RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        10 November 2005
      DOCKET NUMBER:  AR20050008282


      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:

|     |Ms. Margaret K. Patterson         |     |Chairperson          |
|     |Ms. Linda D. Simmons              |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 are provided by counsel.

2.  The applicant provided his statement through counsel.

3.  The applicant provides supporting evidence through counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the duty description on the applicant's officer
evaluation report (OER) for the period 6 July 2002 through 5 July 2003
[hereafter referred to as the contested report] be changed by adding the
duty titles "Chief, Pediatric Cardiology Services" and "Assistant Chief for
Administrative Services, Department of Pediatrics."

2.  The applicant also requests reconsideration of his nonselection for
promotion to the grade of colonel by the fiscal year 2003 Department of the
Army Promotion Board.

3.  Counsel essentially states the applicant was nonselected for promotion
to the grade of colonel because the duty title on the contested report did
not accurately address his responsibilities.

4.  Counsel provides a 19-page brief with 17 attachments in support of this
application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's counsel provided a historical background of the
applicant's military career and highlighted various excerpts of positive
comments from the applicant's previous OERs.

2.  Counsel contends the contested report did not accurately describe the
applicant's duty title and responsibilities.

3.  Records show that the contested report was an "Annual" report for
12 months of rated time in the position of Assistant Chief, Cardiology, A
Company, Walter Reed Army Medical Center, Washington, DC.



4.  Part IIIa (Principal Duty Title) contains the entry "Assistant Chief,
Cardiology."

5.  Part IIIc (Significant Duties and Responsibilities) contains the entry:


      "Serves as Assistant Chief of Cardiology and Director, Pediatric
Echocardiography Service at a major Army Medical Center.  The pediatric
cardiology service provides comprehensive cardiac care and consultative
services for military dependent children throughout the eastern United
States and Europe.  Provided the echocardiographic support necessary to
sustain the only program in the military that is able to offer pediatric
cardiac surgery, as well as non-surgical closure of atrial septal defects.
Provide pediatric support as staff attending on the inpatient and
outpatient service, and as PALS instructor.  Supervise and teach medical
students and residents.  Serves as one of the collaborators of an ongoing
research project.  Serves as Pediatric Clinical Team Officer for JCAHO.
Serves as internal reviewer for the Adult Infectious Disease Fellowship."


6.  The contested report shows the applicant authenticated the
administrative portion of the contested report on 15 July 2003.

7.  The applicant's support form for the contested report is not available
for review with this case.

8.  The applicant's counsel submitted a 4 June 2003 memorandum from the
Chief of the Department of Pediatrics, Walter Reed Army Medical Center.
This memorandum provided official notification to the applicant that he had
been appointed as the Assistant Chief of Administrative Services,
Department of Pediatrics.

9.  The unit manning document which shows the duty position the applicant
was assigned to during the period of the contested report is not available
for review with this case.

10.  Records show the applicant initially appealed the contested report to
the DA Officer Special Review Board (OSRB) on 10 December 2004.  The
applicant's appeal was returned without action on 18 February 2005 because
he did not provide substantive evidence of a clear and compelling manner
for the OSRB to consider.




11.  Counsel argues the applicant was nonselected for promotion to the
grade of colonel by the fiscal year 2003 Department of the Army Promotion
Board.  Counsel states "the Army's failure to document [applicant's name
removed] duty title and performance of duty deprived the selection board of
the crucial comparative information on which to base its selection
decisions."

12.  Counsel stated that, because the 2003 Department of the Army Promotion
Board did not have an accurate portrayal of the applicant's duties and he
was nonselected by that Board, he should be given reconsideration by a
Department of the Standby Board.

13.  The OSRB provided a one-page advisory opinion for consideration with
this case.  The OSRB opined that since the applicant was subsequently
selected for promotion to the grade of colonel and the fact that he did not
provide substantive and compelling evidence to show the contested report
was erroneous or flawed, his application should be either returned without
action or denied.

14.  The staff of the ABCMR provided a copy of the OSRB opinion to the
applicant's counsel for review and rebuttal.  The applicant's counsel did
not provide a response to the OSRB opinion.

15.  Army Regulation 623-105 (Officer Evaluation Reporting System)
paragraph
3-18a(1) states the duty description is entered in Part III by the rater
and is based on the rated officer's entries on the DA Form 67-9-1 (OER
Support Form).

16.  Army Regulation 623-105 paragraph states in paragraph 3-18c(2) the
significant duties and responsibilities section will be a succinct
narrative, written in prose (not bullet) format.  The rater will describe
in detail the rated officer's duties and responsibilities.  The narrative
should be reflective of the duty description on the officer's OER support
form.  As a minimum, the description will include principal duties and
significant additional responsibilities.

17.  Paragraph 3-17c(3) of Army Regulation 623-105 states that the rated
officer should sign and date the report after the completion and signature
by all rating officials in the rating chain.  The regulation states that
the rated officer's signature verifies the accuracy of the administrative
data in Part I, the rating officials in Part II, the Army Physical Fitness
Test and height and weight data in Part IVc, and that the rated officer has
seen the completed OER.  The regulation states this action increases
administrative accuracy of the OER since the rated officer is most familiar
with and interested in this information.  Finally the regulation states
that confirmation of the administrative data will normally preclude an
appeal by the rated officer based on inaccurate administrative data, which
by the exercise of due diligence by the rated officer would have been
corrected.

18.  Army Regulation 623-105 states in paragraphs 3-57 and 6-6a 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.

19.  Paragraph 9-7 of Army Regulation 623-105 states that the burden of
proof in an appeal of an OER rests with the applicant.  Accordingly, to
justify deletion or amendment of an OER under the regulation, the applicant
must produce evidence that clearly and convincingly overcomes the
presumptions referred to above and that action to correct an apparent
material error or inaccuracy is warranted.

20.  Army Regulation 600-8-29 prescribes the policies and procedures for
promotion of officers on active duty.  This regulation specifies that
promotion reconsideration by a special selection board may only be based on
erroneous nonconsideration due to administrative error, the fact that
action by a previous board was contrary to law, or because material error
existed in the record at the time of consideration.  Material error in this
context is one or more errors of such a nature that, in the judgment of the
reviewing official (or body), it caused an individual's nonselection by a
promotion board and, that had such error(s) been corrected at the time the
individual was considered, a reasonable chance would have resulted that the
individual would have been recommended for promotion.  The regulation also
provides that boards are not required to divulge the proceedings or the
reason(s) for nonselection.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he is entitled to correction of the contested
report to show the duty titles "Chief, Pediatric Cardiology Services" and
"Assistant Chief for Administrative Services, Department of Pediatrics."

2.  The administrative section of the contested report was authenticated by
the applicant.  Additionally, there is insufficient evidence and the
applicant has not provided sufficient evidence which shows he was
officially assigned to the positions of Chief, Pediatric Cardiology
Services" and "Assistant Chief for Administrative Services, Department of
Pediatrics."  Absent such evidence, there is no basis to grant the relief
requested.

3.  The applicant contends that he is entitled to reconsideration for
promotion to the grade of colonel under the criteria of the fiscal year
2003 Department of the Army Promotion Board.

4.  The applicant's records do not show that a material error existed in
his official military personnel file at the time of his consideration by
the 2003 Department of the Army Promotion Board.  Therefore, he does not
meet the criteria for reconsideration by a Department of the Army Standby
Promotion Board.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

_MJF____  _LDS__  _MKP____  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.





                                     __Margaret K. Patterson_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20050008282                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051110                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


-----------------------
[pic]