MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            2 November 2000                  
	DOCKET NUMBER:   AR2000037795

	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:

	Mr. Fred N. Eichorn 		Chairperson	
	Mr. Ted S. Kanamine 		Member	
	Mr. William D. Barr 		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 his addendum to his application, that the five-year requirement for officer evaluation report (OER) appeals be waived, that his OER appeal be evaluated based on the merits of the new and existing evidence and that amendments requested in his appeal to the Officer Special Review Board (OSRB) be acted upon.  In his appeal to the OSRB, he requests that the Senior Rater’s (SR) evaluation in Part VIIa (Senior Rater/Potential Evaluation) of an OER for the rated period 5 July 1988 to 22 June 1989 be elevated to a top block.  
APPLICANT STATES:  In effect, that the OSRB returned his OER appeal without action.  He contends that the OSRB ruled in part that he did not submit an exceptional justification to waive the five-year requirement to appeal his OER.  Specifically, that he “did not consider the appeal process until I was twice non-select for LTC [lieutenant colonel], ten years after the rating period”.  He states that he believes he provided the appropriate background and justification as to why he didn’t appeal then.  However, the OSRB highlighted his current promotion and career status (twice non-select for LTC), to assume why he was appealing now.  He goes on to state that he has been wrestling with this issue of an appeal since 1 July 1989, the day after he received the OER.  He feels the OSRB concentrated on why he was appealing now, as opposed to why he didn’t appeal sooner.  His reasons for exceptional justification are:  (1) that he was a young captain with an impeccable record of achievements that felt intimidated to challenge his senior rater’s subjective evaluation, a center of mass (COM) on a command OER; (2) that he explained how intimidation, in the form of avoidance by one’s superior (either actual or perceived), impacted his decision not to appeal; (3) that in 1996, when he was no longer eligible for Resident Command and General Staff College, he finally realized the far-reaching impacts of his unjust command OER and that the five-year requirement to appeal the OER had elapsed; (4) that in early 1999, he met a lieutenant colonel who told him of his experiences with the appeal process which provided the catalyst to pursue this course of action; and (5) that the reason he appealed his OER was because he knows he did a better job and is a better person than the two-block rating portrayed and he would like the record to reflect that truth.  

In support of his application, he submits a statement of support from his then SR’s rater dated 27 January 2000; the OSRB decision on his OER appeal dated 29 October 1999; his OER appeal dated 20 September 1999; the OER for the period 5 July 1988 to 22 June 1989; an undated personal statement; an OER for the period 14 September 1987 to 5 July 1988; an OER for the period 23 June 1989 to 22 June 1990; an award certificate for the Meritorious Service Medal for the period November 1985 to November 1989; an undated letter of commendation from the SR; a letter of commendation, dated 6 June 1989, from the SR; a letter, dated 27 September 1999, from the SR requesting that his evaluation on Part VIIa be changed to a “Top” block; a statement of support, dated 6 October 1999, from the Executive Officer to Supreme Allied Commander, Europe; and a statement of support, dated 23 September 1999.        
EVIDENCE OF RECORD:  The applicant's military records show:

At the time of his application, the applicant was serving on active duty as a major performing duties as a Provost Marshal.

The contested OER is an 11-month change of duty OER covering the period
5 July 1988 through 22 June 1989 for duties as a commander of a Division Military Police Company.  This OER was authenticated by the rater and SR in Part II (Authentication) on 30 June 1989 and the rated officer (the applicant) on 22 June 1989.  

The applicant received ratings of “1” in all 14 elements of professional competence in Part IVa. (Professional Competence).  Under professional ethics, the rater, who was a major serving as the Division Provost Marshal made positive comments.    

In Part V (Performance and Potential Evaluation), the rater placed his “X” in the first block (Always Exceeded Requirements).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant has “accomplished his command in a superlative manner”, that his “unit met or exceeded all reenlistment missions while maintaining the highest quality point average in the command” and that the applicant was “an efficient and effective officer who can get the job done”. 

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:  "Send to Combined Arms and Services Staff School.  Officer should be given law enforcement operations jobs at installation level, assigned to battalion staff, and considered for duties as executive officer of a law enforcement command.”

In Part VIIa (Potential Evaluation), the SR, a Military Police colonel, placed his “X” in the second block:  3/7*/2/0/0/1/0/0/0 (the asterisk indicates the applicant’s position).  The SR commented that the applicant “has consistently accomplished all assigned missions in an efficient, effective, and truly outstanding manner”.  The SR then commented positively on specific aspects of the applicant’s performance.  The SR stated that the applicant should “be promoted to Major” and “With continued successful assignments, he should be considered strongly for the Command and General Staff College.”  The OER was not referred by the SR.

The contested OER was processed by Department of the Army officials on 
18 July 1989 and placed on the applicant’s microfiche on 2 August 1989.

The applicant’s evaluation history as a captain shows that he received nine OER’s.  In 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 senior rated by five different SR’s (four colonel’s and one lieutenant colonel).  The applicant received above COM senior ratings on five OER’s, COM senior ratings on three OER’s and a below COM senior rating on one OER as follows with the asterisk indicating the applicant’s position in the SR profile:  (15/11/12*/0/0/0/0/0/0), (18*/16/15/1/0/0/0/0/0), (21*/17/18/1/0/0/0/0/0), (28*/19/22/1/1/0/0/0/0), the contested OER (3/7*/2/0/0/1/0/0/0), (1*/2/1/0/0/0/0/0/0), (1/4*/2/0/0/0/0/0/0), (2*/6/3/0/0/0/0/0/0), and (21/39*/1/0/1/0/0/0/2).   

The applicant’s evaluation history as a major shows seven OER’s of which five were completed on the DA Form 67-8 and two on the DA Form 67-9.

In the five OER’s completed on the DA Form 67-8 covering his service as a major, the applicant received ratings of “1” in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence from three different raters.  All raters placed him in the top block (Always Exceeded Requirements) under Part Vb (Performance During This Rated Period) and made positive comments on the applicant’s performance and listed his achievements under Part Vc (Comments on Specific Aspects of the Performance).  All raters placed the applicant in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade).  In Part Ve (Comment on Potential), the raters recommended promotion to lieutenant colonel and selection for resident Command and General Staff College and battalion command. 

For the five OER’s completed on the DA Form 67-8 covering service as a major, the applicant was senior rated by four different SR’s (four colonels). The applicant received above COM senior ratings on two OER’s and COM senior ratings on three OER’s as follows with the asterisk indicating the applicant’s position in the SR profile:  (5*/11/0/0/0/0/0/0/0), (5*/0/0/0/0/0/0/0/0), (1*/0/2/0/0/0/0/0/0), (4*/0/2/0/0/0/0/0/0), and (32*/0/0/0/0/0/0/0/0).       

The applicant received two OER’s as a major on the DA Form 67-9 which became effective in October 1997.

The first OER on the DA Form 67-9 shows in Part IV (Performance Evaluation - Professionalism) that the rater placed his “X” under “YES” in each of the Army Values.  The rater also placed his “X” under “YES” for all blocks in the Attributes, Skills and Actions categories.  The rater placed his “X” under “PHYSICAL” in the Attributes category and under “CONCEPTUAL” and “TECHNICAL” in the Skills (Competence) category.  The rater placed his “X” at “COMMUNICATING”, and “PLANNING”, and “LEARNING” under Actions (Leadership).

Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance.  In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses), the rater commented that the applicant possesses an understanding of Contingency Deployment planning and execution procedures which can be applied to any Army and Joint environment or assignment.

In Part VII (Senior Rater), the SR placed his “X” in the top block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). This decision by the senior rater placed the applicant at “CENTER OF MASS” based on a total of eight ratings rendered by this SR (a colonel).  The SR was responsible for senior rating a total of seven majors.  The SR also made comments to include “Recommend promotion and consideration for command.”

The second OER on the DA Form 67-9 shows in Part IV (Performance Evaluation - Professionalism) that the rater placed his “X” under “YES” in each of the Army Values.  The rater also placed his “X” under “YES” for all blocks in the Attributes, Skills and Actions categories.  The rater placed his “X” under “MENTAL” in the Attributes category and under “CONCEPTUAL” and “TECHNICAL” in the Skills (Competence) category.  The rater placed his “X” at “MOTIVATING”, and “PLANNING”, and “BUILDING” under Actions (Leadership).

Under Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance.  In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses), the rater commented that the applicant would best serve the Army in CMF OPCF/31 and that he has demonstrated exceptional resource management skills by justifying, programming, and securing scarce force protection resources to support isolated U.S. communities.

In Part VII (Senior Rater), the SR placed his “X” in the top block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). This senior rating placed the applicant at “ABOVE CENTER OF MASS” based on a total of nine ratings rendered by this SR (a colonel).  The SR was responsible for senior rating a total of five majors.  The SR also made comments to include “clearly one of the top two field grade officers in the 80th Area Support Group”, “outstanding leadership”, “demonstrated enormous potential for future service as a battalion commander.  Promote immediately to Lieutenant Colonel.”
The applicant appealed the contested OER on 20 September 1999 to the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB).  On
29 October 1999, the Chief of Appeals and Corrections Branch of U.S. Total Army Personnel Command responded that a preliminary review of the OER appeal was conducted and was returned without action.  The basis for the OSRB’s action was due to the delay in submission and lack of clear and compelling evidence.  The OSRB opined that the applicant’s explanation for his delay in submission did not satisfy the “exceptional justification” criterion for waiver of the 5-year requirement.  

At the time of his application, the applicant had been considered for promotion to lieutenant colonel two times, but he was not among those officers selected for promotion to lieutenant colonel by either promotion selection board.

Army Regulation 623-105 (Officer Evaluation Reporting System) 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.

Paragraph 9-3b of Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, provides that substantive appeals must be submitted within 5 years of the OER’s completion date.  Failure not to submit an appeal within this time may be excused only if the applicant provides exceptional justification to warrant this exemption.  

Army Regulation 623-105, cautions, in pertinent part, that “statements of rating officials often reflect retrospective thinking, second thoughts, prompted by an appellant’s nonselection or other unfavorable personnel action claimed to be the sole result of the contested report.  Claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.” 

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 authenticated the contested OER indicating the administrative data in Part I was correct and the proper rating officials rendered this OER.

2.  The contested OER did not contain any entries which, by regulation, required referral to the rated officer.  The contested OER was not referred to the applicant for comment by the SR, thereby indicating that, in the senior rater’s opinion, there were no comments or ratings so derogatory that the contested OER may have an adverse impact on the rated officer’s career.

3.  The contested OER was received by Headquarters, Department of the Army officials and posted to the applicant’s records on 2 August 1989.  As a result, the contested OER 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.

4.  On 20 September 1999, over ten years after the contested OER was entered into the applicant’s official records, he appealed the report to the OSRB.  The OSRB returned his appeal without action based on lack of clear and compelling evidence and delay in submission.  

5.  The Board noted the applicant’s request that the five-year limitation on appeal of an OER be waived.  However, this issue is not relevant because the Army Board for Correction of Military Records is now reviewing the applicant’s appeal of the contested OER.

6.  The applicant requested that his OER appeal be evaluated based on the merits of the new and existing evidence.  The Board reviewed all the submissions by the applicant, but did not find evidence therein that the contested OER was in error or was improperly rendered by the rating officials. 

7.  The Board noted the SR’s contention that the contested OER was unjust.  The Board finds this argument is without merit.  A center of mass OER is not adverse.  

8.  The Board also noted the comment by the SR that “The action I took in placing him in the “second” block has apparently negatively affected his career and was not in any way my intent.”   However, in accordance with the regulation governing OER’s, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  

9.  The Board noted the letter of support provided by the former Chief of Staff of the 5th Infantry Division, now a retired General Officer. This retired General Officer wrote that he would have adjudicated an appeal of the contested OER had it been submitted by the applicant prior to departing the 5th Infantry Division. He also stated that he considered “a two block center of mass rating adverse and necessary of justification.”  However, the facts remain that the applicant did not file a timely appeal and the Division Chief of Staff at the time in question was not the applicant’s senior rater; therefore, he did not view the applicant’s manner of performance from the same vantage point as the SR and did not have to make the decision where the applicant fell on the senior rater profile in comparison to the other senior rated officers.  While the former Division Chief of Staff stated his opinion that he considered the contested OER “adverse”, the decision as to whether or not the contested OER was adverse was clearly a decision within the purview of the SR, not the Division Chief of Staff.

10.  The Board noted the memorandum of support from the Brigadier General serving as the Executive Officer to the Supreme Allied Commander, Europe.  While this General Officer provided laudatory comments regarding the applicant’s performance during his assignment in Europe, this General Officer was not in the applicant’s rating chain at the time the contested OER was rendered.  This General Officer’s statement that the SR would have rated the applicant in the top block had he known the consequences of his COM senior rating is speculation and is not a basis for appeal of the contested OER or a basis for amending the contested OER.

11.  Based on the foregoing, the Board concluded that the contested OER was prepared by the properly designated rating officials and represented the considered opinion and objective judgment of the rating officials at the time of preparation.  Based on regulation, 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 demonstrates material error or inaccuracy exists.  The Board finds that no there is no evidence of material error, inaccuracy or injustice presented by the applicant upon which to base correction or amendment of the contested OER.

12.  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 this requirement.

13.  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

FNE____  TDK_____  WDB____  DENY APPLICATION

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

INDEX

CASE ID	AR2000037795	
SUFFIX		
RECON		
DATE BOARDED	20001102	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY	  	
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.0100	
2.		
3.		
4.		
5.		
6.