MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  17 October 2000
	DOCKET NUMBER:  AR1999020791

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O’Connor		Chairperson	
	Ms. Linda D. Simmons		Member	
	Ms. Barbara J. Ellis		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his change of duty Officer Evaluation Report (OER) for the period 1 October 1997 to 9 April 1998 be removed from his record.

APPLICANT STATES:  In effect, the battalion commander used discriminatory practices against him to the effect of recording an OER that is considered adverse without a single counseling as to his job performance.  The applicant contends: that his rater, the battalion commander, unjustly found him pecuniarily liable ($907.50) on a Report of Survey for the loss of equipment in his command discovered during a command inventory; that the applicant had requested to pay the debt over six months but upon the battalion commander’s signature, it was collected all in one month causing him financial hardship; that the intense pressure caused by the Report of Survey and having to pay for the lost equipment caused his marriage to break up; that his rater was racially biased against minorities; that he received only one formal counseling from the rater for his OER; that his battalion commander requested Uniform Code of Military Justice action against him because he did not attend an awards ceremony or sign a report of survey before he departed the command even though he had been cleared to leave and the commander had signed his leave form; and that because of all of the above, the rater gave him an adverse OER.  The applicant provides a number of documents to support these contentions, mainly concerning the Report of Survey issue.

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

That at the time of the OER in question, he was a captain in the Transportation Corps assigned as the commander of the Headquarters and Headquarters Company (HHC), 39th Transportation Battalion, 1st Transportation Movement Control Agency, 21st Theater Army Area Command, stationed in Germany.  He had been the HHC commander for 22 months at the time he received a change of duty OER on 9 April 1998 in connection with his end of tour as the commander and his permanent change of station move to the United States.

On the change of duty OER in question, the rater gave the applicant all positive marks in Part IV, Professionalism; and in Part V, Performance and Potential Evaluation, marked the applicant in the top box for “Outstanding Performance, Must Promote”; and gave him all laudatory remarks in the narrative section.  The rater did not make any comment in Part Vc regarding unique professional skills or areas of expertise.  Remarks in this part of the OER are optional.  In Part VII of the report, the senior rater marked the applicant in the top box for “Best Qualified”; and gave him all laudatory remarks in the narrative section.  In the potential box of Part VII, the senior rater marked the applicant in the “Center of Mass” box.

A review of the applicant’s previous four OERs that he received as a captain shows that, although he had been given top block ratings on all four, these ratings, when compared to the other ratings given by his senior raters to officers of his same rank, were all center of mass evaluations.  In other words, the top box was the center of mass for all four of the applicant’s previous senior raters.  
It is noted that the senior rater potential evaluation on the previous reports was indicated by using the 100 man profile while the OER in question was the first one the applicant received where the 100 man profile was replaced by the new “Center of Mass” relative four box potential evaluation.  In this new potential evaluation section there are four boxes from which to select; “Above Center of Mass - or - Center of Mass if more that 50% are placed in this box”, “Center of Mass”, “Below Center of Mass - Retain”, and “Below Center of Mass - Do Not Retain.”

When an OER contains adverse or derogatory information or evaluations, they must be referred to the rated officer for comment.  Army Regulation 623-105 (Officer Evaluation Reporting System), concerning referred reports, states, “The following types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA:  a. a relief for cause report;  b. any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Actions in rating official's narrative evaluation(s);  c. any report with a rating of "NO" in Part(s) IVa-c, Professionalism;  d. any report with a performance and potential evaluation in Part Va of "Unsatisfactory performance, Do not promote " or narrative comments to that effect from any rating official;  e. any report with a performance and potential evaluation in Part Va of "Other," where the required explanation has derogatory information;  f. any report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa;  g. any report with a promotion potential evaluation of "Other", in Part VIIa where the required explanation has derogatory information;  h. any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb;  i. any report with negative comments in Part Vb, VI, or VIIc;  j. any report with an entry of "FAIL" in Part IVc, indicating noncompliance with AR 350-15 on physical fitness; or an entry of "NO" indicating noncompliance with AR 600-9 on weight control.”

There is no evidence that the applicant requested either a commander’s inquiry or appealed his OER.  Army Regulation 623-105 (Officer Evaluation Reporting System) provides both of these means to administratively resolve OER concerns.

At the request of the Army Board for Correction of Military Records (ABCMR), the Army Officer Special Review Board (OSRB), Office of the Deputy Chief of Staff for Personnel, conducted an OER Appeal Review of the applicant’s OER and all the supporting material that he provided.  The OSRB found no error or injustice in the applicant’s OER nor did the OSRB find any adverse or derogatory information in the OER.  The OSRB found no evidence that the OER was affected by the applicant’s report of survey or departure from the unit without having signed an OER or attending an award ceremony.  No evidence was found in the OER of racial bias toward the applicant.  The OSRB provided this Board an opinion that, based on the foregoing OER Appeal Review, the applicant’s request to remove the OER should be denied.

The applicant rebutted the OSRB Appeal Review and opinion by again referencing the documents and contentions he provided in his application for removal of his OER.

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

1.  An analysis of the applicant’s OER in question shows that there are no adverse or derogatory comments or evaluation marks on the OER.  There is nothing on the report requiring that the OER be referred to the applicant.  The fact that the applicant received a “Center of Mass” report is not adverse or derogatory especially in light of the fact that his four previous OERs as a captain had also been “Center of Mass” reports.  There is no evidence of racial bias by the rating officials.  The Report of Survey found against the applicant was not mentioned in the OER nor was there any adverse remark concerning property accountability.

2.  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

__ro____  __ls___  __be_____  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2000020791	
SUFFIX		
RECON		
DATE BOARDED	20001017	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.111	Efficiency Evaluation	
2.		
3.		
4.		
5.		
6.