MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           30 January 2001                  
	DOCKET NUMBER:   AR2000044068

	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. Arthur A. Omartian 		Chairperson	
	Ms. Brenda F. Hirschi 		Member	
	Mr. Thomas E. O’Shaughnessy 		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 potential evaluation marking in Part VIIa be deleted from his officer evaluation report (OER) for the period        24 May 1992 through 23 May 1993, and that he be retroactively promoted to lieutenant colonel.  

APPLICANT STATES:  That the senior rater failed to follow evaluation report procedures contained in Army Regulation 614-10 (U.S. Army Personnel Exchange Program …) by not forwarding a letter of evaluation from his rater as part of his OER.  As a result, his records covering this period of his performance were incomplete when he was considered for military schooling and promotion.   

He states that he appealed the OER, and his appeal was denied by the Officer Special Review Board (OSRB), but he believes that the OSRB did not properly address the fact that the letter of evaluation was omitted from his official records. He feels that the omission is significant because its absence creates an unfair portrayal of his performance in Canada.

He states that the regulation requires that Army exchange officers be rated by letter report, and that the letter report by the rater with attached endorsement on the OER would be sent to HQDA.  He states that his rater on the contested OER, a Canadian lieutenant colonel, chose to input information directly onto the OER, and supplement it with a letter of evaluation.  He states that his senior rater did not forward the letter of evaluation with the OER, and that his senior rater had recently been SERBd (selected for early retirement) and was in the process of clearing when he prepared the evaluation.  He went on to say that his senior rater was too busy clearing to meet with him and had cancelled a scheduled OER counseling session he had requested.  

The applicant states that the senior rater made several inconsistent statements concerning how he used the letter reports from the rater in preparing an OER, in that in one instance, the senior rater told the OSRB that the input from the raters formed the basis for his assessments of an exchange officer’s performance and potential; however, in another instance, he stated that he found those letters to be of marginal value.  The applicant states that the letter of evaluation from his rater directly addressed his performance and potential, recommending a top block assessment, and that was not a marginal input.  He states that not including this significant information with the OER violates the regulation and does him an injustice.  

The applicant states that the senior rater’s understanding and description of his assignment was significantly different from that of his rater, and that the senior rater linked officer potential to the difficulty of the job they were performing as indicated in his remarks contained in the OSRB summary. 

He states that the letter of evaluation describes his performance and contribution and assesses his potential based on almost daily observation.  It does not consider how “plum” the assignment was, but how well he performed his required tasks.  He states that the significant difference between the rater and the senior rater’s description of his potential highlights the importance of the letter of evaluation in presenting a complete assessment, and the error of not including it in his records paints an unfair picture of both performance and potential.

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

The applicant was a service school instructor with the Canadian Forces School of Military Engineering, CFB Chilliwack, in British Columbia, Canada.  The applicant’s rater for the OER in question was the Commandant of the School, a Canadian lieutenant colonel.  That officer gave him all 1’s in the 14 items in       Part IVa, Professional Competence, of the report, stating that the applicant quickly mastered Canadian Forces concepts and doctrine, and that he was physically fit, participating in numerous intersection sports teams.  In part IVb, his rater commented on his dedication, integrity, and selflessness, stating that he was an excellent role model for soldiers and junior officers.  The applicant’s rater stated that the applicant always exceeded requirements and should be promoted ahead of contemporaries.  His specific comments on the applicant’s performance were exemplary.  He stated that the applicant was a natural leader who possessed the leadership, drive, capabilities, and common sense to be an excellent commanding officer.

In a 5 June 1993 letter to the Army Attache, the applicant’s rater stated that he had prepared the applicant’s evaluation and had enclosed it with his letter, and that it was his intent that the information in this letter be used to supplement the comments contained on the DA Form 67-8 (OER) and be considered when finalizing the applicant’s annual evaluation.  He stated that the applicant had performed at a superior level while working for him at the school, and that the rating of superior is the highest rating in our [the Canadian] system, equivalent to your [the American] top block.  He considered the applicant’s performance exemplary, stating that he was one of his top officers combining professionalism, hard work, and enthusiasm, to lead the young soldiers and officers under his charge.  He stated that the applicant warranted a top block rating for potential based on his superior performance as an exchange officer and liaison with the Canadian Forces Engineers.  

The applicant’s senior rater, the Army Attache in the Office of the U.S. Defense Attache in Ottawa, Ontario, Canada, stated in his comments in Part VIIb of the OER that the applicant’s performance was outstanding.  He stated that the applicant contributed greatly to the proficiency of Canadian Forces engineers, while representing his own Army most professionally.  He stated that the applicant should return to a troop assignment now, to develop his tremendous potential.  He stated that the applicant should be selected for resident C&GSC immediately and be promoted to lieutenant colonel.  In Part VIIa (potential evaluation) of that report, the senior rater placed the applicant in the second from the top block, one of 11 officers in that block that were below the center of mass.  
The applicant’s previous OER while serving as a captain in the same position, covering the period 24 May 1991 through 23 May 1992, shows that his rater, a Canadian major, commanding the Field Engineer Training Squadron, CFB Chilliwack, submitted a letter report in lieu of completing the appropriate portions of Part IV – Performance Evaluation – Professionalism, and Part V – Performance and Potential Evaluation, of the OER.  That letter report is highly commendable of the applicant’s performance and potential, stating that his performance had been consistently superior in all aspects, among other complimentary remarks, and that he was the best of four officers in his squadron. The rater stated that were the applicant in the Canadian system he would be assessed as superior, a rating rarely assigned, which reflected directly on the applicant’s capabilities and potential.  He stated that the applicant should be promoted to major now.

The applicant’s senior rater, the senior rater for the contested report, remarked that the applicant was an outstanding officer, totally professional, mission-oriented, competent, and confident.  He went on to say, among his remarks, that the applicant should be given key troop assignments, should be selected for resident professional schooling and successive promotion ahead of his peers; and that he had unlimited potential.  In the potential evaluation portion of that report, he placed the officer in the second from the top block, one of 10 officers in that block who were in the center of mass.  

On 5 February 1999 the applicant appealed the contested OER, and also requested an exemption to the requirement to submit a substantive appeal within 5 years of an OER.  In justification for the exemption, he stated that, among other things, that his senior rater was notified that he was selected for early retirement during the rating period and left the service in June 1993 because of this SERB; that his senior rater never discussed the report with him, that he was too busy with his efforts to leave the service to meet him; that he did not receive a copy of the report until November 1993; that he attempted to contact his senior rater in December 1993 and March 1994 to find out his reasons for the below the center of mass rating, but he (the senior rater) did not respond to his inquiries, and therefore he had no legitimate grounds to pursue an appeal.  He went on to say that his assignment officer stated that it was still to early to assess how the report could affect his career, and the best thing that he could do was to continue doing a good job.  The applicant stated that after returning from Kuwait, he discovered a document containing favorable information relevant to the OER that might not have been available to the senior rater.  He contacted his senior rater and began contacting personnel to support his appeal based on his senior rater’s failure to perform his senior rater’s duties.

In his appeal the applicant stated that his senior rater was retiring as the result of the SERB, and he believed that his senior rater hastily prepared the evaluation, ignoring input from his rater, and using his [the applicant] OER as a forum to express his frustration with the Army.  He stated that his senior rater was stationed in Ottawa, 3000 miles away, and that he only saw him two times during the rating period.  He had daily contact with his rater.  He stated that he was denied the opportunity to discuss his evaluation with his senior rater, and that his senior rater was too busy clearing to see him, canceling the OER counseling appointment the day it was to occur.  He stated that he sent letters to his senior rater concerning his below center of mass rating, but received no response.  He did contact his senior rater by phone in September 1997, and during the ensuing conversation his senior rater stated that he had not discussed the report with his rater nor received the letter of evaluation submitted along with the OER.  During the phone call, the applicant stated that the senior rater complained about his treatment from the Army.  He mailed the letter of evaluation from his rater to his senior rater, after he reluctantly agreed to review it. 

He again contacted his senior rater six weeks later, and was informed that he would not change his [the applicant] rating, that if he did, he would have to change the ratings he gave everyone else, but that he did not intend to rate him below center of mass; however, it wasn’t his fault the system was broken.  The applicant stated that his senior rater sent him a letter that addressed his performance, but also criticized the evaluation system and the Army. 

He again contacted his senior rater and following the conversation became convinced that his senior rater had no interest in participating in any activity remotely related to the Army, and that he viewed his report and his refusal to consider changing it as sending a message to the Army, his intent being to demonstrate that unlike other senior raters he had done his job right, maintaining the integrity of the evaluation system.

The applicant contacted his senior rater’s assistant in Canada, who confirmed that he was angry following the SERB, mentioning how his disappointment manifested itself in his work just prior to leaving.  

The applicant contact his former rater in Canada, who confirmed that the senior rater did not contact him regarding the OER.

The applicant stated that his senior rater’s failure to consider his rater’s input, his failure to address his initial inquiries into the OER, and his attitude toward the military, indicated a pattern of animosity towards the Army, resulting in his failure to perform his senior rater responsibilities outlined in the regulation.  He stated that he believed he hastily prepared the report to satisfy the requirement to do so and that his refusal to directly address his inquiries demonstrated his continued disdain towards the Army.  He requested that Part VIIa be changed to remove the rating block in the senior rater portion of the evaluation. 

With his appeal, the applicant submitted copies of two letters that he sent to his senior rater, one in December 1993 and one in February 1994, in which he stated that he received no response.  He also submitted:

•	A copy of a 19 September 1997 record of telephone conversation with his senior rater requesting his support in appealing the contested OER, which indicates that his senior rater stated that he could not believe that one OER had impacted his promotion.  That record also indicates that his senior rater commented unfavorably on the OER system, and how he [the senior rater] had been treated by the Army.  It indicates that his senior rater stated that it was not his intent to evaluate him as a below center of mass officer, but that he had a group of good officers and had to make distinctions.  The record indicates that his senior rater agreed to review the information that the applicant would send him.
•	A 21 October 1997 letter to his senior rater requesting his support in appealing the contested OER, enclosing a copy of the letter of evaluation from his Canadian rater, and stating that he did not believe that his senior rater had the letter when writing the OER.
•	A copy of a 24 October 1997 record of telephone conversation with his senior rater which indicates that person had confirmed that he received the information from the applicant, but that he did not consider it significant and did not plan on doing anything.  That record indicates that the senior rater stated that it was not his intent to rate him as below center of mass, but it was not his fault that the evaluation system was broken, and the report was reviewed that way.  It was not his intent to rate him that way but since he had just been promoted to major it should not affect anything.  When asked why he placed him the second block when he was rated as a captain, he stated that he thought his performance was great, but since he was promotable, he [the senior rater] was not going to waste a top block on him.  The record indicates that the applicant continued to persuade the senior rater to correct the injustice by supporting his appeal, and the senior rater stated that he would read through the information one more time and decide what to do.
•	A copy of a 20 November 1997 letter to the Total Army Personnel Command (PERSCOM) from the senior rater supporting the applicant’s appeal, in which that person stated that when he [the senior rater] said in May 1993 in the contested OER that the applicant should be promoted to lieutenant colonel, he meant it and still saw it that way.  He stated that he would make a better lieutenant colonel than many he had seen.  He continued by saying that it was a tough call when he rated the applicant, that he was rating him among several exchange officers, all of whom were very good officers, and because of the geographic distances involved, was rating them on the basis of very infrequent, very brief observation.  Consequently, and because the observed differences in those officers were very slight in most cases, he gave more time to those ratings than he ever had to before.  He stated that the second block was the proper block to place the applicant based on his potential and his performance in relation to his peers at that time.  He stated that he had no idea that he could forsee that the Army would one day consider a second block rating a career stopper, but that the Army had unfortunately done that to itself, to the detriment of several excellent officers like the applicant.  He stated that the applicant should be promoted to lieutenant colonel, but that he should not go back now and change what he considered a fair rating. 
•	A copy of a 12 December 1997 record of a telephone conversation with his senior rater, in which the applicant protested that the letter the senior rater sent did not support his appeal.  That record shows that the senior rater indicated that he felt that the applicant should be promoted, and still felt that way, but that he had a responsibility as a senior rater to evaluate his subordinates, some of whom would be rated higher than others.  The record indicates that the senior rater stated that it was not surprising that OER inflation had made the top block the standard for evaluation, with distinctions being made in the narrative; but that it was not his responsibility to fix the system, and he had always taken his senior rater responsibilities seriously.
•	A copy of an undated letter of support from the coordinator for the personnel exchange program (PEP) who worked for the Army Attache in Ottawa.  In that letter she stated that she worked directly for the senior rater, and that in January of 1993 he was informed that he had been selected for early retirement and would have to be out of the Army by July 1993.  She stated that the senior rater said that as far as he was concerned he was no longer working for the Army and that his primary goal was to find a job before he departed Canada.  She stated that she believed that the senior rater’s indifference toward the Army affected his work and the evaluation he gave the applicant, and that the senior rater hastily prepared the evaluation during an extremely stressful time, just days before leaving the service.  She stated that to the best of her knowledge, he did not ask for input, review the applicant’s quarterly reports, or contact the applicant’s rater.  She stated that she did not think he discussed the report with the applicant, and that the senior rater cancelled a meeting with the applicant, stating that he was too busy clearing to see anyone.
•	A 22 June 1998 letter of support from his former rater, who stated that he was appalled to learn that the applicant was not in a position to be promoted.  He stated that he took special notice of the applicant’s performance, and that the applicant was one of the best all around natural leaders that he met in over     30 years of military service.  He stated that he recalled speaking with the applicant’s senior rater about how well the applicant was performing, but that the senior rater did not visit Chilliwack.  He stated that it would be a great loss not to promote the applicant, especially if the reason lay in the uninformed comment by one colonel who did not know the quality he was dealing with and who may have been distracted by personal matters.

On 3 August 1998 PERSCOM notified the applicant that he had not been selected for promotion to lieutenant colonel; however, that he had been selected for continuation in the grade of major and would be continued on active duty until he was eligible for retirement.

Facts relating to the applicant's contention that the contested OER should be removed from the records are contained in the OER appeal case summary from the OSRB, which is incorporated herein.  The case summary indicates that the OSRB reviewed and considered all the documents the applicant submitted in his appeal, and that on 5 May and 28 July 1999, the OSRB contacted the applicant’s senior rater.  The case summary indicates that the senior rater stated that he recalled visiting the applicant at Chilliwack on at least two occasions, and on one of those visits recalled discussing the applicant’s performance with the Canadian Forces Post Commander; however, there were no significant accomplishments or deficiencies noted during the discussion.  He stated that he was familiar with the applicant’s class schedule and the curriculum at the engineer school and neither was challenging, in that Canadian Forces’ engineer tactics, techniques  and procedures were antiquated by U.S. Army standards.  He stated that such visits along with input from the raters formed the basis for his assessments of an exchange officer’s performance and potential, which was the method he used for evaluating all officer he senior rated, to include the applicant.

The summary indicates that the senior rater continued by saying that he had reviewed the letter input from the applicant’s rater, and that letters from Canadian Forces’ raters tended to emphasize aspects of the rated officer’s social and community performance vice the operational/training aspects, and that he found those letters to be of marginal value in assessing the rated officer’s potential.  He stated that to the best of his recollection he had counseled the applicant, both by phone and face to face.  He stated that on one occasion he had never received some required information from the applicant.  He stated that he did not remember having to cancel an appointment with the applicant nor of any submitted monthly status report.  He stated that when the time came to rate the applicant, he knew exactly what he was doing.  He stated that the “2” block was where the applicant deserved to be, saying that there were too many other officers out there doing the tough jobs and the applicant did not deserve any better than he received.  He stated that the “2” block was a fair and honest evaluation of both his performance and potential, and that a change would be a disservice to those other officers he evaluated.  He emphatically stated that he stood by his block check.

In the case summary, the OSRB provided a review of the top block reports rendered by the senior rater to other majors in his profile, during the time frame coinciding with the contested report.  The OSRB indicates that there was a distinction in the quality of the senior rater’s comments in Part VIIb, and listed key phrases from two available top block reports, one “2” block (the applicant) report and one “3” block report rendered by the senior rater, compared to the applicant’s “2” block report.  That analysis indicates that the comments provided by his senior rater on the applicant’s report, e.g., performance was outstanding, should return to a troop assignment now to develop his tremendous potential, selection for resident C&GSC immediately, promote to lieutenant colonel, was similar to the comments on a “3” block report, e.g., performance was superb, dedicated hard work and persistence, return to troops, promote to lieutenant colonel – but not as good as two officers in the top block, e.g., among the very best and performance was superb, exceptionally bright and competent, unlimited potential, should be promoted immediately, an outstanding battalion command and should be promoted and selected for advanced schooling ahead of his peers.

The OSRB case summary went on to say that the senior rater narrative comments concerning the applicant were not as equal to those comments made by the senior rater for those two officers with top block reports, and that the applicant’s narrative comments did not contain the usual superlatives and comments regarding immediate promotion, military schooling ahead of peers or battalion command, found in the top block reports.     

The OSRB noted that the senior rater stated that the “2” block was where the applicant deserved to be and the OSRB noted that in applicant’s previous OER, the senior rater also placed him in the “2” block.  The OSRB noted that unlike his previous report, the rater on the contested report entered his evaluation directly on the OER, instead of providing a separate letter report.  The OSRB stated that the applicant’s claim that the senior rater may not have seen or considered the rater’s letter input was not supported by the evidence.

The OSRB case summary went on to provide the reasons why the applicant’s contentions that his OER was inaccurate and unjust were without merit. 

The OSRB opined that the applicant had failed to submit clear and convincing evidence that would warrant amendment of the contested OER.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  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 be administratively correct, 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.

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’s contention that the letter of evaluation completed by his rater was not forwarded with his OER to HQDA by his senior rater may have some merit; however, that letter had no effect on his rating or comments by his senior rater.  That former officer had indicated to the OSRB that he saw the letter, but found that that type of input had marginal value.  Nevertheless, he did say that he reviewed the letter prior to completing the OER.   

2.  Records of three telephone conversations, submitted by the applicant, indicate that the senior rater felt that the applicant had done a good job, and that he should be promoted to lieutenant colonel; nonetheless, he was steadfast concerning his evaluation of the applicant on the contested OER, notwithstanding his statements that the system was broken, and that the Army had never developed a fair evaluation system.  The senior rater was even more adamant in his position in his 20 November 1997 memorandum to PERSCOM supporting the applicant’s appeal, again stating that the applicant should be promoted to lieutenant colonel, while at the same time stating that he rated the applicant fairly.  The applicant provided the same information to the OSRB and stated that he stood by his block check.      

3.  The analysis of evaluation reports by the OSRB clearly shows that the senior rater’s comments concerning the applicant were not as glowing as those of two officers that were placed in the top block, but more in line with an officer placed in the third block by the senior rater.  It would appear, from this brief analysis, that the senior rater had every intention of placing the applicant in the second block from the top in the potential evaluation portion of the report, and that marking was fair and just.

4.  There is no evidence, nor has the applicant provided any, to show that the senior rater prepared his portion of the contested OER in haste, or that being bitter of his SERB, he was sending a message to the Army by demonstrating that unlike other senior raters, he was maintaining the integrity of the evaluation system.  The inference that the applicant would have been treated differently by other senior raters that were not in the same situation as his senior rater has no basis in fact, nor does not matter.  The contested report appears to represent a fair, objective and valid appraisal of his demonstrated performance and potential during the period in question.  Therefore, there is no basis to delete the senior rater potential evaluation portion from the contested report.
5.  Since there is no basis to grant the portion of his request pertaining to the contested evaluation report, there is likewise no basis to grant the remaining
request.

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

7.  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.

8.  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

___aao__  ___bfh___  ___teo__  DENY APPLICATION

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

INDEX

CASE ID	AR2000044068	
SUFFIX		
RECON		
DATE BOARDED	20010130	
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	111.01	
2.		
3.		
4.		
5.		
6.