MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            29 June 2000      
	DOCKET NUMBER:   AR1999021847

	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	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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:  Removal or correction of Part VIIa (Senior Rater/Potential Evaluation) of an officer evaluation report (OER) for the rated period 6 April 1995 to 16 December 1995. 

APPLICANT STATES:  That the Senior Rater (SR) described the applicant in his own words as outstanding and recommended promotion ahead of peers and then proceeded to give him a “3” block.  The applicant believes that the SR was in error in his blocking and based on prior performance and the comments made by the SR in his narrative it must be a mistake.  In support of his application, the applicant submits a copy of his OER for the rated period 6 April 1995 to 16 December 1995; a 6 January 1997 letter from the rating officer (hereafter referred to as the rater) and a 1 March 1997 letter from the intermediate rater who wrote the OER in conjunction with the SR; a 1 June 1997 letter from his company commander; and a copy of an OER for the rated period 3 September 1994 to 5 April 1995.     

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

The applicant was appointed a Warrant Officer One on 28 January 1992.  He was promoted to Chief Warrant Officer Two, his current rank, on 28 January 1994.  

The contested OER is an 8-month change of rater OER covering the period 6 April 1995 through 16 December 1995 for duties as an aeromedical evacuation helicopter pilot.  This OER was authenticated by the rater, intermediate rater and SR in Part II (Authentication) on 19 January 1996, but the rated officer (the applicant) was not available to sign Part IId (Signature of Rated Officer).  He received ratings of “1” in all 14 elements of professional competence in Part IVa. (Professional Competence).  Under professional ethics, the rater, who was a Medical Service Corps captain, made positive comments.

In Part V (Performance and Potential Evaluation), the rater placed her “X” in the first block (Always Exceeded Requirements).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant was “an outstanding officer“ who “achieves results beyond his grade and years of service as a warrant officer.”  The rater also provided positive comments highlighting his performance as training officer, unit movements officer, and during training exercises.

In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed the applicant in the first block (Promote Ahead of Contemporaries) and stated:  “[The applicant] should be promoted ahead of contemporaries,  He possesses the vision needed, as an officer and a soldier, to lead the Warrant Officer Corps into the future.  He should be selected for continuing assignment of increased responsibility.”

In Part VI, the Intermediate rater, a Medical Service Corps captain and an aviator, made positive comments regarding the applicant’s performance.  The intermediate rater recommended that the applicant be selected for the Instructor Pilot Course, “accessed and selected for Task Force 1-60th” and promoted “as soon as possible.”

In Part VIIa (Potential Evaluation), the SR, a Medical Service Corps major, placed his “X” in the third block:  0/7/5*/0/0/0/0/0/0 (the asterisk indicates the applicant’s position).  The SR commented that the applicant “is aggressive” and “an extremely capable officer and aviator.”  The SR then commented positively on specific aspects of the applicant’s performance.  The SR recommended “Promote ahead of peers and select for advance schooling” and noted the rated officer was not available for signature due to deployment in support of Operation Joint Endeavor.  

The contested OER was given to the applicant on 19 January 1996.  This OER was processed by Department of the Army officials on 6 February 1996 and it was not referred by the SR to the applicant as an adverse OER. 

The applicant’s evaluation history as a Warrant Officer One shows that he received two OER’s.  In both of these OER’s, he received ratings of “1” in all
14 elements of professional competence and positive comments under professional ethics and competence from all of his rating officers.  The raters placed the applicant in the top blocks for performance and potential (Part V) with comments in both narratives.  

The applicant was rated Center of Mass (COM) by one SR and above COM by one SR.  The SR profile for these OERs are:  (1/10*/0/0/0/0/0/0/0), (6*/16/0/0/0/0/0/0/0).  Generally, the SR comments portrayed the applicant’s performance as outstanding, stated that he had tremendous potential and recommended immediate promotion.

The applicant’s evaluation history as a Chief Warrant Officer Two shows that he received six OER’s including the contested report.  In all of these OER’s, the applicant received ratings of “1” in all 14 elements of professional competence and positive comments under professional ethics and competence from all of his rating officers.  The raters placed the applicant in the top blocks for performance and potential (Part V) with comments in both narratives.

The applicant was rated COM by four SR’s and below COM by two SR’s.  The SR profile for these OERs are:  (7/3*/0/0/0/0/0/0/0), (27*/14/0/0/0/0/0/0/0), the contested OER (0/7/5*/0/0/0/0/0/0), (27*/0/0/0/0/0/0/0/0), and (8*/0/0/0/0/0/0/0/0). Generally, the SR comments portrayed the applicant’s performance as outstanding in four cases and superior and exceptional in two evaluations.  Five of six SR’s specifically recommended the applicant for promotion and five of six SR’s recommended the applicant for additional military or civilian schooling.

The applicant appealed the contested OER in July 1997 to the Officer Special Review Board (OSRB) in the Office of the Army Deputy Chief of Staff for Personnel.  The appeal was returned without action because it lacked clear and convincing evidence that the OER was inaccurate or unjust.

In the processing of this case, a staff advisory opinion (COPY ATTACHED) was obtained from the OSRB.  This opinion states that the OSRB adjudicated the applicant’s appeal and determined that amendment to the contested report, specifically masking the SR portion, Part VIIa, as requested by the applicant, was not warranted.  The opinion further states that the OSRB is guided by Army Regulation 623-105 (OER System) and that paragraph 9-7a places the burden of proof on an applicant to provide clear and convincing evidence to justify deletion or amendment of an OER.  Sufficient evidence was not found in this case to warrant deletion of the contested OER and it is recommended that the application be denied.  The case summary by the OSRB was attached to the advisory opinion.

On 23 February 2000, the applicant was provided the opportunity to submit comments on the OSRB advisory opinion, but he has not responded as of 26 June 2000.

The OSRB adjudicated the appeal at the request of the Army Board for Correction of Military Records and denied his appeal on 17 February 2000 based on the finding by the OSRB that “the appellant did not provide and the OSRB did not find elsewhere the necessary evidence to amend or delete Part VIIa of the OER.  The presumption of regularity referred to in paragraph 5-32a is applicable to the report.”  The OSRB concluded that “There is not sufficiently convincing evidence that Part VIIa of the contested OER is inaccurate, unjust or does not adequately reflect the appellant’s demonstrated performance and potential during the rating period.  Therefore, the report should not be amended or deleted.”  
The OSRB stated that the OER was not referred and a Commander’s Inquiry was not requested.  The OSRB case summary notes that the applicant contended the report is substantively inaccurate and states the SR erred because his “3” block rating in Part VIIa and narrative comments in Part VIIb are inconsistent.  Further, the applicant states the SR assessment is not consistent with the ratings of either the rater or intermediate rater.  The applicant argues, based on his past performance, the SR rating “must be a mistake.”  The applicant requests that Part VIIa be “blacked out” or corrected to show his true performance.  The OSRB determined that the statement from the applicant’s current SR and the OER for the period 3 September 1994 to 5 April 1995 were irrelevant and not germane to the issues identified in this appeal.  The OSRB considered the contested OER, the applicant’s Officer Record Brief and his official military personnel file.  

A supporting memorandum from the applicant’s rater at the time in question states:  “It is my opinion that the senior rater’s evaluation is inaccurate and based upon personality difference with the rated officer.” and “This officer’s record is impeccable and should not be blemished by a vindictive blocking.”  A supporting memorandum from the applicant’s intermediate rater at the time in question states:  “The (senior rater) center of mass potential marking is inconsistent with the narrative portion of the [applicant’s] OER.  [Applicant] met all the requirements and expectations as defined by his rating chain.  In fact, his duty performance led to his selection as an aircrew member to deploy and support Operation Joint Endeavor (OJE).” and “He is a must for promotion to CW3.”  

The OSRB contacted the rater for further information.  In summary, the rater stated that the applicant had performed exceptionally well during the rating period and that she supported his request for redress.  She believed the “personality difference” was the result of the applicant expressing dissatisfaction with a training exercise in front of subordinates which was overheard by the SR.  She stated that she believed the relation between the applicant and SR was “strained” after that event.  When asked about the applicant’s general disposition she stated he was “outspoken…he would offer his opinion…had a tendency to complain maybe more than the other WOS in the unit…but he got things done.”  When asked how many CW2s she rated as a member of the company HQ, she stated two, and that the applicant would be rated number two.

The OSRB contacted the intermediate rater for further information.  In summary, he stated that the applicant had performed well during the rating period and he reaffirmed his comments.  When queried if he had been required to provide the SR “draft” comments he stated “No.”  However, he did state that he was asked about a block check recommendation and he recommended “Center of Mass.”  When asked if he knew what the SR rating profile was, he stated that he did not know at the time and that not until the applicant had asked for a support statement was he aware that the SR rated officers in the “2” and “3” blocks.  When asked if he had ever observed any “personality differences” between the applicant and the SR, he stated that he could not recall any events of that nature that he personally observed or that someone told him about.  When asked if he thought the SR was “out to get” the applicant, he stated “absolutely not”.  When asked his assessment of the applicant’s personality, the intermediate rater stated that the applicant was “outspoken and overzealous” and did have a tendency to ask “why” requirements had to be done rather than doing the things.  He concluded that he had no reason to believe that the SR’s assessment of the applicant was either inaccurate or unjust.

The OSRB contacted the SR for further information.  In summary, the SR stated that he recalled the applicant was a good pilot but a complainer, that he would get the job done but “you had to stay on him”, and that he needed lots of “why’s” explained to him while other officers got the job done without extra supervision.  When queried if he required “draft” comments from the rater, he stated he usually asked the rater for “suggested comments”.  He recalled the rater did provide comments but he could not recall asking for or receiving a recommendation from her on the rating.  When asked if he and the rater had a difference of opinion about the applicant’s performance, he stated that they both had the same opinion of the applicant.  When asked if his assessment of the applicant was accurate he stated that the rating was fair and objective at the time he rendered the report.  He concluded that the applicant’s demonstrated performance and potential were not of the same quality as those he placed in the “2” block.   

The OSRB determined the applicant did not provide clear and convincing evidence to justify deletion or amendment of an OER and there is no evidence that the SR failed to execute his responsibilities.  The OSRB notes that the SR is consistent in the word picture he provides the “2” block and “3” block performers. They are clearly different, and he discriminates in both the potential block check, Part VIIa, and the corresponding narrative comments, Part VIIb.  A review of the reports rendered by the SR on CW2’s, during the timeframe coinciding with the contested report, reveals a clear distinction in the quality of the SR’s comments in Part VIIb, which corresponds with his block check in Part VIIa.  

The OSRB evaluated the contested OER and noted that the SR narrative comments are positive, laudatory and highlight contributions made by the applicant during the rating period.  However, the SR made a clear distinction between those individuals he placed in the “2” second block and those in the “3” block in Part VIIa.  The SR word picture does not portray the applicant as being distinctly superior to his contemporaries in terms of either performance or potential.  In short, the SR’s narrative comments are void of the usual “superlatives” and lacks immediacy of promotion and recommendation for future jobs a greater responsibility found in the “2” block reports.

The OSRB noted that neither the rater, intermediate rater, nor the applicant provided any “new” information not available to the SR at the time the report was rendered.  Further the rater perception that the SR and the applicant had “personality differences” is baseless.  No official results are provided of any EO/IG/Commander’s Inquiry that substantiates her claim.   In fact, by her own admission she never heard the SR comment about the applicant or his performance.  Based on the supporting evidence provided and the absence of new information that overcomes the presumption of regularity, the contention that the SR erred or that the SR’s rating was based on “personality differences” lacks merit. 

The OSRB responded to the applicant’s contentions as follows.  The applicant contends the report is substantively inaccurate.  He alleges the SR erred because his “3” block rating is inconsistent with the narrative comments in Part VIIb and that the SR assessment is not consistent with the ratings of the rater and intermediate rater.  He also contends that based on his past performance, the SR rating “must be a mistake.”  The statements from the rater and intermediate rater reaffirm their comments in the contested report.  However, they provide no pertinent evidence to support their claim that the rating rendered by the SR is inaccurate or unjust.  Further, the SR presented evidence to the OSRB substantiating why he rated the applicant as he did.  He clearly stated that, in view of the applicant’s contemporaries, he had not demonstrated the same performance or potential the SR expected.  

The OSRB concluded that the applicant makes the mistake of confusing performance with potential.  Paragraph 4-3a states in part that performance evaluations are judgements on how well the rated officer met his duty requirements and adhered to the professional standards of the officer corps.  Potential evaluations are assessments of the rated officer’s ability, compared with that of his contemporaries, to perform in future positions of greater responsibility in higher grades.  Paragraph 4-14 emphasized the rater’s responsibility to focus his assessment on the rated officer’s performance by specifying in Part Vb and Vc results achieved and restricts comments about potential as a result of the distinction of evaluator responsibilities between the rating officials.  The SR’s evaluation of potential on Part VIIa may not necessarily correlate with either the rater’s performance comments in Part V, the intermediate rater’s assessment in Part IV or the SR’s own narrative in Part VIIb. Paragraph 4-16 specifies that the SR’s evaluation is made by comparing the rated officer’s potential with all other officers of the same grade and paragraph 
3-10a states that the SR’s evaluation is the link between day-to-day observations of the rated officer’s performance and the longer term evaluation of the rated officer’s potential to DA selection boards.  In this case, the SR was clearly meeting regulatory guidance and his designated responsibilities; he made the tough but consistent call in the rating that he rendered. 

The applicant’s claim on his initial appeal request that the contested report is a “below center of mass” rating rather than a “center of mass” report as indicated to him by his SR is noted.  In review of the SR profile, the OSRB notes that the SR had a “dual center of mass” profile using the “2” and “3” blocks only.  Further, it is noted that in a four month period, October 1995 through February 1996, the SR rated nine CW2’s, the applicant’s report arrived with three other reports and the SR profile did properly reflect that posting.  The OSRB believes that it is possible because of this “dual center of mass” profile that the SR unknowingly referred to the report as “center of mass” when in actuality it was a “center of mass – lower half” assessment.  As such, the OSRB opines this “mistake” is not a “fatal flaw” that would invalidate the report or overcome the presumption of regularity.
Further details concerning the applicant’s contested OER, his unsuccessful OER appeal and the rationale for denying his appeal are set forth in Case Summary provided by the OSRB.

The applicant was nonselect for promotion to the rank of Chief Warrant Officer 
Three by the Fiscal Year (FY) 1999 Chief Warrant Officer Three Promotion Selection Board which convened from 4 May – 26 May 1999.  

The applicant is currently being considered for promotion by the FY 2000 Chief Warrant Officer Three Promotion Selection Board. 

Army Regulation 623-105 provides, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

Army Regulation 623-105 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.

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.  The Board noted the applicant’s contention that the SR’s “X” in the third block was in error because the SR described the applicant as outstanding and recommended promotion ahead of peers.

2.  Contrary to the applicant’s contention that placement of the SR’s “X” was in error, the SR advised the OSRB that the applicant’s demonstrated performance and potential were not of the same quality as those he had placed in the “2” block.

3.  The contention that the SR’s evaluation was “inaccurate” and based on “personality difference” was unfounded.  The rater acknowledged to the OSRB that of the two warrant officers she rated the applicant would be “number two.”  The intermediate rater stated to the OSRB that he had never observed any personality differences between the SR and the applicant.

4.  Contrary to the contention that the SR’s potential evaluation is not consistent with the SR’s narrative comments, a review by the OSRB of the SR’s comments on the applicant’s OER in comparison to the SR’s comments on the OER’s of other warrant officers revealed that his senior rating and comments properly distinguished among the officers rated in the “2” block and “3” block.  

5.  The Board noted the applicant’s contention that the OER is not COM as he was told it was by his SR.  The contested OER is a COM rating.  Based on the SR “dual COM profile” with nine OER’s posted in a four or five-month period, it is clear that the SR did not consider the contested OER as adverse and that he knew the contested OER was COM, but did not identify this OER as in the lower half of his profile.  This situation is supported by the OSRB case summary opinion and the fact that the contested OER did not require mandatory referral.  Further, it is up to the judgment of the SR to determine if such a report is considered adverse.  In this case, the SR did not refer the OER because he did not consider it adverse.

6.  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.

7.  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

JHL_____  JNS____  MHM____  DENY APPLICATION

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

INDEX

CASE ID	AR1999021847	
SUFFIX		
RECON		
DATE BOARDED	20000629	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.0100	
2.		
3.		
4.		
5.		
6.