2.  The applicant requests deletion of the senior rater (SR) evaluation from his Officer Evaluation Report (OER) covering the period 7 April 1993 - 6 April 1994. He states the SR was not qualified to evaluate him due to a lack of knowledge of his unit, mission, duty performance and potential and that the SR believed he was unqualified to rate him.  He also states that since the SR was not knowledgeable of his potential, he did not consider him for a one-block evaluation.  He contends that the SR used a rating method which deviated from regulatory guidance.  During a discussion with the SR, the applicant states he asked him if there was anything he or any other officer assigned in his shoes could have done to have earned a maximum evaluation.  He states the SR told him “you are where you are in life based on timing and fate, and that you win some and you lose some.”  Since by this philosophy there was nothing anyone could have done in his position to earn a maximum evaluation, then his senior rating philosophy was fundamentally flawed and not in accordance with applicable regulatory guidance.  He has now been passed over for promotion to Colonel O-6 three times.

3.  The applicant’s counsel contends, in addition, that in a previous case this Board provided relief despite an Officer Special Review Board (OSRB) denial of an appeal of an OER because a SR remote from the rated officer in a dual rating situation was not one which amounted to an error.

4.  The applicant is a Lieutenant Colonel with a date of rank of 1 October 1991.
The contested report is a 12-month annual OER, during which time the applicant was the battalion commander of the Air Base Ground Defense Command at Fort Dix, NJ.  This was a Training and Doctrine Command (TRADOC) unit at a Forces Command (FORSCOM) installation.  The command was a dual (Army/Air Force) command that was scheduled for turnover to the Air Force about one year after the completion date of the contested report.  Because of that pending transfer to the Air Force, no effort was made to set up a dual-command evaluation for the applicant or his successor.

5.  About four months after the beginning date of this report, the SR, a major general, entered his rating chain.  He was assigned to and physically located at Fort Monroe, VA.  Two months later, the SR deployed to Somalia as the commander of ground forces and remained there for six months.  The applicant requested the designation of a new SR, but this was denied on the grounds that the SR would return before his evaluation was due.  The applicant’s annual OER was due shortly after the SR’s return from Somalia.  The SR asked the Deputy Commanding and Commanding Generals of TRADOC to recuse him from his rating responsibilities because he felt himself unqualified to rate the applicant; however, he was told that there was no regulatory provision for him to be recused.

6.  The SR gave the applicant a 2-block rating (25 - 35 - 3 -…1).  His comments included:  “…is a superb officer and leader.   Understands the big picture, has the insight and tact to deal with sensitive issues and the good sense that requires little guidance.  He has the unlimited potential and ability to reach the highest levels of our Army.  Select for promotion and colonel level command. Select for Senior Service College now.”

7. The applicant appealed this OER, claiming that the SR lacked sufficient contact with him to render an objective evaluation.  Included with his appeal was a statement from his rater, who was also the Fort Dix installation commander, who noted that not once during the entire rating period did the SR have a conversation with him concerning the applicant’s duty performance.  The OSRB denied the appeal, stating that although the distance between the applicant and his SR was not ideal, the SR fulfilled his responsibilities as outlined in regulatory guidance.  The OSRB also stated that, though the applicant explained that he worked for several chains of command, and the preferred method of rating in these cases would be a dual supervision model, such was not the case here, though it should have been.  

8.  The applicant appealed the OER again on the same basis.  One of his supporting documents was from the former commanding general of the 37th Training Wing at Lackland Air Force Base.  He stated that although the applicant’s unit was an Army command, it trained exclusively Air Force security police, so he was very familiar with its operation.  He went on to state that the Air Force was never invited to participate in the evaluation of its commander.  The OSRB determined that no new evidence was submitted and denied his second appeal.

9.  Phone conversation with the senior rater on 7 August 1998 verified the applicant’s statement that the SR did not feel comfortable rating him because of the distance involved.  He tries to get personal feedback from everyone he senior rates; he personally saw the applicant two or three times, albeit not for long periods, and he got input from his deputy.  He had a disciplined profile at the time, and as this was a time when profiles started to inflate, the applicant got caught up in the transition – his SR had a disciplined profile but his contemporaries were rated by SR’s who inflated their profiles.  He clearly intended that the applicant should be promoted to colonel and attend the War College.  His comments were clear on that.  He has to rate officers on their potential.  It obviously helps when a SR can have frequent contact with them because he is then personally aware of their performance/potential.

10.  Phone conversation with Infantry Branch on 10 August 1998 indicates they feel the fact that the applicant has three 2-block OERs (the contested report plus two from when he was a major) were the deciding factors in his not being selected for promotion to colonel.

11.  In the case the applicant cites as supporting his request, the SR had submitted a letter in which he stated, essentially, that in rating officers he placed the officers he knew and worked with on a daily basis in the top block, the ones whom he believed should not be promoted in the third block and the remainder in the second block.  He went on to state that the applicant occupied a position that he knew little about and one which he had no opportunity to observe, which he believed was unfair to the applicant.  In this cited case, the SR had given the applicant a 2-block rating.  This placed the applicant below the center of mass on his profile (14 - 9 - 0…0).  In this case the SR also acknowledged that he had no opportunity before leaving Germany to talk with the applicant’s raters nor did he see any written reports provided from her intermediate rater..  The SR went on to state that it was difficult for him to rate the applicant because he had to rely primarily upon her own input and the rater’s input.  The SR conceded that he rated the applicant against officers with whom he had worked in his office in Germany.  In this case also, the OSRB denied the applicant’s appeal, similarly stating that with imprecise knowledge of her performance, he did not deviate so significantly from the regulatory process as to create an unjust report with material errors.

12.  In the cited case, the Board noted that the OSRB determined that the applicant was placed in extremely difficult circumstances with respect to communicating with her rating chain and was disadvantaged by her remote, geographic separation from the SR.  Nonetheless, the OSRB had concluded that this situation did not constitute a “fatal flaw” or material error invalidating the presumption of regularity with respect to the contested report.  The Board, however, had to address not only error but injustice as well.  In that regard, the Board reached the inescapable conclusion that the situation in which she had been placed worked to her detriment when the contested OER was rendered by the SR.  The Board further noted that the SR stated that he established his own method of rating officers’ potential contrary to regulation.  The Board noted that the SR had a responsibility to obtain sufficient data to fairly rate the applicant.  His failure to do so worked an injustice upon her.  Accordingly, that Board granted relief by deleting the entire senior rater profile from the contested report and, as that would constitute a significant change in her record, entitled her to promotion reconsideration by all appropriate special promotion selection boards.

13.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 4-16, in pertinent part, states that part VII of the OER provides for evaluation of potential by the SR.  The evaluation is made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The regulation further states that the SR’s evaluation is to be based on the premise that in a representative sample of 100 officers of the same grade or grade groupings (Army-wide), the relative potential of such sample will approximate a bell-shaped normal distribution pattern.

CONCLUSIONS  

1.  In this case, as similarly in the case cited as supporting the applicant’s claim, it is noted that on two occasions the OSRB determined that the applicant’s unit’s unique mission/location, rating scheme, and “distance” from his SR was unfortunate, adversely complicated by the SR’s lack of direct visibility and compounded by his TDY from his normal duty position.  Nonetheless, the OSRB determined there was not sufficiently convincing evidence that Part VII of the contested OER was inaccurate or unjust.

2.  Unlike in the cited case, the SR did not come right out and state that he rated officers he knew with a 1-block and officers he did not know with a 2-block.  However, the SR did state this indirectly.  The applicant’s statement that the SR told him “you are where you are in life based on timing and fate, and that you win some and you lose some,” combined with the SR’s comment to one of this Board’s examiners that he has to rate officers on their potential and it obviously helps when a SR can have frequent contact with them, is credible.  By this philosophy, an officer is not rated by how well he compares in potential with other officers rated by the same SR, but by the officer’s proximity to the SR by the understandable standard that the SR knows those officers best who are closest to him.

3.  The SR knew circumstances failed to enable him to senior rate the applicant in a fair manner.  He came into the rating chain four months after the rating period began.  He was physically located hundreds of miles away.  Two months later he departed for Somalia, thousands of miles away, for six months.  Shortly after he returned and while he was still in the middle of wrapping up his deployment responsibilities and catching up to his TRADOC responsibilities, the applicant’s annual OER came due.  He felt himself so unqualified to rate the applicant he tried to get himself recused from the responsibility.  Once his request for recusal was finally denied, if not before, he had a responsibility to obtain sufficient data to fairly rate the applicant.  There is evidence that he failed to do so.

4.  This Board reaches the conclusion that the situation into which circumstances placed the rated officer and his SR worked to the applicant’s detriment when the contested OER was rendered by the SR.  It should be noted that the regulatory process requires that in the potential evaluation portion of the OER where 100 officers of the same grade or grade groupings (Army-wide) are ultimately compared, the relative potential of such sample will approximate a bell-shaped normal distribution pattern.  Out of a total of 52 officers rated by the SR, only four fell outside the first and second block ratings.  This in effect was a two-block rating philosophy, did not follow the intent of the regulation, and worked to the detriment of the applicant.  

5.  In view of the circumstances in this case to include the information and supporting documentation provided by the applicant, statements from the rating officials and notwithstanding the opinions expressed by the OSRB in its case summaries, the Board is satisfied that the evidence adequately shows that the contested OER does not represent a fair, objective and valid appraisal of the applicant’s potential during the period in question.

6.  In view of the foregoing, it would be in the interest of justice to correct the applicant’s records as recommended below.

RECOMMENDATION: 

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  deleting the SR profile in part VIIa from the OER ending 6 April 1994 of the individual concerned.

     b.  removing from his records the memoranda prepared by the Total Army Personnel Command indicating the denial of his two appeals of the contested OER and any other documents pertaining to the denial of his appeals.

     c.  submitting his records, as thus corrected, to the appropriate special promotion selection board(s) for promotion reconsideration.

2.  That if not selected under the criteria established for the first promotion board which nonselected him, his records should continue to be submitted to duly constituted special promotion selection boards convened under the appropriate promotion criteria of the boards that nonselected him until he is either selected for promotion or has been afforded all appropriate promotion reconsideration to which he is entitled as a result of this corrective action.

3.  That if he is selected for promotion, he should be promoted with an appropriate date of rank, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

BOARD VOTE:

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION

				                                                              
	CHAIRPERSON