IN THE CASE OF:	 

		BOARD DATE:	        28 APRIL 2009

		DOCKET NUMBER:  AR20080010312 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that Part VIIa, senior rater portion, of her Officer Evaluation Report (OER) for the period 10 (sic) October 1997 through 15 June 1998 [herein referred to as the contested OER] be changed from "Fully Qualified" to "Best Qualified."

2.  The applicant states she believes an evaluation of her promotion potential to the next higher grade is "best qualified" rather than "fully qualified."  She alleges that Part VII (Senior Rater) of the contested OER clearly indicates the senior rater's evaluation of her potential as best qualified for promotion.  Major General (MG) B_____'s letter, dated 20 July 1998, also supports a change in the evaluation from "Fully Qualified" to "Best Qualified" and indicates that an incorrect indication was made on the contested OER.  

3.  The applicant provides the following documents in support of her application: her memorandum, dated 9 November 1998, appealing the contested OER; a memorandum, dated 21 July 1998, from the Personnel Services Branch, Walter Reed Army Medical Center, Washington, D.C., requesting a minor correction to the contested OER; a memorandum, dated 20 July 1998, from the Senior Rater (MG B____), requesting a minor correction to the contested OER; two memoranda, dated 16 October 1998 and 7 July 2000, from the Chief, Appeals and Corrections Branch, Alexandria, VA, responding to the request for a minor correction to the contested OER; and a copy of the contested OER.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant’s military records are not available to the Board.  This case is being considered using the documents provided by the applicant.  

3.  The contested OER shows the applicant's date of rank (DOR) to colonel as
1 December 1996 and her branch as Army Nurse Corps.  

4.  The contested OER is a 9-month change of rater OER for the period from 1 October 1997 through 15 June 1998.  She was assigned to the U.S. Army Medical Department Activity (MEDDAC), West Point, NY and her principal duty position was Deputy Commander for Health Services/Chief Nurse.  Her rater was Colonel F________ and her senior rater was MG B_____.  Her chain of command signed the contested OER on 22 June 1998.

5.  In Part VIIa, the senior rater rated the applicant's promotion potential as "Fully Qualified."  The senior rater commented, "Superb performance by an outstanding officer, who as the Deputy Commander for Health Services, was instrumental in the many significant accomplishments at West Point to include a highly successfully survey by the JCAHO [Joint Commission on Accreditation of Healthcare Organizations], improving the partnership with the Veterans Administration, and preparing for the integration of the Fort Monmouth MEDDAC.  She demonstrated particular expertise in preventive medicine.  Always positive, always proactive, with a strong value system and good leadership skills.  Select for attendance at senior service school.  Has command presence."

6.  In a 20 July 1998 memorandum, the senior rater, MG B_______, requested a minor correction in the contested OER.  The senior rater stated that Part VII, paragraph a, of the contested OER should have indicated "Best Qualified" and that an incorrect indication was made for "Fully Qualified."  

7.  In a 21 July 1998 memorandum, the Chief of Personnel Services Branch requested a minor correction to the contested OER.  It was stated that Part VII, senior rater portion, paragraph a, was incorrectly marked "Fully Qualified" and that the "Best Qualified" box should be marked instead.

8.  On 16 October 1998, the Chief, Appeals and Corrections Branch responded to the 21 July 1998 memorandum from the Chief of Personnel Services Branch.  The memorandum indicated that requests involving corrections to a rating in Part VIIa of the DA Form 67-9 must be adjudicated by the Deputy Chief of Staff for Personnel (DCSPER) Officer Special Review Board.  The memorandum also stated that the correction would be done through the appeal process outlined in Chapter 6, Army Regulation 623-105, 1 October 1998.  Appeals based solely on a statement from the senior rater claiming administrative oversight in Part VIIa would normally be returned without action unless an explanation was provided explaining how the error occurred.  As a result, the request was returned without action.  

9.  On 9 November 1998, the applicant submitted an appeal to the contested OER.  In her appeal, she indicated that an evaluation of her promotion potential to the next higher grade is "best qualified" rather than "fully qualified."  She alleged that Part VIIc clearly indicated the senior rater's evaluation of her potential as best qualified for promotion.  MG B_____'s letter, dated 20 July 1998, also supported a change in the evaluation from "Fully Qualified" to "Best Qualified" and the senior rater indicated that an incorrect indication was made on the OER.  

10.  The applicant retired from active service on 31 July 1999 and she was placed on the retired list on the following date.  

11.  In a 7 July 2000 memorandum, the applicant was informed that the information she submitted and her official records were reviewed by the Appeals and Corrections Branch and referred to an officer Special Review Board (OSRB).  The Board determined that the evidence did not justify altering or withdrawing the report.  

12.  Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The version in effect at the time provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials and to have represented the considered opinion, and objective judgment of the rating officials at the time of preparation.  The version 
in effect at the time and the current version state that the burden of proof in 
appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

13.  Paragraph 5-25 of Army Regulation 623-105, in effect at the time, provided that an OER accepted by the Officer Management Branch 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, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 6-6 of that regulation stated that an appeal must be supported by substantiating evidence, that is, 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.  

14.  Paragraph 6-6a(3)b of Army Regulation 623-105 in effect at the time stated that appeals based solely on statements from rating officials claiming administrative oversight or typographical error in Part IVa or box selections in parts Va, VIIa, or VIIb of DA Form 67-9 would normally be returned without action unless accompanied by additional substantiating evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that her promotion potential to the next higher grade is "best qualified" rather than "fully qualified" and that the senior rater's evaluation of her potential as best qualified for promotion is clearly indicated in Part VII of the contested OER were carefully considered.  However, the applicant has not provided clear and compelling evidence to amend the contested OER.  

2.  It is noted that the senior rater described the applicant's promotion potential  in Part VIIa as "Superb performance by an outstanding officer who as the Deputy Commander for Health Services, was instrumental in the many significant accomplishments at West Point to include a highly successfully survey by the JCAHO, …."  Additionally, the senior rater described the applicant as being "Always positive, always proactive, with a strong value system and good leadership skills."  However, the senior rater rated the applicant as "Fully Qualified" in Part VIIa of the contested OER.  

3.  The 20 July 1998 memorandum shows that the senior rater submitted a request for a minor correction to the contested OER to show the applicant's promotion potential as "Best Qualified" instead of "Fully Qualified."  However, it appears that the senior rater did not provide additional substantiating evidence and the request was returned without action.

4.  The applicant's appeal was reviewed by the OSRB in 2000.  However, the OSRB determined the applicant's evidence did not justify altering or withdrawing the report.

5.  Based on the governing regulation, an OER accepted by the Officer Management Branch 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, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  

6.  Therefore, there is insufficient evidence to support the applicant's request to correct Part VIIa, senior rater's portion, of the contested OER from "Fully Qualified" to "Best Qualified."

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ____X____  ___X_____  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.



      __________XXX_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080010312



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ABCMR Record of Proceedings (cont)                                         AR20080010312



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