MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 29 August 2002
         DOCKET NUMBER: AR2001064328

         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:

Ms. Margaret K. Patterson		Chairperson
Mr. Christopher J. Prosser		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 his Officer Evaluation Report (OER) for the period 5 December 1985 through 4 December 1986 be corrected by deleting the senior rater portion, that he be reconsidered for promotion under the appropriate criteria for captain and subsequent promotions through lieutenant colonel, and that he be authorized back pay.

APPLICANT STATES: In effect, he defers to his counsel.

COUNSEL CONTENDS: The applicant was non-selected for promotion by the Fiscal Year 2001 (FY01) lieutenant colonel selection board. An overall selection rate of 75.4 percent and an Acquisition Corps [applicant's branch] selection rate of 74.4 percent means that the applicant fell in the bottom 25 percent of all majors in the primary zone.

A review of his record reveals no discriminator to account for this, except for the appealed OER. That OER caused the applicant's delayed promotion to captain, which occurred a full year after his peers.

The senior rater's evaluation is "a case of patent inconsistency." The senior rater rated the applicant as "the tenth of eleven Captains. In fact the Senior Rater placed the Applicant well below the center of mass."

Counsel argues that "contrary to Part VIIa [the rating profile], Part VIIb. [the remarks] says: Lieutenant [the applicant] has done an excellent job. He has developed his flying skills and matured professionally. He has learned maintenance management and how to develop training problems. Possesses the potential to become a first rate commissioned officer. Promote to Captain now."

Counsel finds the rating and the remarks inconsistent. "We are left wondering if the 'X' was placed in the wrong box. What is for certain is that the below center of mass 'X' is not consistent with the narrative."

Counsel further argues that the applicant has no administrative relief available, in effect, because the Officer Special Review Board (OSRB) uses a five-year deadline. He contends that the OSRB disregards Detweiler, which counsel considers to be precedential case law because there should be no time limit on injustice.

While admitting "that it would have been advisable to address this matter years ago" counsel contends that this is a "palpable injustice. Further Detweiler specifically eliminates laches or a delay as a basis for rejecting a legitimately raised issue."

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

The applicant, a 1984 graduate of the United States Military Academy, completed the Officer Rotary Wing Aviator Course in December 1985. He was promoted to first lieutenant with a date of rank of 23 November 1985, and to captain with a date of rank of 1 March 1989. He was promoted to major with a date of rank of 1 May 1996.

His 16 available OERs are almost exclusively top block and are evenly divided between center of mass and above center of mass ratings.

The applicant's assignments included attack helicopter platoon leader, attack helicopter battalion intelligence officer and headquarters company commander for an attack helicopter battalion.

He was assigned to the Total Army Personnel Command as the executive officer of his branch assignment section when he was promoted to major. He then had two tours of duty as an assistant program manager and in August 2000 he was assigned to the Student Detachment in Richmond, Virginia.

The applicant's awards include the Bronze Star Medal with Oak Leaf Cluster, the Air Medal, the Meritorious Service Medal with Oak Leaf Cluster and the Army Commendation Medal with Oak Leaf Cluster.

He was considered but not selected by the FY01 lieutenant colonel promotion selection board. The reason(s) was not divulged.

The senior rater profile for the challenged 1986 OER is 2/7/1*/0/1/0/0/0/0 and the senior rater comments are as quoted above by counsel. There is no indication that the applicant appealed. [The * indicates the applicant in the profile.]

Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system. It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. 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 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.

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Paragraph 3-10 of Army Regulation 623-105 states that the senior rater is the senior rating official in the rating chain. The senior rater uses his or her position and experience to evaluate the rated officer from a broad organizational perspective. His or her evaluation is the link between the day-to-day observation of the rated officer’s performance by the rater and intermediate rater and the longer term evaluation of the rated officer’s potential by Department of the Army selection boards.

Paragraph 4-27 of Army Regulation 623-105 states the requirements for referred OER’s. The regulation requires that the senior rater (SR) will refer an OER to the rated officer when the following conditions exist: 1) a relief for cause report is submitted; 2) any report with negative remarks about the rated officer’s professional ethics; 3) any report with a rating of “4” or “5” in any of the 14 attributes; 4) any report resulting in a performance evaluation of “Often failed requirements” or “Usually failed requirements”; 5) any report with a potential evaluation of “Do not promote” or narrative comments by any rating official to that effect; 6) any report with a potential evaluation in Part Vd of “Other” where the required explanation has derogatory information; 7) any report with a senior rater potential evaluation in any one of the bottom three blocks in Part VIIa; 8) any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career; 9) any report with an entry of “Fail” in Part IVa, item 3, indicating noncompliance with Army Regulation 350-15; or an entry of “NO” in Part IVa, item 12 indicating noncompliance with Army Regulation 600-9.

Paragraph 6-6 contains the policies for submitting an appeal to an OER. It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

Paragraph 6-7 contains guidance on the timeliness of OER appeal submissions and states, in pertinent part, that 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 on all reports prepared prior to 1 October 1997 and failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.

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Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It states, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board. The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error. Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

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 to show that the challenged OER had any causative relationship to the applicant's nonselection for promotion to lieutenant colonel. That such is the case is simply speculation.

2. It is also speculation to conclude that this OER caused a delay in the applicant's selection to captain. Furthermore, It is illogical to make such assumptions while failing to account for the fact that the offending OER apparently had no adverse effect on the applicant's selection for promotion to major.

3. Counsel contends that the contested OER caused the applicant to be selected late for captain. However, no explanation is offered to account for the fact that the OER was not challenged until it supposedly resulted in nonselection for lieutenant colonel. Neither is there any explanation for the apparent inconsistency in the fact that this OER had no such adverse effect upon the applicant's selection for promotion to major. The argument represents a scenario that is fundamentally illogical.
4. Although the senior rater's placement of the applicant below the center of mass may be considered is inconsistent with the complimentary remarks and with the recommendation to "promote to Captain now" there is no available evidence to indicate which extreme best reflects the considered opinion of the senior rater.

5. Clearly the requested removal of the senior rater portion of the 1986 OER should not be granted. There is neither clear and convincing evidence sufficient to show that the presumption of regularity, referred to in paragraph 6-6 of Army Regulation 623-105, should not be applied; nor any evidence or argument that the applicant, by exercising reasonable care, could not have previously detected and corrected the error.

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 and counsel have failed to submit evidence that would satisfy this requirement

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

_MKP___ __CJP __ __HBO__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064328
SUFFIX
RECON
DATE BOARDED	20020829
TYPE OF DISCHARGE	)
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(NC
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.