MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           27 February 2001
	DOCKET NUMBER:   AR2000047620

	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. William Blakely		Analyst	

  The following members, a quorum, were present:

	Mr. John N. Slone		Chairperson	
	Mr. Melvin H. Meyer		Member	
	Mr. Roger W. Able		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 (OER) for the period 1 July 1990 to 23 May 1991 be amended to a “top block” in part VII (a), Senior Rater, Potential Evaluation.  He also requests promotion reconsideration to the rank of lieutenant colonel by a Department of the Army Special Selection Board (SSB) commensurate with the FY 2000 lieutenant colonel, Army Promotion Board.

APPLICANT STATES:  That he was placed in the second block, which was below center of mass for the senior rater’s profile at the time the OER was submitted.  He states that the below center of mass rating on his command report was the sole reason he was not selected for lieutenant colonel.  He states that the OER is very important, since it is for a company command during Desert Shield/Storm.  In support of his application he submits a memorandum for record from his senior rater dated 23 January 1993 and a copy of the contested OER.

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

The applicant is an active duty major serving with the US Army Material Command, who has one non-selection for promotion to lieutenant colonel.

The contested OER was a senior rater option for the period 1 July 1990 to
23 May 1991.  It evaluated him as a company commander.

The senior rater placed his rating in the second block of part VIIa, the potential evaluation of the OER.  This placed the applicant below the center of mass on the senior’s rater profile.  The supporting comments by the senior rater contain only favorable comments and recommended the applicant for immediate promotion to major.

The OER was accepted by the Department as a complete report and it was placed on the performance fiche of his official military personnel file. 

The memorandum for record provided by the senior rater states that the potential evaluation of the applicant should not be construed as substandard.  He contends that his intent at the time was to indicate that the applicant was a solid performer, a demonstrated leader with outstanding potential, and his narrative comments support this intent.  He contends that his senior rater profile did not adequately reflect his intent, the outstanding service and dedication exhibited by the applicant and his men before and during Operation Desert Storm.  He states that the applicant’s potential for increased responsibility and battalion command is unlimited.  He states that he would welcome the opportunity to serve with the applicant in combat and his skills and experience are what the Army will require in the 21st century.

Army Regulation 623-105, in effect at the time, establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 of the same regulation 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, and to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgement of the rating officials at the time of preparation.  Requests that an OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

Paragraph 4-16 of the same regulation states part Vll of the OER, and explains how the senior rater profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the senior rater is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the senior rater.  The Department of the Army then uses the reports to record the senior rater’s rating history (profile).  This profile contains all OER’s rendered by the senior rater and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the senior rater’s general tendency.  Part VIIb will contain the senior rater’s comments and will address the potential evaluation and the rated officer’s performance.

Paragraph 9-7 of that same 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.

Appendix N, paragraph 2b(3) of the same regulation states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing a report.

Army Regulation 600-8-29 provides the policies and procedures for determining if the individuals are entitled to review by a SSB.  It states, in pertinent part, that in order to be eligible for review by a SSB, a determination must have been made that a material error existed, that had it been corrected prior to the time the officer was considered by a board that failed to recommend him or her for promotion, and it would have resulted in a reasonable chance that the officer would have been recommended for promotion.  Authority to approve cases for referral to the SSB is delegated to the Deputy Chief of Staff, or his designee, or the Officer Special Review Board (OSRB).

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 contested report appears to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.

2.  The applicant has failed to show through the evidence submitted or the evidence of record sufficient justification to warrant altering the OER requested.

3.  Notwithstanding the senior rater’s comments that his profile did not adequately reflect his intent, the Board concludes it was the intent of the senior rater that the applicant be shown as solid performer and a demonstrated leader with outstanding potential.  In the narrative section of the senior rater’s portion of the OER, the senior rater comments on and evaluates an officer’s performance and potential, as he or she stands alone, without comparing him or her to other officers.  In the senior rater potential evaluation portion of the OER, the officer is compared to all officers previously evaluated by the senior rater.  Hence, the senior rater potential evaluation portion of the OER may often diverge from the narrative comments made by senior rater.  Therefore, the Board concludes that the memorandum for record, signed by the senior rater, stating that his potential evaluation in part VIIa is misleading, serves as no basis to amend the contested OER.

4.  The Board found no evidence that a material error existed in the applicant’s file when he was considered for promotion that would entitle him to a SSB in accordance with regulatory guidance.

5.  The applicant’s contention that the contested OER was the sole reason for his non-selection to lieutenant colonel is not supported by the evidence of record nor the evidence submitted by the applicant. 

6.  Promotion boards are prohibited by law from divulging the reasons for selection or non-selection of any officer.  Therefore, the Board is reluctant to substitute its judgement for that of a promotion selection board.

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

__JNS___  __MHM__  __RWA__  DENY APPLICATION

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

INDEX

CASE ID	AR2000047620	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010227	
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.