MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            8 March 2001
	DOCKET NUMBER:   AR2001052095

	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. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Roger W. Able		Chairperson	
	Ms. Barbara J. Lutz		Member	
	Mr. William D. Powers		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:  In effect, that the senior rater (SR) portion of an officer evaluation report (OER) she received for the period 18 February 1986 through 31 December 1986 be expunged from her record and that she be reconsidered for promotion to lieutenant colonel (LTC) using the criteria used by the selection board that initially reviewed her for promotion to LTC in the primary zone of consideration.

APPLICANT STATES:  In effect, that her case has been outlined in a supplemental statement prepared and submitted by her counsel, which is included with her application. 

COUNSEL CONTENDS:  In effect, that the SR portion of the contested OER contains comments that are internally inconsistent, in that the SR’s profile in Part VIIa (potential evaluation) is incompatible with the predominant language contained in the Part VIIb (comments) portion of his evaluation.  Counsel also claims this matter was placed before the Officer Special Review Board (OSRB) in November 1998 and that it was summarily rejected on the sole basis that the appeal was submitted outside the five year time limit requirement for submission. 

In the opinion of counsel, the OSRB rejection ignores case law and the OSRB’s steadfast refusal to recognize this, in effect, denies appellants timely relief.  It is also pointed out by counsel that the applicant was placed in the lower third of the officers rated by the SR, which clearly placed her below the center of mass (COM) and that the SR rated a large number of officers, which gives rise to legitimate concerns to the level of his personal knowledge of the applicant’s performance of duty and future potential.

In addition, counsel indicated that a review of the applicant’s OERs as a first lieutenant (1LT), from 1983 to 1988, provides no evaluation or information that would serve to deny her promotion.  She was rated in the COM on all the OERs she received during this period, which gives no legitimate inference that her promotion to LTC was inappropriate.  From 1988 to 1993, the OERs she received as a captain (CPT) likewise provide no reason or basis for the denial of her promotion to LTC.  This is evidenced by her promotion to major (MAJ), which corresponded to her graduation from the Command General Staff Course (CGSC).  

Counsel further indicates that the applicant’s SR OER evaluations from 1993 to 1998, when she was first considered for promotion to LTC in the primary zone, are consistently in the top block and this leaves the only available conclusion that the contested report was the sole basis for her not being selected for promotion to LTC.  Counsel’s full supplemental statement is enclosed along with all supporting documentation.  

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

On 23 May 1981, she was appointed a second lieutenant (2LT) in the United States Army Reserve (USAR).  On 2 February 1982, she was ordered to active duty and has continuously served in that status until the present.  She is now a MAJ serving as an Operations Officer for the United States Army Intelligence and Security Command (USAINSCOM), Fort Belvoir, Virginia.  

The contested OER is a change of rater report covering the period 18 February 1986 through 31 December 1986, which evaluated the applicant as a CPT, while she was performing duties as the Assistant G2, Security, for the 1st Armored Division in Germany. 

In Part IV (professionalism) the rater gave the applicant one scores in all 
14 professional competence blocks and in Part V (performance and potential evaluations) she was placed in the first block (always exceeded requirements).  The rater’s accompanying comments were extremely complimentary and indicated that she performed in a superb manner and had done exceptionally well.  The rater also placed her in the first block (promote ahead of contemporaries) in Part Vd (potential for promotion to the next higher grade) and commented that she had outstanding potential for further assignment in the security field.  

In Part VIIa (potential evaluation) the SR placed the applicant in the three block, which placed her below the COM in the SR’s profile.  The SR profile showed 
35 first block, 33 second block, 19 third block, 10 four block, one five block, and 
one seven block evaluations.  It also confirmed that the total officers rated by the SR was 71.  

The SR comments in Part VIIb were complimentary and indicated that the applicant had been an especially solid assistant G2 for security and that few officers of her grade or experience perform well in this unique position.  The 
SR also commented that she was a capable supervisor and manager, as well as, a competent writer and speaker.  The SR stated that her enforcement of high standards is reflected in the outstanding performance of her office on high level security inspections.  The SR also recommended the applicant be placed in positions of greater responsibility and indicated that she should be considered for promotion with her contemporaries.

On 1 October 1993, subsequent to the submission and filing of the contested OER, the applicant was selected for and promoted to the rank of MAJ.  She was initially in the primary zone of consideration for promotion to LTC in 1998 but was not selected for promotion by that year’s board.  She was again considered and not selected for promotion by the 1999 LTC promotion selection board.  

Her OER record as a MAJ reveals that she has received COM evaluations from her SRs on all the reports she has received in that rank and that she has never been rated either below or above COM on any of the reports rendered.

In November 1998, the applicant appealed the contested OER to the OSRB, citing the substantive inaccuracies of the report as the basis for her appeal.  She claimed that during a visit to her career branch in August 1998 she requested an evaluation of her records by her career advisor, who after reviewing her file expressed serious concerns about the contested OER.  The concerns were based on the OER containing a SR recommendation to promote with contemporaries and on it being a below COM report.  Her career advisor also indicated that this OER would likely prevent her from being promoted to LTC.  

The applicant also claimed that her career advisor, after hearing the circumstances surrounding the submission of the contested report, indicated that the OER should have been referred to her at the time and that it could be appealed.  Prior to this meeting she claims to have discussed the report with many career advisors and none had ever indicated the report could be appealed. Her explanation for the late submission of her appeal was that until this meeting with her career advisor she honestly did not realize the report had the potential for appeal.  

In addition, the applicant stated in her appeal that at the time the contested OER was rendered she had noted that the SR had placed her in the third block and had commented that she should be promoted with her contemporaries, which at the time raised concerns in her.  These concerns were based on her not knowing the SR’s profile, where the third block evaluation placed her within the SR profile, and with the promote with contemporaries comment contained in the SR comments.  

The applicant also indicated in her appeal that she only discovered that her SR had placed her below COM when she obtained a the performance portion of her Official Military Personnel File (OMPF).  This three block rating was, she claimed, inconsistent with the rest of the SR written comments and at that point she raised her concerns with her rater, who indicated that because the SR had departed she had no recourse concerning the contested OER.  

The applicant further stated, in her appeal to the OSRB, that her appeal should be considered and approved based on her conversations with her career advisor and given the fact that the contested OER should have been referred to her by the SR, under the provisions of paragraph 4-27h of Army Regulation 635-105, because the rating was derogatory and it had the potential to adversely impact her career.  She also indicated that she was not selected for LTC by the 
1998 selection board and, based on her career manager’s evaluation of her records in August 1998, this contested OER was most probably the reason.  
In addition, she claimed that had the SR properly referred the contested OER to her she could have at a minimum made written comments concerning its contents and would have had the opportunity to meet with the SR to discuss her concerns, which may have resulted in a change to the ratings.  She goes on to further elaborate on what she viewed as the SRs failure to meet his regulatory review functions and the inconsistency of the SR written comments when compared to the actual evaluation.  

On 10 December 1998, the OSRB responded to the applicant’s appeal with its finding that the appeal was not acceptable for adjudication due to the delay in submission and the lack of clear and compelling evidence.  It referred to the regulatory requirement to submit appeals within five years of the report’s completion date and pointed out that the applicant attributed her delay in submitting her appeal as her having been previously advised that the report should not hurt her career, which, in the opinion of the OSRB, was inconsistent with her acknowledgement that her rating chain had advised her, at the time the report was rendered, that the rating may prevent her from being promoted to LTC.  

Further, the OSRB found, the applicant’s statement that if she had known at the time the report was rendered what she knew later, she would have appealed the contested OER at the time was inconsistent with her explanation of the facts and circumstances surrounding the submission of the contested OER, and this ultimately failed to meet the exceptional justification rule for late appeals.

The OSRB also concluded that the evidence submitted by the applicant was not sufficient to warrant late consideration of her appeal.  They pointed out that the packet only contained two third party statements from individuals who had observed her during the rating period and they offered no evidence to refute the evaluation of the rating officials. 

In its decisional document, the OSRB also informed the applicant that the appeals process is not an adjunct to the promotion selection system and is a separate process designed to encourage timely efforts to seek relief when a report is believed to be inaccurate or unjust, and that the individual is responsible for making that determination is the rated officer.  Therefore, she did not have to know the report was career damaging to file an appeal but only that it was inaccurate or unjust.  

The OSRB also indicated that that appeals process was not designed to overturn unfavorable results of a personnel selections systems, especially when the rated officer allowed the non-contested report to be considered an accurate evaluation of her performance and potential for more than five years.  

Finally, the OSRB explained that appeals submitted after the five year submission limit were not rejected without carefully considering the issues raised, evidence offered, length of delay, and reasons for delay.  These factors taken together, in the applicant’s case, convinced the OSRB that the five year submission limit should not be waived. 

Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, prescribed the officer evaluation function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS). It also provides guidance regarding redress programs including commander inquiries and appeals. 

Paragraph 4-27 ( Referred Reports) contained guidance on referred reports.  It states, in pertinent part, in paragraph 4-27g and h, that any report with a SR potential evaluation in one of the bottom three blocks in Part VIIa; and any report with ratings or comments that, in the opinion of the SR, is so derogatory that the report may have an adverse impact on the rated officer’s career, must be referred to the rated officer by the SR for acknowledgement and comment prior to it being sent to Headquarters, Department of the Army (HQDA) for processing. 

Paragraph 6-6 contains the policies for submitting an appeal to an OER.  It states, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

Paragraph 6-7 contains guidance on the timeliness of OER appeal submissions and states, in pertinent part, that because evaluation reports are used for personnel management decisions, it is important to the Army and the individual officer that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals must be submitted within 5 years of the OER's completion date on all reports prepared prior to 1 October 1997 and failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  

Paragraph 6-10 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  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.  The Board noted the contentions of the applicant and her counsel and finds, after carefully examining all the evidence, that the applicant has not met the regulatory burden of proof necessary to show the contested OER was unjust or contained substantive error.

2.  The contested OER was prepared and submitted in accordance with the applicable regulation, in effect at the time, and there is no evidence to suggest that it contained a material error, was inaccurate , or that it was an unjust evaluation of the applicant.  

3.  The Board considered the argument of the applicant and her counsel that the contested report was required to be referred because it contained a below COM evaluation.  However, in accordance with the applicable regulation, the SR would only have been required to refer the report to the rated officer if it contained a SR potential evaluation in one of the bottom three blocks of Part VIIa of the OER, a condition that did not exist in this case. 

4.  In addition, counsel and the applicant claim that the “promote with contemporaries” comment made by the SR was derogatory, inconsistent with other comments, and should have resulted in the OER being referred to the applicant.  The Board concludes, however, this claim is not consistent with the provisions of the governing regulation, which clearly stated that a report may be referred, when in the opinion of the SR, it contains ratings or comments that are so derogatory that it may have an adverse impact on the rated officer’s career.  

5.  The Board finds the “promote with contemporaries” comment is not in and of itself a derogatory comment and is not obviously inconsistent with the rest of the report when it is taken in its totality.  Lacking evidence to the contrary, the Board concludes the SR’s evaluation was an honest appraisal based on his best judgement at the time and it did not compel a referral of the OER to the applicant at the time it was rendered. 
6.  In the opinion of the Board, while the OSRB did return the applicant’s appeal based on its having exceeded the five year submission time limit, they only did so after having fully considered the merits of the case by fully evaluating the issues raised and the evidence offered.  Therefore, the Board finds the OSRB administrative review was proper and equitable based on existing law and regulation in effect at the time. 

7.  Further, the fact that the contested OER was over ten years old at the time the applicant was considered for promotion to LTC in the primary zone coupled with the fact that the report was on file when the applicant was promoted to MAJ leads the Board to find the applicant’s argument, that this OER was the sole basis for the applicant not being selected for promotion to LTC, is unconvincing.  

8.  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 and counsel have failed to submit evidence that would satisfy this requirement.

9.  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

___wdp__  ___bjl___  ___rwa__  DENY APPLICATION

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

INDEX

CASE ID	AR2001052095	
SUFFIX		
RECON		
DATE BOARDED	2001/03/08	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A	
DISCHARGE REASON	N/A	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.		
3.		
4.		
5.		
6.