RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        11 December 2007
      DOCKET NUMBER:  AR20070011110


      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.

|     |Ms. Catherine C. Mitrano          |     |Director             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. William D. Powers             |     |Chairperson          |
|     |Mr. Michael J. Flynn              |     |Member               |
|     |Ms. Sherry J. Stone               |     |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, reconsideration of his earlier
petition for removal of an Officer Evaluation Report (OER) covering the
period 11 June 2004 through 1 September 2004 from his Official Military
Personnel File (OMPF); and that he be granted a personal appearance before
the Board.

2.  The applicant states, in effect, he is providing new evidence that
clearly articulates the violations and improprieties associated with his
case.

3.  The applicant provides a Self-Authored Memorandum, dated 16 July 2007,
as new evidence in support of his reconsideration 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
AR20060010667 on 26 June 2007.

2.  During its original review of the case, the Board found insufficient
evidence to support the applicant's allegations regarding the lack of
objectivity and fairness on the part of rating officials, or his assertions
that the OER in question was illegal or unethical.  The Board finally
concluded the applicant had failed to provide clear and compelling evidence
showing the ratings on the contested report were in error or unjust.

3.  The applicant provides a self-authored statement as new evidence and
argument in support of his reconsideration request.  In it, he outlines his
objections to the OER in question and explains why he believes it did not
meet the regulatory standard for a Relief for Cause report for the
following reasons:  it did not contain negative checked blocks and was a
center of mass report; it was not properly served; neither the rater or
senior rater cited any failure by him in the performance of his duty; the
senior rater failed to cite the reason for his relief; improper commander's
inquiry; falsely stating he refused to sign the report; rater and senior
rater improperly characterized his performance of duty during the Officer
Special Review Board (OSRB) appeals process; and finally deception on the
rating chain.

4.  The applicant's record shows that he received the contested Relief for
Cause OER in December 2004.  The report covered the period 11 June 2004
through
1 September 2004, and indicated it covered one rated month.  The applicant
was evaluated as the Assistant Chief of Staff, G-4 of the 3rd Infantry
Division.  The rater, a colonel, checked all the "Yes" blocks in Part IVa
(Army Values) and Part IVb (Leader Attributes/Skills/Actions).  In Part V
(Performance and Potential) the rater checked the "Other" block and
explained that the applicant had assumed his duties on 18 August 2004 and
subsequently requested to be removed from his duty position due to personal
matters.  In Part VIIa (Senior Rater-Promotion Potential) the senior rater,
a major general, placed the applicant in the "Other" block and in Part VIIb
(Potential) the senior rater checked the "Center of Mass" block.  The
senior rater explained that the applicant had requested to be removed from
his position as the Division G-4 in the face of the unit's upcoming
deployment to Iraq, and that on this basis he directed the applicant's
relief.  The senior rater also indicated that the applicant should be
allowed to retire after serving the Army in another position.

5.  On 21 January 2005, a commander's inquiry into the contested report was
completed by the commanding general of the XVIII Airborne Corps, a
lieutenant general.  This reviewing commander determined the applicant's
Relief for Cause OER was factually and legally sufficient.  He stated that
the COM evaluation given by the senior rater was well within the senior
rater's discretion and that the narrative portions of the report fully
explained and justified the reason for relief.  He finally found that the
contested OER was complete and correct as written.

6.  On 20 April 2005, an appeal of the OER in question citing substantive
and administrative errors was submitted to the Officer Special Review Board
(OSRB) on behalf of the applicant by his legal counsel.  Counsel claimed
the report in question was never served and failed to comport with the
governing Army regulation.  The OSRB case summary indicated that the
applicant's appeal of the contested report was based on belief that the OER
contained both substantive and administrative errors, was unjust and did
not accurately reflect his performance or potential.  His specific
contentions were that the report was not properly referred to him; that the
time period covered was in error; that neither the rater or senior rater
narratives cited a failure in his performance of duty; that the rater
narrative stated the applicant's potential for promotion, advanced
schooling, or increased responsibility could not be evaluated, which is
evidence that the senior rater was likewise not capable of rendering an
evaluation of his potential; that the senior rater acted in a disingenuous
manner when he verbally characterized the applicant's request for
reassignment as quitting; that the reference to personal reasons in Part V
of the contested report was in violation of the governing regulation; and
that he never refused to sign the report.

7.  After interviewing both the rater and senior rater, the OSRB found that
the applicant did not provide and it did not find elsewhere, the necessary
evidence to cause deletion or amendment of the contested report.  The OSRB
finally concluded there was insufficient convincing evidence that the
contested report was inaccurate, unjust and did not adequately reflect the
applicant's performance and potential and as a result, the report should
not be amended or deleted.

8.  Army Regulation 623-105, in effect at the time, prescribed the policies
and procedures pertaining to the Officer Evaluation System (OES) and
Officer Evaluation Reporting System (OERS).  It also provided guidance
regarding redress programs including commander inquiries and appeals.
Paragraph 3-57 provided the basic rule applicable to modifications of
previously submitted reports.  It stated, 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.

9.  Chapter 6 of the same regulation contained the policies and procedures
pertaining to managing the OER redress program.  Section III contained
guidance on OER appeals and paragraph 6-10 outlined the burden of proof
that must be met to support a successful OER appeal.  It stated 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 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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records)
prescribes the policies and procedures for correction of military records
by the Secretary of the Army, acting through the Army Board for Correction
of Military Records (ABCMR).  Paragraph 2-11 contains guidance on hearings
and states, in pertinent part, that applicants do not have a right to a
hearing before the ABCMR.  The regulation does indicate that personal
appearance hearings may be authorized by a panel of ABCMR members if they
believe it is warranted.  In addition, the Director or the ABCMR may grant
a formal hearing whenever justice requires.


DISCUSSION AND CONCLUSIONS:

1.  The new argument presented by the applicant in his reconsideration
request was carefully considered.  However, it appears the argument now
provided by the applicant with his reconsideration request was fully
considered and evaluated by a Board in some form during its original review
of the case.  The issues presented by the applicant for reconsideration
were fully addressed during both the OSRB's review of his case, and by this
Board in its original decision in this case.

2.  The evidence of record confirms the OER in question was properly
processed and accepted for filing by DA in accordance with the applicable
regulation.  The applicant has been afforded due process through the
appellate process, which included reviews by the OSRB and this Board, which
both found no clear and compelling evidence to support the applicant's
assertion that the contested OER was unjust or inequitable.

3.  Contrary to the applicant's assertions, the evidence shows the OER in
question was prepared by the properly designated rating officials, and
represented the considered opinions and objective judgment of those rating
officials at the time.  The report appears to have been properly processed
based on the applicant's request to be removed from his position prior to a
planned deployment to Iraq.  As a result, there remains an insufficient
evidentiary basis to support amendment or removal of this report from his
OMPF.

4.  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 has failed to
submit evidence that would satisfy this requirement, or that would support
amendment of the original Board decision in this case.

5.  The applicant’s request for a personal appearance hearing was also
carefully considered.  However, by regulation, an applicant is not entitled
to a hearing before the Board.  Hearings may be authorized by a panel of
the Board or by the Director of the ABCMR.  In this case, it is concluded
that the evidence of record and independent evidence provided by the
applicant is sufficient to render a fair and equitable decision at this
time.  As a result, it is concluded that a personal appearance hearing is
not necessary to serve the interest of equity and justice in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__WDP__  __MJF __  __SJS___  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 AR20060010667, dated 26 June 2007.




                                  _____William D. Powers____
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20070011110                           |
|SUFFIX                  |                                        |
|RECON                   |AR20060010667-2007/06/26                |
|DATE BOARDED            |2007/12/                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |                                        |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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