RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            4 November 2004
      DOCKET NUMBER:   AR2004101337


      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. Melvin H. Meyer               |     |Chairperson          |
|     |Mr. James E. Anderholm            |     |Member               |
|     |Mr. Jonathon K. Rost              |     |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), dated 15 November 1992, from his Official Military Personnel
File (OMPF).

2.  The applicant states, in effect, the relief for cause OER in question
is not indicative of his qualities, capabilities and potential for future
service.  He states the incident that led to the report was a one-time
event that occurred because of an error in judgment by a subordinate in his
chain of command.  As the commander, he assumed responsibility for his
actions.  He states all OERs he has received since this report support the
fact he is a consummate professional who is technically and tactically
proficient, capable, and ready to be an extremely effective field grade
officer in the Army National Guard (ARNG).

3.  The applicant further states that the presence of this eleven year old
OER he received while serving on active duty is prejudicial and jeopardizes
his ARNG career.  He states the price for this incident was paid for by the
loss of his command and his Regular Army career.  He states the mandatory
Reserve Component Selection Board (RCSB) did not select him from promotion
in March 2003 due to the presence of the OER in question and there is no
change for recovery if this report remains in his OMPF.  He concludes by
indicating that the officer that directed the relief for cause OER
recommends it be removed from his OMPF.

4.  The applicant provides the following documents in support of his
application:  Letter from Officer Directing Relief. Relief for Cause OER,
Subsequent OERs, and Army Commendation Medal Recommendation (DA Form 638).


CONSIDERATION OF EVIDENCE:

1.  The applicant’s military records show that he is currently serving as a
captain (CPT) in the Florida ARNG.

2.  On 25 February 1993, while serving on active duty as a CPT in Korea,
the applicant received the relief-for-cause OER in question, which covered
the period 15 March through 17 November 1992.
3.  In Part IV (Performance Evaluation-Professionalism-Rater), the rater
gave a score of 2 for Question #8 (Displays sound judgment) and provided
the following bullet comment in support of the score:  “Failed to implement
within his company the established directive and policy for security of
night vision devices”.  The rater gave a 1 score in response to all other
questions in this section of the report.

4.  In Part V (Performance and Potential Evaluation-Rater), the rater
placed the applicant in the two block (usually exceeded requirements).  In
the supporting comments, the rater stated that the applicant’s relief
resulted from his failure to implement established security directive and
policy on night vision device security, which resulted in a loss of three
pair of night vision goggles.  The remaining comments were highly favorable
and indicated that until the incident that resulted in relief, the
applicant was performing as a top company commander.

5.  In Part Vd (potential) the rater placed the applicant in the three
block (do not promote), and provided a supporting comment that stated that
the applicant was not recommended for promotion.

6.  In Part VII (Senior Rater-Potential Evaluation) the senior rater placed
the applicant in the three block (below center of mass) and commented that
the applicant’s failure to follow and enforce established command policy
regarding security of sensitive items resulted in a significant loss to the
government.

7.  On 22 February 1993, the OER in question was formally referred to the
applicant and on 25 February 1993, the applicant acknowledged receipt of
the referred OER and provided a rebuttal, in which he stated he had
followed the command policy regarding security of sensitive items and that
he had not demonstrated poor judgment.

8.  On 15 October 1993, the commanding general of the 2nd Infantry Division
conducted an additional review of the referred OER in accordance with the
governing regulation.  After completing this review, he concluded the OER
was complete and correct as written and required no further comment from
him.

9.  The applicant provides a statement from an active duty major general,
who was the official who directed the applicant’s relief for cause and the
senior rater on the contested OER.  He states that he generated the
contested report on the applicant due to a serious incident, neither moral
or ethical, which occurred within his command.

10.  The rating official further states that this one-time event occurred
because of an error in judgment by a subordinate, for which the applicant
assumed responsibility and the purpose of the contested OER was to document
the applicant’s relief and serve as a professional development tool.  He
claims it is clear the latter intent was met, as demonstrated by the
applicant’s subsequent excellent performance in demanding positions and
commitment to professional selfless service.  He concludes by stating that
the applicant deserves to continue to serve in the ARNG and although he
stands by his earlier decision in this matter, the presence of the
contested OER in the file prevents the applicant’s promotion and is now
unjust.

11.  In connection with the processing of this case, a member of the Board
staff confirmed through Human Resource Command, St. Louis, Missouri,
Reserve Component promotion officials that the applicant was selected for
promotion to major by the 2004 Reserve Component Selection Board (RCSB).

12.  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.

13.  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.

14.  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.
15.  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 DA and included in the official record 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.

16.  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.

17.  The OER regulation further stipulates that statements from rating
officials are also acceptable to support an appeal if they relate to
allegations of factual errors, erroneous perceptions, or claims of bias. To
the extent practical, such statements should include specific details of
events or circumstances leading to inaccuracies, misrepresentations, or
injustice at the time the report was rendered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s claim that the contested OER is unjust because it is
not indicative of his qualities, capabilities and potential for future
service and the supporting evidence he provides with his application were
carefully considered.  However, these factors do not satisfy the regulatory
burden of proof necessary to support a successful OER appeal.

2.  The statement now provided by the rating official that directed the
relief-for-cause report clearly indicates that the report in question was
fair and accurate at the time it was rendered.  This official’s support of
the applicant is based on the impact the report could have on the
applicant’s future.  As a result, it does not provide and evidentiary basis
to support deletion or amendment of the report.
3.  By regulation, to support deletion or amendment of a report, there must
be evidence that establishes clearly and convincingly that this presumption
of regularity should not be applied 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.  The evidence provided in this
case addresses the impact the contested report will have on the applicant’s
future, but fails to show any material error, inaccuracy, or injustice
related to the report at the time it was rendered.

4.  In view of the facts of this case, it is clear 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.  Further, given the
applicant’s selection for promotion to major, the impact of the OER in
question does not appear to provide any immediate jeopardy to his USAR
career.

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

_MHM___  __JEA __  _JKR____  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.





            __MELVIN H. MEYER __
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101337                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2004/10/                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  193  |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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