RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        13 October 2005
      DOCKET NUMBER:  AR20050000249


      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. John J. Wendland, Jr.         |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ted S. Kanamine               |     |Chairperson          |
|     |Mr. Patrick H. McGann, Jr.        |     |Member               |
|     |Ms. Carol A. Kornhoff             |     |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 the following:

      a.  that the officer evaluation reports (OER) for the periods 12 July
1995 through 10 June 1996 and 2 July 1998 through 30 September 1998 be
corrected to show that he was rated in the grade of lieutenant colonel;


      b.  that the memorandum for record (nonrated period) be corrected by
changing the rank to show lieutenant colonel and by changing the period of
nonrated time to show 1 November 1996 through 1 July 1998;


      c.  that an OER for the period 11 June 1996 through 31 October 1996 be
added to his records; and


      d.  that after the corrections to his records are made, he receive
consideration by a special selection board (SSB) for consideration for
promotion to colonel.

2.  The applicant states, in effect, that on 9 June 2004 the Army Board for
Correction of Military Records denied his application because there was no
evidence that he had been performing duties of a lieutenant colonel during
the periods covered by the OERs referenced above.  The applicant maintains
that these were lieutenant colonel (O-5) positions that he was serving in
during the periods covered by the OERs.

3.  The applicant provides an extract of the Table of Distribution and
Allowance (TDA) for the School of Aviation Medicine, Fort Rucker, Alabama,
and a one-page document showing duty positions for the III Corps Surgeon's
Office, Fort Hood, Texas, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR2003097634, on 25 May 2004.

2.  The applicant applied to the ABCMR on 17 May 1996.  In this
application, he requested removal of the senior rater (SR) profile from the
OER for the period
22 May 1993 through 31 January 1994 and consideration by a SSB for
promotion to lieutenant colonel.
3.  Records show that the applicant was retired from active Federal service
as a major on 31 October 1996 and was placed on the U.S. Army Retired List,
effective 1 November 1996.

4.  The ABCMR decisions in Docket Numbers AC96-07626, AC96-07626A and AC96-
07626B granted the applicant relief by removal of the SR profile from the
OER for the period 22 May 1993 through 31 January 1994, by promoting him to
lieutenant colonel with an appropriate date of rank and effective date with
entitlement to back pay and allowances, by voiding his 31 October 1996
separation, and by placing an appropriate memorandum explaining nonrated
time in his official military personnel file.

5.  The applicant was reinstated to active Federal Service as a major in
June 1998.  Upon confirmation of the promotion list by the Senate, he was
promoted to lieutenant colonel with a date of rank and effective date of 1
October 1995, and is currently serving as a lieutenant colonel on active
duty at Fort Sam Houston, Texas

6.  Records show that the applicant was assigned to the position of Chief,
Aeromedical Operations Branch at the time the OER for the period 12 July
1995 through 10 June 1996 was prepared, and that he was assigned to the
position of Deputy Surgeon/Medical Operations Officer at the time the OER
for the period
2 July 1998 through 30 September 1998 was prepared.

7.  The applicant provides an extract of the TDA for the School of Aviation
Medicine, Fort Rucker, Alabama, and a one-page document showing duty
positions for the III Corps Surgeon's Office, Fort Hood, Texas, in support
of his request.  These documents show the required and authorized grade for
the two positions as O-5.

8.  Paragraph 3-57 and Paragraph 6-6a of Army Regulation 623-105 (Officer
Evaluation Reporting System) 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 represents the considered opinions and objective
judgment of the rating officials at the time of preparation.

9.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that the two OERs for the periods
12 July 1995 through 10 June 1996 and 2 July 1998 through 30 September 1998
should be corrected to show that he was rated in the grade of lieutenant
colonel; that the memorandum for record (nonrated period) should be
corrected by changing the rank to show lieutenant colonel and by changing
the period of nonrated time to show 1 November 1996 through 1 July 1998;
that an OER for the period 11 June 1996 through 31 October 1996 should be
added to his records; and that after the corrections to his records are
made, he should receive consideration by a special selection board (SSB)
for consideration for promotion to colonel.  In support of his contention
he offers extract copies of authorization documents for the two positions,
which show the positions graded as O-5.

2.  Although the applicant's date of rank to lieutenant colonel was
adjusted to show the effective date of 1 October 1995, there is
insufficient evidence to show that the applicant was performing duties and
rated in the grade of lieutenant colonel at the time that the OERs were
prepared.  Comments by the OER rating officials for the two OERs show the
applicant "consistently performs above his grade" and "possesses the
ability and talent to command at battalion level".  These comments lend
support to the fact that the applicant was not rated or serving in a
lieutenant colonel position during the rated periods covered by the OERs.
In addition, if the applicant was actually serving in a lieutenant colonel
position as a major, the rating officials had the opportunity to indicate
in their comments that the applicant was actually performing duties in a
higher grade.  However, there is no indication on either OER that the
applicant was performing the duties of, or serving in, a lieutenant colonel
position.  Furthermore, changing the applicant's rank on the requested
reports would result in a corresponding change to the context of the rating
officials' comments, which would not necessarily have been the actual
meaning or intent of the rating officials, at that time.  More
significantly, such a change would also cause the SR "Block" check and the
corresponding imbedded SR's rating profile to be invalid, as they reflect
the SR's rating and ranking of majors, not lieutenant colonels.  Therefore,
the OERs in question are correct as currently constituted and there is no
basis to change the grade or rank of the applicant on the reports.

3.  The applicant contends that the memorandum for record (nonrated period)
should be corrected by changing the rank to show lieutenant colonel and by
changing the period of nonrated time to show 1 November 1996 through
1 July 1998 instead of 11 June 1996 through 1 July 1998.  However, he
offers no evidence to support this request.
4.  Documentary evidence shows that ABCMR and Departmental Officials at the
U.S. Total Army Personnel Command determined that the filing of a
memorandum for record (nonrated period) was the appropriate administrative
remedy based on the grant of relief in the applicant's case.  Furthermore,
this remedy was consistent with Army Regulation 623-105 governing the
preparation and processing of nonrated periods.  In the absence of evidence
showing that the official memorandum for record (nonrated period) is
inaccurate or is otherwise flawed, there is no basis to amend the
memorandum for record (nonrated period).

5.  The applicant contends an OER for the period 11 June 1996 through
31 October 1996 should be added to his records.  However, there is no
evidence and the applicant has provided insufficient evidence to show that
he was in a lieutenant colonel position and/or performing the duties of a
lieutenant colonel during the period 11 June 1996 through 31 October 1996.
There also is insufficient evidence that any rating officials executed an
OER in November or December 1996 covering the applicant's performance of
military duties during the period 11 June 1996 through 31 October 1996.
Furthermore, Departmental Officials have already declared this period
nonrated time.  Therefore, in the absence of evidence that the OER proposed
for inclusion in his official military personnel file was prepared by the
correct rating officials in a timely manner in accordance with Army
Regulation 623-105, there is no basis to place the proposed OER in the
applicant's official military personnel file.

6.  The applicant requested consideration by a SSB for consideration for
promotion to colonel.  In the absence of a basis to change or amend the
applicant's records, there is no basis for consideration by a SSB for
promotion to colonel.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__TSK __  ___PHM_  __CAK __  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 to amend the decision of
the ABCMR set forth in Docket Number AR2003097634, dated 25 May 2004.




                                  ____ TED S. KANAMINE ___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050000249                           |
|SUFFIX                  |                                        |
|RECON                   |20051013                                |
|DATE BOARDED            |20040525                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.0100.0000                           |
|2.                      |131.1100.0000                           |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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