PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            29 March 2000
	DOCKET NUMBER:   AR2000038195

	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. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Robert G. Hinkle		Chairperson	
	Mr. Mark D. Manning		Member	
	Mr. James P. Steuve		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 that his officer evaluation report (OER) for the period ending 17 August 1994 be corrected to reflect the senior rater (SR) comments that were on the report when it was forwarded to the Department of the Army (DA).

3.  The applicant states, in effect, that his OER covering the period 2 September 1993 to 17 August 1994 had SR comments in Part VIIb which indicated that it was the SR’s intent for the potential evaluation to be portrayed as above center of mass (ACOM).  The report was processed by the servicing personnel office to DA and he was provided a copy of the OER that was properly authenticated.  However, the OER that was placed in his Official Military Personnel File (OMPF) shows that the SR’s comment was deleted.  He further states that at the time he received the OER in question four other officers (commanders) received reports from the SR who had just restarted his profile and they all contained the same remark.  However, when their reports were placed in their OMPF’s the remark by the SR remained on their report.  Consequently, it is reasonable to believe that the remarks was erroneously deleted at the DA before it was filed in his OMPF.  In support of his application he submits statements from his rating officials as well as copies of the reports from the other four officers who received similar reports. 

4.  The applicant’s military records show that he was commissioned as a USAR second lieutenant on 18 September 1989 with a concurrent call to active duty.  He was promoted to the rank of captain on 1 July 1993.

5. On 16 September 1994 he received an authenticated OER from the servicing military personnel office (MILPO) covering the period from 2 September 1993 to 17 August 1994 evaluating him as a company commander at Fort Knox, Kentucky.  He received maximum ratings from his rater (lieutenant colonel/battalion commander) and his SR (colonel/brigade commander) placed him in the second block under potential of part VIIa.  This placement by the SR placed the applicant ACOM on the SR’s profile (7 officers were in the top block, 17 were in the second block, of which the applicant was one, and 19 were in the third block).  In part VIIb, the SR indicated “My intent is for this to be an above center of mass report”.  He also indicated that the applicant’s performance had been excellent, that he should be promoted, and that he should attend the Command and General Staff Course (CGSC).  

6.  The report that was actually placed on the applicant’s performance fiche of his OMPF was identical to the report that was forwarded to DA with the exception of the SR’s comments regarding his intent that the report be portrayed as ACOM.  It appears that the single sentence containing those remarks was deleted.

7.  A review of the OMPF’s and OER’s pertaining to the other four officers/commanders rendered by the SR at the same time as the applicant shows that their reports had the very same comment from the SR regarding his intent to portray them as ACOM and that the comments on their reports remained on the OER that was placed in their OMPF.

8.  The statements submitted by the rater and SR in support of the applicant’s appeal clearly indicate that it was their intention to portray him as an ACOM officer and notwithstanding any administrative errors that may have occurred, that his appeal should be approved.

9.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB) in 1999 citing essentially the same reasons as he has to this Board.  The OSRB confirmed that the SR’s comment had been whited out prior to being placed in the OMPF in October 1994 and opined that it had been deleted because it was interpreted as a “narrative gimmick”, which is prohibited by the regulation.  The OSRB denied the applicant’s appeal based on his failure to show evidence why the 5-year appeal limitation should be waived.  The applicant appealed on two separate occasions requesting that the 5-year limitation for appeals be waived and his requests were also denied.

10.  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.

11.  That regulation also provides that the responsible MILPO has the responsibility of reviewing completed OER’s and fowarding them to DA within 60 days of the ending date of the report.  Each rated officer will be provided a copy of the OER by the MILPO once it has been completed and processed locally.  On arrival at DA, the OER is reviewed and the SR’s potential evaluation is entered into the automated personnel record and a SR profile is imposed on the OER.  The regulation also provides, in effect, that a commander may request that a report be altered when new information becomes available that may cause a higher or lower rating of an officer.  In either case the changes to the OER will be referred to the rated officer. 

CONCLUSIONS:

1.  The Board finds that the OER in question clearly contained the comment by the SR that it was his intent to portray an ACOM rating of the applicant when it was processed by the servicing MILPO.  However, at the time the OER was placed on the applicant’s OMPF, the comment had been deleted.  There is no indication that the rating officials directed or requested such a change and there is no indication that the rated officer (applicant) was made aware of the change.

2.  The applicable regulations provide, in effect, that a report accepted by DA is presumed to be administratively correct and that if changes are made to the report they will be referred to the rated officer.  The Board notes that the other four OER’s pertaining to the applicant’s peers were filed in their OMPF without alterations/deletions of the so-called narative gimmicks.  Accordingly, there was no basis to delete the comment from the applicant’s OER.  Therefore, the Board finds that the Department is bound by its own regulations and that the comment “My intent is for this to be an above center of mass report” should be placed back on the OER ending 17 August 1994. 

3.  Although the applicant has not addressed the issue of promotion reconsideration, the Board finds that the SR had a credible profile which accurately portrayed the applicant as an ACOM officer and that the comment regarding his intent was unnecessary.  Likewise, the Board believes that replacing the comment would have no reasonable effect on his promotion selection or nonselection.  Therefore, the Board does not support promotion reconsideration based on the change directed.

4.  However, the Board does agree that an error occurred that resulted in the comment by the SR being deleted from the contested OER prior to being placed on his OMPF and that the error should be corrected.

5.   In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by adding the SR’s comment “My intent is for this to be an above center of mass report” as the first line in Part VIIb to the OER pertaining to the individual concerned that ends on 17 August 1994.

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

BOARD VOTE:  

__rgh___  __mdm__  ___jps___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		_____Robert G. Hinkle_____
		        CHAIRPERSON

INDEX

CASE ID	AR2000038195	
SUFFIX		
RECON		
DATE BOARDED	2000/03/29	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  214 	111.0200/ALTER SR NARRATIVE	
2.		
3.		
4.		
5.		
6.