MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:         

	BOARD DATE:           12 September 2000                   
	DOCKET NUMBER:   AR2000039824

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. Calvin M. Fowler 		Chairperson	
	Mr. Fred Eichorn 		Member	
	Ms. Carol Jo Suiter  		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 effect, the applicant requests credit for battalion level command, selection for senior service college, promotion to colonel, and selection for brigade level command, with the restoration of all rights, privileges, and property.  Concerning these issues, he requests that his officer evaluation report for the period 3 June 1990 through 2 June 1991 be changed to show that he was the acting battalion commander during the Gulf War (Desert Shield/Desert Storm), with a correction to his records to authorize credit for a full battalion command level tour.  He requests that his OER for the period                1 July 1994 through 17 February 1995, and his OER for the period                       9 August 1995 through 5 August 1996 be expunged from his official military personnel file (OMPF).  

APPLICANT STATES:  That his inaccurate OERs have caused him to be not selected for senior service college, not selected for promotion to colonel, and not selected for 06 (colonel) level command.  The applicant provides comments on four OERs.

•	The OER for the period 3 June 1990 through 2 June 1991 (Tab B of his submission).  He states that a general’s endorsement (his senior rater, then a colonel) on his OER indicated that his leadership responsibilities and experience as acting battalion commander were sufficient to change his military records to authorize full battalion command credit during Desert Shield/Desert Storm.  Consequently, his duty performance should have shown “acting battalion commander,” instead of “executive officer.”  
•	He provides a copy of a letter from that major general, and a copy of a letter from a retired command sergeant major, supporting his request.  That general officer, in his letter to this Board, stated the applicant was placed in command of a port support element that deployed to Jacksonville, Florida to support the 101st Airborne Division deployment.  He also stated that he frequently assigned the applicant as a commander of displaced Army Reserve and National Guard units, which were sometimes battalion sized, and almost always were discharging battalion level logistics functions.  He stated that the applicant performed the functions of a battalion level commander in this situation.  The command sergeant major stated that the applicant served as the acting battalion commander during the Gulf War.
•	The applicant continued by saying that various documents, Support Command, Army Central Command notes, etc., provide evidence that his OER should be changed, and that the administrative error was due to the untimely dissemination of message traffic and the missing documents and gaps in documents during the Gulf War.  He states that corps commanders had the authority to assign officers in battalion level commander responsibilities, and that his OER was incorrectly documented because of administrative errors. 

•	The OER for the period 1 July 1994 through 17 February 1995 (Tab C).  He states that when he requested a complete the record OER for senior service college and promotion to colonel, an unannounced and inconsistent rating scheme was invoked, in that a major general relinquished the senior responsibilities for about four months, at the time his OER was processed by DA, and his senior rater was now a colonel, who could not evaluate him because of the lack of time in the rating chain.  He provides supporting documents from three colonels, one of whom was his rater during the rating period (Tab H).  According to his OER support forms, that colonel was never his senior rater.  He provides a copy of the OER support forms and chronology of events at Tab I.  The applicant, and the officers who support him, state that this OER disadvantaged him by having a colonel as opposed to a major general senior rate him, and that a colonel acting as senior rater for battalion commanders does not have the same creditability as a major general.  He provides a 1998 letter from that general officer, a lieutenant general, supporting the applicant’s promotion to colonel (Tab J).  The applicant states that the general officer had senior rater responsibility at the time, the power to direct the chain of command evaluation system, and the authority to provide information about his command performance and potential to DA.  He states that the general should have maintained senior rater responsibility.  He states that the unfair and unjust manner in which his supervisors made changes and manipulated the rating scheme were inappropriate.
•	The OER for the period 9 August 1995 through 5 August 1996 (Tab E).  The applicant states that his senior rater’s profile was not properly maintained, i.e., an inflated profile resulting in an ineffective rating, making it impossible for promotion boards to asses his reports.  He states that the senior rater’s profile shows 17 ratings, all in the top block, and consequently, all in the center of mass.  He states that the rating official was not paying attention to either his profile or the importance of battalion level command OERs.   

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

The applicant was appointed in the Regular Army as a transportation corps second lieutenant on  7 May 1976.  He completed transportation corps officer basic course in August 1976.  His evaluation reports through August 1979 are excellent.  He completed the transportation corps officer advanced course in March 1980, marginally achieving course standards.  In the two evaluation reports following, his senior rater considered him above center of mass.  He completed combined arms and services staff school in September 1983.

His first reports after completion of that school, except for one instance, were top block, above center of mass.  The applicant completed the nonresident command and general staff officer course in August 1986.  His three evaluation reports after that date show that his senior raters placed him in the second from the top block, and in the center of mass on those reports (although on one report, he was the only officer in the senior rater profile). 

The applicant completed the resident command and general staff officer course in June 1989.  His report prior to Operation Desert Shield/Desert Storm shows that he was rated in the top block, above center of mass, by his senior rater. 

The applicant’s OER for the period 3 June 1990 through 2 June 1991 (Tab B) shows that the applicant, then a major, was the battalion executive officer of the 20th Transportation Battalion, and was rated by his battalion commander, and senior rated by the commander of the 101st Support Group.  His OER is outstanding, reflects his performance for taking a task force to Jacksonville, and his performance during Desert Shield/Desert Storm – his rater stating, “he could not have asked for a better executive officer”…”No job was too tough for him”…”He personally relocated the battalion four times in Saudi Arabia and Iraq”…”I was always confident leaving the battalion in his capable hands; there is no finer compliment for an executive officer.”  His senior rater placed him in the top block of that OER along with 8 other officers, center of mass.  His senior rater stated, among other remarks, “He served as an acting battalion commander at some of the most critical times in Saudi Arabia and Iraq.”  The applicant authenticated the OER on 24 June 1991.    

The OER for the period 1 July 1994 through 17 February 1995 (Tab D) shows that the applicant, then a battalion commander, received a complete-the-record OER, and was rated by a colonel, the Military Traffic Management Command (MTMC) Brigade (Terminal) Pacific commander.  His senior rater was also a colonel, the commander of the MTMC Western Area.  However, that officer did not evaluate the applicant because of the lack of time as the applicant’s senior rater.  The applicant authenticated the OER on 10 March 1995.

The applicant’s OER support form at Tab I shows that his rater was the MTMC Brigade (Terminal) Pacific commander.  That form, however, shows that he had an intermediate rater, a Navy captain, who was the commander of the MTMC Western Area, and that his rater was a promotable brigadier general, the commander of the MTMC. 

The applicant’s OER for the period 18 February 1995 through 8 August 1995, a report he is not contesting (Tab D), shows his rater as the MTMC Transportation Brigade (Terminal) Pacific commander, an Army colonel (who was his senior 

rater on his last OER), the MTMC Western Area commander as his intermediate rater, and a major general, the commander of the MTMC as his senior rater.  His senior rater, who rated five officers, placed the applicant in the top block in the senior rater portion of that report, along with the other four officers he senior rated, center of mass.  The applicant authenticated the OER on 3 August 1995.  

The applicant’s OER support form, the second one at Tab I, shows only a rater and a senior rater.

The applicant’s OER for the period 9 August 1995 through 5 August 1996       (Tab E) shows the same rating officials as depicted in his previous OER.  His senior rater placed him in the top block in the senior rater portion of that OER.  Sixteen other ratings were also in that top block, center of mass.  The applicant authenticated the OER on 5 August 1996.

The applicant’s OER support form (third form at Tab I) reflects the same rating officials as depicted in his OER.

The applicant’s OER for the period 6 August 1996 through 6 June 1997, while serving as an inspector general with the DA Inspector General Agency shows his rater as a colonel and his senior rater as a colonel.  Of 54 evaluations by the senior rater, the applicant was one of 44 in the top block, center of mass.  The remaining 10 were in the second from the top block.  The applicant authenticated the OER on 9 June 1997.

The applicant’s OER for the period 7 June 1997 through 30 September 1997, while serving as an inspector general, shows the same rating officials as depicted in the previous report.  Of 71 evaluations made by his senior rater, 61, including the applicant, were in the top block, center of mass. The applicant authenticated the OER on 3 October 1997.  His two evaluation reports after this report shows that his senior rater considered him best qualified; however, the senior rater’s profile on both reports shows that the applicant was in the center of mass.

At Tab G are copies of Gulf War directives and policies.  Those are also tabbed as Tab 1 through Tab 6.  On page 2 of Tab 1 the applicant has bracketed a response to an inquiry concerning battalion command tours.  At Tab 2 of page 3 the applicant has called attention to a III Corps and Fort Hood policy concerning slating and tour lengths for colonel and lieutenant colonel commanders.  At Tab 3 he has check marked highlights of III Corps policies concerning commanders.  At Tab 4 is a DA message concerning authority to curtail tour length for 

battalion/brigade commanders.  At Tab 5 is a copy of a Central Command policy memorandum concerning battalion and brigade command succession.  At Tab 6 is a copy of an executive summary concerning The Inspector General inquiry to determine the facts surrounding the demolition of ammunition in Kuwait.  The applicant was a member of the inspection team designated to conduct the inquiry.  He provides a document concerning a Gulf War declassification project, and a document from a special assistant for Gulf War illnesses to a house committee and subcommittee.   

In the processing of this case, the Board considered an opinion from the DCSPER Officer Special Review Board (OSRB), which the applicant provided with his application (Tab A).  That board stated in effect that the applicant had provided no explanation why he had never submitted an appeal to the OER ending on 1 June 1991 until he was non-selected for colonel, nearly nine years after the rating period, and that he had failed to provide evidence to substantiate that the rating officials failed to meet their regulatory requirements when that OER, and the OER ending on 17 February 1995 were rendered.  The OSRB stated that there was no evidence provided to overcome the presumption of regularity.  The OSRB stated that the appeals process was not an adjunct to the promotion selection system, but a separate process designed to encourage timely efforts to seek relief when a report is believed to be inaccurate or unjust.  The rated officer is the individual responsible for making that determination.  Further, the appeals process is not intended to be a means for attempting to reverse unfavorable results of the personnel selection system, especially when the rated officer allowed the now-contested reports to be considered an accurate evaluation of his performance and potential over the past years.  The OSRB does not reject appeals submitted after the 5-year limit or for insufficient evidence without carefully considering the issues raised, documentation offered, length of delay, and reasons for delay.  Taken together, these factors convinced the OSRB that the evidence did not justify acceptance or waiver in accordance with regulatory guidance.

Army Regulation 623-105, then in effect, sets policies and procedures for the officer evaluation reporting system.  Paragraph 1-4 states in pertinent part that the OER ensures that an officer’s specialties are considered along with the specialty requirement of his duty position when he is evaluated.  The OER system allows the rater to give shape and direction to the rated officer’s performance, provides a chain-of-command evaluation of an officer’s performance and potential, and allows the entire evaluation reporting processing to be reviewed.  The primary function of the OER system is to provide information to DA for use in making personnel management decisions.

Chapter 3 of that regulation provides for rating chains and states in pertinent part, that a rating chain is established to provide the best evaluation of an officer’s performance and potential.  Rating chains will normally consist of the rated officer, the rater, and the senior rater.  Some rating chains, however, will also include an intermediate rater.  In view of the fact that the rated officer verifies the correctness of the rating scheme in Part IId of the DA Form 67-8, the PSC (Personnel Service Company) or administrative office need not maintain copies of superseded rating schemes.

The senior rater is the senior rating official in the rating chain.  He uses his position and experience to evaluate the rated officer from a broad organizational perspective.  To evaluate the rated officer, the senior rater must normally serve in that capacity for a minimum of 60 calendar days.

Paragraph 4-4 concerns the OER support form (DA Form 67-8-1) and states that from is used by the rated officer and rating chain.  The purpose of the form is to encourage the communication process between rater and rated officer and to permit the rated officer to describe his principal duties, objectives, and significant contributions.  It may also include comments by the rater and intermediate rater.  Since the support form accompanies the OER to the senior rater, it provides significant information from the rated officer’s point of view to the entire rating chain.  The DA Form 67-8-1 provides an opportunity for the rated officer, rater, and intermediate rater to communicate with the senior rater.  Although it is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.

Paragraph 4-7 states that the rater will identify the rated officer’s complete rating chain at the beginning of the rating period.  The rater will notify the rated officer of changes to the rating chain.

Paragraph 4-11 provides instructions for the authentication of the OER, and states in pertinent part, that after entering his most recent Army physical fitness test performance and height and weight data, the rated officer then signs and dates the report before sending it to the rater.  The rated officer’s signature verifies the accuracy of the administrative date, the rating officials in Part II, and the physical fitness test and height and weight data. 

Paragraph 4-12 provides instructions for completing Part III, Duty Description, portion of the OER, and states that the duty description is entered in Part III by the rater and is based on the rated officer’s entries on the DA Form 67-8-1, if appropriate; is an outline of the normal requirements of a specific duty position; and should show type of work required rather than frequently changing tasks.  

The principal duty title will be entered in part IIIa.  In item IIIc, the rater will describe in detail the rated officer’s duties and responsibilities.  Descriptions must be clear and concise and must emphasize specific functions required of the rated officer.  The rater should also note conditions peculiar to the assignment.

Paragraph 4-16 concerns the senior rater, and states in pertinent that the senior rater’s evaluation is made by comparing the rated officer’s potential with all other officers of the same grade, or grade groupings.  His evaluation is based on the premise that in a representative sample of 100 officers of the same grade grouping (Army-wide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern.  This distribution pattern is shown in the senior rater’s portion of the OER.  The pattern means that in a representative sample of 100 officer of the same grade, or grade grouping (Army-wide), only one officer can reasonably be expected to be placed in the top block.  The probability of having an officer of such potential is 1 in 100.  Comments by the senior rater are mandatory.  When the senior rater has not been in the position the minimum number of days necessary to render a report, he will so indicate that he is unable to evaluate the officer.

Department of the Army records the senior rater’s rating history (profile), and that profile will contain all OERs rendered by the senior rater for the rated officer’s grade or grade grouping and accepted as correct by DA.  The purpose of the profile is to place the rated officer’s OER in perspective by revealing the senior rater’s general rating tendency.  

Paragraph 5-21 provides for a complete-the-record report and states, at the option of the rater, a report may be submitted on a rated officer who is about to be considered by a DA board for promotion, project manager, school, or command.

Paragraph 5-32 states that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  The OER for the period 3 June 1990 through 2 June 1991 is considered correct, notwithstanding the applicant’s contentions, the support he has received, and the documents he has provided.  He obviously was not the battalion 

commander, nor should his principal duty title be acting battalion commander as he contends.  His report is outstanding, and reflects that he did serve as the acting battalion commander at various times during the Gulf War, as adequately shown by his rater and his senior rater. He was the executive officer, who in the absence of his commander, took over, as an executive officer is supposed to do. To change his OER to show him as an acting battalion commander, would in effect have the battalion commander rating the acting battalion commander.  The Board agrees with the opinion provided by the OSRB concerning the applicant’s 9-year wait to redress this OER.       

2.  There is nothing wrong with the OER ending on 17 February 1995.  He has not shown to the satisfaction of this Board that the rating scheme was inappropriate.  The Board recognizes that the rating officials on his OER are not as on his OER support form; but also realizes that changes to the rating chain can occur at any time during the rating period.  His OER on the period ending on 8 August 1995, which he is not contesting, shows an intermediate rater, not shown on his support form.  The Board notes that his OER ending on                17 February 1995, a complete-the-record OER was an optional report prepared prior to the applicant’s consideration by a DA board – thus, a report to benefit the officer, with or without comments from a senior rater.  The applicant signed the report in March 1995, verifying the accuracy of the rating officials.  There is no evidence, nor has the applicant provided any, to show that the rating scheme was manipulated.  There is no reason to remove this report from his official file.

3.  The Board recognizes that the report for the period ending in on                      5 August 1996 shows that the senior rater’s profile is top heavy, 17 ratings, all in the top block, consequently all officers rated are center of mass.  The same could be said for other senior rater profiles on the applicant’s evaluation reports, both before and after this particular report.  This does not make the OERs inaccurate, unjust, or unfair.  Consequently, there is no reason to remove this report from his official file.     

4.  Since there is no basis to grant the portion of his request pertaining to the contested evaluation reports, there is likewise no basis to grant the remaining
requests.

5.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request.   

6.  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.

7.  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

___cjs___  ___fe___  ___cmf___  DENY APPLICATION

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

INDEX

CASE ID	AR2000039824	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000912	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.00	
2.	131.00	
3.		
4.		
5.		
6.