APPLICANT REQUESTS:  In effect, correction of his military records by invalidating and removing his Officer Evaluation Report (OER) covering the rating period 29 June 1990 - 28 June 1991.

APPLICANT STATES:  In effect, that he feels the OER serves an injustice to him.  It had too many errors in it which showed the lack of care in preparation and the prejudice of the command that wrote it.  At the time of the contested OER he was assigned to Headquarters and Service Company, 94th Engineer Combat Battalion, 18th Engineer Brigade, Germany as the Intermediate Maintenance Repair Technician, Chief Warrant Officer Four (CW4).  He claims that he was rated by the incorrect rater; that the OER was not given to him as is annotated on the OER; that the OER was submitted late; that the ending period on the back page of the OER is incorrect; that initial face-to-face discussion of duties never transpired as required; that the rating chain signature sequence was broken; and that a change of rater OER should have been prepared in March 1991 but never was.  He includes as supporting documentation an unauthenticated copy of an Officer Evaluation Report Rating Chain scheme; his DA Form 67-8-1, OER Support Form; two statements from individuals in his unit testifying to the improper protection given his and other evaluation reports and an Inspector General Action Request substantiating his allegation of improper protection of his OER; and a statement from his senior rater testifying that he had meant to give him a “1” block rating.  He claims the errors on this report caused him to be a two-time nonselect to promotion to CW5.

EVIDENCE OF RECORD:  The applicant’s military records show:

The contested OER is an annual report for a 12-month period.  It contains all “1s” in part IV; the rater gives him ratings of “Always Exceeded Requirements” and “Promote Ahead of Contemporaries.”  His senior rater gives him a “3” block potential evaluation rating.  (It should noted that this makes it a “center of mass” rating – 0 / 0 / 1 / 0 / 0---/ 0).  Neither the rater nor the senior rater make any negative comments.

It should be noted that the applicant authenticated the OER by signing it on        5 September 1991, verifying the administrative information in parts I and II, to include the rater and senior rater.

A check of a few OERs prior to and subsequent to this OER show the applicant was given a “center of mass” rating in almost all instances:  

     OER ending 29 May 1988:  2 / 1 / 0 / 0---0 (applicant “2” block)
     OER ending 29 May 1989:  0 / 3 / 0 / 0---0
     OER ending 28 October 1989:  0 / 1 / 0 /---)
     OER ending 28 June 1990:  1 / 0 / 0 / 0---0
     contested OER:  0 / 0 / 1 / 0---0
     OER ending 30 May 1992:  1 / 0 / 0 /---0
     OER ending 30 May 1993:  1 / 0 / 0 /---0
     OER ending 10 December 1993:  2 / 0 / 0/   0

The applicant submitted an OER appeal in October 1991 based solely on administrative errors.  The documentation was returned by the Corrections and Appeals Branch, PERSCOM for insufficient evidence.  However, the incorrect ending period noted on the back page of the OER was amended.

On 8 January 1998, the applicant submitted a second OER appeal based upon administrative error and substantive error as noted above.  The Officer Special Review Board denied the appeal (SEE ATTACHED).  That Board noted that while the applicant’s contention that his OER was improperly protected was substantiated by the IG, that was not a “fatal flaw” that would invalidate the contents of the contested report or the rating rendered.  That Board contacted the applicant’s rater and battalion S-1.  Through those contacts, it could not adequately substantiate the validity of the rating scheme provided by the applicant.  Even so, the applicant authenticated the rating chain on both the OER Support Form and the OER and authenticated the period of the report by signing the OER.  Contact with those officials also offered a credible reason (deployment to Turkey and Iraq) for the rating official signatures to be out of sequence and for the OER to be submitted late.  Even so, the lateness of the report and the order of signing the report are not compelling fouls which either invalidate the report or the rating rendered.  The senior rater’s supporting statement is “retrospective thinking.”  No new information is provided and his written comments support his “center of mass, “3” block rating.  His contention that he erred is without merit.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  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.

DISCUSSION:  Considering all the evidence, allegations and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  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 the aforementioned requirement.

2.  By signing the OER Support Form and the OER, the applicant authenticated the fact that he was being rated by the correct officials.  

3.  The contended OER is a “center of mass” OER, just as all but one of the OERs shown above are, even though he may have been given a top block rating on some of them.  The senior rater’s comments are all positive, but they are not so superlative as to support anything other than a “center of mass” rating.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

                       GRANT          

                       GRANT FORMAL HEARING

                       DENY APPLICATION

						Loren G. Harrell
						Director