MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 23 October 2003
         DOCKET NUMBER: AR2003086048

         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
Mrs. Nancy L. Amos		Analyst

The following members, a quorum, were present:

Ms. JoAnn Langston		Chairperson
Ms. Margaret K. Patterson		Member
Mr. Arthur A. Omartian		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: Reconsideration of his request for reinstatement in the Idaho Army National Guard (IDARNG) as an Active Guard/Reserve (AGR) officer with Federal recognition.

APPLICANT STATES: That the 1999 Selective Retention Board (SRB) of the IDARNG recommended him for non-retention due to "limited potential based on evaluations." The Commanding General denied any reconsideration. Just one year earlier, the General wrote that the SRB had recommended him as among the best qualified for continued retention in the IDARNG. The only alleged evidence of weak performance was in Part VIIa of his Officer Evaluation Reports (OERs). On three occasions he was given a 2-block rating, which historically has been used to identify good, solid performing officers. However, the Board determined that these instances were "below center of mass" because of the senior rater (SR) profile. If properly evaluated, his record shows no such weakness. If his SR stated that he was an "excellent soldier doing an outstanding job," "should be given opportunity to serve on the Brigade Staff," "has potential beyond his present assignment," etc., then that same SR gives a 2-block rating, without any comment to the contrary, there is nothing to indicate a demonstration of weak performance.

The applicant states that he requests reconsideration based on the failure of the SRB and the Board members to give proper consideration to National Guard Regulation 635-102, appendix C-2a which states that the basic and most important single document in the individual's record is the OER. The manner of performance section in each report must be closely examined. It is here that patterns of strength and weakness over a period of time will appear. The SRB should give the greatest weight to the most recent years. Undue weight should not be given to unfavorable comments of a derogatory nature that are followed by continuous outstanding performance. He states that there was a failure to show any limited potential based on his evaluations.

The applicant argues that the SRB and the Board failed to give the greatest weight to the comments from the most recent years in assessing his OERs. They dipped back over a decade to pick up some unfavorable comments knowing full well that any derogatory comment was followed by continuous outstanding performance in later years. For the [three] OERs in question, there seems to be absolutely no correlation between the box checked for ranking potential and the comments on performance and potential. Attention was focused on three OERs where there was a 2-block SR rating yet those same OERs contain very laudatory comments by the SR to including commenting that he had the potential to serve the IDARNG at higher levels and should be promoted to lieutenant colonel immediately. Neither the rater nor the SR included remarks of a derogatory nature or which indicated a lack of potential or performance in making their evaluation. The SRB overstepped its bounds in determining that he should not be retained in the absence of any other information to the contrary in his record. This is especially true when the following OERs clearly ranked him "center of mass."

The applicant states that he has just received some information in regard to three OERs wherein the SR rated him "below center of mass." The SR provided an email in which he categorically stated that he never gave anyone a 2-block rating with the intention that they would be rated "below center of mass." The SR stated that 2-block people were solid, good-performing soldiers.

COUNSEL CONTENDS:

That there were absolutely no findings that discussed or justified the finding of limited potential by the SRB. The Board members went back several years to find an evaluation of "below center of mass." Even in those instances, the box is checked: "below center of mass – retain" (emphasis in original). Under the circumstances, he feels that the Board failed to consider and evaluate those ratings other than "center of mass." He believes this is, in a sense, new evidence for the Board to consider.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's original consideration of his case on 20 November 2001 (AR2001-053043).

The email dated 6 February 2003 from Jerry R___ to the applicant is new evidence which will be considered by the Board.

On 14 May 1984, the applicant was accepted into the Title 10 Active Guard/Reserve (AGR) program and ordered to active duty. On 1 January 1986, he was accepted into the Title 32 AGR program and assigned to the IDARNG.

On 3 April 1995, the applicant was notified that he was eligible to receive retired pay at age 60. He was promoted to lieutenant colonel (LTC) on 13 August 1997.

On 19 July 1996, 17 July 1997, and 27 May 1998, the applicant was notified by letter, signed by the IDARNG Adjutant General, that he had been considered by annual SRBs which recommended him among the best qualified for continued retention in the IDARNG.

The applicant's OER history for his last three OERs under OER version DA Form 2166-8 is as follows (the applicant's SR block is indicated with an asterisk):

An annual, 12-month rating period OER ending 10 April 1997: 3/*2/0/0/0/0/0/0/0. SR comments were, "(applicant) is an excellent soldier who has done an outstanding job of managing the Mobilization Division of the Installation Support Unit. He has the potential to serve the IDARNG at higher levels and should be promoted to LTC immediately."

         A change-of-duty, 9-month rating period OER ending 31 December 1997: 3/*1/0/0/0/0/0/0/0. SR comments were, "(applicant) is an intelligent well trained officer. His ability and potential contribution to the IDARNG lie beyond his current assignment as Mobilization Officer. He should be given the opportunity to serve on the State level or on the Brigade staff."

         A closeout, 5-month rating period OER ending 31 May 1998: 3/*2/0/0/0/0/0/0/0. SR comments were, "(applicant) did an outstanding job of planning and executing the 116th Brigade rail movement to their NTC rotation. (applicant) is bright and articulate and should be given the opportunity to serve in the Brigade staff.

The applicant received a change-of-rater, 7-month rating period OER ending 8 January 1999, OER version DA Form 2166-9. This OER was signed by the applicant and rating officials on 11/12 May 1999. In Part V (Performance and potential evaluation) the applicant was given a "satisfactory performance, promote" rating by the rater (out of a high of "outstanding, must promote" and a low of "unsatisfactory, do not promote"). In Part VIIa (Promotion potential to the next higher grade) the applicant was given a rating by the SR of "fully qualified" (out of a high of "best qualified" and a low of "do not promote"). In Part VIIb (Potential compared with officers senior rated in same grade) the SR gave him a "center-of-mass" rating. SR comments were, "(applicant) is a bright, articulate officer. His planning and organizational skills contributed greatly to the overall success of the 116th Cav Bde's movement and rail loads for the NTC. (Applicant) is an excellent staff officer with the potential to serve well in any higher level staff.

On 24 – 26 May 1999, the applicant's file was reviewed by an IDARNG calendar year 1999 SRB. On 28 June 1999, he was notified that he was not selected for retention as a drilling ARNG officer. The board report showed that the reasons the SRB did not select him for retention were: (1) performance – evaluations were average or below center of mass for his peer group; (2) Army Physical Fitness Test – marginal or below Army standards (December 1998 run failure); and (3) potential – limited because of performance and comments on potential in his evaluation.

The applicant appealed the non-retention decision twice to the IDARNG Adjutant General, who denied both appeals. He requested an IDARNG Inspector General (IG) review of the board procedures and decision. The IG found no error or injustice.

On 27 November 1999, the applicant's AGR tour was terminated and he was honorably separated from the ARNG and transferred to the U. S. Army Reserve Control Group (Reinforcement). He had completed 16 years, 5 months, and 14 days of creditable active service.

National Guard Regulation 635-102 (Officers and Warrant Officers Selective Retention) prescribes policies for establishing and conducting selection boards used in the ARNG program for selective retention of officers and warrant officers beyond 20 years of qualifying service for retired pay. It applies to all ARNG commissioned officers and warrant officers who are not in active Federal service. It is applicable to soldiers in the Inactive National Guard and those on AGR status (Title 32). It states that retention selection boards will be convened in each state annually to consider drilling ARNG officers and warrant officers in grades of colonel and below for selective retention beyond 20 years of qualifying service for retired pay. This SRB will be conducted independently from AGR tour continuation boards governed by National Guard Regulation 600-5.

National Guard Regulation 635-102 states that officer SRBs will make an evaluation of the future benefits that can be expected to accrue to the ARNG for the continued service of each individual considered. The board should consider the following factors in arriving at its decision: (a) Potential for replacing present senior commanders and staff officers or specialists in the case of warrant officers; (b) adequacy of civilian and military education for performance of duties associated with higher level command and staff assignments; (c) demonstrated performance as attested by evaluation reports, academic reports, and results of inspections and evaluations that cite the manner of performance of the officer; and (d) medical condition and physical fitness so that no significant assignment limitations are evidenced.

Army Regulation 623-105 (Officer Evaluation Reporting System) prescribes the officer evaluation function of the military personnel system. Paragraph 3-22 (for OER version DA Form 2166-8) stated that the SR’s evaluation was made by comparing the rated officer’s performance and potential with all other officers of the same grade the SR has rated or would rate.

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 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.

2. For three years prior to the convening of the 1999 IDARNG SRB, the applicant had been recommended as among the best qualified for continued retention in the IDARNG.

3. The 1999 IDARNG SRB recommended the applicant for non-retention based in part on limited potential based on evaluations.

4. The applicant contends that the only alleged evidence of weak performance was in Part VIIa of his OERs where on three occasions he was given a 2-block rating, which historically has been used to identify good, solid performing officers. He provides an email from the SR of these three OERs in which the SR stated he never gave anyone a 2-block rating with the intention that they would be rated "below center of mass" and that 2-block people were solid, good-performing soldiers.

5. In part VIIa of the OER version DA Form 2166-8, the SR was to compare the applicant's performance and potential with all other officers of the same grade the SR had rated or would rate. Nothwithstanding the SR's stated intent, a 2-block rating also indicated that he believed the applicant's potential was not as good as that of the other officers in the same grade that he rated.

6. The applicant states that the SRB, and the previous Board members, should have given the greatest weight to the comments from the most recent years in assessing his OERs. The SR's comments in those last three OERs under the DA Form 2166-8 were not indicative of an officer with the best potential. None of them noted that the applicant should be promoted to colonel.

7. The applicant's following OER, for the period ending 8 January 1999 (and dated by the applicant and his rating officials prior to the convening of the 1999 SRB), showed a downward trend in potential. In Part V, he was given a "satisfactory performance, promote" and not an "outstanding, must promote" rating by the rater. In Part VIIa, he was given a rating by the SR of "fully qualified" and not "best qualified." SR comments clearly identified him as an average officer. Comments in this OER did not recommend him for promotion to colonel, either.

8. There is no evidence of record and the applicant provides none to show the 1999 IDARNG SRB's finding, that he had limited potential for continued service and promotion, was unjustified.

9. The overall merits of the case, including the latest submissions and arguments, are insufficient as a basis for the Board to reverse its previous decision.

10. 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

__jl____ __mkp___ __aao___ DENY APPLICATION

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

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INDEX

CASE ID	AR2003086048
SUFFIX
RECON
DATE BOARDED	20031023
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	Mr. Chun
ISSUES 1.	110.03
2.
3.
4.
5.
6.