RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        27 September 2005
      DOCKET NUMBER:  AR20040011019


      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             |
|     |Mrs. Victoria A. Donaldson        |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ronald E. Blakely             |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne M. Douglas            |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests correction of his records through counsel.

2.  The applicant states essentially that his arguments are provided by his
counsel.

3.  The applicant provides supporting documentation for this case through
his counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the DA Form 67-8 (Officer Evaluation Report
(OER)) for the period 1 June 2000 through 31 December 2000 [hereafter
referred to as the contested report], issuance of a nonrated period
statement for this period to be placed in his official military personnel
file (OMPF) and consideration by a special selection board for promotion to
the grade of captain.

2.  Counsel states the applicant received the contested report while
serving with the 116th Engineer Company of the Utah Army National Guard
(UTARNG).  Counsel continues that the contested report was referred by the
senior rater (SR) because the SR rated the applicant "below center of mass"
(BCOM).

3.  Counsel argues the contested report should be removed because of the
reason explained in the enclosed brief.

4.  Counsel provides a six-page brief, a copy of the contested report,
UTARNG Orders Number 346-045, a copy of an envelope with a Leave and
Earnings Statement (LES), copies of the two OERs received after the
contested report; copies of the applicant's bank statement; a copy of the
applicant's appeal of the contested report; a copy of the Deputy Chief of
Staff, Officer Special Review Board (OSRB) appeal and related documents;
and a letter of support for the applicant to the members of a Department of
the Army Captain Selection Board.

CONSIDERATION OF EVIDENCE:

1.  Records show that the contested report was a "Discharge" report for
7 months of rated time in the position of Platoon Leader, 116th Engineer
Company, UTARNG.

2.  The contested report shows the applicant was rated by a captain in the
position of Company Commander and he was senior rated by a colonel in the
position of Battalion Commander.

3.  The contested OER shows in part IV (Professional Evaluation-
Professionalism (rater)) that the rater placed his "X" under "Yes" for all
of the blocks in the Army Values section which indicated that the applicant
supported each of the Army values.  The rater also placed his "X" under all
of the blocks in the Attributes, Skills and Actions categories which
indicated that the applicant demonstrated the fundamental qualities,
characteristics and major actions to perform in a leadership position.

4.  In Part VII (Senior Rater) of the contested OER, the SR placed his "X"
in the second block (Fully Qualified) under Part VIIa (Evaluate the Rated
Officer's Potential to the Next Higher Grade).

5.  Part VIIb of the contested report shows the SR's evaluation resulted in
a "Below Center of Mass" evaluation.  In Part VIIc (Comment on
Performance/Potential), the SR made generally positive comments regarding
the applicant's performance and potential.  The SR essentially stated the
applicant performed his duties satisfactorily and that, although he has
great potential for advancement as a battalion staff officer; he should
first serve a year or more as a platoon leader.

6.  Part IId (This is a referred report, do you wish to make comments?), of
the contested report shows the report was referred and that comments were
not attached.  Part IIe (Signature of Rated Officer) contains the entry
"not available to sign."

7.  On 12 April 2004, the applicant appealed to the OSRB wherein, he
requested removal of the contested report because it was never referred to
him and he did not check the "No" block indicating that he did not wish to
provide comments.  The applicant also argued that there were no comments to
justify the BCOM rating, the narrative in Part V was too brief to convey an
accurate assessment of the applicant and the time from the "Thru" date of
the contested report until the SR actually signed the report was nine
months.

8.  The OSRB case summary identified the rated period and the applicant's
duties and noted that there was no evidence that the contested report was
referred and no evidence that a commander's inquiry was requested or
conducted.

9.  The OSRB considered the applicant's contentions and made the following
determinations:

      a.  the SR made several unsuccessful attempts to include placing
telephone calls, mailing the report and driving to his place of residence
(the applicant had moved) to locate the applicant to provide him the
opportunity to respond to the contested report;

      b.   there was no evidence which showed the applicant notified his
chain of command of a new address as required;

      c.  the rater's comments are sufficient to summarize the applicant's
performance to a board or assignments officer;

      d.  although, the report was considered late, being late was not
substantial justification for deleting or amending the report;

      e.  there is no evidence the SR's judgment was inaccurate or unjust;

      f.  the SR's actions did not cause the failure in referring the
report;

      g.  the applicant's failure to notify the unit of his change of
address was the proximate cause of the failure in referral; and

      h. the applicant did not provided the necessary evidence to amend the
contested report or delete the contested report.

10.  The OSRB concluded there was not sufficient evidence that the
contested report was substantively unjust or did not portray the
applicant's demonstrated performance and potential.  The OSRB further
concluded the contested report should be amended to show in Part VIIc the
entry "Officer could not be located; address on file is outdated."

11.  Additionally, the OSRB determined the applicant's comments to the
referral of the contested report should be placed in Performance File of
his OMPF.

12.  The applicant's counsel provides in his brief, that the applicant
updated his address where he received his Leave and Earnings Statement on
the date of his separation and that two days prior to the SR signing the
contested report the applicant changed his address at the U.S. Post Office.

13.  Counsel also argues that the applicant received 2 superlative OERs
while he was assigned on active duty.

14.  Counsel contends the applicant did not sign the contested report and
did not choose not to provide comments on the referral of the contested
report.

15.  Counsel stated the applicant was not aware that National Guard OERs
would be considered for promotion while he was on active duty and that upon
this discovery, the applicant immediately applied to the OSRB for removal
of the contested report.

16.  Counsel concluded the National Guard failed to discharge its
responsibility by not timely completing and referring the contested report
and is now blaming the applicant for the problem.  He further concluded the
reason for the lateness of the contested report was due to the SR and
although, the OSRB found there was no evidence the SR's judgment was
inaccurate or unjust; it is "more probable" that a discharge OER gave the
SR an opportunity to "fix" his profile.

17.  Paragraph 1-10a of Army regulation 623-105 (Personnel Evaluations)
states performance evaluations are assessments on how well the rated
officer met his or her duty requirements and adhered to the professional
standards of the officer corps.  Performance is evaluated considering the
results achieved, how they are achieved, and how well the officer complied
with professional standards.

18.  Paragraph 3-2g of Army Regulation 623-105 states rating officials must
prepare reports that are accurate and as complete as possible within the
space limitations of the form.  This responsibility is vital to the long-
range success of the Army's mission.  With due regard for the officer's
current grade, experience, and military schooling, evaluations should cover
failures as well as achievements.  However, evaluations will not normally
be based on a few isolated minor incidents.

19.  Paragraph 3-19 of Army Regulation 623-105 states, in pertinent part,
that Army values and the dimensions of the Army's leadership define
professionalism for the Army officer   Specifically, this regulations
states that Army values apply across all grades, positions, branches and
specialties and that they are needed to maintain public trust and
confidence and the qualities of leadership and management needed to
maintain an effective officer corp.



20.  Paragraph 3-20 of Army Regulation 623-105 states, in pertinent part,
that Part V of the form provides for the rater's evaluation of the rated
officer's performance and potential.  The rater comments on specific
aspects of performance and potential.  These comments are mandatory.  As a
minimum, the comments should address the key items mentioned in the duty
description In Part II and, as appropriate, the duty description,
objectives and contributions portions of the OER support form.

21.  Paragraph 3-28 of Army Regulation 623-105 states, in pertinent part,
subjective evaluations must not reflect a rating official's personal bias
or prejudice.

22.  Paragraph 6-10 of Army Regulation 623-105 places the burden of proof
on the applicant to provide clear and convincing evidence to justify
deletion or amendment of an OER.

23.  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 state that an
evaluation report accepted by HQDA and included in the official record of
an officer is presumed to be administratively correct, has been prepared by
the properly designated rating officials and represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to removal of the contested
report and a nonrated period statement should be issued for this period to
be placed in his official military personnel file (OMPF) because there is
no justification for the below center of mass rating and the SR did not
properly refer the contested report for comments.

2.  There is no evidence and the applicant has not provided sufficient
evidence which shows the contested report did not accurately reflect the
SR's considered opinion and objective judgment of the applicant's
performance and potential at the time the contested report was rendered or
that the SR lacked the fairness, honesty, and impartiality required by Army
Regulation 623-105.







3.  Although the applicant showed that he timely changed his address at the
U.S. Post Office and on his Leave and Earnings Statements, there is no
evidence and the applicant has not provided sufficient evidence which shows
he timely updated his address with his unit as required.  Additionally,
evidence of records show the SR made numerous unsuccessful attempts to
contact the applicant for the purpose of referring the contested report.
Therefore, the applicant's contention the SR did not properly refer the
contested report to him is without basis.

4.  Based on all of the foregoing, there is no basis to amend or delete the
contested report as requested.

5.  The applicant also requests consideration by a special selection board
for promotion to the grade of captain.  Since there is no basis to granting
the removal of the contested report, there is no basis for granting
consideration by a special selection board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_LMD_____  _REB___  _LF____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





                                       __Ronald E. Blakely____
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20040011019                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/27                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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