RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           14 October 2004
      DOCKET NUMBER:   AR2004100687


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred Eichorn                  |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Richard T. Dunbar             |     |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, in effect, removal of an Officer Evaluation
Report (OER), covering the period 1 October 1997 through 14 May 1998, from
his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that the discrediting comments from
the senior rater on the contested report are inconsistent with the rater’s
evaluation, particularly as they relate to his judgment.  He further states
these comments do not accurately reflect his performance and potential and
the accidental incident that caused the remarks was beyond his control.
Finally, the OER in question makes him less competitive before future
promotion boards.

3.  The applicant provides a copy of the contested OER, a self-authored
appeal statement, previous OERs and eight third-party statements in support
of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he is currently serving on
active duty as a major.

2.  On 14 September 1998, while serving on active duty as a CPT assigned to
the United States Army Cadet Command, applicant received the senior rater
option OER in question, which covered the four-month period from 1 October
1997 through 14 May 1998.  This report evaluated the applicant as the
Assistant Professor of Military Science of the Reserve Officer Training
Corps (ROTC) at the University of North Carolina.

3.  In Part V (Performance and Potential Evaluation-Rater) of the contested
report, the rater placed the applicant in the two block (satisfactory
performance, promote).  The rater provided favorable supporting comments
that concluded with the comment “promote to major with peers”.
4.  In Part VIIa (promotion potential) the senior rater placed the
applicant in the two block (fully qualified).  In Part VIIb (potential
compared with officers senior rated in same grade) the applicant received a
center of mass evaluation.  The supporting comments were favorable
regarding the applicant’s duty performance. However, the senior rater did
state the applicant used poor judgment in showing subordinates pornography
pictures that he had opened on electronic mail, and as a result, she could
not recommend him for the Command and General Staff Course (CGSC) even
though he certainly had the potential to do the work.

5.  On 4 August 1993, the applicant appealed the contested OER to the
Officer Special Review Board (OSRB).  In his appeal, the applicant
contended that the OER was substantively inaccurate and did not accurately
reflect his performance and potential.  He specifically claimed OER was
unjustly based on an isolated incident that he did not cause and as a
result, he requested the OER be removed from his OMPF.

6.  In the processing of the applicant’s appeal, the OSRB contacted the
rater and senior rater, who both agreed to the release of a paraphrased
summary of their remarks.  The rater recalled the applicant and the OER.
He stated the applicant was an intelligent officer, but his judgment was
not good.  The rater further stated the applicant was a very likable guy,
but was opinionated and often clashed with the noncommissioned officers.
Further, the applicant showed unusually bad judgment in his interactions
and relationships with cadets and he provided three examples of when this
occurred.  The rater confirmed the incident referred to by the senior rater
in the contested OER took place and commented that much more than was
stated actually occurred.  The rater concluded by stating that the
contested OER was accurate as far as it went, but that it omitted much of
what occurred and was too lenient.

7.  The senior rater, when contacted by the OSRB, stated that she recalled
the applicant and the contested OER.  She further stated the applicant was
enthusiastic, had a lot of energy and a pretty good guy, except for the
circumstances surrounding his personal conduct, which resulted in her
assessing the applicant as she did.  She stated she vaguely remembered
numerous incidents involving poor judgment associated with the applicant
regarding his interaction with cadets.  She concluded by indicating the OER
in question was accurate, fair and just.
8.  The OSRB concluded that there was not sufficiently convincing evidence
that the contested OER was substantively inaccurate, unjust, and did not
adequately portray the applicant’s demonstrative performance and potential.
 As a result, the OSRB concluded the report should not be amended or
deleted.

9.  In support of his application, the applicant provides a supporting
statement from a Judge Advocate (JA) Army captain.  This officer states
that she was a cadet battalion commander in the Army ROTC program at the
University of North Carolina -Chapel Hill at the time of the email
situation in question.  She states she remembers being one of two cadets
present when the applicant opened an email on his personal computer and
that the entire incident was blown out of proportion.  She states that
although the email content was inappropriate, it was no one’s fault.

10.  The applicant also provides a third-party statement from a lieutenant
colonel who is currently working on the Joint Staff at the Pentagon.  This
officer indicates at the time of the incident in question, he was a
battalion commander at Fort Bragg, North Carolina and counseled the
applicant during this ordeal.  He attests to the applicant’s outstanding
past performance and his unlimited potential.  He further states that he is
sure that had the applicant known the content of the email in question, he
would not have opened it.  Finally, he provides another third-party
statement from an Army lieutenant colonel who is serving as the Central
Command Security Officer at McDill Air Force Base, Florida.  This officer
also attests to the applicant’s outstanding performance and unlimited
potential.

11.  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 3-57
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.
12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the comments of the senior rater on the
contested report are inconsistent with his rater’s evaluation and the
supporting statements and evidence he provides were carefully considered.
However, there is insufficient evidence to support amendment or removal of
the OER in question.

2.  The OSRB review of the case resulted in a determination that the
applicant had failed to satisfy 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 OSRB review included interviews with
the rater and senior rater, who both refute the applicant’s claim it was
based on an isolated incident that was not his fault.  The rater cited
several examples of the applicant using poor judgment and indicated that if
anything the OER evaluation was lenient.  The senior rater supported the
rater’s comments and also indicated the applicant had judgment problems
beyond that stated in the contested report.  Both rating officials stated
the OER in question was accurate and just.

3.  The supporting third-party supporting statements provided by the
applicant were carefully considered.  However, while these statements
attest to the applicant’s excellent duty performance and unlimited
potential, and support his claim that the email incident was not his fault,
none of the individuals providing the statements were in position
understand the perspective and expectations of the applicant’s rating
officials at the time.  Therefore, they do not provide a sufficient
evidentiary basis to conclude the OER in question was not fair and
accurate.
4.  In view of the facts of this case and notwithstanding the applicant’s
claims to the contrary, it appears the evaluations contained on the
contested OER represent the considered opinions and objective judgment of
the rating officials.  As a result, it is concluded that the OER in
question was processed and accepted for filing in the OMPF in accordance
with applicable regulations, and there is insufficient clear and compelling
evidence to overcome the regulatory presumption of regularity, and/or to
remove the contested report from the record at this time.

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__FE ___  _LDS ___  _RTD ___  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.





            ____FRED EICHORN_____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004100687                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/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.  193  |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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