PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 28 January 2003
         DOCKET NUMBER: AR2002076035


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Ms. Karol A. Kennedy		Chairperson
Mr. Melvin H. Meyer		Member
Ms. Tracey L. Pinson		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests that his date of rank (DOR) for promotion to the rank of major be adjusted to a date equal to his peers and that his year group (YG) be changed from YG 90 to YG 89.

3. The applicant states, in effect, that he received an officer evaluation report (OER) in 1993 that he knew was incorrect; however, he did not believe it to be adverse so he did not appeal it. However, a few weeks before he was to be considered for the first time for promotion to the rank of major, his career advisors informed him that the OER could adversely affect his selection for promotion. Meanwhile, he was not selected for promotion to the rank of major and submitted an appeal of the OER, which resulted in it being removed from his Official Military Personnel File (OMPF). However, he was not granted promotion reconsideration by the Officer Special Review Board (OSRB). He further states that he was selected by the next promotion board; however, he is now 1 year behind his peers. He goes on to state that he has appealed to the OSRB twice and both times his appeal has been denied. He also explains that his appeal to the Board has been delayed by the attack on the Pentagon in which he was injured and his files were destroyed.

4. The applicant’s military records show that he was commissioned as a United States Army Reserve (USAR) second lieutenant on 25 May 1988. He was ordered to active duty in February 1989 and was granted a Regular Army commission in March 1989. He was promoted to the rank of captain on 1 May 1993.

5. On 9 November 1993, the applicant received a Permanent Change of Station (PCS) OER covering the period of 30 April 1993 through 11 October 1993. His rater was a captain and his senior rater (SR) was a major. His SR placed him in the second block of his SR profile (Potential Evaluation).

6. On 21 January 1994, the applicant received another OER covering the same period. However, his first SR was now the rater and another officer (a lieutenant colonel) was his SR. The SR placed him in the second block of his SR profile, which placed the applicant on the bottom half of a dual center of mass (immature) profile.

7. The Fiscal Year (FY) 1999 Major, Army Competitive Category, promotion selection board convened on 20 April 1999 and adjourned on 19 May 1999. The applicant was in the primary zone (PZ) of consideration and was not selected for promotion. The overall selection rate in the PZ for Special Forces (SF) officers was 80.4%.

8. On 12 May 1999, while serving as a SF captain, the applicant submitted an appeal of the OER to the OSRB, in which he requested that the SR profile of the OER ending on 11 October 1993, be deleted or removed in its entirety from his OMPF because he had never worked for the SR. As part of his appeal, he submitted a statement from the SR verifying that the report had been prepared after his departure and that he had never actually worked for the SR. However, because the rating scheme did not conform to regulatory guidelines, the rating scheme and report were changed after the fact.

9. On 30 July 1999, the OSRB approved his appeal and directed that the OER be deleted from his OMPF and the period declared non-rated time.

10. On 5 November 1999, he submitted a request for promotion reconsideration based on the correction of his OMPF, in which the OER had been deleted. The OSRB opined, in effect, that the applicant had not exercised reasonable diligence in correcting his record before the promotion selection board convened and denied his request for reconsideration on 23 November 1999.

11. The applicant again submitted a request for reconsideration on 14 February 2000, with the support of his chain of command, and in his request, explained that he traveled to Alexandria, Virginia, on 26 March 1999 (Provided documentation of permissive temporary duty (TDY) approved by command), to take his official photograph and to meet with his assignment officers. He further explained that he was advised that the OER would be considered a below center of mass report and would place him at risk of non-selection. He further explained that he was receiving conflicting guidance on how the report was viewed by officials at the Total Army Personnel Command (PERSCOM) and his chain of command, so he appealed the report before he was first notified that he had been non-selected. The OSRB opined, in effect, that the applicant had failed to show that the promotion board saw an inaccurate evaluation of his demonstrated performance/potential for the period of the contested report. The OSRB also opined that it was the individual’s responsibility to ensure his records were accurate and that his attempts to blame his mentors and career advisors for his failure to take action, was not considered clear and compelling evidence to warrant reconsideration by a Special Selection Board (SSB). The OSRB again denied his request on 10 April 2000.

12. The applicant was selected for promotion to the rank of major by the FY 2000 selection board and was promoted on 6 October 2000. He was reassigned to the Pentagon in December 2000 and was injured during the attack on the Pentagon on 11 September 2001.

13. A review of the applicant’s OER history shows that he has always been rated as a center of mass or above center of mass officer.

14. Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraphs 5-32 and 9-2 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation. Requests that an accepted OER be altered, withdrawn or replaced will not be honored. An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

15. Paragraph 9-7 of that regulation also 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 error or inaccuracy is warranted.

16. Army Regulation 600-8-29 provides the policies and procedures governing the conduct of a SSB. It states, in pertinent part, that SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. SSBs may be convened to consider or reconsider an officer for promotion when it is discovered that the board that considered an officer from in or above the zone of promotion did not have before it some material information. An officer will not be reconsidered for promotion by an SSB when it is determined that an administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered or corrected the error.

CONCLUSIONS:

1. While the Board will not attempt to assess how a selection board views the SR profile that was on the applicant’s contested OER, the fact remains that his appeal was approved and the report was removed from his OMPF in its entirety after he had been nonselected for promotion in the primary zone of consideration.

2. Notwithstanding the decision of the OSRB that the applicant did not exercise reasonable diligence to correct his record before he was non-selected, the Board finds that his explanation and supporting evidence of what occurred in his case to be a reasonable and believable explanation of the events that occurred.

3. However, the Board will not attempt to second-guess or circumvent the promotion board selection process. Therefore, it would be inherently unfair for the Board to back-date his promotion based on the removal of the contested OER.

4. The Board does find however, that in order for the applicant to be treated fairly in this matter and to remove any doubt, his records should be considered (as corrected) by a SSB for promotion reconsideration under the same criteria as they were considered by the FY99 board. This is especially true given the percentage of SF officers that were selected in the primary zone by that board. In the event that he is selected by the SSB for promotion, his DOR will be adjusted accordingly with entitlement to all back pay and allowances.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration to major under the criteria followed by the FY99 board that previously reviewed the contested OER.

2. That if he is selected for promotion, that his DOR and effective date of promotion be adjusted accordingly, with entitlement to all back pay and allowances.

3. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

__kak___ ___mm__ ___tp ___ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Karol A. Kennedy____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002076035
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/28
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	GRANT PARTIAL
REVIEW AUTHORITY
ISSUES 1. 311	131.0100/SSB
2.
3.
4.
5.
6.