PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           18 July 2000                   
	DOCKET NUMBER:   AR2000043402

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. George D. Paxson		Chairperson	
	Ms. Elizabeth Buchanon		Member	
	Ms. Margaret V. Thompson		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 1 October 1997 through 2 March 1998 be administratively corrected and that his records be reconsidered for promotion to colonel by a special selection board (SSB).

3.  The applicant states that the Appeals and Corrections Branch, U. S. Total Army Personnel Command (PERSCOM) found two material errors in his fiscal year (FY) 1998 promotion file --one missing OER for the period ending 16 April 1991 and one altered OER for the period ending 20 May 1991 (the period of the previous report had been combined with this report).  However, the Officer Special Review Board (OSRB) denied him promotion reconsideration because he did not correct the errors sooner.  He did use reasonable diligence in this matter.  Shortly before his redeployment from the Persian Gulf he learned that the 30-day minimum rating period policy might soon be rescinded.  After he departed Southwest Asia, he prepared two OER support forms and signed several blank OER forms for his 2-month change of rater OER for the period ending 16 April 1991 and for his 1-month change of duty OER for the period ending 20 May 1991.  Sometime during the next 12 months he received copies of these two OERs.  However, the next time he reviewed his Official Military Personnel File (OMPF), which he believes was around August 1992 but may have been as late as November 1993, he noticed that only one OER was in his OMPF.  It had an altered beginning date to coincide with the beginning date of his previous OER.  His first thought was that the 30-day rule had been rescinded. When he checked with PERSCOM on this, he was told that when the 30-day rule was rescinded separate reporting periods were combined to cover gaps.  He then assumed this “combined” OER was correctly filed until December 1998 when his personnel manager told him the same thing happened to one of his subordinates and the subordinate was awarded a promotion relook after the correction was made.  He then immediately initiated his appeal.  

4.  The applicant’s OER for the period ending 2 March 1998, item VIIa incorrectly states that his senior rater (SR) senior rated 26 lieutenant colonels (LTCs) when the correct number was three.  This material error, or injustice, hid the small peer population from two promotion boards and made it impossible for those boards to give the OER its proper weight.  When his SR assumed his new command on     3 March 1998, he decided that he would senior rate only three LTCs in his former command.  The effect of this decision was that he changed the relevant peer population for his OER from 26 to 3 LTCs and he passed the authority and responsibility to senior rate the remaining 23 LTCs to his successor in command. The three LTCs (including himself) received mandatory change-of-rater or change-of-duty OERs.  This error was highly prejudicial because promotions boards would be inclined to wonder why he received a center of mass (COM) rating.  Under the current system, it is possible to render a top-block COM rating only when a small population limits the SR’s ability to render an above COM (ACOM) report and/or when the SR is building his senior rater profile. 
5.  The applicant’s FY 98 promotion board microfiche was illegible in key areas and prevented the board from reviewing his entire record.

6.  The applicant’s military records show that he was appointed a second lieutenant on 7 June 1978 out of the Reserve Officer Training Corps.  He attended law school and entered active duty as a captain on 10 July 1981.

7.  The applicant served in Southwest Asia from 1 March through 16 April 1991 as a senior defense counsel when he received a change of rater OER and from
17 April through 20 May 1991 as a regional defense counsel.

8.  The OER for period ending 2 March 1998 was the applicant’s first OER under the new system.  He was rated and senior rated by the Commanding General,  U. S. Army Special Forces Command (CG, USASOC) who also rated and senior rated him on his previous OER.  On his previous OER, the SR gave him a top block COM rating (83/0/0/0/0/0/0/0/0) and made highly commendatory comments to include “Best of the best.  I would fight to secure his services in any future assignment.”  On the contested OER, part VIIa indicates “I currently senior rate 26 officer(s) in this grade.”  The SR gave the applicant a COM rating.  Part VIIb indicates the SR had made a total of 1 rating and the applicant was that 1 rating. The SR made highly commendatory comments very similar to those made on the applicant’s previous report.  The two comments noted above were included verbatim.  

9.  In 1999, the applicant appealed his 1991 OERs and the administrative error in part VIIa on his OER for the period ending 2 March 1998.  In a 13 January 1999 memorandum, the SR for the OER ending 2 March 1998 stated that the applicant was one of only three LTCs who received an OER when he assumed his new command.  All three officers received a COM potential evaluation because that reflected his strategy to start off within a credible profile.  He did not numerically rank these superior officers against the other LTCs in the command as he had done in previous OERs.  He used strong and unequivocal comments in his narratives to convey his high regard for those three officers.  

10.  On 7 July 1999, the Appeals and Corrections Branch, PERSCOM informed the applicant that his appeal was partially approved.  The beginning date for the OER ending 20 May 1991 was changed to read 17 April 1991 and the OER for the period 1 March to 16 April 1991 was added to his OMPF.  However, the Evaluation Systems Office had determined that there was no error in part VIIa of the OER for the period ending 2 March 1998.  That block showed the number of officers in that grade which the SR was responsible for senior rating as of the “through” date of the OER and did not reflect the number of officers rated to date or the number of officers the SR decided to rate.  A check of the SR’s profile indicated that “26” was probably a realistic number.  In addition, PERSCOM stated that selection boards are thoroughly briefed on small profiles and the ramifications of start-up costs under the new system.  Boards are instructed to expect COM evaluations in these situations and to carefully read the narrative to better ascertain the manner of performance and potential.

11.  On 26 August 1999, the Deputy Chief of Staff for Personnel, Special Review Boards denied the applicant’s request for promotion reconsideration.  The board acknowledged that a material error in his file was corrected but that he provided no evidence that substantiated that he exercised reasonable diligence in attempting to correct his record prior to the convening of the FY 98 selection board.  Although the applicant had stated that he had noted the missing OER and was not completely comfortable with the explanation of why it was missing, the Judge Advocate General Branch had no record that he notified his Branch that an error existed or attempted to correct his OMPF prior to his non-selection. In addition, the OSRB identified that the applicant was given a “copy” of his board fiche and not the original fiche seen by the board.  A review of the board fiche verified that it was legible, clear and of the same qualify as all other fiche reviewed by that selection board.  The applicant rebutted the disapproval.  On  11 April 2000, his second request for promotion reconsideration was disapproved.

12.  Army Regulation 600-8-29 prescribes the officer promotion function of the military personnel system.  Paragraph 7-3 provides that an officer will not be considered for promotion by an SSB when an administrative error was immaterial or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brief (ORB) or OMPF.  It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them.

13.  Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system.  Table 2-2 discusses the development and maintenance of the rating chain (sometimes called the rating scheme).  The battalion S-1 coordinates with the commander to establish a by-name rating chain for officers assigned or attached to the unit.  All rating officials are identified for each rated officer including the date on which each rating official was designated.  The final rating chain document is prepared and published showing the effective date and a copy is provided to each rated officer and rating official.  The rating chain is used when initiating OERs.  Paragraph 3-22 states that the SR’s evaluation is made by comparing the rated officer’s performance and potential with all other officers of the same grade the SR has rated or will rate.  In part VIIa, the SR will enter the total number of officers he currently senior rates in that grade.  This information, in conjunction with additional information contained on the Headquarters Department of the Army (HQDA) electronically generated label, will help selection boards identify SRs with small rating populations and weight the report accordingly.  Paragraph 3-23c states that the HQDA electronically generated label overlays the senior rater potential box check, part VIIb.  It contains the total ratings by the SR in that grade and the number of times the rated officer has been rated by that SR, which will help identify SRs with small rating populations.  Paragraph 3-54 discusses the senior rater option OER. When a change in SR occurs, the SR may direct that a report be made on any officer for whom he is the SR provided all other rating qualifications are met.

CONCLUSIONS:

1.  The Board concludes that there is no error or injustice in part VIIa of the applicant’s OER for the period ending 2 March 1998 reading “26” and not “3.”

2.  It appears the applicant is confusing the number of LTCs senior rated by his SR with the number of OERs on LTCs actually prepared.  Since on the applicant’s subsequent OER his new SR also stated that he senior rated             26 LTCs, the Board presumes that whoever held the position of CG, USASOC was on his unit’s rating chain document as being the SR for 26 LTCs.  As long as there was no change to the rating chain document, this number would not change.  The applicant states that the three LTCs who received a senior rating received mandatory change-of-rater or change-of-duty OERs (presumably, the SR was the rater and SR for those two LTCs as he was for the applicant).  The Board presumes then that the CG, USASOC was the SR only for the remaining 23 LTCs and that he elected not to do a senior rater option report on them.  However, this does not mean that he “passed the authority and responsibility to senior rate the remaining 23 LTCs to his successor.  His successor automatically assumed SR responsibility for all 26 LTCs when he assumed command of USASOC.  

3.  Using the applicant’s reasoning, if the CG, USASOC had prepared an annual OER on the applicant and he was the only LTC to receive an OER for that particular ending period, then part VIIa would have read “1.”  By this reasoning the entry in part VIIa would be a constantly changing number each time the SR completed a OER and that is not the intent of the regulation.

4.  Also, the small peer population was not hidden from the promotion boards.  The HQDA electronically generated label which overlaid the SR potential box check contained the total ratings by the SR in that grade (1) and the number of times the applicant had been rated by that SR (also 1).  This identified the fact that the SR had a small rating population.  In addition, the boards were instructed to expect COM evaluations in such a situation and to carefully read the narrative to better ascertain the manner of performance and potential.  The Board concludes that the COM rating did not indicate a departure from the applicant’s prior OER history and that members of the promotion boards were sufficiently sophisticated enough to read the narrative and realize that.

5.  The Board does note that the applicant’s SR stated that he did not numerically rank these superior officers against the other LTCs in the command as he had done in previous OERs.  He used strong and unequivocal comments in his narratives to convey his high regard for those three officers.  However, the regulation states that the SR’s evaluation is made by comparing the rated officer’s performance and potential with all other officers of the same grade the SR has rated or will rate.  It appears that the SR violated this provision of the regulation but the Board concludes that this is not a material error.  The SR rated the applicant as COM on his previous OER after presumably ranking him against the other 25 LTCs.  The Board concludes that had the SR properly ranked him against these 25 LTCs again as he should have he still would have rated him as COM.  The Board notes that the narrative comments on the two OERs did not substantially change.  

6.  The Board believes the Special Review Board’s review of the applicant’s board fiche verified that it was legible, clear and of the same qualify as all other fiche reviewed by that selection board and believes its explanation of why the applicant’s copy was not so clear.  Therefore, there is insufficient reason for granting the applicant’s request for this reason.

7.  The Board agrees with the OSRB’s determination that a material error in his file had been corrected but that he provided no evidence that substantiated that he exercised reasonable diligence in attempting to correct his record prior to the convening of the FY 98 selection board.  However, the Board finds the applicant’s explanation of why it took so long to appeal the error reasonable.  The normal OER rating period is 90 days.  This was waived for a short period of time during Operation Desert Storm to a 30-day period.  Personnel policies were made and changed within such short periods of time that it was reasonable that the applicant would not know for sure what the rating period policy was at the time he departed the Persian Gulf.  He was not a personnel officer and it was reasonable for him to expect personnel experts such as the servicing personnel office that processed his OERs to have the correct guidance and process them correctly.  The Board believes he asked PERSCOM in 1992 or 1993 about the discrepancy and that he was told that when the 30-day rule was rescinded separate reporting periods were combined to cover gaps.  The Board concludes it is reasonable not to find a record of this conversation in his Branch records 7 or 8 years later.

8.  The Board does not fully agree with the applicant’s contention that his OMPF having one 3-month OER rather than one 2-month and one 1-month OER were the reasons for his nonselection for promotion, but any doubt should be resolved in favor of the applicant.  

9.  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 submitting the applicant’s records to duly constituted Special Selection Boards for reconsideration for promotion to colonel.

2.  That if the applicant is selected for promotion his records be further corrected by promoting him to colonel and assigning the appropriate date of rank.

3.  That if the applicant is not selected for promotion, he be notified accordingly.

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

BOARD VOTE:  

__gdp___  __eb____  __mvt___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

			George D. Paxson
		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2000043402	
SUFFIX		
RECON		
DATE BOARDED	20000718	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(GRANT)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	131.01	
3.		
4.		
5.		
6.