MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 13 June 2002
         DOCKET NUMBER: AR2002069142

         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:

Ms. Celia L. Adolphi		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Donald P. Hupman, 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: In effect, correction of the Officer Evaluation Report (OER) covering the period 31 August 1998 through 30 August 1999, by changing Part Va., (performance and promotion potential) to show "OUTSTANDING PERFORMANCE, MUST PROMOTE" instead of "SATISFACTORY PERFORMANCE, PROMOTE", and promotion reconsideration for colonel based on this correction.

APPLICANT STATES: The typist completing the OER erroneously placed the X in the wrong box. It was only upon a later conversation with the rating officer (RO) that he realized the OER was in error. He submits a memorandum from the RO, dated 20 February 2001, in support of his request.

The RO states that he failed to notice that the OER clerk mistakenly checked the wrong block, and that he should have placed the X in the first block showing "OUTSTANDING PERFORMANCE, MUST PROMOTE."

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

While serving in the Reserve as a major, Military Policeman, he was promoted to lieutenant colonel effective 20 September 1995 as an Individual Mobilization Augmentee.

The contested OER, ending on 30 August 1999, was completed by the RO on
2 September 1999, and by the senior rater (SR) on 7 September 1999. The report was based on his duties of Training Director, while assigned to the 12^th Battalion (CAS3), 6^th Brigade (PD), 95^th Division (IT), Omaha, Nebraska. The applicant signed the report on 9 September 1999, verifying he had seen the OER Parts I-VII and that the administrative data was correct.

The RO, a lieutenant colonel serving as the battalion commander, gave the applicant a maximum character rating in Part IV. In Part V, performance and potential evaluation, he rated the applicant in the second block, "SATISFACTORY PERFORMANCE, PROMOTE." He provided appropriate comments, including, "LTC [applicant] should be offered the opportunity to serve in increasingly demanding staff assignments at brigade or division level, where his considerable potential for advancement can be best realized." The RO did not provide comment to identify any unique professional skills or areas of expertise of value to the Army that the applicant possessed, or potential career field for future service. Comments in this item are not mandatory.

The SR, a colonel serving as the brigade commander, rated the applicant as best qualified, with appropriate comments concerning his performance/potential. His comments included, "This is one of the best officers which I rate……Must promote to Colonel. Must select for battalion command. Must select for Army War College." He listed future assignments for the applicant as "Battalion Command, Brigade Command, RSC Staff."

The Departmental SR rating profile was center of mass (COM).

The applicant did not request a Commander's Inquiry (CI) concerning the OER or appeal the report at the time.

The contested OER was accepted by Departmental officials as a complete and accurate report and placed in his official file.

The applicant was considered but not selected for promotion to colonel by the 1999, 2000 and 2001 Reserve Component Selection Boards (RCSB's). The reasons for his non-selections were not divulged; however, it was not for education qualification reasons. His records were not shown as incomplete or containing material error when reviewed by the RCSB's.

His appeal of the OER, submitted on 20 February 2001, was denied by the Officer Special Review Board (OSRB) on 23 January 2002. OSRB officials concluded that the presumption of regularity applied to the report in its entirety. They also concluded "There is not sufficiently convincing evidence that the contested OER [is] substantively inaccurate, unjust and does not adequately portray the appellant's demonstrated performance and potential."

The applicant's OER history as a lieutenant colonel through 11 May 2001, shows his SR's rated him second block below COM on one occasion in 1997, top block above COM on one occasion in 1998, and top block COM on four occasions in 1996, 1999, 2000 and 2001.

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 also specifies that claims by rating officials that they did not intend to evaluate as they did will not necessarily serve as the basis for altering or withdrawing an evaluation report.
The regulation provides for requesting a CI 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 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 that 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, except where an individual is not qualified due to non-completion of required military schooling.

On 1 April 2002, an official of the Appeals Office, Army Reserve Personnel Command advised the Board that the applicant's previous OER appeal was denied. She also stated that he was informed he could submit more evidence for reconsideration or contact this Board. She further stated that he has not furnished additional evidence. The statement was provided to the applicant for his acknowledgment and possible rebuttal.

On 6 May 2002, in response to the foregoing statements, the applicant stated there is no additional supporting evidence for this appeal. He and the RO tried to contact the OER clerk for a statement but failed. He states that at the time he signed the OER he was shocked at the lower rating. Previous to this he received positive counseling. He concluded that since the RO was on temporary duty that he misunderstood his intentions. He assumed the lower rating was correct and instead of having the higher rating he was marked down. It was only after conversing with the RO at a later date did they both realize the lower rating was based on a typographical error. He further stated he has tried to provide all of the necessary facts and memorandum to appeal this administrative error.

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 view of the circumstances in this case, the applicant is not entitled to correction of the contested OER by changing Part Va. to show "OUTSTANDING PERFORMANCE, MUST PROMOTE" instead of "SATISFACTORY PERFORMANCE, PROMOTE", and promotion reconsideration for colonel based on this correction. He has not satisfactorily shown error or injustice for the relief he now requests.

2. The applicant's contentions have been noted; however, they are not sufficiently supported by his application or the evidence of record. He has not convinced the Board that he did not receive a proper rating from his RO. His RO also has not convinced the Board that an error occurred by the OER clerk when he typed the OER by placing the X in the wrong block. It appears to the Board that the RO's block rating and comments are appropriately related and show no obvious error. The Board also notes the applicant did not take advantage of his rights in this matter by requesting a CI or appealing the report to Departmental officials at the time. Instead, he waited until he was twice not selected for promotion to appeal to the OSRB. In this regard, it appears the arguments presented by the applicant and the RO are retrospective consideration, and that while the OER clerk may or may not have erred, the possible error should have been noticed by the applicant and RO upon their review and signature, and prior to this late date, and are not acceptable by the Board.

3. The Board further concludes that the applicant has failed to overcome the presumption that the contested report was administratively correct, 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, and that there is no reason to change Part Va, or to amend the report in any way.

4. The contested report appears to represent a fair, objective and valid appraisal of the applicant's demonstrated performance and potential during the period in question. He has not shown that it 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 CI at the time, which may have supported his cause prior to finalization of the report, but which action may not now be utilized.

5. Based on the preceding, the applicant is not entitled to 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 is that many COM officers will not be recommended for promotion.

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.

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

_dph____ _cla____ _bje____ DENY APPLICATION

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

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INDEX

CASE ID	AR2002069142
SUFFIX
RECON
DATE BOARDED	20020613
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111
2.	131
3.
4.
5.
6.