MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 24 June 2003
         DOCKET NUMBER : AR2002080689

         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. Joseph A. Adriance		Analyst

The following members, a quorum, were present:

Ms. Margaret K. Patterson		Chairperson
Mr. Ronald E. Blakely		Member
Mr. Frank C. Jones, II		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, that she be selectively continued on active duty in a commissioned officer status, in the rank and pay grade of captain/0-3 (CPT/0-3), until retirement on 31 October 2005; and that her Officer Evaluation Reports (OERs), for the periods 2 October 1997 through 8 March 1998 and
11 May 1999 through 10 May 2000, be removed from her record.

APPLICANT STATES: In effect, that the Officer Records Brief (ORB) that she signed for the promotion board at a desk side records audit was not the one seen by the August 2002 promotion selection board. She also claims that her OER ending on 8 March 1998 was subjective and was completed by an incorrect senior rater (SR). She further asserts that her OER ending on 10 May 2000 contained an inaccurate comment in regard to her declining company command.

The applicant also claims that she meets the selective continuation criteria established by regulation and law for CPTs not selected for promotion. She claims that she is three years away from being eligible for retirement, and she has tactical and strategic communications experience in both the Continental United States and Overseas environments. She also has automation experience, which includes joint staff duty. Finally, she claims that she had no civilian police record, and no record of any Uniform Code of Military Justice action against her, or of any unfavorable information in her military record.

The applicant further states that she received notifications of non-selection for promotion in September 2002. She claims that there was erroneous information on file in her Official Military Personnel File (OMPF), which she appealed to the appropriate Department of the Army (DA) offices. She states that the official from Total Army Personnel Command (PERSCOM) who denied her appeals was the same one that provided the involuntary separation notification signed by The Adjutant General (TAG). In her enclosed self-authored statement, the applicant outlines her view of the regulatory and statutory requirements for selective continuation and how this view differs with the official position taken by PERSCOM officials.

The applicant claims that she is being denied her civil right to retire, and she clearly meets the requirements for selective continuation outlined in the applicable regulation and statute. She requests that the Secretary of the Army’s authority be used to approve her selective continuation on active duty in a commissioned officer status.

She concludes by stating that she requests reinstatement of her rank without any loss of time, reimbursement of lost pay for the period 28 February 2003 through reinstatement, removal of all derogatory information from her OMPF, and justice action against all parties who contributed to this wrongful act. She states that it is her desire to retire on 31 October 2005 as a CPT/0-3.

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

The applicant served on active duty in an enlisted status from 7 October 1980 through 2 October 1983, and again from 4 October 1988 through 26 July 1990. At that time she was honorably released from active duty in her enlisted status and ordered to active duty as a commissioned officer. On 27 July 1990, she was appointed a second lieutenant.

On 4 September 2002, a U.S. Total Army Personnel Command (PERSCOM) memorandum was published notifying the applicant of that she had been
non-selected for promotion and that she would be involuntarily separated in accordance with the applicable law.

On 1 March 2003, the applicant was separated from active duty in her commissioned officer status and entered active duty in an enlisted status as a staff sergeant/E-6 (SSG/E-6). She is currently serving on active duty in that enlisted rank and pay grade.

The 1^st OER being appealed by the applicant was a change of rater report that covered the period 1 October 1997 through 8 March 1998. The applicant was rated as an automation officer. The rater on the report was the Chief of Automation (a major) and the SR was the Brigade Commander (a colonel). In Part V (Performance and Potential Evaluation), the rater placed the applicant in Block 2 (Satisfactory Performance, Promote). The comments supporting this evaluation indicated the applicant lacked evaluation skills and basis concepts in identifying implied tasks and acting on mission critical tasks in a timely manner. The rater concluded his comments by indicating that the applicant’s skills and leadership should continue to be developed through schooling and assignments before considering her for promotion to major. In Part VII (Senior Rater) the applicant received a below center of mass evaluation. The SR comments indicated the applicant performed in an acceptable manner.

The applicant contests the 1^st OER in question on the basis that the SR was inappropriate. She provides a unit rating scheme that shows her rater as the Chief of Automation, and that lists the name of the rater on the contested report as the proper rater. The applicant appealed this report to the Officer Special Review Board (OSRB). However, the OSRB determined that the applicant failed to provide clear and convincing evidence sufficient to warrant consideration. The OSRB found the collection of documents submitted by the applicant were not clear and are not adequately discussed. As presented, the OSRB could not interpret the data. Finally, the OSRB found that regulatory burden of proof required to support a successful appeal had not been met by the applicant in this case.

The 2^nd OER being appealed by the applicant is an annual report that covers the period 11 May 1999 through 10 May 2000. The applicant was rated as an Assistant Division Automation Management Officer. The rater on the report was the Division Automation Management Officer (a major) and the SR on the report was the Assistant Chief of Staff, G6 ( lieutenant colonel). In Part V (Performance and Potential Evaluation), the rater placed the applicant in Block 1 (Outstanding Performance, Must Promote). The comments supporting this evaluation were mostly extremely favorable.

However, the rater did indicate that the applicant’s potential for future service was limited by her declination of company command. In Part VII (Senior Rater) of the 2^nd OER in question, the applicant received a center of mass evaluation from the SR, who provided mostly favorable supporting comments. The SR did indicate that the applicant’s potential was limited by her voluntary declination of company command. The applicant contests this report on the basis that the references to her declination of company command were inaccurate.

The applicant appealed the 2^nd OER in question to the OSRB. Her appeal was reviewed and it was determined that although she claimed the references to her declination of company command were inaccurate, she failed to provide sufficient clear and convincing evidence to support a review by the OSRB. The OSRB finally determined that the applicant had failed to meet the regulatory burden of proof necessary to support a successful appeal.

On 27 February 2003, the Chief, Officer Retirements and Separations Section, PERSCOM, in a response to a Congressional inquiry made on the applicant’s behalf, stated that the applicant was an officer who had been twice not selected for promotion and by law was required to be involuntarily separated not later than 1 March 2003, and because the separation was required by statute, it could not be waived. Further, in regard to selective continuation rules, it was explained that the regulatory standard addressed by the applicant referred to officers selectively continued, who were within two years of retirement or already retired. The applicant was not selectively continued, was not within two years of retirement, and had not already been retired. An explanation that the selective continuation policy was designed to overcome shortages of officers at specific grade levels or within critical specialties to meet the needs of the Army. Further the Army does not conduct selective continuation boards to retain individual officers.

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Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provided guidance regarding redress programs including commander inquiries and appeals.

Paragraph 6-6 of the OER regulation contains the policies for submitting an appeal to an OER. It states, in pertinent part, that an evaluation report accepted by Department of the Army (DA) and included in the Official Military Personnel File (OMPF) 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 6-10 of the same regulation 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 prescribes the Army’s officer promotion policy. Paragraph 1-14 provides the policy for selective continuation. It states, in pertinent part, that a selective continuation board must recommend the officers for continuation and the Secretary of the Army (SA) must approve the recommendation before officers may be continued. It further stipulates that officers may not apply for selective continuation. The SA will direct a selective continuation board to consider officers for continuation when required by the needs of the Army.

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. The Board notes the applicant’s contentions that she should be reinstated as an Army officer until 31 October 2005. However, it finds an insufficient evidentiary basis on which to grant this requested relief.

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2. The OERs in question were accepted by DA and properly filed in the applicant’s OMPF. The OSRB considered her appeals and found that the data as presented could not be interpreted. Finally, the OSRB found that regulatory burden of proof required to support a successful appeal had not been met by the applicant.

3. In view of these facts, the Board finds the OERs were processed and accepted for filing in the OMPF in accordance with applicable regulations. Further, it concludes there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity necessary to remove the contested reports from the record.

4. The Board finds no evidence to support the applicant’s claim that she qualified for selective continuation. As a result of her two time non-selection for promotion, her separation as an officer was required by law. The regulation stipulates that officers may not apply for selective continuation. The SA will direct selective continuation boards to consider officers for continuation when required by the needs of the Army. In this case, the SA directed no such board.

5. 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.

6. 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__ __REB__ __FCJ __ DENY APPLICATION

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

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INDEX

CASE ID	AR2002080689
SUFFIX
RECON
DATE BOARDED	2003/06/DD
TYPE OF DISCHARGE	N/A
DATE OF DISCHARGE	N/A
DISCHARGE AUTHORITY	N/A
DISCHARGE REASON	N/A
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.