MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 6 June 2002
         DOCKET NUMBER: AR2001064525

         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. Robert J. McGowan		Analyst

The following members, a quorum, were present:

Mr. Stanley Kelley		Chairperson
Mr. John T. Meixell		Member
Mr. Thomas E. O'Shaughnessy, Jr.		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 an Officer Evaluation Report (OER) for the period 970514-970930 be corrected by deleting the senior rater (SR) comment “Promote when eligible . . . “ and replacing it with “Promote now to LTC . . ..”

APPLICANT STATES: In effect, that he was not selected for promotion to lieutenant colonel (LTC) because the above comment was interpreted as “do not promote” by the promotion selection boards. He contends that the phrase “promote when eligible” is a narrative gimmick; that it is inconsistent with the SR’s top block potential evaluation. He believes that the report should have been referred to him as an adverse report. In support of his application, he provides a memorandum to this Board, a statement from his SR supporting his appeal, a statement from his rater supporting his appeal, a copy of the Officer Special Review Board’s (OSRB) denial of a previous appeal, and various other related documents.

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

He is a major. He was not selected for promotion by the 1999 and 2000 LTC promotion boards, but was selected for continuation on active duty. He received the subject OER while he was serving as a battalion operations officer (S-3) with the 3rd Battalion, 67th Armor Regiment, 4th Infantry Division, Fort Hood, Texas.

The subject report gave the applicant the highest marks (“1”) for professional competence and the rater’s comments relative to professional ethics are positive. The rater indicated that the applicant’s performance always exceeded requirements and that he should be promoted ahead of his contemporaries. The rater’s narrative comments are praiseworthy and indicate that the applicant must be promoted to lieutenant colonel and that he would be a strong battalion commander.

The SR placed the applicant in the top block for potential evaluation. The SR’s profile reflected that he rated seven majors and placed all seven in the top block. The SR’s narrative comments are mildly positive, stating that the applicant demonstrated “quiet competence . . . tactical prowess . . . [and a] flair for scheduling and resource timing.” He concluded by stating, “Great potential. Promote when eligible and select for battalion command.”

In formulating an appeal of the subject OER to the OSRB, the applicant contacted the SR and stated that his “Promote when eligible” comment was viewed as negative and had caused his failure to be promoted. The SR stated that it was never his intent to portray the applicant in a negative fashion. All he meant when he said “Promote when eligible” was that the applicant should be selected for lieutenant colonel in the primary promotion zone. He strongly supported the applicant’s appeal and recommended that his words be changed to “Promote to LTC and select for battalion command.”
The applicant appealed the subject OER to the OSRB. The OSRB contacted the SR who stated that he had no new information regarding the applicant’s duty performance, but reiterated that the applicant was a good officer who should have been promoted in due course. He added that he saw nothing negative or adverse in the subject report.

On 27 December 2000, the OSRB concluded its review of the applicant’s appeal and issued a case summary. The OSRB stated that the applicant’s contention that the SR’s comment [“Promote when eligible”] was inconsistent with the rest of the OER could not be proven. The OSRB concluded that the applicant had not provided clear, convincing evidence to justify changing the subject OER.

The following is a record of the applicant's available OER's and School Academic Evaluation Reports. Note that for the DA Form 67-8 the rating system depicted below has six entries: the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant. For DA Form 67-9, the first entry is derived from the rater performance and potential evaluation (Part Va), with I the highest, III the lowest, and IV representing "Other." The second entry indicates the senior rater's evaluation of promotion potential with I the highest, III the lowest, and IV representing "Other." The last entry represents the senior rater's evaluation of potential compared to other officers of the same rank as either ACOM (above center-of-mass), center-of-mass (COM), or below center-of-mass (BCOM):

                  Score/
Period Rater/SR Profile Type of Report

Sep 83-Feb 84    Achieved Standards       Academic (OBC)
Feb 84-Aug 84    I/I/Top2/0/1/1            Change of Duty
Aug 84-Apr 85    I/I/Top2/4/11/10         Change of Duty
Apr 85-Feb 86    I/I/Top/0/11/41  RA Appointment
Feb 86-May 86    I/I/Top/0/22/46  Change of Duty
May 86-Sep 86    I/I/Top2/1/0/0            Permanent Change of Station (PCS)
Sep 86-Mar 87    Achieved Standard        Academic Evaluation Report (AER)
Mar 87-Apr 87    Achieved Standard        AER
Apr 87-Aug 87    Achieved Standard        AER
Aug 87-Mar 88    Achieved Standard        AER
Mar 88-Aug 88    I/I/Top2/1/3/1            Change of Duty
Jul 88-Jun 89    I/I/Top2/17/34/20        Change of Duty
Jun 89-Jun 90    I/I/Top/0/3/21            Annual
June 90-Sep 90   I/I/Top/0/8/27            PCS
Sep 90-Aug 91    Achieved Standard        Civilian AER
Sep91-Dec 91     Achieved Standard        AER
Dec 91-May 92    I/I/Top2/2/4/0            Change of Rater
June 92-Dec 92   I/I/Top/0/6/8             SR Option
Dec 92-May 93    I/I/Top/0/6/10            Change of Rater
May 93-May 94    I/I/Top/0/12/15  Annual
May 94-Mar 95    I/I/Top/0/9/5             SR Option
Mar 95-Jun 95    I/I/Top/0/12/0            Change of Rater
Jul 92-Jun 96    Achieved Standard        AER
Jun 95-Jun 96    I/I/Top/0/18/3            PCS
Jun 96-May 97    I/I/Top/0/21/0            SR Option
May 97-Sep 97    I/I/Top/0/7/0             Close-out SUBJECT OER
Oct 97-Jun 98    I/I/COM           PCS
Jun 98-Jun 99    I/I/COM           Annual
Jun 99-Jun 00    I/I/ACOM                  Annual

Army Regulation 623-105, then in effect, established the policies and procedures for the OER system. Paragraphs 5-32 and 9-2 provided 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 stated 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.

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's contention that the subject OER is the discriminator in his record that caused his nonselection for promotion to lieutenant colonel is not persuasive. The Board does not believe one three-word phrase -- "Promote when eligible" -- over a career spanning 19 years could be the single cause of his

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failure to be promoted. A review of the applicant's DA Forms 67-8 and 67-9 shows 5 clearly above center-of mass reports, 10 center-of-mass reports, 3 reports that are in the upper half of a dual center-of-mass profile, and 2 reports with immature profiles. Taken as a whole, the applicant is a center-of-mass officer.

3. The Board notes that when the OSRB contacted the senior rater during the applicant's appeal, the senior rater stated that he felt the applicant should be promoted to lieutenant colonel when eligible, which is exactly what he said in his narrative comment. The contested report appears, therefore, to represent a fair, objective and valid appraisal of the applicant's demonstrated performance and potential during the period in question; there is no basis for making the requested change.

4. The Board views that senior rater's 11 February 2000 memorandum of support for the applicant's OER appeal as retrospective thinking written after the applicant was nonselected for promotion and with the thought in mind that the phrase "Promote when eligible" was the cause of that nonselection. AR 623-105 states, in pertinent part, that retrospective thinking, or second thoughts, will not serve as a basis for altering or deleting an evaluation.

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

__sk____ __jtm___ __teo___ DENY APPLICATION

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

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INDEX

CASE ID	AR2001064525
SUFFIX
RECON
DATE BOARDED	20020606
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.0100.0007
2.
3.
4.
5.
6.