MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            15 February 2001                  
	DOCKET NUMBER:   AR2000043898

	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	
	Ms. Deborah L. Brantley		Senior Analyst	

  The following members, a quorum, were present:

	Mr. Fred N. Eichorn		Chairperson	
	Ms. Margaret K. Patterson		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 his officer evaluation report for the period 960928 through 970321 be expunged from his file, that he be retroactively selected for promotion to the grade of major and that he be selected to attend the Command and General Staff College.

APPLICANT STATES:  The applicant states, in effect, that his senior rater did not fully comply with the provisions of Army Regulation 623-105 regarding his responsibilities as a senior rater.  He noted that his senior rater’s profile was so skewed that when he was placed in the second block it resulted in a below center of mass rating.  The applicant cited the provisions of Army Regulation 623-105 which requires that a properly executed senior rater profile would resemble a bell-shaped curve.  The applicant states that his senior rater’s profile did not comply with this provision and that 22 of the 28 rated officers, or more than 78 percent, had been placed in the top block with the six remaining officers, including him, being placed in the second block.  The applicant also states that the below center of mass rating was required by regulation to be referred to him for comment.  He bases this contention on the fact that if his senior rater’s profile was reshaped to reflect a bell curve he would have been placed in one of the bottom three blocks which required, by regulation, that the report be referred.  He states that his senior rater’s “failure to maintain his senior rater profile IAW AR 623-105 permitted him to avoid utilizing the bottom three blocks in Part VIIa.”  

The applicant also states that his senior rater was required to refer the report in question because "it is common knowledge and any reasonable military officer knows that a “below center of mass” OER is career ending” and that the regulation mandates that “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” must be referred.

In his self-authored statement, the applicant outlines his accomplishments which he contends should have warranted a top block rating.  He also points out inconsistencies between his rater and senior rater comments and the rating he received from his senior rater.  He submits copies of an award he received during the period in question and other documents recognizing his many accomplishments during that same rating period.  He argues that his senior rater was not fully aware of his performance, rarely saw him, and the rating was inconsistent with the accomplishments he outlined in his support form.

The applicant contends that the evaluation report was the reason he was not selected for promotion to the grade of major by the FY (fiscal year) 1999 major selection board.

The applicant also submits a letter from his former division commander who confirms his rating chain was accurate and notes that he recalled the applicant’s “performance during the deployment as being excellent.”  Also included is a statement from the applicant’s senior rater in response to correspondence from the applicant regarding his decision to appeal the evaluation report.  The senior rated notes “in retrospect, I would not have changed your OER and think that you received a very fair assessment of your overall performance during the rating period.”

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

The applicant served an initial period of active duty as an enlisted soldier.  He accepted a commission as a U.S. Army Reserve (USAR) second lieutenant on 21 June 1989 and was ordered to active duty.  In January 1994 he was promoted to the grade of Captain.

In March 1997 the applicant received a performance evaluation report for the period 28 September 1996 through 21 March 1997 which rated his performance as a company commander at Fort Hood, Texas.  The applicant’s rater noted the applicant was “competitive for promotion” and that his performance during the rated period was “solid.”  The applicant’s senior rater concurred with the rater’s comments and specifically stated that the applicant “should now be assigned in his functional area to enhance competitiveness for promotion.”  The senior rater rated his “potential” in the second block.  That senior rater had rated a total of 28 officers in the grade of captain, placing 22 of them in the top block and 6 (including the applicant) in the second block, effectively rating the officer below center of mass.

In the evaluation report (950928-960927) preceding the report in question, which was completed by same rater and senior rater, the applicant’s senior rater rated his potential in the top block.  In his comments the senior rated stated “promote this officer to Major….”  In this particular report the senior rater had placed 7 officers (including the applicant) in the top block and 2 officers in the second block.  The applicant’s rater on this report commented that the applicant’s performance had been “solid” but added to the “solid performance” statement that it was “in the toughest CSS company within my FSB.”  That rater also said, “promote to major” (something that was missing from the subsequent evaluation report).

The applicant was non-selected for promotion to the grade of major by the FY99 promotion selection board, which convened in April 1999.

In the applicant’s correspondence he indicated that he had appealed the 
evaluation report to the Officer Special Review Board (OSRB) on four different occasions since February 1999 without success.  A November 1999 memorandum from the OSRB notes the applicant’s appeal had been returned because it “does not provide sufficient evidence of a clear and convincing manner for the board to consider it at this time….”  The memorandum indicated that the “officer should be advised that a favorable decision could not be rendered based upon the evidence he has submitted” and that “entry of an appeal denial by the Board [OSRB] would only serve to highlight further this report in his OMPF.”

The applicant’s overall performance evaluation reports indicate that he has been a solid performer and consistently rated in the top block by his senior raters.  However, in each of the reports where he was rated in the top block the senior raters’ profiles were such that the top block contained the majority of the officers rated by that particular senior rater, in effect, rendering a center of mass evaluation for the applicant.

In November 1997 the applicant was academically removed from the Fully Funded Troy State Master’s Program for failing to maintain the required 3.0 GPA (grade point average).  The academic removal resulted in an unfavorable academic evaluation report for the period 22 March 1997 through 24 November 1997, which was referred to the applicant for comment in February 1998.  The applicant acknowledged receipt of the report and declined to submit comments.  That report would have been part of the applicant’s file when it was reviewed by the FY99 major selection board.

Army Regulation 623-105 states that an evaluation report accepted for inclusion in the official record of an officer is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.

Army Regulation 623-105 also states that the officer evaluation report Redress Program, which includes Commander’s Inquiries, appeals to the OSRB and petitions to this Board, protects the Army's interests and ensures fairness to the officer.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.

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.  While the applicant may not agree with the rating he received during the period in question, there is no evidence which confirms the report was issued in error or that it was unjust.  The applicant’s senior rater confirmed in his statement that the report was a “fair assessment” of his performance.  He provides no other evidence, except his self-authored statement to support his contentions.

2.  The applicant’s argument that his senior rater was not in compliance with Army Regulation 623-105 because his profile did not reflect a “bell-shaped curve” and that it was not referred to him is without foundation.  Using that argument would require that all of the applicant’s evaluation reports be voided because the profiles of each of his senior raters did not reflect bell curves.  Additionally, the Board notes that while the applicant may feel that the report should have been referred because, in his opinion, the rating was “so derogatory that the report may have an adverse impact on the rated officer’s career” that decision rested with “the opinion of the senior rater” according to the governing regulation, not the recipient of the report.  Again one could argue under that premise that all of the applicant’s evaluation reports should have been referred considering that in spite of the fact that he received top block rating those ratings merely translated into “center of mass” ratings.

3.  The Board also notes that the applicant’s performance rating, which preceded the report in question and was completed by the same rating officials, contained more definitive comments regarding his performance and promotion potential.  In the preceding report the applicant’s rater said “promote to Major” but in the subsequent report merely stated the applicant was “competitive for promotion.”  Likewise the Board notes that in the earlier report, when the applicant’s senior rater placed him in the top block, that senior rater specifically recommended “promote this officer to major” while the subsequent report made no such bold statement.  The Board concludes that the rating the applicant received for the period 960928 through 970321 was consistent with the comments contained in that report when compared to the earlier report by the same rating officials.

4.  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 that requirement.

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

6.  In view of the fact that there is no basis to expunge the evaluation report there is no basis to grant any of the applicant’s other requests.

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

__fne___  __mkp___  __mhm___  DENY APPLICATION

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

INDEX

CASE ID	AR2000043898	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010215	
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.	111.01	
2.		
3.		
4.		
5.		
6.