RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        7 March 2006
      DOCKET NUMBER:  AR20060000048


      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. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James E. Anderholm            |     |Chairperson          |
|     |Mr. Thomas H. Reichler            |     |Member               |
|     |Mr. Scott W. Faught               |     |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 reconsideration of his request to remove his
Officer Evaluation Report (OER) for the period 24 January 2001 through 29
May 2001 from his records.

2.  The applicant states a careful examination of the OER reveals that both
the rater and the senior rater lacked the [time in position] qualifications
to rate him.  The OER also contains information that occurred outside the
rating period.

3.  The applicant states that the second sentence in Part Vb states "During
this short rating period (the applicant) was granted conditional release
from 23 Jan 01 to 31 Mar and did not drill with the Readiness Command."
That is true, he did not participate in any activities with the unit during
the period indicated.  Due to the conditional release, the actual time the
rater had to evaluate his performance was only 59 days.

4.  The applicant states the last sentence in Part Vb states "He was
boarded for Major on the FY 01 list and was selected for promotion."  The
results of the Fiscal Year 2001 (FY01) Major promotion list were not
released until 26 July 2001, almost two months after the end of the rating
period.  The last sentence of part VIIc also mentions his selection for
promotion to Major.

5.  The applicant states that, since the contested OER was prepared, his
records have gone before two Active Army Command and General Staff College
boards where he was not selected.

6.  The applicant provides no additional supporting evidence.

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
AR2003091921 on 30 March 2004.

2.  The applicant's argument is a new argument which will be considered by
the Board.

3.  After having had prior enlisted service in the Army National Guard, the
applicant was appointed a second lieutenant in the U. S. Army Reserve
(USAR) out of the Reserve Officers' Training Corps program on 11 May 1990.
He entered extended active duty on 28 January 1991.  He was released from
active duty on 31 August 1998 in the rank of Captain and transferred to the
USAR.  He was assigned to a Troop Program Unit (TPU) in September 1998.

4.  The applicant received a 12-rated month annual OER for the period
         2 September 1998 through 1 September 1999.

5.  The applicant next received a 12-rated month (12 rated and 4 nonrated
months) annual OER for the period 24 January 2000 through 23 January 2001
while assigned to the USAR Readiness Command, Fort Jackson, SC.  His rater
was Mr. Steven S___ and his senior rater was Mr. Edmund E___.  His duty
position was "Auditor."

6.  The contested OER is a 4-rated month change of rater OER for the period
   24 January 2001 through 29 May 2001.  His duty position was "Auditor."
His rater was Mr. Steven S___ and his senior rater was Ms. Janis K___.  In
Part Va, the rater rated the applicant's performance and potential as
"satisfactory performance."  In Part Vb, the rater commented that the
applicant had been granted conditional release from 23 January to 31 March
2001 and did not drill with the Readiness Command.  The applicant made up
his February and March drills in April and May 2001.  The rater also noted
that the applicant was selected for promotion to Major by the FY01 Major
promotion selection board.  In Part VIIc, the senior rater also commented
that the applicant "consistently demonstrated a willingness to handle
increasing responsibilities, and was selected subsequently for promotion to
Major."

7.  The applicant entered extended active duty as an obligated volunteer
officer in May 2001.

8.  In January 2003, the applicant appealed the contested OER, contending
the OER was substantively inaccurate and did not accurately reflect his
promotion potential.  He contended the rater erred when he checked
"satisfactory performance" instead of "outstanding performance, must
promote" in Part Va.

9.  In March 2003, the Officer Special Review Board (OSRB) contacted the
applicant's rater.  The rater informed the OSRB he believed that an OER
should not have been rendered on the applicant for the contested period;
however, the organization determined that the OER would be completed and so
the rater assessed the applicant as "satisfactory performance."  The rater
stated he was aware at the time he rated the applicant that he had rated
his performance and potential as "satisfactory performance."  The OSRB
denied the applicant's appeal.

10.  In June 2003, the applicant appealed the contested OER to the ABCMR
with the same argument used in his OSRB appeal.  The ABCMR denied his
request.

11.  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.

12.  Army Regulation 623-105, the version in effect at the time, stated in
paragraph 3-16c(1) that the "period covered" by the OER is the period
extending from the date after the "Thru" date of the last report to the
date of the event causing the report to be written.  The rating period is
that period within the "Period Covered" during which the rated officer
serves in the same position under the same rater who is writing the report.


13.  Army Regulation 623-105, the version in effect at the time, stated in
paragraph 3-16c(2) that nonrated periods were determined by the status of
the rated officer.  There were three distinct types of nonrated periods:

      (a) periods, regardless of the number of days, between the date an
officer departs one duty position and begins performance in a new duty
position;

      (b) periods, regardless of the number of days, spent performing in a
duty position during which the rated officer or the rater does not meet the
minimum time requirements for a report to be rendered; and

      (c) periods totaling 30 or more consecutive days that occur during
the rating period and that are spent in one or more of several specified
ways (of which conditional release is not listed).

14.  Army Regulation 623-105, the version in effect at the time, stated in
paragraph 3-24 that each report would be an independent evaluation of the
rated officer for a specific rating period.  It would not remark on
performance or incidents occurring before or after the period covered.

15.  Army Regulation 623-105, the regulation in effect at the time,
paragraph      4-5b stated, for officers assigned or attached to
organizations for indefinite periods, (1) the rater must have served in
that capacity for 120 calendar days; and (2) the intermediate/senior rater
must have served in that capacity for          90 calendar days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contended that the contested OER noted he had been
granted conditional release from 23 January 2001 to 31 March 2001, that he
did not drill with his unit during that period, and that therefore his
rating officials lacked the qualifications to rate him.

2.  A conditional release is not one of the three distinct nonrated periods
specified in the governing regulation.

3.  The applicant's rated duty position was as an auditor with the USAR
Readiness Command at Fort Jackson, SC.  That was the same position in which
he was rated on his previous annual OER.  He had served in the same
position, with the same rater for over 16 months.  There is no evidence to
show his senior rater had not been assigned as the applicant's senior rater
on a date later than 24 January 2001, the beginning date of the contested
OER.

4.  The applicant's reasoning that, because he had been granted conditional
release from 23 January to 31 March 2001 and did not drill with the
Readiness Command his rating officials lacked the [time in position]
qualifications to rate him, does not meet the common sense test.  By this
reasoning, any Reservist who has an excused absence would interrupt the
[time in position] rating qualification of his rating officials.  With a
mild stretch of this reasoning, it would mean the rating officials of a
Reservist who performs 48 drills a year might never meet the [time in
position] rating qualifications.   It is noted the applicant did not serve
in another position during the period he was granted a conditional release.
The contested OER indicates he made up his February and March drills in
April and May 2001.

5.  The applicant contends that, since the contested OER was prepared, his
records have gone before two Active Army Command and General Staff College
boards where he was not selected.  It cannot be determined that the
contested OER was the sole reason he was not selected for attendance at
those courses.  It is noted that on the OER preceding the contested OER,
the applicant's senior
rater had also rated his potential as center of mass.  It is also noted
that, because of an error on that preceding OER, there appears to be an OER
gap in his files.  The error is in the period covered of that preceding
OER.

6.  The "period covered" by an OER is the period extending from the date
after the "Thru" date of the last report to the date of the event causing
the report to be written.  The applicant's previous OER ended 1 September
1999.  The period covered on his next OER should have begun 2 September
1999 and, as an annual report, should have ended 1 September 2000 (with 4
nonrated months and 8 rated months).  The unintentional "gap" caused by the
error in the period covered may have contributed to the applicant's
nonselection for attendance at those courses.

7.  The applicant also contends the last sentence in Part Vb and the last
sentence in Part VIIc of the contested OER remark on an incident that
occurred outside the rating period.  Those sections note the applicant was
selected for promotion to Major.  The ending period of the contested OER is
29 May 2001; the results of the Major promotion list were not released
until 26 July 2001.  The applicant is therefore correct and those two
sentences should be deleted from the contested OER.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__jea___  __thr___  __swf___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant partial amendment of the ABCMR’s decision in Docket Number
AR2003091921 dated 30 March 2004.  As a result, the Board recommends that
all Department of the Army records of the individual concerned be corrected
by:

     a.  deleting the last sentence in Part Vb of the contested OER; and

     b.  deleting the phrase "and was selected subsequently for promotion
to Major" in Part VIIc of the contested OER.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
removing the contested OER from his records.




                                  __James E. Anderholm__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060000048                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20060307                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |GRANT                                   |
|REVIEW AUTHORITY        |Mr. Schneider                           |
|ISSUES         1.       |111.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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