IN THE CASE OF:	  

		BOARD DATE:	        08 JANUARY 2009

		DOCKET NUMBER:  AR20080012997 


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, in an amended application, that his DA Form 67-8 (U.S. Army Officer Evaluation Report [OER]) for the period 5 September 1997 through 4 September 1998, which will simply be referred to as his OER throughout the remainder of these proceedings, be expunged from his official military personnel file (OMPF).  He also requests, in effect, that the proceedings from an Officer Special Review Board (OSRB) which denied his OER appeal also be expunged from his OMPF, along with all evidence of his request to have his OER removed from his OMPF, and that his date of rank (DOR) for promotion to the rank of lieutenant colonel (LTC) be changed from 17 November 2008 to a date in October 2007 to reflect his unjust passover/non-selection the previous year (fiscal year [FY] 2007).

2.  The applicant essentially states he submitted an appeal to the OSRB to have his OER removed from his OMPF, but that his request was denied.  He also states that while reviewing his board file in July 2007 for the FY2007 LTC Judge Advocate General (JAG) Promotion Board, he found that his OER was in his file. He further states that his OER was thought to have been removed 9 years prior to then, and that he was subsequently passed over for promotion and would have his records presented to the FY2008 LTC Promotion Board in August 2008 [the applicant was selected by this board, and he was promoted to LTC with a date of rank and effective date of 17 October 2008].  

3.  The applicant provides a self-authored memorandum, dated 25 July 2008, addressed to the Army Board for Correction of Military Records (ABCMR) and evidence which is indexed in a list on enclosures in support of this application.
CONSIDERATION OF EVIDENCE:

1.  The applicant's OER shows that he was serving as an Assistant Staff Judge Advocate (SJA) with the 98th Division (Institutional Training [IT]) when he received an annual OER for the period 5 September 1997 through 4 September 1998.  His rater for this OER was colonel (COL) M____ J. B_____, the 98th Division (IT) SJA, and his senior rater was major general (MG) P____ A. G_____, the 98th Division (IT) Commanding General.  In Part IVa (Professional Competence), the rater gave the applicant ratings of "2," with "1" being the highest degree and "5" being the lowest degree, in block 1 (Possesses capacity to acquire knowledge/grasp concepts), block 2 (Demonstrates appropriate knowledge and expertise in assigned tasks), block 4 (Motivates, challenges and develops subordinates), block 8 (Displays sound judgment), block 9 (Seeks self-improvement), block 10 (Is adaptable to changing situations), and block 11 (Sets and enforces high standards).  In Part IVb (Professional Ethics), the rater made, in part, the following entry:  "[the applicant] has had some difficulty adapting to new policies and missions of the SJA office.  He has stated that he does not intend to complete the JAG Officers Advance Course which is a prerequisite for promotion to Major."

2.  In Part Vb (Performance During This Rating Period), the rater checked the "Usually Exceeded Requirements" box, which was the second highest box out of five boxes.  In Part Vc (Comment on Specific Aspects of the Performance), the rater made the following evaluation:  "[The applicant] is an able lawyer who has rendered valuable service to the soldiers and commanders of the 4th Brigade to which he is assigned.  He has been encouraged to more closely coordinate his activities with the SJA.  He has also been encouraged to broaden his knowledge of legal assistance and administrative law.  He has completed a legal assistance course at the JAG School.  He has conducted premobilization classes, assisted soldiers with legal problems.  He has rendered legal opinions and advice to area commanders on a wide range of legal subjects.  He has participated in numerous administrative boards as a defense counsel, recorder or legal advisor.  [The applicant] takes pride in his participation in the Army Reserve."  

3.  In Part Vd (This Officer's Potential for Promotion to the Next Higher Grade is), the rater checked the "Promote with Contemporaries" box.  The rater also had the option of checking "Promote Ahead of Contemporaries," "Do Not Promote," or "Other."  In Part Ve (Comment on Potential), the rater entered the following statement:  "[The applicant] has stated that he intends to leave the Army Reserve after the completion of his six year obligation.  He has said that he does not intend to complete the JAG Officer's Advance Course which is a prerequisite for promotion.  [The applicant] has the ability to become a division SJA if he were so motivated."
4.  In Part VIIa (Potential Evaluation), the senior rater gave him a second box check for potential for promotion, which he had previously given to 26 other officers.  The senior rater had also previously given 27 top box checks to officers, and box checks below the second box check for 11 other officers.  He also indicated that a completed DA Form 67-8-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review. In Part VIIb (Comments), the senior rater made the following comments:  "[The applicant's] performance during this rating period was noteworthy as he provided legal assistance to the 98th Division (IT) located in the Eastern/Southeastern part of our [area of operations].  As an excellent legal officer with much potential, it is unfortunate that [the applicant] plans to leave the USAR after his initial six year obligation.  He is encouraged to rethink this decision and complete the Advanced Course.  He is an outstanding, professional who is a credit to the USAR program."

5.  The applicant's rater and senior rater signed his OER on 3 December 1998.  The applicant signed his OER on 5 December 1998.  

6.  The applicant was passed over for promotion by his FY 2007 board.  In a memorandum, dated 3 November 2007, the applicant submitted an appeal to the OSRB under Chapter 6 (Evaluation Redress Program), Army Regulation 623-3 (Evaluation Reporting System) to have his OER removed from his OMPF and that he be placed before a promotion reconsideration board.  In a memorandum, dated 17 June 2008, the applicant was essentially advised that the OSRB determined that the evidence he submitted did not justify altering or withdrawing his OER, and informed him that his appeal was denied.  A letter of the OSRB's decision was filed with his OER in his OMPF.

7.  The applicant was selected by FY 2008 LTC JAG Promotion Selection Board, and he was promoted to LTC effective 17 October 2008.

8.  The applicant stated that the OSRB's decision was legally incorrect for the following reasons:

	a.  he requested that the OSRB waive the time limit to appeal his OER, and that the OSRB never answered that question, but in its decision in paragraph 1 of page 4 of the OSRB proceedings, the OSRB stated that his appeal was beyond the time limit.  He also stated that if that is correct, the OSRB did not have jurisdiction to investigate his appeal or render a decision.  In the alternative, the applicant stated that if the OSRB did waive the time restriction on his appeal, then it could not use the waived time restriction as a basis for denying his appeal. He stressed that the time limit should not have been a consideration in the OSRB's decision;
	b.  in paragraph 2 of page 4 of the OSRB proceedings, the OSRB essentially stated that there was no evidence that his OER should have been corrected other than third-party statements, but that according to Army Regulation 623-3, third-party letters of disinterested parties would be considered.  He also stated that the author of one of the third-party letters explained that she was the applicant's immediate supervisor throughout the entire time he was with the 98th Division (IT), and that letters from the rater of his OER and his raters immediately prior to and following his OER all submitted letters explaining his unjust OER.  He further stated that all of the third-party letters stated that he was performing the same duties throughout the period he was with the 98th Division (IT).  He reiterated that his OER was thought to have been corrected 9 years ago;

	c.  the OSRB made an assumption that when he was promoted to major, he should have noticed his OER on his OMPF microfiche prior to his Troop Program Unit (TPU) vacancy promotion, but that the OSRB did not acknowledge that he stated in his appeal that he did not view his OER;

	d.  the OSRB went outside the submitted documents and into his OMPF to ascertain certain information, but that the OSRB failed to take into consideration that he was involuntarily transferred to the 98th Division (IT), which was approximately 400 miles away from his home.  He also stated, in effect, that under Army regulations, he did not have to accept this assignment, but did so in order to assist the 98th Division SJA office which had picked up assets from the deactivated 76th Division (IT).  He further stated that Army Regulation 623-3 specifically states what documents were pertinent to the appeal, and that by reviewing his OMPF, the OSRB did not give him an opportunity to offer other favorable information from his OMPF in support of his appeal.  He also stated that he had no objection to his entire OMPF being considered, but would have presented other favorable information to the OSRB;
	
	e.  the OSRB's consideration of the promotion rate of the FY 2007 LTC JAG Promotion Board was misleading as that board was, to the best of his knowledge, the first time that judge advocate officers competed against each other and not other specialties; therefore, the OSRB could not state what was used as discriminators by the promotion board members or how far back the promotion board members went in reviewing an officer's file;

	f.  the OSRB's reference to the well-intentioned letters from his raters was unsound, and that each of his OERs after his OER describe a very different officer.  He also statedthat even the senior rater comments on his OER are inconsistent with the rater's comments on this report.  He further states that the OSRB overlooked his award of the Army Achievement Medal, his completion of a legal assistance course, and his continuance in his Officer Advance Course, all of which occurred during the period covered by his OER;

	g.  the OSRB's reliance on paragraph F-2b(3) of Army Regulation 623-105 (Officer Evaluation Reporting System) is misplaced, and that each rater's letter was consistent to the OER he received while performing the same duties.  He also stated, in effect, that once his rater on his OER discovered the orders by which he was operating under, his rater rated him on two subsequent OERs in a completely different manner.  He further stated that his OER is very inconsistent to any of his OERs prior to or subsequent to it, and that his OER is not reflective of his service at that time, as the same rater for his OER substantially changed his ratings for him in the next three OERs even though he was performing the same or similar duties.  He also stressed that this is not a case of second thoughts by any rater involved; and

	h.  the OSRB failed to acknowledge that the 98th Division (IT), under the regulations at the time, should have amended his OER to resolve any inconsistencies, and that poor administrative oversight and control of him, as stated in the OSRB proceedings, was not within his control.  

9.  The applicant also essentially stated that attaching the OSRB's decision to his OER is punitive in nature, and that it now places a 2008 date on his OER and highlights it.

10.  Army Regulation 623-105, in effect at the time, provided for a Commander’s Inquiry in cases when it is brought to the attention of a commander that an OER rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation.  The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army.  The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain.  The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.  A Commander's Inquiry will be made by a commander in the chain of command above the designated rating officials involved in the allegations.  In headquarters and other military organizations lacking a commander, the Commander's Inquiry will be conducted by the next higher official in the rating chain above the designated rating officials involved in the allegations.

11.  Army Regulation 600-8-104 (Military Personnel Information Management/Records) essentially provides, in pertinent part, that a document that announces a special review board or United States Army Human Resources Command decision to deny or partially deny an evaluation report appeal will be filed in the performance section of the OMPF, and that the allied documents will be filed in the restricted section of the OMPF.

12.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) specifies that promotion reconsideration by a SSB may only be based on administrative error which 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 non-selection 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 non-selection, except where an individual is not qualified due to non-completion of required military schooling. 

13.  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 ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his OER should be expunged from his OMPF.  He also contends that the proceedings from an OSRB which denied his OER appeal should also be expunged from his OMPF, along with all evidence of his request to have his OER removed from his OMPF.  He further contends that his DOR for promotion to the rank of LTC should be adjusted to October 2007 based on his first non-selection or that he should be reconsidered for promotion to LTC by a SSB under the FY 2007 criteria.

2.  While the applicant contends that the OSRB denied his appeal based on time limitations, the OSRB did in fact waive the time limit by considering his appeal, but determined that he did not clearly and convincingly establish that the presumption of regularity should not be applied to his OER, or that action was warranted to correct a material error, inaccuracy, or injustice.  

3.  The applicant's contention that the OSRB proceedings did not properly evaluate his third-party statements in accordance with Army Regulation 623-3 was considered.  While the OSRB proceedings did not specifically address the content of the third-party statements, he provided no evidence that the OSRB did not fully consider them.  Additionally, the OSRB proceedings did essentially state that the third-party statements, all of which were completed in October and November of 2007, provided no significant facts or proof of error, and represented retrospective thinking.

4.  The applicant's contention that he did not view his OER on his OMPF until July 2007 was noted.  However, all Soldiers, regardless of whether or not they are scheduled to be considered for promotion, have consistently had an obligation to periodically review their OMPFs.  As a result, the applicant should have known well before July 2007 that his OER was on his OMPF. 

5.  The applicant's contention that the OSRB went outside the submitted documents and into his OMPF to ascertain certain information was also noted.  However, the OSRB only reviewed information that was in the applicant's OMPF, and reviewed his appeal request upon the evidence of record.  The OSRB did not go on a fact-finding mission, nor is there any evidence which shows that they communicated or corresponded with any outside agency that would have required that he be notified of any ex parte communication.  While it is clear that the applicant somehow feels that his rights were violated because the OSRB went outside the submitted documents and into his OMPF to ascertain information, if the OSRB, or any similar board, only based their decisions on the evidence provided by applicants, this obviously would produce one-sided results. As a result, the OSRB, as well as the ABCMR, bases their decisions on the evidence of record which, in the applicant's case, included information in his OMPF.

6.  The applicant's contention that he was involuntarily transferred to the 98th Division (IT) was noted, but not found to have any merit.  It appears that when the 96th Division (IT) or his unit with the 96th Division (IT) was deactivated or realigned, the applicant voluntarily (emphasis added) elected to transfer to the 98th Division (IT) instead of being reassigned to the United States Army Reserve Control Group (Reinforcement), as he had the right to do, and as he previously did in 1993.

7.  While the applicant contends that the OSRB did not give him an opportunity to offer other favorable information from his OMPF, the OSRB presumably reviewed his entire OMPF, and the applicant did not provide any evidence to the ABCMR that he did not already provide to the OSRB.  As a result, there does not appear to be any reason for the applicant to make this contention.  

8.  The applicant's contention that the OSRB's consideration of the promotion rate of the FY2007 LTC JAG Promotion Board was misleading as that board was, to the best of his knowledge, the first time that judge advocate officers competed against each other and not other specialties was not found to have merit.  MILPER Message Number 06-146, issued on 18 May 2006, provided guidance on the FY2006 Army Reserve LTC/COL JAG Corps Competitive Category Promotion Selection Board.  This shows that the applicant's belief that his FY2007 promotion board was the first time that judge advocate officers competed against each other and not other specialties is unfounded.

9.  The applicant's contention that the OSRB could not state what was used as discriminators by the promotion board members or how far back the promotion board members went in reviewing an officer's file was considered.  While it is conceded that selection boards are not required to divulge the proceedings or the reason(s) for a Soldier's non-selection for promotion, it appears that the OSRB made a presumption that his OER would have had little impact on his 2007 consideration for LTC.  That presumption appears to have merit, as the applicant's only OER after his FY2007 promotion board was also a "Center of Mass" report, as were all but one of his OERs as a major.

10.  The applicant's contention that the OSRB's reference to his third-party letters was unsound, and that each of his OERs after his OER describe a very different officer was also noted.  However, Army Regulation 623-105, in effect at the time, provided that each OER must stand alone, and that each report will be an independent evaluation of the rated officer for a specific period.  The fact that subsequent OERs differed from his OER does not prove that an error or injustice occurred on his OER.  

11.  The applicant's contention that the OSRB overlooked his award of the Army Achievement Medal, his completion of a legal assistance course, and his continuance in his Officer Advance Course was also considered.  However, as his OER mentioned his completion of a legal assistance course, it would difficult if not impossible to overlook this fact.  The fact that he was awarded the Army Achievement Medal during the period covered by his OER does not constitute an error on his OER, and is indicative that his rater did not find it necessary to point this fact out.  There is also no regulatory requirement to indicate awards received during a rating period, and this information would already be present in his OMPF.  Additionally, as the applicant did not complete his Officer Advanced Course until early 2000, the fact that he was enrolled in this course during the period covered by his OER is not considered noteworthy, especially as both his rater and senior rater essentially stated that the applicant did not plan to complete this course anyway.

12.  The applicant's contention that once his rater on his OER discovered the orders by which he was operating under, his rater rated him on two subsequent OERs in a completely different manner was noted, as was the fact that he stated that his OER is very inconsistent with any of his OERs prior to or subsequent to it.  However, as previously stated, each report must stand alone, and will be an independent evaluation of the rated officer for a specific period.  The fact that the rater on his OER, over 9 years after the completion of his OER, essentially stated that his rating of the applicant was not representative of his performance, does in fact appear to be retrospective thinking, because the applicant would have or should have apprised his rater of his duties and responsibilities that had been arranged by his previous commander/SJA at the time he reviewed his OER on 
5 December 1998.  As a result, it either appears that the applicant did not care what his OER said at the time, as he was apparently prepared to separate from the USAR in the near future, or he did in fact impart his working situation to his rater, but the rater did not choose to alter his OER at that time.  

13.  Additionally, the applicant's contention that the OSRB failed to acknowledge that the 98th Division (IT) should have amended his OER to resolve any inconsistencies was considered, but not found to have any merit.  It is unclear why the OSRB stated that there was poor administrative oversight and control of the applicant.  However, his command had no regulatory authority to force his rating officials to alter their evaluations.  Additionally, the applicant's contention that the senior rater's comments were not consistent with the rater's comments on his OER are just that; his opinion, as his OER generally shows that he performed his duties, but that his decision not to complete his Advanced Course was hindering his advancement and potential.  

14.  Although the applicant believes that attaching the OSRB's decision to his OER appeal is punitive in nature, this memorandum is properly filed in his OMPF in accordance with Army Regulation 600-8-104.

15.  It is unclear why the applicant or anyone else would have thought that his OER would have been removed from his OMPF.  However, if, at the time he signed his OER, he felt that his OER was not legal, just, or in accordance with Army Regulation 623-105, he should have communicated with his rating officials at that time or requested a Commander's Inquiry.  As he provided no evidence that he did so, it appears that either the applicant did not care what his OER said, as he was apparently prepared to separate from the USAR in the near future, or he did in fact impart his working situation to his rater, but the rater did not choose to alter his OER at that time.  Regardless, it also appears that the applicant changed his mind and remained in the USAR, and now wishes for this OER to be removed from his OMPF.  However, the applicant provided no evidence which proves, by a preponderance of the evidence, that his OER was prepared in error, was unjust, or in violation of Army Regulation 623-105.

16.  It is evident that the applicant wishes to have his OER removed from his OMPF.  However, 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.  In view of the foregoing, there is no basis for granting removing his OER or any associated documents related to his OER appeal from his OMPF.  Accordingly, there is also no basis for adjusting his DOR or reconsidering him for promotion to LTC by a SSB under the FY2007 criteria.

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)                                         AR20080012997



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ABCMR Record of Proceedings (cont)                                         AR20080012997



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