PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:  1 August 2000
	DOCKET NUMBER:  AR1999026346

	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. Carl W. S. Chun		Director	
	Mr. David E. Weightman		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Deborah S. Jacobs 		Chairperson	
	Mr. Ernest W. Lutz		Member	
	Ms. Karol A. Kennedy		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

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

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 removal of the officer evaluation report (OER) covering the period 29 May 1994 through 28 May 1995 from his Official Military Personnel File (OMPF), or moved from the performance portion to the restricted portion of the OMPF, or in the alternative, removal of the Senior Rater (SR) potential evaluation from Part VIIa of the same OER.

3.  The applicant states he would have requested the SR potential evaluation in Part VIIa be changed from the second block to the top block, but he understands that possibility is out of the question now.  The SR has stated in writing she mistakenly gave him that rating, and that it will not allow promotion to a higher rank.  He submits his own statement, a statement from the SR and other officers who observed him during the rating period, and the results of his appeal of the report to Departmental officials.

4.  The applicant’s military records show that he was appointed in the Medical Service Corps effective 2 February 1989, and was entered on active duty as a captain effective 21 February 1989.  He attained the rank of major effective 
1 January 1995.

5.  The contested report, ending on 28 May 1995, was completed on 29 May 1995 by the rating officer (RO) and SR.  It was a 12 month annual report for his duties of Chief, Audiology/Hearing Conservation while assigned at the Medical Activity, Fort Sill, Oklahoma.  It was not identified as an adverse report and not referred to him as such by the SR.

6.  The RO, a major, Medical Corps, gave the applicant a maximum score rating for performance, professionalism, and promotion potential, with supporting comments.

7.  The SR, a colonel, Medical Corps, rated the applicant’s potential evaluation in Part VIIa in the second block, with supportive comments in Part VIIb.  The Departmental SR profile was 3/*2/0/0/0/0/0/0/0 (* indicates the applicant’s position), a below center of mass rating, and an adverse rating.  She did not refer the report to the applicant as an adverse rating.

8.  The SR of the report submitted a memorandum in support of the applicant’s appeal to OSRB officials dated 18 March 1996.  She stated, among other things, that her rating should be changed to the top block, the block she meant to mark.

9.  On 26 September 1996 the applicant was notified by memorandum that his appeal of the OER was denied by Officer Special Review Board (OSRB) officials. They determined that the SR clearly marked the second block by her own hand, excluding a typing error, and summarized that “the appellant did not provide and the OSRB did not find elsewhere the necessary evidence to amend Part VIIa of the OER; therefore, the presumption of regularity referred to in para 5-32a must be applied.”  They noted the SR advised them by phone that the applicant was a good officer but not equal to the top block performers that she rated at the time of the contested report.  They concluded “There is not sufficiently convincing evidence that Part VIIa of the contested OER is inaccurate.  Therefore, the report should not be amended.”

10.  The denial notification was placed on the performance portion of the applicant’s OMPF.

11.  The applicant’s OER history shows he is a center of mass officer.

12.  The SR submitted a letter on 4 August 1997 to the applicant and stated she was distressed that his OER appeal was denied, and that she was not informed she had a “one block” center of mass in her SR profile, and supported his appeal effort.

13.  On 19 November 1999 the President, OSRB provided an advisory opinion in this case.  He expressed the opinion “that the application should be denied as the applicant has provided no new substantive evidence to support his claims.”  Among other things, OSRB officials again noted that the SR’s statement that she “inadvertently” marked the second block was retrospective thinking on her part.

14.  On 14 December 1999, the applicant acknowledged the advisory opinion.  He stated, in effect, that while the second block may appear satisfactory, a below center of mass rating “would probably not be viewed as “best qualified” and most likely not receive a recommendation for promotion.”

15.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  An OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, 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.  The 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.

16.  The regulation further provides for referral of adverse OER’s to rated officers for acknowledgment and possible rebuttal, and for filing of these actions with the OER on the rated officer’s OMPF microfiche.

17.  On 13 July 2000 an official of the Promotion Branch, Total Army Personnel Command, advised the analyst in this case that the applicant was within the fiscal year 2000 promotion zone for a first time consideration, but that he was voluntarily separated from active duty on 1 October 1999 and he was not considered by the fiscal year 2000 promotion board that convened from 
5 to 14 October 1999.

CONCLUSIONS:

1.  The applicant is entitled to amendment of the contested OER by deletion of the Departmental SR profile from Part VIIa.  The SR rating of the applicant in the second block of Part VIIa will remain unchanged.

2.  Based on the evidence of record, and notwithstanding the comprehensive review and opinion by the OSRB officials, the Board concludes that the SR in this case clearly intended to rate the applicant in the second block, but within the center of mass.  A rating in the second block typically represents the center of mass.  She unjustly and unintentionally rated the applicant below the center of mass by having an unfair top block center of mass.  In the SR’s case, those officers she rated in the top block could only be represented as within the center of mass, not above the center of mass, and those rated in the second block could only be represented as below the center of mass.  This has resulted in unfair ratings to all of those officers she rated as shown on the contested OER SR profile, including the applicant.

3.  It is also concluded that the SR for this OER knew, or should have known, that she rated the applicant below the center of mass, and that since she rated the applicant below the center of mass, the report was adverse and would have an adverse impact on his career, and should have referred it to him for acknowledgment and possible rebuttal prior to filing it in his OMPF.  A referral at this late date, however, would not be a fair action in the applicant’s behalf.  This conclusion supports the foregoing conclusion that the Departmental SR profile should be deleted from Part VIIa of the report.

4.  Under the circumstances, it is further concluded that the OSRB appeal denial notification, the memorandum dated 26 September 1996, should be removed from the applicant’s OMPF.

5.  His contentions concerning a complete removal or transfer of the OER, and his suggestion to upgrade the profile to a top block rating, have been noted, however, they are not sufficiently supported by his application or the evidence of record.  The applicant has also not shown to the satisfaction of the Board that the numerical evaluations and language in the contested OER are unjust, unwarranted and completely undocumented.  Therefore, the rest of the report need not be amended.
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:

a.  by deleting the Departmental SR profile only, from Part VIIa of the contested OER of the individual concerned covering the period 29 May 1994 through 28 May 1995; and

            b.  by removing the memorandum notification of the OSRB appeal denial of the contested OER, dated 26 September 1996, from the applicant’s OMPF.

2.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

__dj___  ___el____  ___kk____  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		___Deborah S. Jacobs___
		        CHAIRPERSON

INDEX

CASE ID	AR1999026346	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000801	
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.	111.01	
2.		
3.		
4.		
5.		
6.