PROCEEDINGS

	IN THE CASE OF:      

	BOARD DATE:            21 July 1999      
	DOCKET NUMBER:   AR1999020964

	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. Loren G. Harrell		Director	
	Mr. Kenneth Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Erin J. Olmes		Member	
	Ms. Joann H. Langston		Member	
	Mr. Curtis W. Barbee		Member	
	Mr. Roger W. Able		Member	

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

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that his OER for the period 2 July 1987 through        20 April 1988 be corrected to delete the senior rater portion of that                report (TAB A), and that the Board forward his corrected record for promotion reconsideration.    

3.  The applicant states (TAB A) that statements from rating officials during his tenure as commander of an artillery battery, and other evidence establish proof of an injustice and substantive error in the report.  The senior rater’s block check and comments were unjust, in that they were based solely on his selection as a foreign area officer (FAO), not on his performance of duty during the period.  His record after the report clearly shows the senior rater’s assessment of his potential was erroneous.  Over the past 10 years he has received only top block reports and no other officer has been rated above him, confirming that the senior rater profile and comments do not reflect his comparative performance and potential.  Because he was not provided a copy of the report by his senior rater, he was precluded from submitting a commander’s inquiry at the time of the report.

4.  He states that his senior rater expressed confidence in him by directing his rater to ask him to extend his command, and that his rater, in a letter to the lieutenant colonel selection board, stated that his senior rater decided to render a “two block” report because he (the applicant) had to decline to extend in command.  His rater stated that his performance and potential warranted a top block rating.  He states that his rater clearly showed that he achieved excellence during the rating period, and commented on the specifics of his performance and potential; whereas, his senior rater devoted 30 percent on his comments to discussion of his selection as a FAO.  Such comments are not  in accordance with the regulation.

5.  His senior rater for the previous rating period while in the same position substantiated his “above center of mass” performance.

6.  A month after the rating period, the senior rater stated that the applicant was among the top 2-5% of his peers applying for Army funded graduate school, which corresponds to a “top block” rating; consequently, casting doubt as to the accuracy and fairness of the senior rater portion of the report.

7.  His rater documents the fact that his senior rater was so pleased with his performance that he wanted him to extend in command, which must be viewed as an endorsement of above center of mass performance and demonstrated potential.  His senior rater also endorsed a recommendation for a Meritorious Service Medal, a rare award for a battery commander, and again an indication  that he was outperforming his peers.

8.  He states that the report is erroneous in that, if the senior rater’s portion of the report was accurate, logic would dictate that at least one of his subsequent ratings would be similar, which is not the case in his seven subsequent reports.
He was not provided a copy of the report, and was precluded from requesting a commander’s inquiry.  He did not receive a copy of the report until                     27 August 1997.  Additionally, the Total Army Personnel Command (PERSCOM) should not have accepted the report for inclusion in his OMPF, because there was an indication that he had not received a copy of the report.  He requested copies of his records from PERSCOM; however, those microfiche records were often illegible.  Further, he was advised that his file was “fine”, and that the report was a “good” report and should not be appealed.  
 
9.  The applicant’s OER for the period 2 July 1987 through 20 April 1988 (TAB B) show that his rater considered him to be an outstanding officer, who always exceeded requirements, and who should be promoted ahead of his contemporaries.  His senior rater, Colonel Beddingfield, the Division Artillery commander, stated that he performed his assigned duties in an outstanding manner, stated among other remarks, that he possessed great potential and was most deserving of his recent selection for the FAO program, that he should be promoted to major and selected for attendance at Command and General Staff College.  His senior rater placed him in the second block from the top in the potential evaluation portion of that report, in the center of mass (COM).  That report does show that it was not given to, or forwarded to, the applicant. 

10.  The applicant’s report (TAB C) for the period immediately prior to the report in question, in the same duty position, shows more glowing comments from his senior rater, a Colonel Moore, then the Division Artillery commander.  That official stated, among other remarks, that the applicant had unlimited potential, promote to major, and select for command and general staff college.  He placed the applicant in the top block of the senior rater portion of the report, above center of mass.
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11.  The applicant’s report (TAB D) for the period prior to the aforementioned report, again in the same position as a battery commander, shows glowing comments from his senior rater (Colonel Moore), i.e., “one of my best battery commanders.”  He placed the applicant in the second from the top block in the potential evaluation portion of that report.

12.  On 17 May 1988 the applicant’s senior rater in a recommendation form for graduate admissions (TAB E), stated that he strongly supported the applicant’s request into the program, recommending his acceptance.  He rated the applicant in the top 2-5 percent against other students in comparable fields.

13.  The applicant was awarded the Meritorious Service Medal for his service from 8 October 1985 to 13 September 1988.

14.  The applicant’s officer evaluation reports and academic evaluation reports, furnished by the applicant with his request, subsequent to the report in question, are nothing less than outstanding, with the senior rater in the seven reports shown, placing the applicant in the top block in each instance.  Comments such as “unlimited potential”, “select immediately for command and general staff college”, “promote below the zone” [to lieutenant colonel], “select for early command” [battalion command], are prevalent throughout the reports (TAB F).

15.  On 21 November 1997 the applicant appealed the OER to the DCSPER officer special review board (OSRB) (TAB G).  In this appeal, he cited the lack of opportunity to submit a commander’s inquiry, the senior rater portion of the report on the old microfiche was illegible, and by the time he saw a legible copy he had already moved three times and been selected for promotion to major.  His branch managers had advised him that the report was “good” and should not be appealed.  The senior rater unjustly focused his comments and based his block check on a single incident, occurring late during the rating period, that is, his decision not to extend his time in command.  His comments are unjust and did not accurately reflect his performance and potential.  The senior rater referred to facts that had no bearing on his performance or potential, in violation of the regulation.  Rating officials failed to fulfill their obligation upon noting “a marked downturn in performance”, i.e., the two block potential evaluation by the senior rater.  The regulation requires this and is grounds for a complete the record report.  The senior rater did not observe his performance during a critical portion of the rating period.  He requested that the senior rater portion of the report be stricken.  In submitting, he requested a waiver of the five year time limitations for submission of an appeal.  He stated that he did not receive a hard copy of the report until 27 August 1997, and that on that date his assignment officer advised him that that report portrayed a downturn in performance, the first indication that the report was adverse.  Previously, he did not have grounds for appeal until his rater on this report, provided him a statement substantiating the erroneous nature of the report. 

16.  In his appeal he included a supporting statement from his rater (TAB G), now retired, on the contested report.  That official attested to the applicant’s outstanding performance, attributes, and potential, and indicated that the senior rater, Colonel Beddingfield, did ask him to ask the applicant to extend in command, and that the senior rater was upset when the applicant declined, which strongly influenced the senior rater’s decision to place the applicant in the 

second block from the top (COM) in the senior rater portion of the report.  He 
believed that the comments and rating to be unjust, that there was certainly no downturn in the applicant’s performance, and in fact, his performance improved since his last rating period.  He stated that the award of the MSM, an award normally for field grade officers and retiring soldiers, attests to the applicant’s performance.  He stated that the senior rater portion of the report should be removed from the OER.

17.  The applicant’s former senior rater, Colonel Moore, now retired, provided a supporting statement (TAB G), saying that the applicant was one of the best battery commanders in division artillery, with outstanding performance and his potential placed him among the very best officers he had been associated with.  He stated that he found the comments made by the senior rater on the subject OER inconsistent with the applicant’s performance during the period he worked for him, and they did not reflect an accurate picture of his abilities and potential.  A downturn would have been completely out of character for the applicant.  He strongly supported the OER appeal, stating that there was a pronounced inconsistency in the evaluation.     

18.  On 23 December 1997 the DCSPER OSRB did not accept his appeal for adjudication due to the delay in submission (TAB H).  The OSRB opined that the applicant’s contention that he did not receive a copy of the report until               27 August 1997 did not satisfy the exceptional justification criterion to warrant waiving the 5 year limit for submitting an appeal.  The OSRB continued by saying that the evidence was not compelling and worthy of an exception to policy.  No violations were found with regard to the senior rater referring to the applicant’s selection for the FAO program, the applicant’s belief he should have been counseled, or that the senior rater failed to observe, and consider, some portion of the applicant’s performance during the rating period.

19.  In an 8 January 1998 memorandum to the FY 1998 LTC promotion board, the applicant’s former rater, in his explanation of the circumstances of the report for the period 2 July 1987 to 20 April 1998, stated that there was no downturn in the applicant’s performance since his previous report, that his performance in fact had improved, that the applicant was one of his best commanders, that the senior rater had been upset when the applicant did not extend his command and was the basis for the decision to give the applicant a “two block” OER, and that he would have placed him in the top block (TAB I).   

20.  On 3 August 1998 the applicant was notified by the Total Army Personnel Command that he was not selected for promotion to lieutenant colonel, but recommended for continuation in the grade of Major; and, unless he declined continuation would remain on active duty until eligible for retirement.

21.  In the processing of this case an advisory opinion (TAB J) was obtained from the DCSPER OSRB.  That agency stated that they had again reviewed the applicant’s contentions and evidence provided, to include two new pieces of evidence, a second supporting statement from the rater, which more concisely reiterates his contentions as previously provided and a third party supporting statement, concerning two previous adjudicated ABCMR cases, drawing a parallel to the applicant’s case.  The OSRB stated that the regulation states, “appeals that claim an error in the senior rater profile will not be accepted unless supported by detailed documentary evidence.  The evidence must show that the senior rater profile posted to the report in question is in error.”  The new evidence submitted did not meet those evidentiary requirements, nor substantiate an injustice, nor overcome the presumption of regularity outlined in the regulation.  The OSRB recommended that the application be denied.

22.  The applicant submitted a rebuttal (TAB K) to this advisory opinion, stating again that the senior rater block check and comments were not based on his performance but on his selection to become a FAO, that the senior rater asked the rater to request the applicant to extend in command, that the applicant’s performance of duty was excellent, that he outperformed his peers, that the senior rater stated that the applicant was in the top 2-5 percent of his contemporaries when recommending him for a graduate school program, that the senior rater failed to provide him a copy of the report, that the applicant had received “top block” ratings on all his reports since that rating period, and that the report in question was the sole reason the applicant was not selected for promotion to lieutenant colonel.  The applicant also stated that he was always rated above center of mass in subsequent reports, even when his senior rater established a profile (other than top block center of mass).  Additionally, the applicant had been selected to serve as a Defense Attaché, a lieutenant colonel position.  He states that these provide compelling proof that the report was erroneous.  

23.  The applicant disputes the OSRB contention that there was no detailed documentary evidence that the senior rater profile was inaccurate, citing the recommendation by the senior rater and his assessments of the applicant’s potential to perform in an Army funded graduate school program. 

 24.  The applicant states that the advisory opinion did not dispute any of the pertinent facts and failed to address the errors, omissions, and misdeeds of Army officials in delaying discovery of facts and hindering the appeal and correction process.  He states that the OER was not fair, just, and objective, and that the senior rater portion of the report should be removed from his record.   

25.  Army Regulation 623-105, then in effect, establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  The regulation also specifies that claims by rating officials that they did not intend to evaluate as they did, i.e., in retrospect, will not necessarily serve as the basis for altering or withdrawing an evaluation report.

26.  Paragraph 4-2 provides for evaluation principles for rating officials and states in pertinent part, that to render an objective evaluation, rating officials must use all opportunities to observe and gather information of the rated officer’s performance, that they must prepare reports which are accurate and as complete as possible, and they must balance their obligations to the rated officer with their obligations to the Army.

27.  Paragraph 4-3 provides general principles to be used when making evaluations and states in pertinent part that performance evaluations are judgments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional values.  Evaluations of potential are assessments of the rated officer’s ability, compared with that of his contemporaries, to perform in positions of greater responsibility in higher grades.

28.  Paragraph 4-16 states in part, that Part VII of the OER provides for an evaluation of potential by the senior rater, that the senior rater’s evaluation is made by comparing the rated officer’s potential with all other officers of the same grade, or grade groupings.  The senior rater’s comments in most cases will address potential evaluation; however, they may address performance, the administrative review, or the evaluations by the rater.
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29.  Paragraph 4-17 states in part that each report must stand alone.  It will be an independent evaluation of the rated officer for a specific rating period, and will not refer to prior or subsequent reports.  It will not remark on performance or 

incidents occurring before or after the rating period.  One of the exceptions to this policy concerns a marked change in performance since the previous report in the same duty position.  Such a change is the basis for submitting a complete-the-record report.

30.  Paragraph 5-30 concerns a commander inquiry, and states that commanders are required to look into alleged errors, injustices, and illegalities in officer evaluation reports.  These matters may be brought to the attention by the rated officer or anyone authorized access to the report.  The commander inquiry procedures will not be used to document difference of opinion between members of the rating chain about an officer’s performance and potential.  Examples of a report that has serious irregularities include inaccurate or untrue statements and lack of objectivity or fairness by rating officials.  The inquiry must be forwarded to HQDA not later than 120 days after the “Thru” date of the report. 
  
31.  On 21 July 1991 the applicant testified before this Board, reiterating much of the same information he provided in his application to this Board, his appeal of the officer efficiency report, his rebuttal of the advisory opinion furnished by the officer special review board, and his 4 June 1999 response to the notice of formal hearing.  He stated, in response to a question from a Board member that he did review his OER, in 1994, and was surprised to see the evaluation, but was informed by an official in his assignment branch that it was a good report, and that it was not going to affect him.  Again, in response to a question from a Board member, he said that he had received second from the top block ratings by his senior rater; however, the circumstances were different in that those ratings did not reflect a downtrend in his performance, and/or they were above center of mass.  Additionally, during the period covered by the OER, he had significantly more challenges than the period covered by the previous OER, to include deploying his unit out of the country, a winter standardized external evaluation, and two successful command inspections.  He stated, in response to another question, that the language by the senior rater in the OER did not say anything about what he did, other than remarks about a relatively minor contribution, which was not worth noting on the report.  He stated that he had contacted his former senior rater twice in attempt to obtain a supporting statement from him, with no results.  The applicant reiterated that the senior rater was upset with the decision that the Army had made for him more than anything else; and that he wanted to ensure that he would not command an artillery battalion.  In response to another question, he said that it would have been difficult for him to get out of going to school at that time, in order to extend in command, based on his attempts for a joint assignment with his wife, also on active duty.

CONCLUSIONS:

1.  The Board does not believe that the OER in question reflects a downward trend in performance, as the applicant has contended, nor does the Board believe that the senior rater’s comments were unflattering.  The Board discounts the applicant’s arguments concerning his ratings on a previous OER in the same position, and his ratings on reports subsequent to the contested report.  They are not germane to the issue, notwithstanding applicant’s attempts to portray otherwise.  

2.  The Board also discounts the applicant’s arguments concerning the administrative and procedural errors, that is, the OER was placed in his official file without his signature, and that he did not receive a copy of the report until years after its completion, and consequently, this precluded him from requesting a commander’s inquiry.  These errors do not make the report unjust or unfair.       
3.  The Board, however, notes as the applicant has stated, that he received the Meritorious Commendation Medal for his service as battery commander under that senior rater, and the Board believes that senior rater did request that he extend in command, clearly an affirmation of the applicant’s worth to him.  The senior rater also indicated, in strongly recommending the applicant to the graduate division of Stanford University, that the applicant was in the                 top 2-5 percent of other officers in comparable fields.  Consequently, the Board believes that the comments made by the applicant’s senior rater and the potential evaluation given are inconsistent with the aforementioned actions by the senior rater.  The  statements made by the applicant’s former brigade commander and his former battalion commander add credence to the applicant’s contentions.  Thus, the Board concludes that the senior rater’s evaluation of the applicant’s performance on the contested report is unfair. 

4.  Therefore, the entire senior rater portion of the officer evaluation report for the period 2 July 1987 through 20 April 1988 should be deleted.

5.  While there is a paucity of evidence to support the applicant’s contentions, it is further concluded that with the removal of the senior rater’s portion of the contested OER, it costs the government very little to afford the applicant promotion reconsideration to the grade of LTC. 

6.  In view of the foregoing, the interests of justice would be best served by 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 amending the OER for the period 2 July 1987 through 20 April 1988 by deleting the senior rater’s potential evaluation and profile in part VIIa, and his comments in part VIIb of that report.               

2.  That, following administrative implementation of the foregoing, the applicant’s records be submitted to duly constituted special selection boards for promotion reconsideration to lieutenant colonel.

3.  That, if he is selected for promotion to lieutenant colonel, he be promoted and assigned an appropriate date of rank, and be awarded back pay and allowances.

4.  That, if he is not selected for promotion to lieutenant colonel, he be notified accordingly. 

DISSENT:  Two members of the Board (Mr. Able and Mrs. Langston) dissent from the foregoing recommendation concerning the request to delete the senior rater portion of the contested OER and submit the applicant’s record before special selection boards for promotion reconsideration to lieutenant colonel.  Both members are of the opinion that the applicant’s case is extremely weak.  The applicant has submitted absolutely no evidence that the senior rater deliberately rated him in the second block because he was upset with the applicant leaving his command for another assignment.  It was the applicant’s responsibility to timely review his records and not wait some ten years before appealing a rating.  Since this was a new senior rater, he would have no prior knowledge of how the previous senior rater rated the applicant.  Accordingly, both members believed that the report represented the considered opinion and objective judgment of the senior rater, and that the applicant had not provided evidence that the report was unfair, unjust, or erroneous.

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR1999020964	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	19990721	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1. 111.00		
2.		
3.		
4.		
5.		
6.