MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 4 March 2003
         DOCKET NUMBER: AR2003084427

         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:

Mr. Raymond J. Wagner		Chairperson
Mr. William D. Powers		Member
Ms. Linda M. Barker		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 the rater comments on his annual Officer Evaluation Report (OER), covering the period 1 March 1999 through
29 February 2000, be amended to add a new 5 July 2001 statement provided by the rater; and that he be reconsidered for promotion to lieutenant colonel (LTC) by a Special Selection Board (SSB). If these remedies are not approved, he requests that he be allowed to revise his original rebuttal statement that is on file in his Official Military Personnel File (OMPF) with the contested OER to include the facts contained in the 5 July 2001 rater statement.

APPLICANT STATES: In effect, the OER in question contains substantive inaccuracy by reason of omission of a mandatory comment in Part Vb concerning the “No” entry in Part IVc, which indicates noncompliance with the standards of Army Regulation 600-9 (The Army Weight Control Program). He claims that the regulation governing OERs requires comments on “PROFILE” only when the rated officer’s ability to perform his or her assigned duties is affected, and any comments are to be included in Part Vb. He contends that in the OER in question, his rater should have included a comment stating that his ability to perform his military duty of passing the Army Physical Fitness Test (APFT) was clearly and significantly hampered by his medical and surgical condition at the time. He states that it was impossible for him to take and pass the APFT while recovering from ventral hernia repairs, which consisted of two surgical procedures that occurred in June 1999 and September 1999. He finally states that because his assigned military duty to take and pass the APFT was affected by his medical and surgical condition, the rater should have included a comment indicating the reason for the profile.

The applicant also contends that the governing regulation states that medical conditions may be cited for noncompliance, however, the “NO” entry is still required because medical waivers to weight control standards are not permitted for evaluation report purposes, and the progress or lack of progress in weight control programs should be indicated. He claims that the rater failed to comply with these regulatory requirements. He states that his physician confirmed that on his own initiative, he had sought assistance through that physician and the local nutritional center for weight loss advise and assistance; however, the rater failed to document these facts. However, upon subsequent contact, the rater admitted that the omission was due to an administrative oversight, and he requested that the OER be modified to add the statement of explanation enclosed with this application.

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The applicant states that his efforts to lose the weight were acknowledged by his then senior rater, and he has previously requested that the rater comments on the OER in question be amended to add the statement provided by the rater, but this request was not granted. He claims that the omission of the facts presented in the 5 July 2001 rater statement and in the statements from his physician contributed significantly to his non-selection for promotion to LTC by the Fiscal Year 2001 (FY01) promotion selection board, and he now requests that these statements be included in his Official Military Personnel File (OMPF).

The applicant also argues that the governing regulation currently in effect states that a Physical Profile (DA Form 3349) will not be used to excuse soldiers from the provisions of the weight control program. However, there are provisions for providing a physician memorandum if there is an underlying or associated disease process this is the cause of the overweight condition. It further states that the inability to perform all APFT events because of the use of certain medications is not generally considered sufficient medical rationale to exempt a soldier from the provisions of the weight control program. However, this guidance, while present in the last two editions of the governing regulation, were not contained in the edition in effect at the time he received the OER in question. He contends that the absence of these provisions being in the regulation in effect at the time he received the OER would indicate that the inability to perform the APFT events or the use of certain medications may or can be considered sufficient medical rationale to exempt a soldier from weight control provisions.

The applicant concludes his statement to the Board by indicating that he received an additional Meritorious Service Medal (MSM) in recognition for his work at the Dwight D. Eisenhower Army Medical Center (DDEAMC) for the period 12 July 1997 through 25 May 2000, which demonstrates his great commitment to the Army and to his ministry, as well as to Army values. He claims that he does not believe that he would have received the award if his supervisor felt that his weight was an issue. He states that his rater recommended the award and the commanding general approved the award. If anyone in the chain of command believed that his weight indicated he was not deserving of such an award, he surely would have not received it. However, he did receive it, and this provides proof of his contributions to the Army.

In support of his application, the applicant provides a copy of the OER in question, a supporting statement from his rater, a copy of his physical profile, copies of medical treatment records, a statement from his physician confirming that he would be unable to take the APFT due to his medical condition, a statement of support from his previous senior rater, and an MSM recommendation.

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

He is currently serving on active duty as a major (MAJ) at Aberdeen Proving Ground, Maryland. On 31 March 2000, while serving at DDEAMC, Fort Gordon, Georgia, the applicant received the contested annual OER covering the period
1 March 1999 through 29 February 2000.

The OER in question is generally a favorable report in which the rater placed the applicant in the first block (Outstanding Performance-Must Promote) of Part Va (Performance and Potential Evaluation), and provided very favorable comments in Part Vb (Comments). The senior rater placed the applicant in the first block (Best Qualified) in Part VIIa (Senior Rater-Promotion Potential to Next Higher Grade), and provided very favorable comments in Part VIIb (Comments on Performance and Potential). The OER was a center of mass report in the senior rater profile.

The entry in Part IVc of the contested OER was “Weight 193 NO”, which indicated noncompliance with the standards of Army Regulation 600-9
(The Army Weight Control Program). In Part Vb (Performance and Potential-Rater, Comments), the rater made the following comments applicable to the applicant’s medical condition as it related to his ability to perform his duties: “in spite of two very serious operations was able because of his organizational abilities to assure all of his responsibilities were met. As in all things with great determination he has made tremendous strides in his physical recovery.”

The contested OER was also accompanied by a statement from the applicant, in which he explained his medical condition, and his efforts at seeking assistance in pursuing a weight loss program in order to meet the weight standard. This statement is on file in the applicant’s OMPF with the contested OER.

The applicant appealed the OER in question to the Department of the Army (DA), Officer Special Review Board (OSRB). He contended that the OER was substantively inaccurate because it failed to include mandatory comments in Part Vb concerning a “NO” entry indicating non-compliance with the standards of Army Regulation 600-9 in Part IVc. The applicant further claimed that this omission contributed significantly to his non-selection for LTC.

The OSRB concluded that the key question in the applicant’s appeal was whether or not the rater’s favorable comments in Part Vb met the intent and spirit of the regulatory requirement for the rater to comment on a "NO" entry, indicating noncompliance with the standards of AR 600-9 in Part IVc of an OER. The OSRB found that rater’s comments in Part Vb indicated that the applicant was able to assure all of his responsibilities were met, and also that although not in compliance with the weight standard, the applicant was working toward that goal.

The OSRB also concluded that the 27 March 2000 statement from the applicant that accompanied the OER in question fully explained the applicant’s situation for promotion board consideration purposes. Finally, the OSRB found that adding an additional statement from the rater would not materially improve the clarity of the applicant’s medical situation, and the fact remained that he did not meet the weight standard and this was properly noted on the OER.

Army Regulation 623-105 prescribes the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provides guidance regarding redress programs including commander inquiries and appeals.

Paragraph 3-19 1c contains detailed instructions for completing height and weight entries in Part IVc. It states, in pertinent part, that the rater will comment on a "NO" entry, indicating noncompliance with the standards of AR 600-9 in
Part Vb. These comments should indicate the reason for noncompliance; medical conditions may be cited for noncompliance, however, the " NO" entry is still required because medical waivers to weight control standards are not permitted for evaluation report purposes. The progress or lack of progress in weight control programs should be indicated.

Paragraph 3-57 provides the basic rule applicable to modifications of previously submitted reports. It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) 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, to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.

Chapter 6 contains the policies and procedures pertaining to managing the OER redress program Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal. It states 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 paragraphs 3-57 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.

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Army Regulation 600-8-29 provides the Army’s policies and procedures on officer promotions. Chapter 7 contains guidance on promotion reconsideration by a Special Selection Board (SSB). It states, in pertinent part, that officers may be reconsidered for promotion at the discretion of HQDA promotion officials when it is discovered that the officer was not considered by a regularly scheduled board because of administrative error; the board that considered the acted contrary to law or made a material error; or the board that considered an officer did not have before it some material information.

Paragraph 7-11 provides the rules for processing requests for SSB promotion reconsideration. It states, in pertinent part, that officers who discover that material error existed in their file at the time they were nonselected for promotion may request reconsideration. However, reconsideration will normally not be granted when the error is minor.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1. The Board notes the applicant’s contention that the rater did not provide the required mandatory comments in Part Vb to explain his “NO” entry in Part IVc that indicated his noncompliance with the standards of The Army Weight Control Program, and his request that a statement provided by the rater be added to his record, that he be reconsidered for promotion to LTC by a SSB, or that failing approval of these remedies that he be allowed to revise his current rebuttal statement that is on file with the contested OER. However, it finds insufficient evidence to support these claims and/or the requested relief.

2. Although the Board understands the applicant’s concern that the “NO” contained in Part IVc of the OER in question was not adequately addressed by the rater and that this adversely impacted his promotion selection, it does not find that the evidence of record or independent evidence provided by the applicant supports these assertions.

3. The Board concurs with the OSRB determination that the rater’s comments in Part Vb adequately met the intent and the spirit of the regulatory requirement to provide comments explaining a “NO” entry in Part IVc. These comments, coupled with the applicant’s statement that accompanies the OER, which is filed in the OMPF with the report, provide more than an adequate explanation of the applicant’s medical situation that existed when the report was rendered and of his weight loss efforts for any promotion board that may review the file.

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4. In the opinion of the Board, adding the statement provided by the rater or a revised rebuttal statement from the applicant to the OMPF would not add significant value to the evaluation report and enclosures that are currently on file. Thus, the Board finds that this requested relief is not warranted at this time.

5. In view of the facts of this case, the Board concludes that the applicant has not satisfied the regulatory burden of proof by providing the clear and convincing evidence necessary to support a successful appeal of the OER in question. Further, the Board finds no material error exists in the applicant’s OMPF that would support referring his record to a SSB for promotion reconsideration at this time.

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

__RJW__ __WDP _ __ LMB__ DENY APPLICATION

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

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INDEX

CASE ID	AR2003084427
SUFFIX
RECON
DATE BOARDED	2003/03/04
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. 193	111.0000
2.
3.
4.
5.
6.