MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           29 June 2000                   
	DOCKET NUMBER:   AR2000040225

	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	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Ms. JoAnn H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Melvin H. Meyer		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 part VII(a) of his Officer Evaluation Report (OER) for the period ending 20 April 1995 be corrected to reflect a one-block rating or that the entire senior rater portion of the report be deleted.

APPLICANT STATES:  That when he first received the contested OER, which had a second-block rating in part VII(a), he called his branch manager who told him not to worry because his other reports were very strong.  His branch manager also told him he would get picked up for Command and General Staff College (CGSC).  He did not get picked up for CGSC on his first look but his manager told him not to worry.  He did not get picked up for CGSC on his second look but this time his new branch manager told him that the contested OER showed a downturn in performance and suggested he appeal the report.  He did but his appeal was denied.  

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

He was commissioned a second lieutenant on 3 June 1985 in the Military Police Corps.  He was promoted to captain on 1 July 1990 and to major on 1 July 1997. 

The applicant’s senior rater evaluation history under the 67-8 OER version is as follows (* indicates the applicant’s rating):

OER Ending Period		Senior Rater Evaluation

1 January 1991		5*/11/1/0/0/0/0/0/0
(Advanced Course Academic Evaluation Report)
26 May 1992			10*/21/0/0/0/0/0/0/0
20 May 1993			6*/1/0/0/0/0/0/0/0
20 April 1994			39*/44/11/0/0/0/0/0/0
Contested Report		12/12*/1/0/0/0/0/0/0
20 April 1996			13*/3/0/0/0/0/0/0/0
20 April 1997			24*/8/0/0/0/0/0/0/0
30 September 1997		13*/0/0/0/0/0/0/0/0

The applicant received center-of-mass senior rater evaluations on the OERs for the periods ending 20 July 1998 and 14 July 1999 under the 67-9 OER version.

All comments on all his OERs were positive and in most cases highly commendable.  Several of his OERs noted that while he was overweight he met the body fat standards and he passed his Army physical fitness tests.

The applicant completed the non-resident CGSC in 1999.

The applicant had the same senior rater for the OERs ending 20 April 1994 and 20 April 1995.  The OER ending 20 April 1994 indicated the senior rater had rated a total of 66 officers and the OER ending 20 April 1995 indicated the senior rater had rated a total of 23 officers.  The U. S. Total Army Personnel Command (PERSCOM) confirmed that the senior rater had restarted his profile for captains on 30 June 1994.

PERSCOM has also confirmed that the OER Policy Branch briefs all selection boards on OER policy to include senior rater profile restarts and how a restart may seem to affect an officer’s OER history.

PERSCOM has stated that normally about 50 percent of the officers considered for CGSC get selected.  The normal Military Police Branch selection rate for promotion to major is 71 to 75 percent.

The applicant’s senior rater from the contested OER has provided a statement stating that his written comments reflect his rating intent.  That is, the applicant’s “performance has been consistently outstanding.”  It was clearly his intent to signal the applicant was ready and deserving of promotion and selection for advanced schooling.  It was not his intent to reflect negatively on the applicant’s performance and that if a disservice has been performed he requests that the OER be changed to reflect a one-block rating.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 5-32 (of the version in effect at the time of the contested OER) states that statements from rating officials that they underestimated the rated officer or that they did not intend to rate him or her as they did or requests that ratings be revised or statements from rating officials claiming administrative oversight or typographical error in recording block selection will not be used to alter or withdraw a report.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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.  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.

2.  The contested OER is a “center of mass” OER.  All of the applicant’s OERs since being promoted to captain, except for the OERs for the ending periods        1 January 1991 and 26 May 1993, have been center of mass ratings, even though he may received one-block ratings.  Even if the block rating on the contested OER were changed to a one-block rating, it would still be a center of mass rating.  The Board notes that the senior rater did not request that his comments be changed.

3.  Selection boards are briefed by OER Policy Branch on OER policy to include senior rater profile restarts and how a restart may seem to affect an officer’s OER history.  It was clearly indicated in part VII(a) of the contested OER that the senior rater had to have restarted his profile. In addition, most members who sit on selection boards are themselves senior raters and understand the dynamics of restarting senior rater profiles.  

4.  The Board concludes that the CGSC boards that considered the applicant for resident attendance at that course understood that the second-block rating was not a downturn in performance but that it was another center of mass rating (adjusted to the second block due to the senior rater’s profile restart) and rated his records against others being considered by the same boards accordingly.

5.  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

__jhl___  __jns___  __mhm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000040225	
SUFFIX		
RECON		
DATE BOARDED	20000629	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.