MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           23 January 2001                    
	DOCKET NUMBER:   AR2000037395

	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	
	Mr. Richard H. Allen		Analyst	

  The following members, a quorum, were present:

	Mr. Luther L. Santiful		Chairperson	
	Mr. Thomas E. O'Shaughnessy		Member	
	Mr. Walter T. Morrison		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 a brief prepared by counsel, reconsideration of her two earlier appeals to correct her military records by amending two officer evaluation reports (OERs) for the rating periods 921015-931015 (sic 931014) and 931015-941014, by deleting  the senior rater's (SR's) profile block rating in Part VIIa (Potential) (DA Form 67-8 (US Army OER)) for the two reports.  In the alternative, upgrading the SR's profile block rating in Part VIIa from a #3 block rating  (below center of mass (BCOM)) to a #2 block rating (center of mass (COM)).  Further, counsel requests that the "2" entry in Part IVa.4. (Professional Competence: Motivates, challenges and develops subordinates) be changed to a "N/A" rating for the OER for the rating period 921015-931014.  Counsel then requests that all of the applicant's non-selections for promotion to lieutenant colonel (LTC) in the Army Reserve (USAR) from 1997 to present be set aside,  that a special selection board be convened to reconsider her for promotion; then to award appropriate retroactive drill and Active Duty for Training back pay.  

Further, after an explanation of problems the applicant and counsel contend they had with a staff element of the Board, counsel requests that a new "reconsideration team" be appointed to review the applicant's case and that the request be expedited.  Further, counsel requests that a letter from the Board, dated 29 December 1999, which administratively denied the applicant's first appeal of the original decision, be set aside and expunged. 

APPLICANT STATES:  In effect, that she has seen the brief prepared by her counsel and fully concurs with it.  She submits the brief, with exhibits A-E, and a letter, this Board, dated 29 December 1999, administratively denying her first appeal of the Board proceedings.  This letter has eight enclosures.  

NEW EVIDENCE OR INFORMATION:  Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the Board's previous consideration of the case (AR1999021331, 31 March 1999).  In addition, an administrative action to deny her first appeal, dated 
29 December 1999 is also incorporated.  

The applicant's case was assigned to a new examining team of the Board on 
3 October 2000 and the applicant's counsel was so informed. 

It should be noted at this point that the applicant held dual status as a civilian technician (civil service employee) at the 5035th USARF school as the School Administrator and as a troop program unit member, in the rank of major, with the duty title of the Administrative Officer of the school.  Normally, civil service employment requires that the individual maintain an active USAR drill assignment.

In the applicant's original application, she requested the removal of three OERs; the two being considered in this appeal, and one for the preceding rating period 19911015-19921014.  At that time, she had been passed over once for promotion to LTC.  She included a memorandum from the senior rater, dated 
8 January 1999,  in which he stated that he thought his senior rater profile was a "3", but found out late in his tenure that it was a "2".  Thus he requested correction of the applicant's records to show that she was a center of mass officer.  He also contends that in one report (19921015-19931014) that a "2" rating in Part IVa.4. should be N/A.  She also submitted a letter from a LTC, dated 11 January 1999 stating that the applicant had no subordinates during the three rating periods in question.  Subsequently, on 23 March 1999, she submitted two Senior System Civilian Evaluation System reports for annual rating periods ending on 16 October 1992 and 31 October 1994.  Each of these reports were rated by the applicant's military SR, who was her rater in her civilian technician position.  On the first report, it showed that she exceeded standards in four out of the five critical areas and she met the standards for the fifth.  In the second report, he rated her as highly successful and recommended her for a sustained superior performance cash award.   

The Board's  decisional document on her original application is dated 31 March 1999.  It essentially found that the Board was not convinced that the SR did not know that an officer being placed in the 3rd block was below his COM.  He senior rated at between 36 and 50 majors in each of the 3 years covered in the initial application.  His statement of 8 January 1999 was therefore considered retrospective thinking.  Further, none of these reports showed that the rater ever marked her as "always" exceeding requirements or "promote ahead of contemporaries."  Therefore, comments of the rater do not indicate exceptional performance of duty.  

The Board further denied the applicant's request for a change of the "2" rating in Part IVa.4. of the report ending on 14 October 1993.  Since the applicant had not appealed this rating within 5 years, the normal requirement of Army regulations for such appeals, the Board concluded that this rating did not represent a material error.  If changed, this would not offer a reasonable chance for her being recommended for promotion.  

The Board also concluded that the applicant knew or should have known that after being promoted to the rank of major in 1991, that she would be considered in 1997 for promotion to the rank of LTC and that she needed  to make sure, well in advance, that her record would present her career and qualifications to that promotion selection board in the best possible light.

Finally, the Board concluded that despite her civilian/military technician ratings, these appraisals did not convince the Board that her OERs were inaccurate or unfair.  

In May 1999, the applicant appealed the Board's prior decision.  In connection with this appeal, she submitted the memorandum from her SR, dated 8 January 1999, which the prior Board had considered, plus five memoranda from her rater, two LTC's who were familiar with her work, both as military officers in her unit  and as civilian employees in her unit or in higher headquarters who were familiar with her work as a technician, and a master sergeant who worked with the applicant.  These documents essentially attested to her expertise and hard work in implementing the ATRRS (Army Training Requirement and Resources System) in her unit and that she did not have any subordinates when serving as a military officer.  She did well and made significant contributions to the USARF school as a military officer and also as a civilian technician.  They further attested that the SR may not have been fully aware of her involvement in the ATRRS system.  One of these officers, a female, attested that the SR had rated her BCOM also, but because of other reports in her file she was selected for promotion to LTC in the USAR.  She did not press a possible discrimination suit.  Her rater stated that he did not agree with the SR if his rating placed the applicant BCOM.   

Further, there is a second  memorandum from the SR, dated 7 July 1999, which was added to her May 1999 appeal, in which the SR stated that he was not aware of the applicant's involvement in the ATRRS.  He did not realize that the rater had received input from the officer who was his deputy commandant, concerning the applicant's active involvement in the ATRRS.  He tried to keep civilian ratings and military ratings separate for those individuals who were both USAR officers in his unit and held civilian/technician positions.  In the applicant's case, if he had been aware of the applicant's active involvement in the ATRRS, he would have rated her as a COM officer, and requests the Board to correct her records accordingly.  

In consonance with reconsideration criteria in effect in 1999, the staff of the Board administratively denied her appeal, essentially stating that the matters raised in her new submissions were essentially considered by the Board in its March 1999 rating.  

In connection with her current appeal, counsel, in his brief, states that a new statement (dated 7 July 1999) from the applicant's former SR, now retired, clearly shows that the SR admitted that he erroneously excluded from his consideration of the applicant's duty performance critical "direct input" concerning her duty performance.  In essence, her civilian/military supervisor submitted information that was relied upon by her rater to provide a favorable rating.  This information was material to the applicant's performance potential, as entered by him in Part VII of the OER form.  The senior rater stated that a LTC "S…..s" has recently made him aware of her significant efforts in working with the "ATRRS".  "…If I had been aware of these activities at the time I would certainly have taken these efforts into consideration ….and place her in a higher block.  I truly believe that this would have been appropriate."  

Counsel then goes on to describe the importance of the ATRRS system to USARF schools and training centers.  He notes that the LTC "S….s" had a supervisory role from a higher headquarters in connection with her civilian/technician duties and  also was the deputy commandant of the USARF school.  Therefore, his input to the rater concerning the ATRRS system and the applicant's performance amounted to an "intermediate rating" in the applicant's case.  Other statements with her appeal, to include the statement from LTC S….s", discussing his supervisory role over her performance of duty as the School Administrator, one from her rater disagreeing with the senior rater's action, and others from peers who noted that she put in many extra hours of study and work to become an expert on the ATRRS system.  Other USAR officers and civilian employees looked to her for help on the  ATRRS system because of this expertise.   

Counsel contends that it is the responsibility of the rater and the senior rater to develop, with the rated soldier an agreed upon job description.  By inference, this appears not to have been done since the ATRRS system requirements would then have been included.  If the rater considered input from LTC "S….s" concerning the applicant's ATRRS system work, then the senior rater should also have considered this same information.  

In a prior case considered by the Board, counsel notes that the Board found that the rating officials had not tried to obtain information from that applicant's civilian raters when the data could well have had a significant impact on the final rating.  The Board noted at the time:  "although it would have been prudent for her raters to solicit input from full-time superiors, there was no regulatory requirement to do so."

In this case, LTC "S….s" had previously held the applicant's duty position and well knew that her duties should have included requirements for ATRRS input.  When he provided input to the rater on the ATRRS, then the senior rater should have had the same input, but because the senior rater admitted he studiously tried to keep the civilian/technician ratings separate from the USAR duty ratings, he was not aware of her work.

Counsel contends that these statements and facts are not retrospective thinking, but rather are new facts which must be considered by this Board in reaching their final decision.  The Board previously noted that her civilian ratings were outstanding, and it is not consistent that her USAR duties, to include her work on ATRRS, one or two days a month, would be below average.  

Counsel concludes his appeal with the observation that the applicant was certainly more than a substandard officer.  Her ratings in Part IV (Performance Evaluation-Professionalism), prepared by the rater, showed her as having a high degree (all "1" ratings) of performance.  She was never rated negatively by her rater.  Other statements with her appeal show that she was a good officer.  Therefore, he cannot understand the Board's prior observation that her performance of duty was "moderate."  The Board should have compared her ratings with other ratings done by the same SR.  Further, the USAR OER system has become inflationary and earlier reports were prepared based on a "fully qualified," not the current "best qualified" promotion criteria.  She was a highly competent officer who performed well.  Therefore, the SR comments should be accepted and her record should be corrected to show that she was at least a COM officer.  Also he believes that the Board should revisit its prior denial to change the "2" rating in PartIVa.4., of the 1992-1993 report to N/A.  He believed the Board should provide further arguments on why this rating should not be changed.  

Army Regulation 15-185 sets forth the policy and procedures for the ABCMR.  It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration.  The staff of the Board is authorized to determine whether or not such evidence had been submitted. If no such evidence is found, the application will be returned without action.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  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 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.

Paragraph 3-12, Responsibilities of the SR, shows, in part, that a responsibility of the SR is to evaluate the rated officer’s potential relative to his or her contemporaries.  His or her evaluation is based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide) the relative potential of such a sample will approximate a bell-shaped normal distribution pattern.

Army Regulation 623-105, then in effect, in chapter 4, section II, provided that a DA Form 67-8-1 (US Army Officer Evaluation Support Form) should be prepared by the rated officer at the beginning of each annual rating period which included his or her job description, the critical elements of the duty position and performance objectives.  This form would be coordinated with the rater and the SR.  Once agreed upon, this would be the basis for counseling of the rated officer throughout the period of duty performance.  At the end of the rated period, the rated officer would complete the form to show what were his or her significant achievements, keyed to the goals established at the beginning of the rating period.  This form would accompany the DA Form 67-8 to the rater and SR to be used by them in reaching the final rating.  

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

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. The applicant’s contentions are new evidence and arguments that require Board consideration.

2.  The Board is still not convinced that the SR erred in his judgement at the time he completed the applicant's ratings.  The Board is more convinced that a senior officer making ratings of more than 30 majors on an annual basis would well know approximately what his COM was.  If he did not, he could have easily gotten this information from the Army Reserve Personnel Center.  Therefore his statements of January and July 1999 must be considered retroactive thinking.  

3.  In addition, if a key element in the applicant's job description/achievement goals established on her DA Form 67-8-1 was her involvement in the ATRRS, then this should have been included from the start.  If she took this task on as an additional duty, then she could have included this fact in her listing of her significant achievements on the DA Form 67-8-1 prior to submission to her rater and SR.  Therefore, the Board must conclude that it was her responsibility to insure that her rater and SR were fully aware of duty her accomplishments.  If the reports were incorrect, the time to appeal them was then, not after she was nonselected for promotion.  

4.  The Board also concurs in the previous comments concerning the "2" rating in Part IVa.4. of the OER ending on 14 October 1993.  She should have appealed this earlier.  Even if she didn't, a change in this rating from "2" to "N/A" would not have a significant impact on any promotion reconsideration since the key element in promotion consideration is potential to perform duties at the next higher rank, not as a reflection of past accomplishments.   

5.  This Board finds no merit in the applicant's request to remove the denial of her first appeal of the Board's decision in May 1999.  The Board's letter of 
29 December l999 announced no basis for reconsideration of her request for reconsideration based on Board's criteria for case reconsideration at that time.  This is a moot point in that her case is now being reconsidered by the Board, to include the evidence/arguments submitted at that time.  

6.  Since the Board has not seen fit to change her OERs, there are no grounds to refer her records to standby promotion consideration boards for promotion reconsideration in the USAR.  

7.  Therefore, the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse its previous decision.

8.  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

___lls ___  ___teo __  ____wtm    DENY APPLICATION

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

INDEX

CASE ID	AR2000037395	
SUFFIX		
RECON		
DATE BOARDED	20010123	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	 	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.00	
2.	134.00	
3.	131.10	
4.		
5.		
6.