COM rating. The SR rated five other lieutenant colonels in the top block. The Departmental rating profile was 6/0/0/0/0/0/0/0/0, with all rated as COM.

The subsequent report referred to by the applicant covered the period 1 October 1988 through 27 June 1999. It was a 9-month change of rater report. The rating chain and duties for this OER were the same as for the contested OER. It was not an adverse report and not contested by the applicant. The RO gave the applicant a maximum rating. The SR rated the applicant in the top block, as "BEST QUALIFIED", for the promotion potential evaluation, with appropriate comments, including "LTC [applicant] should be promoted with his peers and assigned to teaching and/or staff positions where he can continue to demonstrate his great potential as an AMEDD officer." He designated a COM rating for the applicant. The Departmental profile designated the report as a COM rating.
The applicant has been twice considered for promotion to colonel (2000 and 2001) but he was not recommended. His records were not shown to contain material error when reviewed by the promotion boards, and the boards did not divulge the reason(s) for not recommending him for promotion. The recommended rates for promotion to colonel by those boards, including first-time and previously considered officers, was 36.3 and 44.3 percent, respectively.

The applicant appealed the contested report on 12 June 2001 to the OSRB. On 24 July 2001 the applicant was notified that his appeal was returned without action by the OSRB. It was determined that he did not provide sufficient evidence of a clear and convincing manner for consideration.

With the exception of one second block below COM rating for his first OER as a major, the applicant's OER history for major and lieutenant colonel shows that he received all first and second block COM ratings from all of his SR's.

Army Regulation 623-105 establishes the policies and procedures for the OER system. It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. It provides that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed 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. The 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.

The regulation provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation. Commanders are required to look into the matter and may then conduct an official inquiry into the matters. The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.” It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

Army Regulation 600-8-29 prescribes the policies and procedures for promotion of officers on the active duty list and provides an equitable system for all officers. This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration due to administrative error, the fact that action by a previous board was contrary to law, or because material error 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 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.

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 applicant is not entitled to a change of the SR's promotion potential rating, or to removal of the last two sentences from the SR's comments on his performance/potential, concerning the contested OER covering the period
1 October 1997 through 30 September 1998. He is also not entitled to promotion reconsideration for colonel.

3. The applicant has not shown bias on the part of the SR, or that the SR did not give him a fair and accurate evaluation. The judgment referred to by the applicant does not show error or that the comments were not true or applicable. The applicant has a physical profile, limiting his duties and assignment. The SR's comments do not show harm or that he painted a negative red flag on his record. The applicant's allegations are not supported by his application. The Board notes the applicant's assertion that the SR stated in the OER subsequent to the contested OER, "select for promotion to Colonel now" is a misquote. The SR stated in that OER, "LTC [applicant] should be promoted with his peers and assigned to teaching and/or staff positions where he can continue to demonstrate his great potential as an AMEDD officer."

4. The SR, as in all evaluations, must honestly evaluate his rated officer's performance and potential, for the benefit of the Army as well as the rated officer, and which may change from period to period. The rating has not been shown erroneous, and based on the applicant's inclusion of the telephone conversation he had with the SR, it was confirmed.


5. The applicant has not overcome the presumption of regularity as prescribed by pertinent regulations, that the OER was prepared by the properly designated rating officials, and represents the considered opinion and objective judgment of the rating officials at the time of preparation. He has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy. It is also noted that for various reasons the applicant did not request a Commander's Inquiry at the time, which may have supported his cause prior to finalization of the report, but which action may not now be utilized.

6. The letters of support provided by the applicant have been noted, and while they show he is an excellent officer, they do not show an unfair or inaccurate evaluation in this case.

7. Based on the foregoing, the applicant is not entitled to promotion reconsideration. Also, it appears his records did not contain material error when reviewed by the promotion boards, which does not mandate promotion reconsideration. In this regard, the Board does not dispute that he may have a competitive record, however, it notes that, as shown in this case, promotion is not automatic based on qualifications alone, but includes a competitive process of a promotion board determining an individual's potential and ability to perform at the higher grade, and the needs of the service. Particularly pertinent in this case are the 33.3 and 44.3 percent selection rates for promotion to colonel; and that many COM officers will not be recommended for promotion.

8. 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

_pm____ _rvo____ _jpl__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001063809
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20020530
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111
2.	131
3.
4.
5.
6.