MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           10 August 2000
	DOCKET NUMBER:   AR2000039635

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. Mark D. Manning		Chairperson	
	Mr. John Saputo		Member	
	Ms. Karen A. Heinz		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:  That the senior rater (SR) evaluation in Part VII of the Officer Evaluation Report (OER) for the period 9 August 1981 through 31 January 1982 be deleted and that he receive promotion reconsideration to lieutenant colonel by all promotion selection boards which considered the contested OER.

APPLICANT STATES:  That, until recently he was unaware that the contested OER was considered a derogatory report because he was placed below center of mass (COM) in the SR profile.  While investigating why he was not selected for lieutenant colonel, the applicant “discovered” that the senior rating on this OER was considered below COM and portrayed him as a substandard officer and depicts a “downturn” in his performance.  The applicant states that he does not believe the SR for this OER intentionally intended to portray the applicant as a below COM officer; however, mismanagement of his SR profile resulted in the COM moving to the top block and caused him to be portrayed as a substandard officer.  The applicant contends that, based on Army Regulation 623-105 (Officer Evaluation Reporting System), a properly managed SR profile should resemble a “bell curve” instead of the inverted pyramid of the SR for the contested OER.  

The applicant also states that just six months prior to the contested OER, the SR rendered an OER which placed the applicant in the third block resulting in a COM evaluation.  Within another six month period, the SR again placed the applicant in the third block; however, the applicant contends that the SR profile was “out of control by that point”, and, thereby, indicated a downturn in performance.  The applicant states that this all occurred to him without benefit of counseling and that the contested OER was not referred to him.  Finally he contends that he received maximum ratings from the rater and glowing comments from the SR which are contradictory to the senior rating.

The applicant also contends that it is the intent of the OER regulation to refer any OER considered to be derogatory in nature to the rated officer.  He states that an OER which indicates a “downturn in performance or insinuates that an officer is substandard [below COM] is derogatory and, as such, should be referred.”

The applicant also states that he has not received a below COM OER since the contested OER and until recently he did not understand the impact of such a rating.  He contends that due to lack of knowledge he did not appeal the contested OER to the Officer Special Review Board (OSRB) within its five year statute of limitations on appeals of OER’s.  

The applicant submitted case law, Richey v. United States, Number 97-478C, U.S. Court of Federal Claims, (1999), in which the case was remanded back to the Army Board for Correction of Military Records (ABCMR) because the SR had a top block COM which was deemed by the Court of Federal Claims not to be in compliance with the applicable regulations because the profile was “not maintained in a bell-shaped fashion and that a BCOM [below COM] rating was not indicative of the performance and potential on the OER.  The applicant also identifies several other ABCMR cases which he contends granted relief for the same reasons as exist in his case.  He states that, in each of these cases, the rated officer received below COM ratings, “the only such rating in their career, which appeared to be an anomaly when compared to the rater and SR comments on the report and all previous and subsequent OERs.  The ABCMR granted relief in these cases and many more like cases based on the failure of the SR to properly maintain a credible profile.”

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

The applicant is serving on active duty as a major performing duties as a military lawyer in the Department of the Army Secretariat.

The contested OER covered the period 9 August 1981 through 31 January 1982 for duties as a Judge Advocate General Corps (JAGC) captain at Fort Campbell, Kentucky.  On 1 February 1982, the applicant placed his signature in item Part II (Authentication) indicating the administrative data in Part I was correct and that the rating officials for this OER were correct.

The applicant received ratings of “1” in all 14 elements of professional competence and a positive comment under professional ethics and competence from his rater, also a JAGC captain.  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’s performance as a Recovery Judge Advocate had resulted in larger and speedier medical care recoveries and in November 1981 the highest monthly recovery ever reported at Fort Campbell.  The rater further noted the applicant’s physical fitness, graduation from the Air Assault School and that “he is an outstanding legal practitioner and a fine officer.”  In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the first block (Promote Ahead of Contemporaries) and stated:  [The applicant] “has unlimited potential to develop into a well rounded military attorney” and “should be awarded career status as soon as he applies for it.”

The intermediate rater, a JAGC major, commented that [the applicant’s] “dedication to his job is reflected by his outstanding claims recovery rate and good working relationship with those with whom he deals.  As his job experience broadens and his English verbal communication skills improve, he will become an even more valuable asset to the Corps.”

In Part VIIa (Potential Evaluation), the SR placed his “X” in the third block and commented [the applicant’s] “performance as a Recovery Judge Advocate has been excellent.  He will soon be moving to the Trial Defense Service because of his expressed desire for trial work, and I expect him to continue his fine performance there.”  The SR profile for this report showed the applicant as one of two officers in the third block (4/2/2*/2/0/0/0/0/0).  (The asterisk indicates the applicant’s position.)  The OER was not referred by the SR.

The contested OER was received by Department of the Army officials.  The OER was processed on 11 March 1982 and placed in the applicant’s OMPF. 

The applicant’s evaluation history as a captain shows ten other OER’s.  In these OER’s, the applicant received ratings of “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence from six different raters, except for one rating of “2” under “Clear and concise in oral communication”.  All raters also 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 generally recommended career status in the JAGC, promotion, further military education in his career field, and additional supervisory responsibility.  

The applicant was senior rated by six different SR’s (four lieutenant colonels and two colonels). The applicant received above COM senior ratings on five OER’s, COM senior ratings on three OER’s and below COM senior ratings on two OER’s as follows with the asterisk indicating the applicant’s position in the SR profile: (0/1/1*/0/0/0/0/0/0), the contested OER (4/2/2*/2/0/0/0/0/0), (1/6/8*/0/1/0/0/0/0), SR not eligible to rate (0/0/0/0/0/0/0/0/0), (5/10*/9/2/0/0/0/0/0), (8*/10/10/2/0/0/0/0/0), (*15/23/4/0/0/0/0/0/0), (17*/29/6/0/0/0/0/0/0), (7*/7/2/0/0/1/0/0/0), (16*/8/2/0/1/1/0/0/0), and (2/3*/3/3/0/0/0/0/0).

Of eleven senior ratings, five of them described his performance or potential as “outstanding”.  Three senior ratings described his performance or potential as “excellent” or “exceptional”.  One SR stated the applicant “was above the average and one SR did not use any adjectives to describe the applicant’s manner of performance or potential.  One OER had no SR evaluation or comments because the SR was not eligible to render a senior rating.

The applicant’s evaluation history as a major shows 13 OER’s of which 11 were completed on the DA Form 67-8 and two on the new DA Form 67-9.  

In the 11 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 five 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 generally recommended immediate promotion to lieutenant colonel, selection for attendance at Command and General Staff College, assignment to the Criminal Law Division of the Office of the Judge Advocate General (OTJAG), and assignment as deputy Staff Judge Advocate (SJA), a division or corps SJA, or SJA of an installation.

For the 11 OER’s completed on the DA Form 67-8 covering service as a major, the applicant was senior rated by eight different SR’s (four colonels, one brigadier general, and three major generals). The applicant received above COM senior ratings on four OER’s and COM senior ratings on seven OER’s as follows with the asterisk indicating the applicant’s position in the SR profile:  (2*/1/0/0/0/0/0/0/0), (1*/1/0/0/0/0/0/0/0), (2*/2/0/0/0/0/0/0/0), (20*/12/6/0/0/0/0/0/0), (3*/2/0/0/0/0/0/0/0), (10*/3/1/0/0/0/0/0/0), (17*/3/1/0/0/0/0/0/0), (4*/0/0/0/0/0/0/0/0), (14*/0/0/0/0/0/0/0/0), (17*/7/0/0/0/0/0/0/0), and (11*/11/1/0/0/0/0/0/0).

Of eleven senior ratings, three of them described his performance or potential as “outstanding” or “dynamite”.  Four senior ratings described his performance as “excellent” or “exceptional”.  Two SR’s  stated the applicant should be promoted now with no specific adjectives describing his performance; one SR stated the applicant had “tremendous potential”; and one SR merely stated that the applicant provided “dynamic and aggressive” leadership, but did not use any adjectives to describe the applicant’s manner of performance or potential. 

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 “MENTAL” in the Attributes category and under “CONCEPTUAL” and “INTERPERSONAL” in the Skills (Competence) category.  The rater placed his “X” at “DECISION-MAKING”, “PLANNING”, and “Executing” 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 should be a subject matter expert on exchanges with Latin American countries, that the applicant had distinguished himself while teaching law and military justice in Ecuador and Guatemala, and that the applicant had just assisted Guatemala in drafting a new code of military justice.

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 “Center of Mass” based on a total of two ratings rendered by this SR (a major general).  The SR was responsible for senior rating a total of five majors.  The SR also made comments to include [the applicant’s] “work in organizing the Reserve Component Workshop and the on-site program has been simply outstanding” and [the applicant] “could serve effectively as a Lieutenant Colonel today.”

The second OER on the DA Form 67-9 was prepared by the same rater and SR as on the first OER prepared under the new system.  In Part IV (Performance Evaluation-Professionalism), 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 “INTERPERSONAL” in the Skills (Competence) category.  The rater placed his “X” at “COMMUNICATING”, DECISION-MAKING”, and “PLANNING” under the Actions (Leadership) category.  

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 should be a subject matter expert on exchanges with Latin American countries.

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 rating placed the applicant at “Center of Mass” based on a total of six ratings rendered by this SR (a major general).  The SR was responsible for senior rating six majors.  The SR also made comments to include [the applicant] “is a superbly gifted soldier and lawyer” and “Promote[the applicant] to Lieutenant Colonel immediately.”

The applicant appealed the contested OER on 16 May 2000 to the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB).  On 7 June 2000, The Chief of Appeals and Corrections Branch of U.S. Total Army Personnel Command responded (COPY ATTACHED) that the OSRB “previewed” the appeal and returned it without action.  The bases for the OSRB’s action were lack of clear and compelling evidence and delay in submission.

Army Regulation 623-105 (Officer Evaluation Reporting System) 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 3-10 of Army Regulation 623-105 states that the senior rater is the senior rating official in the rating chain.  The senior rater uses his or her position and experience to evaluate the rated officer from a broad organizational perspective.  His or her evaluation is the link between the day-to-day observation of the rated officer’s performance by the rater and intermediate rater and the longer term evaluation of the rated officer’s potential by DA selection boards.

Paragraph 4-27 of Army Regulation 623-105 states the requirements for referred OER’s.  The regulation requires that the senior rater (SR) will refer an OER to the rated officer when the following conditions exist:  1) a relief for cause report is submitted;  2) any report with negative remarks about the rated officer’s professional ethics;  3) any report with a rating of “4” or “5” in any of the 14 attributes;  4) any report resulting in a performance evaluation of “Often failed requirements” or “Usually failed requirements”;  5) any report with a potential evaluation of “Do not promote” or narrative comments by any rating official to that effect;  6) any report with a potential evaluation in Part Vd of “Other” where the required explanation has derogatory information;  7)  any report with a senior rater potential evaluation in any one of the bottom three blocks in Part VIIa;  8) any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career;  9) any report with an entry of “Fail” in Part IVa, item 3, indicating noncompliance with Army Regulation 350-15; or an entry of “NO” in Part IVa, item 12 indicating noncompliance with Army Regulation 600-9. 

Army Regulation 623-105 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 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty.  Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board.  The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error.  Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.

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 his 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 11 March 1982.  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 16 May 2000, over 18 years after the contested OER was entered into the applicant’s official records, he appealed the report to the OSRB.  The OSRB refused to consider his appeal based on lack of clear and compelling evidence and delay in submission.

5.  The applicant contends that he “just recently” became aware the contested OER was considered derogatory since he was placed below COM on the profile of the SR.  However, the Board notes the SR profile (4/2/2*/2/0/0/0/0/0) for the contested OER most likely has been evaluated as having a center of mass encompassing the second and third block which means the applicant was not evaluated below COM as he contends.  The Board also noted that the SR obviously did not believe the contested OER was so derogatory as to warrant referral and also that the applicant was selected to the rank of major with the contested OER in his records.  Therefore, the Board concludes that the contested OER was not derogatory and did not warrant referral and that there is no error or injustice because the SR did not refer the contested OER.

6.  The applicant contended that the contested OER portrays him as a “substandard officer” and depicts a “downturn” in his performance.  The Board notes that, contrary to the applicant’s opinion, there are no derogatory or other comments by any rating official for the contested OER which indicate the applicant was a substandard officer or there was a downturn in his performance. Further, the SR profile (0/1/1*/0/0/0/0/0/0) for the OER immediately preceding the contested OER can be viewed as below COM.  It also can be evaluated as COM on the basis of a “dual COM” in that all senior rated officers are in two blocks or on the basis that it is an immature profile with only two officers senior rated.  The SR profile (1/6/8*/0/1/0/0/0/0) on the OER immediately following the contested OER can also be viewed as a low COM report because the COM actually encompasses the second and third block.  As a result, the Board finds that the applicant’s first three OER’s, which include the contested OER, consistently place the applicant at COM or below COM depending on how the SR profile is analyzed. 

7.  The applicant contends that the SR mismanaged or lost control of his profile resulting in the COM moving to the top block and, thereby, putting his officers into a position where their true potential could not be depicted.  There is no evidence that the SR for the contested OER lost control of his profile. The evidence shows that the SR placed the applicant in his profile based on his considered opinion and objective judgment at the time he prepared the contested OER and the overall profile is spread over four blocks.  Further, the applicant’s argument regarding control of the SR profile of the contested OER is not compelling, especially when the applicant has never challenged and does not now challenge the SR profile of seven OER’s rendered on him as a major where the COM of the respective senior ratings is the top block:  (20*/12/6/0/0/0/0/0/0), (3*/2/0/0/0/0/0/0/0), (10*/3/1/0/0/0/0/0/0), (17*/3/1/0/0/0/0/0/0), (4*/0/0/0/0/0/0/0/0), (14*/0/0/0/0/0/0/0/0), (17*/7/0/0/0/0/0/0/0).

8.  The applicant states that the same SR placed him in the third block on an OER just six months prior to the contested OER, which was a COM senior rating. However, by the next OER his profile was out of control and indicated a downturn in the applicant’s performance, but he was never counseled and this derogatory OER was not referred.  He contends that it is clearly the intent of the OER regulation to require referral of an OER which is below COM, indicates a downturn in performance and “insinuates” that an officer is substandard.  This contention has already been addressed in paragraph 6, above.

9.  The applicant also contends that he has not received a below COM OER since the contested OER and until recently did not understand the impact of such a rating.  He argues that, as a result of these facts, he did not file a timely appeal with the OSRB.  This point is not relevant because the ABCMR is considering the applicant’s request for amendment of the contested OER.

10.  The Board notes the applicant’s use of case law to support his application.  He states that in Richey v. United States the case was remanded back to the ABCMR because the SR had a top block COM which was deemed by the Court of Federal Claims not to be in compliance with the applicable regulations because the profile was “not maintained in a bell-shaped fashion and that a BCOM [below COM] rating was not indicative of the performance and potential on the OER.”  The Board notes, in the case law cited, the SR profile in question encompassed only the top and second blocks of the profile while the SR profile in the contested OER is spread over four blocks.  Secondly, as previously stated, there is reasonable doubt that the contested OER is below COM.  Thirdly, the Board notes that the applicant is content to accept numerous OER’s with the COM in the top block, not in a bell-shaped fashion, as long he is one of the officers senior rated in the top block.  It is a fact that the COM senior ratings of these reports are not consistent with the performance and potential ratings and comments of these OER’s.  Therefore, the Board finds the applicant’s reliance on Richey v. United States is not appropriate as a legal precedent to the instant case because of differences in the facts of each case.  Further, the applicant’s legal argument fails because he inconsistently cites the law, purely in his favor, as a basis to amend a specific OER, but ignores applicability of the case law to several other OER’s which he does not contest. 

11.  The applicant contends that the ABCMR granted relief in several other cases for the same reasons as exist in his case.  He states that, in each of these cases, the rated officer received below COM ratings, “the only such rating in their career, which appeared to be an anomaly when compared to the rater and SR comments on the report and all previous and subsequent OERs.”  The Board has already determined that the contested OER is not the only such senior rating and is not an anomaly.  Also, the Board considers each case individually and on its own merit, and as a result, relief granted to others and previous decisions of the Board do not require a grant of relief in this case.  Therefore, the applicant’s arguments regarding precedent are not a basis for this Board to grant relief.

12.  The applicant requested promotion reconsideration, which is predicated on the Board amending the contested OER.  Since the Board has not granted the relief requested in regard to the contested OER, promotion reconsideration is not warranted.

13.  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 either requirement.
14.  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

__MDM _  ___JS___  ___KAH _  DENY APPLICATION

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

INDEX

CASE ID	AR2000039635	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000810	
TYPE OF DISCHARGE	ACTIVE DUTY	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR CHUN	
ISSUES         1.	111.0100.0005	
2.		
3.		
4.		
5.		
6.