MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:        

	BOARD DATE:            16 December 1999
	DOCKET NUMBER:   AR1999025721

	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. Loren G. Harrell		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Fred K. McCoy		Chairperson	
	Mr. Raymond V. O’Connor, Jr.		Member	
	Mr. Stanley Kelley		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:  In effect, the removal of his first three officer evaluation reports (OER) rendered in 1980 –1981, deletion of the senior rater (SR) rating and profile from the OER ending on 13 June 1994, and promotion reconsideration to the ranks of captain through lieutenant colonel (LTC).  He also requests that if he is selected for promotion to LTC, that he be placed on the Retired list in that grade.

APPLICANT STATES:  In a lengthy, two-binder appeal packet, in effect, that his first three OER’s covering the periods from 13 December 1979 to 31 July 1981 were not objective assessments of his performance and potential and were the result of a battalion commander who committed security violations and because he (the applicant) challenged the commander on his violations of the regulations, he was not liked by the commander and the negative ratings were rendered.  He goes on to state that the reports affected his initial promotion to captain and that although he was eventually promoted to captain later than his peers, the OER’s have had a long-lasting effect on his career.  Additionally, the first report was referred to him; however, the remaining reports were not and should have been because of the negative impact they have had on his career.  He further states that the SR in his OER covering the period from 16 October 1993 to 13 June 1994 unjustly gave him a second block OER, placing him in the center-of-mass (COM) of the SR’s profile and that he did so because he (the applicant) did not delay his attendance at the Command and General Staff Course (C&GSC) in order to complete a full tour in that position.  As a result, his career was ended and he has ended up having to accept mandatory retirement in the rank of major, due to being twice nonselected for promotion to LTC.  He also states that he was unaware of the 5-year statute on OER appeals and kept putting off appealing them until he could obtain supporting documentation for his appeal.  In support of his application he submits numerous letters of support (See attached). 

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

The applicant was commissioned as a Regular Army second lieutenant on 20 April 1978 upon graduation from ROTC as the Distinguished Military Graduate from Brigham Young University.  He completed the military intelligence officer basic course and the tactical surveillance course and was transferred to Germany for duty in a military intelligence battalion.

On 6 January 1981 the applicant received an annual OER evaluating him as an S-2 officer.  In part IV, under performance evaluation – professionalism, the rater gave him a “2” under “Displays sound judgement.”  He received “1” ratings in the remaining 13 areas.  The supporting comments by the rater indicate that the applicant had a tendency to act or say without thoroughly thinking the far reaching implications through and that he had a strong sense of family and job, but must sort out which comes first and when.  In part V, the rater indicated that the applicant met requirements and should be promoted with his contemporaries.
The SR (a LTC and battalion commander), in part VII, under potential evaluation, placed the applicant in the fifth block, which placed him below COM on the SR’s profile (three officers were in the top block, four were in the second block, one was in the third block, two were in the fourth block, one (the applicant) was in the fifth block, and one was in the ninth block).  The supporting comments while primarily complimentary of the applicant, indicate that with more experience, better time management, and enhanced ability to make better use of subordinates, the applicant possessed the potential to become a solid career officer. 

The SR referred the OER to the applicant who opted to submit a statement in his own behalf to the effect that he had not been properly counseled by his rater and that he had never allowed his personal and family life to encroach upon his professional job performance.  He also contended that his section was understaffed and overburdened and that despite the fact that he was serving in a captain’s position, had he received the proper guidance, he would not have received such a negative rating. 

The applicant was promoted to the rank of first lieutenant on 5 February 1981 and on 29 May 1981 received a change of duty OER covering the period from 13 December 1980 to 27 April 1981 evaluating him as an assistant S-2.  In part IV, his rater gave “2’s” under “Motivates, challenges, and develops subordinates” and “Encourages candor and frankness in subordinates.”  He received “1” ratings in the remaining 12 areas.  The rater indicated that he “Usually exceeded requirements” and recommended that he be promoted with his contemporaries.

In part VII, the SR (a major) placed the applicant in the fifth block under potential. The applicant was the only officer in the SR’s profile.  The supporting comments while complimentary of the applicant’s integrity and moral courage, indicates that he occasionally tended to become too involved with small details of a task and often lost sight of the final objective.  The report was not considered adverse and as such was not referred to the applicant for comment.

On 13 August 1981 the applicant received a change of rater OER covering the period from 28 April 1981 to 31 July 1981, evaluating him as an assistant S-1.  In part IV, the rater gave him “2” ratings under “ Encourages candor and frankness in subordinates”, “Clear and concise in written communications”, and “Displays sound judgement.”  He received “1’s” in the remaining 11 areas.  His rater rated him as having “Met requirements” and recommended that he be promoted with his contemporaries.

The SR (a major) did not meet the SR rating requirements and thus did not render a rating.

The applicant received three more OER’s while assigned to the same battalion during the period 1 August 1981 to 4 February 1983 and he received maximum ratings from his raters.  He received a three block, below COM rating and two second block COM ratings from his SR’s.  

He departed Germany on 5 February 1983 and was transferred to Fort Huachuca, Arizona.  He was promoted to the rank of captain on 1 September 1983 and to the rank of major on 1 November 1991.

On 5 July 1994 the applicant received a change of rater OER covering the period from 16 October 1993 to 13 June 1994 evaluating him as a battalion S-3 in a Military Intelligence Battalion in Germany.  He received maximum ratings from his rater (LTC/battalion commander).

In part VII, his rater (a colonel/brigade commander) placed him in the second block, which placed the applicant in the COM of the SR’s profile (four officers were in the top block and seven officers, of which the applicant was one, were in the second block.  The supporting comments by the SR were complimentary of the applicant and indicated that the applicant was departing early for attendance at C&GSC  and that he should be afforded an opportunity to complete a full tour as a battalion S-3 or XO.  He recommended that the applicant be promoted to LTC.  The report was not considered adverse and as such was not referred to the applicant.

On 25 September 1997 the applicant was notified that he had been twice nonselected for promotion to the rank of LTC and because he was within 2 years of retirement eligibility(20 years), his mandatory retirement had been established as 31 May 1999.  Consequently, the applicant submitted a request for voluntary retirement.

Meanwhile, the applicant submitted his appeal of the four contested OER’s to the Officer Special Review Board (OSRB) on 1 February 1999 citing essentially the same reasons as he has cited to this Board.  The OSRB after reviewing his appeal and supporting evidence, determined that the applicant’s allegations that the SR (battalion commander) was biased against him and unduly influenced his subsequent OER’s was not supported by the evidence submitted or the evidence of record.  The OSRB declined to waive the 5-year limit on appeals of OER’s and therefore elected not to adjudicate the first three contested OER’s.

The OSRB did review his appeal of the OER covering the period from 16 October 1993 to 13 June 1994 and in doing so elected to contact the rating officials.  The rater related to the staff of the OSRB essentially that the applicant did a good job as S-3, that he was unaware of any discontent on the SR’s part that the applicant was departing early for C&GSC, and that he believed that the applicant should be promoted to LTC.
The SR, when contacted by officials at the OSRB, remembered the applicant and stated that he believed the rating he rendered on the applicant to be a fair and honest evaluation of the applicant at that point in time and that a second block rating was where the applicant stacked up with the other majors he had rated.  He also indicated that he was not upset that the applicant had departed early and that the comment regarding him be afforded the opportunity of a full tour as an  S-3 or XO was to identify to branch career managers the applicant’s future professional development needs.  He also indicated that he believed that the applicant should be promoted to the rank of LTC.

The OSRB reviewed the SR’s profile and rating comments and opined that not only did the SR have a credible profile, there was also a distinctive difference in the comments of those officers rated in the top block by the SR vice those in the second block.  The OSRB further opined that the applicant had mistakenly confused the difference between rating performance and potential and determined that there was not sufficiently convincing evidence to warrant a change in the OER.  The OSRB denied his appeal on 31 March 1999.

The applicant has submitted a detailed rebuttal of the OSRB case summary (see attached) in which he disputes the rationale used by the OSRB to deny his appeal. 

In regards to the supporting documents submitted by the applicant in his appeal of the first three OER’s which are too numerous to list separately, the majority of the letters are from fellow officers who served with the applicant at the time and serve to support the applicant’s contention that the command climate created by the battalion commander at the time was at best less than desirable and that he was a very demanding commander.  

However, it is noted that the supporting statement from the rater of his first OER indicates that, in retrospect, his rating of the applicant may have been affected by the battalion commander because he was emotionally burnt out from the constant stress of acting as a buffer between the commander and the staff.  The supporting statement from the SR of the third OER simply explains the negative command climate that existed and explains that he thought very highly of the applicant and that he gave him a third block rating. 

A review of the applicant’s OER history shows that he received three below COM reports (two of which are contested OER’s), five above COM reports, nine COM reports (one of which is a contested report), and nine reports that have an immature SR profile (5 or less ratings) and of which one is a contested report.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

Paragraph 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

Paragraph 9-7 of that regulation also 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 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, it is concluded:

1.  Notwithstanding the passage of time (approximately 18 years), the contested reports appear to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the periods in question.  Therefore, there is no basis for removing them from his records.

2.  The applicant’s contentions have been noted by the Board; however, he has not shown to the satisfaction of the Board that he was not rated properly or that the SR’s violated proper rating procedures.  He has failed to overcome the presumption that the contested OER represents the considered opinion and objective judgment of the rating officials at the time of preparation.

3.  While the applicant has gone to great length to discredit the SR of his first OER, the Board notes that the SR rendered only one report and the applicant has failed to convince the Board that rating did not reflect the opinion and judgment of the SR at the time he rendered the report.  Additionally, he has failed to convince the Board that the SR unduly influenced the rating chains in two subsequent reports for which he is appealing.

4.  Additionally, the Board notes that not only did different raters and SR’s that were in place when the first SR was present, make similar observations of the applicant’s performance and potential, but after the SR departed he received what amounted to a below COM rating (3 block) from the acting commander.

5.  While the Board recognizes that soldiers may encounter commanders/supervisors at some time in their career that appear to be overbearing and demanding, commanders are tasked with a difficult job at best and whether or not one is liked by their commander/supervisor is usually dictated by the actions of the subordinate.  The Board notes that the SR in question was the applicant’s first commander after entering active duty and while he may not have fostered a good professional relationship with the commander, that in itself is not a basis to discount the commander’s evaluation of his performance and potential at the time.  Consequently, the Board is not convinced that the first three OER’s the applicant received were in error or unjust.

6.  In regards to the OER ending on 13 June 1994, given the SR’s explanation of his rating, the review of the SR’s profile by the OSRB, and the lack of evidence to show that the SR unjustly placed him in the second block (COM), the Board is not convinced that there is a basis to delete the SR portion of the OER.

7.  The Board also notes the numerous letters of support and positive ratings he received subsequent to the contested reports; however, while the Board finds that he has demonstrated over time that he had the ability to be an excellent officer, the persons providing the letters of support were not in a position to know the expectations of the rating chain and the extent to which the applicant fulfilled those expectation at the time.

8.  The applicant’s claim that the four contested reports prevented him from being promoted to the rank of LTC appears to be at best speculative on his part.  It is well known that promotion selection boards do not release the reasons for selection or nonselection.  It is also well known that the established strength ceiling limits the proportion of eligible officers that may be selected and that many highly professional officers may not be promoted through each successive grade. In any event, the Board will not attempt to second-guess the promotion boards that had the advantage of reviewing all records of individuals within the applicant’s peer-group who were either selected or nonselected. 

9.  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

__sk ____  ___rvo__  __fkm ___  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999025721	
SUFFIX		
RECON		
DATE BOARDED	1999/12/16	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  221 	111.0005/VOID EVAL RPT	
2.  197 	111.0100/SR BIAS	
3.		
4.		
5.		
6.