MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 30 January 2003
         DOCKET NUMBER: AR2002077378

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Christopher J. Prosser		Member
Ms. Yolanda Maldonado		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)

---

APPLICANT REQUESTS: The removal of two officer evaluation reports (OER) from his Official Military Personnel File (OMPF), reconsideration by two special selection boards (SSB) for promotion to the rank of lieutenant colonel (LTC) and if selected, all back pay and allowances.

APPLICANT STATES: In effect, that his OER’S for the periods of 12 September 1996 through 11 September 1997 and 12 September 1997 through 11 September 1998 were not completed until 25 August 1999, that his rating chain was improper because he was never assigned to the 88^th Regional Support Command (RSC), that none of the requirements of Army Regulation 623-105 were complied with, that he was twice non-selected for promotion to LTC because neither the OER’s or a statement of non-rated time was present in his records, that face-to face counseling never occurred with his rater, and that he was unjustly denied promotion reconsideration after it was determined that a material error did exist in the records when reviewed by the promotion selection boards. In support of his application he submits documents to show the efforts that were expended to obtain the OER’s before the promotion boards convened.

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

He initially enlisted in the Navy and served on active duty from 1968 to 1970, when he was honorably released from active duty (REFRAD) and transferred to the Naval Reserve. He was commissioned as a second lieutenant in the Air Force in 1978 and served on active duty until 31 May 1983, when he was REFRAD in the rank of first lieutenant (1LT) and was transferred to the Air Force Reserve.

He was appointed as a United States Army Reserve (USAR) 1LT in the Adjutant General Corps on 16 September 1985 and was assigned to a troop program unit (TPU) at Fort Benjamin Harrison (FBH), Indiana. On 18 September 1986, he transferred to the 123^rd Army Reserve Command (ARCOM) at FBH and was promoted to the rank of captain on the same day. He was promoted to the rank of major on 26 October 1992.

On 16 July 1995, the applicant submitted a Department of the Army Form 4187 (Personnel Action) requesting that he receive a reassignment to another TPU due to the inactivation/reorganization of his unit. His request was approved and on 28 July 1995, orders were published reassigning him to the 88^th Regional Support Group (RSG), at the exact same address as the 123^rd ARCOM at FBH.

The applicant received an OER covering the period from 12 September 1995 through 11 September 1996, evaluating him as a public affairs officer (PAO) for the 88^th RSG. His rater was the PAO for the 88^th Regional Support Command and his senior rater (SR) was the Chief of Staff for the 88^th RSG.

On 3 December 1998, the Army Reserve Personnel Command (ARPERSCOM) notified the applicant (20-year letter) that he had completed the required years of service to be eligible for retired pay at age 60 (12 September 2008).

On 28 August 1999, the applicant received two OERs covering the periods from 12 September 1996 through 11 September 1997 and 12 September 1997 through 11 September 1998. The rater on both reports was a lieutenant colonel, who was the Secretary of the General Staff (SGS) at the 88^th RSC. The SR on the first OER was the Chief of Staff of the RSC and the SR on the second report was the Chief of Staff of the RSG.

In the first OER, the rater indicated that the applicant met requirements and should be promoted with his contemporaries. The SR placed the applicant in the third block of his SR profile, which placed the applicant below center of mass (COM) in his profile. In the second OER, the rater gave the applicant the same ratings (COM) as before and the SR (different SR) placed the applicant in the second block of his SR profile, which placed the applicant in the COM of his profile.

In response to an inspector general (IG) action request in which the applicant requested assistance in obtaining his OERs, the IG officially indicated that on 9 September 1999, he spoke with the applicant and the applicant indicated that both OERs had made it to the ARPERSCOM and were profiled in time for his selection board. The IG determined that the root cause of the delay was the failure of the rater to adhere to the regulatory standards and the case was closed.

On 17 February 2000, in response to a request for promotion reconsideration by a SSB submitted by the applicant, the ARPERSCOM, Office of Promotions, Reserve Components, notified the applicant that although his record did contain a material error, a special review team had determined that the error was not significant enough to have made a difference in his promotion status. Accordingly, his request was denied.

On 24 May 2000, a memorandum was dispatched from the ARPERSCOM, through the 88^th RSC at Fort Snelling, Minnesota, to the applicant, which notified the applicant that he had been twice nonselected for promotion to LTC and must be separated from the service. Accordingly, he was transferred to the Retired Reserve effective 1 November 2000.

Meanwhile, on 1 September 2001, the applicant submitted an appeal to the Officer Special Review Board (OSRB) whereas he asserted the same issues as he asserts to this Board. The OSRB agreed that his OERs had been unjustly delayed by the rater; however, the applicant’s contention that the OERs were administratively and substantially inaccurate was not substantiated. The OSRB opined that the applicant had received due process by applying for a SSB and noted that while the first OER was not reviewed by the promotion selection board, both were reviewed during the second board that did not select him. The OSRB further opined that the applicant was properly rated by the correct officials (albeit very late) and the applicant had failed to provide convincing evidence to show that the reports did not accurately reflect his performance and potential. The OSRB denied his request.

A review of the supporting documents shows that rating schemes were approved in October 1997 and December 1998 that reflect that the applicant was evaluated by the proper officials. Those documents also confirm that his command was experiencing a problem in timely submission of evaluation reports, and that the applicant, in April 1998, began to attempt to have his OER completed. In an electronic mail (e-mail) dated 16 August 1998, the applicant indicated to the Reserve Command Deputy Chief of Staff for Personnel (DCSPER) that he had written a letter to the president of the LTC Board explaining that his rater still had not completed his OER and indicated that this was the first time since being assigned to the 88^th RSC, that he had not received his OER.

A review of the applicant’s OER history shows that he has received 15 Army OERs and that he has multiple ratings in the above center of mass, COM (majority) and below center of mass categories. The majority of his raters indicated that he usually exceeded requirements and recommended that he be promoted with his contemporaries.

On 2 February 1997, he received an OER covering the period from 12 September 1995 through 11 September 1996, a report that was also rendered late and was covering the period just before the contested periods covered by the contested OERs. The applicant’s rater, the PAO for the 88^th RSC (a LTC) indicated that the applicant usually met requirements and should be promoted with his contemporaries. The supporting comments indicate that the applicant worked hard to understand the public affairs expectations of the 88^th RSC. The SR, the RSG Director of Staff (a colonel) placed the applicant in the third block, below COM on his profile and indicated that the applicant performed in a fine fashion during a particularly difficult period as the 88^th RSG was emerging from what had been the 123^rd ARCOM. This SR subsequently gave the applicant his last OER and placed him in the COM of his profile.

A review of his records shows that while he was assigned to the RSG, all of his orders, of which there are many, were published by the RSC.

In the processing of this case, a staff member reviewed the official web site of the 88^th RSG and RSC at http://www.usarc.army.mil/88thrsc-rsg/. That site explains that the 88^th RSG is a forward command and control element of the 88^th RSC with its headquarters located at the FBH Reserve Complex in Indianapolis, Indiana. The 88^th RSC is located in Fort Snelling, Minnesota with geographic responsibilities that include Indiana, Ohio, Michigan, Illinois, Wisconsin and Minnesota. The 88^th RSC was established in 1996 at Fort Snelling.

Army Regulation 623-105 establishes the policies and procedures for the OER system. Paragraph 3-57 and 6-6 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. Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports. Each report must stand alone.

Army Regulation 135-155 provides the policies and procedures for convening standby advisory boards. It provides, in pertinent part, that standby boards are formed to prevent an injustice to an officer or former officers who were eligible for promotion but whose records contained a material error when reviewed by the selection board. A material error is defined in that regulation as one or more errors of such a nature that in the judgment of the reviewing official or reviewing body, caused an individual’s nonselection by a promotion board. Had such errors been corrected at the time the individual been considered, a reasonable chance would have resulted that the individual would have been recommended for promotion. Headquarters will normally not determine that a material error existed if the administrative error was immaterial, if the officer exercising reasonable diligence, could have discovered the error or omission, or if the officer could have taken timely corrective action by notifying officials at the Department of the error and providing any relevant documentation.

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. Although there is no doubt that the majority of the blame for not completing the applicant’ s OERs in a timely manner rests with the rater, the applicant himself also bears some of the burden in this matter as well. His first OER ended in September 1997 and he has provided no evidence prior to April 1998, which shows that he made any attempts to obtain his evaluation report.

2. The Board finds that the applicant shared equally in his responsibility to communicate with the rater and to keep her informed of his performance on a routine basis, even if he was geographically separated.
3. The applicant’s contention that he was never assigned to the RSC and that he was not rated by the proper officials appears to be without merit. The evidence of record clearly shows that he knew of the reorganization of his unit and how he fit in the new organization. In any event, if he did not know what his job was or who his rater was, it was incumbent on him to find out immediately.

4. The applicant’s contention that neither of the OERs were reviewed by the promotion selection boards also appears to be without merit. The available evidence shows that the second board reviewed the two missing OERs and that the applicant confirmed this to the IG as well. Additionally, the applicant indicated that he corresponded to the President of the selection board and informed him of the reason that the report was not present in his records.

5. Although the Board does not have the luxury of reviewing the records of those selected during the boards that failed to select the applicant for promotion, the special review team that determined that he should not receive SSB reconsideration did have the luxury of reviewing those records and determined that the presence of the first OER in his OMPF would not have made a difference in the outcome of the board. After reviewing his entire OMPF, this Board has no reason to doubt the validity of that conclusion.

6. The applicant’s contention that he should receive promotion reconsideration by a SSB, with the contested OERs removed and the periods declared non-rated time, appears to be without merit. His record was reviewed the first time without the report and with an explanation of why the report was missing. The Board has no reason to believe that a selection board would not consider that a valid reason or to penalize an officer for not receiving a timely report.

7. The applicant’s contention that the OERs should be removed from his OMPF because they are administratively and substantively inaccurate appears to be without merit and is not supported by the evidence submitted with his application or the evidence of record. Absent evidence to the contrary, the Board believes that the OERs accurately reflect the applicant’s performance and potential during the period in question.

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

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

---

INDEX

CASE ID	AR2002077378
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	2003/01/30
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1. 221	111.0005/VOID OER
2. 311	131.0100/SSB
3.
4.
5.
6.