MEMORANDUM OF CONSIDERATION

	IN THE CASE OF

	BOARD DATE:            6 April 2000                  
	DOCKET NUMBER:   AR2000036106

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Ernest M. Willcher		Member	
	Mr. James E. Anderholm		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:  Correction of two contested Officer Evaluation Reports (OERs).  OER # 1 is for the period 960601 – 970531.  The applicant requests deletion of the Senior Rater’s (SR) comments in Part VIIa.  OER #2 is for the period 980110 – 980505.  The applicant requests:  deletion of the last two sentences in Block Vb (Rater comments); changing Block VIIb (Senior Rater potential rating) from “Center-of-Mass” to “Above Center-of-Mass;” and deletion of the following portions of the last two sentences in Block VIIc (SR comments), “Unfortunately, [applicant] has decided to depart active duty; if he returns to active duty . . .” and “[Applicant] will be a great Reserve Component asset - . . . .”

APPLICANT STATES:  In effect, that the Senior Rater (SR) for OER #1 erred when he stated in Part VIIa, “Select for Voluntary Indifference [sic] status.  Promote and sent [sic] to advanced schooling . . . ” when he meant to say “Voluntary Indefinite” status and “send” to advanced schooling.  The applicant contends that this was a “prejudicial substantive error” requiring the complete deletion of the entire comment section.  He disagrees with the Officer Special Review Board’s (OSRB) 30 November 1999 determination that the two errors were purely administrative and with that board’s correction of the two words in question while permitting the “lukewarm inattentive senior rater evaluation” to stand.  He states that OER #2 violates Army regulation by commenting on events that occurred beyond the end date of the rating period described by the OER.  He argues that the SR would have placed him in the above center-of-mass in Part VIIb had he believed that the applicant intended to remain on active duty.

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

He is an attorney and a Captain in the Judge Advocate General Corps (JAGC).  He is also a two-time nonselect for promotion to Major and has a mandatory separation date of 1 September 2000.

In 1997, the applicant received OER #1 as an annual report.  It was a center-of-mass report while he was serving as a trial defense counsel at Fort Leavenworth, Kansas.  The rater, a JAGC Captain, rendered a positive report for his portion.  The SR, a JAGC Lieutenant Colonel, placed the applicant in the top block of Part VIIa along with 12 other Captains.  In Part VIIb, he provided positive comments, but indicated that the applicant should be selected for “Voluntary Indifference” status when he meant “Voluntary Indefinite” status, and also said “sent” to advanced schooling instead of “send” to advanced schooling.  The report was provided to the applicant and forwarded to the US Total Army Personnel Command (PERSCOM) for filing.

Following the FY99 JAGC Major Promotion Board’s failure to select him for promotion, the applicant appealed both contested OERs to the OSRB.  He argued that OER #1 contained substantive errors (Voluntary “Indifference” and “sent”) which constituted a narrative gimmick under the regulation and required the deletion of the entire SR narrative.  The OSRB disagreed stating that the errors were administrative and did not constitute a fatal flaw.  The board directed that the two words be corrected, but did not send the applicant’s corrected record before a promotion reconsideration board.

The applicant received OER #2 as a 4-month, SR option report while serving as a legal assistance attorney at Fort Leavenworth.  It was a center-of-mass report while he was serving as a legal assistance attorney in the Office of The Staff Judge Advocate at Fort Leavenworth, Kansas.  The rater, a JAGC Lieutenant Colonel, rendered a very positive report for his portion.  He also mentioned in Part Vb that “[Applicant] is transitioning to private practice and the reserves.”  The SR, a JAGC Colonel (and the Staff Judge Advocate), rated the applicant as “Best Qualified” in Part VIIa and in the center-of-mass portion of Part VIIb.  In Part VIIc, he provided positive comments and mentioned “Unfortunately, [applicant] has decided to depart active duty; if he returns to active duty he should be promoted to Major and sent to the Graduate Course ahead of his contemporaries.  [Applicant] will be a great Reserve Component asset – put him in a challenging supervisory position to best use his aggressive talents and abilities.”  This report was also provided to the applicant and forwarded to the PERSCOM for filing.

In his appeal of this OER, the applicant stated to the OSRB that the report referenced events that happened outside of the rating period and specifically took exception to the SR’s comments about his decision to leave active duty.  He requested that those comments by the SR be deleted and that the report be changed to an above center-of-mass report.  He also requested that the SR’s recommendation concerning future assignments be deleted because they referred specifically to the Reserve Components.  In support, he provided a 10 June 1999 letter from his SR in which he [SR] stated that he wrote the OER from the perspective that the applicant would depart active duty and that the OER would not be seen by an active duty promotion selection board.  The SR added that he believes that the OER would be viewed detrimentally by such a board and such an outcome was never his intent.  He recommended that the applicant’s appeal be granted and that he be given promotion reconsideration.

The OSRB twice contacted the applicant’s SR for OER #2.  When asked about his letter of support for the applicant, he said that he believed that his comments about possible Reserve duty were viewed in a negative light by the FY99 JAGC Major Promotion Board.  He said that he rendered the OER with the belief that the applicant would follow through on his stated intent to leave active duty and he was trying to position the applicant for a career in the Reserves.  He added that, had he known the applicant would remain on active duty, he would have rendered a different report.  During his second discussion with the OSRB, the SR stated that the applicant had contacted him and stated that he [applicant] had been passed over for promotion to Major and asked for the SR’s support in appealing the OER.  The SR agreed to support the appeal and said that he recommended changing the OER and the center-of-mass rating to above center-of-mass in Part VIIb.

The OSRB rejected the applicant’s appeal of OER #2 stating that the SR’s comments were appropriate because the applicant made his decision to leave active duty known to the SR during the rating period.  In fact, the applicant went on terminal leave and was working in a civilian law practice before changing his mind and withdrawing his request for separation.  The OSRB viewed the SR’s comments as retrospective thinking – “Statements from rating officials often reflect . . . second thoughts prompted by an appellant’s non-selection [for promotion] or other unfavorable personnel action . . . .”

The following is a record of the applicant's available OER's and AER’s (Academic Evaluation Reports).  Note that for the DA Form 67-8 the rating system depicted below has six entries:  the first two entries are derived from the rater performance and potential blocks, expressed in Roman numerals, with I the highest and V the lowest; the last four entries are derived from the senior rater potential evaluation (senior rater profile), with the third entry reflecting the applicant's block placement (i.e. top, top two through eight, and bottom), and the fourth through sixth entries portraying, respectively, the number of ratings ranked above, with/equal to, and below the applicant.  For DA Form 67-9, the first entry relates to the rater’s evaluation of performance, expressed in Roman Numerals, with I the highest and IV the lowest; the second Roman Numeral refers to the SR’s evaluation of promotion potential on a scale of I to IV; and the third rating refers to the SR’s evaluation of the applicant’s potential compared with officers senior-rated in the same grade, stated in terms of Above COM, COM, or Below COM:

		        Score/    
Period	Rater/SR Profile 	Type of Report

920103-920327	Exceeded Standards	Academic (OBC)
920328-920701	I/I/Top2/5/16/0	Change of Rater
920702-930701	I/I/Top2/2/7/0	Annual
930702-931101	I/I/Top2/2/9/1	Change of Duty
941102-940704	I/I/Top2/4/18/1	Sr Rater Option
940705-941118	I/I/Top2/0/2/0	PCS
941119-951118	I/I/Top2/11/10/1	Annual
951119-960531	I/I/Top/0/15/15	Sr Rater Option
960601-970531	I/I/Top/0/12/0  *	Annual
970601-970930	I/I/Top/0/20/0	Close-out 67-8
971001-980109	I/I/COM	Change of Duty
980110-980508	I/I/COM  *	Sr Rater Option
980509-981120	I/I/COM	PCS

* Contested Reports

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3.24 provides that each report will be an independent evaluation of the rated officer for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered must be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

Paragraph 3.57 provides that 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.  It also provides that requests that an accepted report be altered, withdrawn, or replaced with another report will not be honored.  Specifically, the following will not be used to alter or withdraw a report; neither will they be included in the OMPF: 
(1)  Statements from rating officials that they underestimated the rated officer.
(2)  Statements from rating officials that they did not intend to rate the officer as they did.
(3)  Requests that ratings be revised.
(4)  Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential.

Paragraph 6.10 of 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.

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.  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.

2.  OER #1 contained minor administrative errors which were corrected by the OSRB and which did not require reconsideration of the applicant’s file by a standby promotion reconsideration board.  The Board agrees with the OSRB that the SR narrative, as corrected, should stand and not be deleted as requested by the applicant.

3.  OER #2 correctly stated that “[Applicant] has decided to depart active duty [emphasis added];” this was a true statement which commented on a decision made by the applicant during the rating period defined by the OER.  The Board agrees with the OSRB that the statement does not violate the provisions of AR 623-105, paragraph 3.24.

4.  The Board agrees with the OSRB that the SR’s comments supporting the applicant’s appeal of OER #2 constitute retrospective thinking and should not be used as a basis for granting the applicant’s appeal.

5.  The applicant’s record of OERs indicates that he is a center-of-mass officer. As such, both contested reports are representative of his entire career and neither represents an anomaly.

6.  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

__jns___  ___emw__  ___jea___  DENY APPLICATION

						Karl F. Schneider
				     Director, Army Review Boards Agency

INDEX

CASE ID	AR200036106	
SUFFIX		
RECON		
DATE BOARDED	20000406	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0000	
2.	111.0004	
3.	111.0100.0004	
4.	111.0100.0007	
5.		
6.