MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:       

	BOARD DATE:            25 OCTOBER 2001
	DOCKET NUMBER:   AR2001057834

	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. Raymond J. Wagner		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Ronald E. Blakely		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 she be retroactively promoted to lieutenant colonel.  The applicant’s request and supporting documentation are somewhat difficult to follow; however, it appears that the applicant also is requesting that her officer evaluation reports (OERs) for the period 10 May 1996 through 9 May 1997 and 1 October 1997 through 30 September 1998 be removed from her records.  

APPLICANT STATES:  That the failure to receive a closeout OER while in the primary zone for consideration for promotion to lieutenant colonel and the unjust OER (1 October 1997 through 30 September 1998) from the 377th Theater Army Support Command (TAACOM) served as discriminators, resulting in her non-selection for promotion to lieutenant colonel.

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

A series of E-mails between herself and an official of the Total Army Personnel Command (PERSCOM) Appeals and Corrections Branch dating back to June of last year reflect the applicant’s actions in submitting her appeals packet, her attempts to locate her former rater, “LTC S,” in order to obtain a closeout OER, and information concerning her conversation with “Col S,” her former senior rater for the same purpose.  In a 6 April 2001 E-mail to the applicant PERSCOM has advised her that her senior rater, “Col S,” has stated that she had a change of rater on 30 June 1997, when a “LTC E” took over as the executive officer; consequently she would not have had the sufficient number of days on 30 June 1997 to receive an OER on 21 July 1997 when she signed out of the unit.  She was also advised that the PERSCOM could not force her former senior rater or her former rater, “LTC S,” to write an OER – and that since it had been four years since the change of duty occurred, the rating officials could decline to write a report since their memories were not vivid during the performance period.    
On 23 May 2001 PERSCOM returned her administrative appeal concerning the missing OER as she had requested.

The applicant’s OER for the period 10 May 1996 through 9 May 1997 while assigned as the S-4 with the 212th Field Artillery Brigade at Fort Sill, Oklahoma, shows that her rater, “LTC S,” gave her all 1’s in the 14 items in Part IVa of the OER, stated that she was the most competent S-4 within III Corps Artillery, a leader during staff physical training, revered by her subordinates, articulate in writing and in speech, always focused on excellence, totally dedicated, loyalty was without question, and upright in all respects.  He stated that the applicant always exceeded requirements.  His comments on her performance were extremely laudatory, stating that she was truly one of the Army’s best.  He stated 

that she should be promoted at the first opportunity and selected for battalion command, that her career should be managed carefully, and that the Army would benefit.  Her senior rater’s comments were also laudatory.  Col “S” stated that she had established herself as one of the top field grade officers in the brigade and that there was nothing that she could not accomplish to the highest standards.  He stated that her potential was unlimited, that she should be selected for promotion at the earliest opportunity, and that she was unquestionably a very strong candidate for battalion command.  He placed her in the top block in the potential evaluation portion of that form.  

On 12 May 1997 the applicant’s rater, the brigade executive officer, recommended her for the award of the Meritorious Service Medal for the period   1 June 1996 through 1 July 1997.  He forwarded the recommendation on           16 May 1997.  The recommendation was approved on 6 June 1997.

The applicant submits a leave form with her packet showing that she departed her unit on leave on 21 July 1997.  Orders show that she was assigned to the 90th RSC with duty at 377th TAACOM with a reporting date of 1 September 1997.

The applicant’s OER for the period 1 October 1997 through 30 September 1998, which she submits with her application, shows that she was a Materiel Management Officer assigned to the 377th TAACOM, that her rater was a lieutenant colonel, and her senior rater, a brigadier general, the deputy commander of the 377th TAACOM.  The OER shows that the rating officials and herself signed the report on 28 December 1998.  Her rater indicated that she was an officer of outstanding character as indicated by his marking “Yes” to the attributes in Part IVa of the form.  He marked “Yes” to all the items in Part IVb concerning her attributes, skills, and actions.  He stated that her performance was outstanding and that she must be promoted.  In his comments on her outstanding performance, her rater stated that she was a true leader and a no-nonsense performer.  The words, “Promote now,” were typed in a different font from the rest of the comments in item Vb on the OER.   In item Vc of that form, her rater did state, “PROMOTE NOW and select for Battalion Command with follow-on assignments at DA level Staff.”  The applicant’s senior rater stated that she was best qualified, that she “should be promoted to LTC now and given the opportunity to command at battalion level.”  Her potential compared with officers senior rated in the same grade, item VIIb of the form, shows that she was placed in the center of mass.

Part Vb of that same OER in her official military personnel file (OMPF) for the period 1 October 1997 through 30 September 1998, has the words, “Promote now and select for Battalion Command with follow-on assignment at DA level Staff,” typed in a different font from the rest of the comments in item Vb on the OER.  There is no entry in item Vc of that form in her OMPF.  

An order dated 18 December 1998 shows that the applicant was reassigned to the United States Army Forces Center in Kuwait with a proceed date of              19 December 1998.  A travel voucher shows that the applicant departed Slidell, Louisiana on 17 December 1998.  A 17 December 1998 order shows she was to proceed on temporary duty to Atlanta with a proceed date of 17 December 1998.

In a 2 February 1999 memorandum to the commander of the 377th TAACOM, the commander of the Coalition Joint Task Force-Coalition Support Command Forward in Kuwait recommended that the applicant be promoted to lieutenant colonel.  He commented on her outstanding duty performance.  

On 17 July 1999 the applicant submitted an appeal of her evaluation report for the period 10 May 1996 through 9 May 1997, stating that the correct rating period should be 9 May 1996 through 9 May 1997, and that she should have received a closeout OER.

On 9 August 1999 in response to her 17 July 1999 appeal of her OER for the period 10 May 1996 through 9 May 1997, PERSCOM informed the applicant that the dates of the report were indeed correct in that the ending date of her last report was 9 May 1996.  She was also informed that she should have received a closeout report for the period 10 May 1997 to 20 July 1997, but that she would have to contact her former rater and senior rater and request that they prepare a report for the missing period.  She was also informed that her second appeal of the evaluation report for the period 10 October 1997 to 30 September 1998 was being held in abeyance pending receipt of additional supporting statements.  

On 17 July 1999 the applicant appealed the evaluation report for the period         10 October 1997 through 30 September 1998, stating that her signature showing she signed the report on 28 December 1998 was totally false as she was in Kuwait at that time.  She stated that the words, “Promote now” was typed in a different font than the rest of the comments and was added after she signed the OER.  She stated that her senior rater met with her once during the rated period, to discuss the large disparity in his senior rater comments, and the final results failed to quantify the basis of evaluation according to her unsigned OER support form.  She stated that she had never been formally counseled, that there was a 

great disparity/conflict between her rater and senior rater comments, and that her senior rater comments conflicted with comments made by other senior leaders within the command.  She stated that she was not notified of her non-selection to lieutenant colonel, and that she had to develop, write, and type her rater’s comments on her first OER and her current OER.  She requested that the OER be expunged from her OMPF, and that she be reconsidered for promotion as “in the zone” for the FY 2000 promotion selection board. 

In a 22 July 1999 memorandum PERSCOM informed the applicant that she was not selected for promotion to lieutenant colonel, but was selected for continuation on active duty in the rank of major and she would be continued on active duty until she was eligible for retirement. 

In a 23 November 1999 memorandum to the 26th Area Support Group Inspector General, she complained about the untimely submission of her evaluation reports, the public display of racial prejudice among female officers, particularly black female officers, and the senior level chain of command’s blatant disregard for compliance with Army Regulation 635-100 as it related to active duty Regular Army officers assigned to the 377th TAACOM.  She stated, among other things, that she had not yet received her OER [the applicant does not specify what OER].  She commented on the command climate in the 377TH TAACOM.  She stated, in effect, that female officers were discriminated against, and that she, a black female officer, was never acknowledged for her hard work and dedication.  She stated that she was never counseled by her rater or senior rater, and that numerous Regular Army officers did not receive their evaluation reports prior to leaving the command.

In a 10 December 1999 letter to the DAIG the applicant complained about the lack of receiving a closeout OER, stating that she had corresponded with and provided her former senior rater with the information that he had requested, but had yet to receive a response.  

On 17 March 2000 the DAIG responded to her allegations against the deputy commander of the 377th TAACOM, stating that the allegation that officer failed to counsel her during the rating period was not founded, that he improperly failed to provide her with an OER following her permanent change of station in July 1999 was not founded, and that her allegation that he improperly exhibited racial and general prejudices against black female officers was not founded.  

In a 17 March 2000 memorandum to PERSCOM, the DAIG indicated that the command had informed the applicant that she should have received a closeout OER, and that the MILPER instructions revealed that she had sufficient time from 

10 May 1997 to 20 July 1997 to receive a closeout OER; however, the DAIG indicated, after reviewing her former rater’s closeout OER, that report showed non-rated time from 2 May 1997 to 23 July 1997, the actual time that the applicant was supposed to have received a closeout OER, indicating that he was ineligible to rate the applicant.  The DAIG referred the issue to PERSCOM.  Notes on that memorandum, apparently by the applicant, indicate disagreement with the DAIG comment concerning her former rater, stating that he was in his position as her rater during the time she should have received a closeout OER, as was her senior rater.    

On 24 April 2000 the applicant resubmitted her appeals packet to PERSCOM, appealing her OER for the period 10 May 1996 through 9 May 1997.

On 1 May 2000 PERSOM responded to her 24 April 2000 correspondence concerning the appeal of the OER for the period 10 May 1996 through                  9 May 1997, stating that she had not provided any new evidence that warranted forwarding the appeal to the OSRB for adjudication.  PERSCOM stated that although her appeal memorandum addressed the period 10 May 1996 through   9 May 1997, the documentation she enclosed addressed other evaluation reports received subsequent to 10 May 1997 and the absence of an OER for the period 10 May 1997 to 20 July 1997.  PERSCOM stated that this added to confusion as to exactly what she was attempting to appeal, and consequently, her appeal was returned without action. 

In a 26 September 2000 memorandum to the Commander of the Army Combined Arms Center at Fort Leavenworth, she requested assistance in receiving a closeout OER, or lacking that, a document from her former senior rater as to why he telephonically indicated that there was no requirement for her to receive a closeout OER.  In reply, she was informed that documents showed that “LTC S” and “Col S” were both her rater and senior rater, respectively during the period in question and recommended that she contact her rater in order to receive a closeout OER.  

The applicant submits letters of recommendation in support of her request to be promoted to lieutenant colonel, dated in late 2000, and from senior ranking civilians, NCOs, and the Commanding General of the Army Reserve Command in Atlanta. 

On 24 January 2001 the applicant submitted an appeal to her OER for the period 10 May 1996 through 9 May 1997, claiming administrative error.  She stated that nonrated unaccounted evaluation time could give a negative signal to the 

promotion board, in that an officer was not concerned about his/her professional records.  She stated that her current records reflect 4 months and 21 days of nonrated time.  She recounted her conversations with her former senior rater, “Col S” in attempting to obtain a closeout OER, mentioned an IG complaint, and stated that she could not locate her former rater, “LTC S.”  She stated that she contacted the Commanding General of Fort Leavenworth where her former senior rater was assigned for assistance.  She took exception to the DAIG report, which indicated that her former rater was not in a position to provide her a closeout OER.  She stated that both her former rater and senior rater were still assigned at the time she departed the command.  She stated that her failure to receive a closeout OER served as a discriminator to the selection board process, resulting in her non-selection for promotion to lieutenant colonel.

An Officer Record Brief (ORB) shows that the applicant’s former senior rater was the commander of the 212th Artillery Brigade from 12 June 1996 to 13 July 1998. An ORB shows that the applicant’s former rater was the Brigade Executive Officer from 7 August 1996 through 23 July 1997.

On 24 January 2001 the applicant appealed her evaluation report for the period  1 October 1997 through 30 September 1998, claiming both administrative and substantive error, in that she did not sign the OER on 28 December 1998 as she was deployed to Kuwait, nor did she leave and sign a blank report.  She stated that the note, “Promote Now” appeared to be typed on the form after she allegedly signed the OER.  She enclosed letters of recommendation to support her appeal.  She talked about her failure to receive a closeout OER, the receipt of an untimely OER not signed by her, and receipt of an OER dated and signed on a date in which she was not in the country.  She requested that the Special Appeals Board review the facts, findings, and letters of recommendation and promote her.  She further requested that the OER be permanently removed from her OMPF, and that upon receipt of a favorable closeout OER it be included in her OMPF.  

On 4 February 2001 she resubmitted her appeals packet for both evaluation reports.  She provided a copy of sequential events for resubmission of her appeals packet and copies of post office forms indicating she had mailed correspondence to her former rater and senior rater.

On 6 April 2001 the Officer Special Review Board (OSRB) indicated that it had conducted a review of the OER for the period 1 October 1997 to                         30 September 1998, and returned the request without action.  That board stated that the applicant’s appeal did not provide sufficient evidence of a clear and convincing nature to warrant consideration by the OSRB.  The board noted that 

entry of an appeal denial by the board would only serve to highlight further the report in her Official Military Personnel File (OMPF); and that while she provided her memorandum and chronology of events relating to the timing of her appeal action, eight third party support memoranda, a response from the DAIG, she had failed to provide any clear and compelling evidence that the contested OER was either invalid or that the rating officials failed to execute their designated responsibilities.

On 10 April 2001 PERSCOM informed her that the Officer Special Review Board had reviewed the information that she had submitted and her official records and returned her appeal with action indicating that she had not provided sufficient evident to warrant consideration by the OSRB.

On 17 July 2001 PERSCOM informed her that she had been continued in her present grade on active duty beyond retirement eligibility.  Selective continuation allowed her to continue to serve on continuous active duty until she reached      24 years of active commissioned service, or 4 years beyond her projected retirement date of 31 May 2002.  She was also informed that she would continue to receive promotion consideration by DA promotion selection boards.    

An extract from a MILPER message regarding the new OER system indicates that those officers whose last OER ended prior to 2 August 1997 and who had at least 60 ratable days must receive a closeout OER.  The thru date was              30 September 1997.

The applicant’s OMPF revealed that she received 23 OERs beginning in 1982 through August 2000 - one center of mass (CM) report as a second lieutenant; four reports as a first lieutenant (one below center of mass (BCM), two CM, and one above center of mass (ACM); 11 reports as a captain (6 CM, 4 ACM including the last 3 as a captain, and 1 report whereby the senior rater was not qualified to senior rate.  Her two reports that she received while a company commander were CM reports, e.g., 11-17*-7-3 and 14-22*-7-3, with the asterisk indicating her placement within that group.  Her above center of mass reports were as follows:  1*-2-2, 18*-21-1, 0-5*-10-1, and 0-9*-12-1.  She received seven reports as a major, to include the two reports that she apparently is contesting.  All were center of mass reports.

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.

Paragraph 4-2 provides for evaluation principles for rating officials and states in pertinent part, that to render an objective evaluation, rating officials must use all opportunities to observe and gather information of the rated officer’s performance, that they must prepare reports which are accurate and as complete as possible, and they must balance their obligations to the rated officer with their obligations to the Army.

Paragraph 4-3 provides general principles to be used when making evaluations and states in pertinent part that performance evaluations are judgments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional values.  Evaluations of potential are assessments of the rated officer’s ability, compared with that of his contemporaries, to perform in positions of greater responsibility in higher grades.

Paragraph 4-16 states in part, that Part VII of the OER provides for an evaluation of potential by the senior rater, that the senior rater’s evaluation is made by comparing the rated officer’s potential with all other officers of the same grade, or grade groupings.  The senior rater’s comments in most cases will address potential evaluation; however, they may address performance, the administrative review, or the evaluations by the rater.

The rules governing the OER system as indicated above, while taken from the OER system in effect prior to 1 October 1997 apply also to the OER system in effect on that date.

Army Regulation 623-105, effective 1 October 1997, states in effect that the senior rater makes an assessment of the rated officer’s overall potential and if the potential assessment is consistent with the majority of officer in that grade the senior rater will “x” the CENTER OF MASS box.  If the rated officer’s potential 

exceeds that of the majority of officer’s in the senior rater’s population, the senior rater will “x” the ABOVE CENTER OF MASS box (The intent is for the senior rater to use this box to identify their upper third in each grade).  However, in order to maintain a credible profile, the senior rater must have less than 50% of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a CENTER OF MASS label. 

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 OER for the period 10 May 1996 through 9 May 1997 is extremely laudatory in all respects.  PERSCOM has indicated that it is administratively correct (she was contesting that it was off by one day).  The nonrated period which she is referring to is not reflected on this OER, but is that period from      10 May 1997 through 30 September 1997, the date prior to the implementation date of the new OER system.  The applicant has provided to reason to expunge this report from her OMPF.

2.  The report for the period 1 October 1997 through 30 September 1998 is also laudatory, with the comment by her rater in item Vb (as indicated in her OMPF), “promote now and select for Battalion command with follow-on assignment at DA level Staff.”  Apparent is the fact that a mistake was made by initially including that phrase in item Vc of the OER, and that the report was redone when the mistake was realized, placing that remark in item Vb, albeit in a different font.  Item Vc is reserved for entries concerning unique professional skills or areas of expertise of value to the Army that the officer possesses, and to indicate a potential career field for further service.  Her senior rater stated that she should be promoted now and given the opportunity to command at battalion level, considering her best qualified.  The center of mass mark that she received indicates the senior rater’s profile, in this case more than 50 percent of those officers he senior rated, were in the top box. There is no error or injustice in this and she has not shown that she was not rated properly, nor has she submitted evidence of substantive inaccuracy of this report despite her contentions and the support she has received.  The applicant has not proven to this Board that this report was anything but the considered opinion and the objective judgment of the senior rater.  The fact that a different font was used on a remark on that report and her contention that her signature as shown as being signed on                      28 December 1998 was false does not warrant removal of that report from her OMPF.  The OSRB has determined that she did not provide sufficient evidence in her appeal to warrant consideration by that board.  This Board agrees.  There is no good reason to delete the report from her file.  

3.  The applicant’s contention that she should have received a closeout report for the period 10 May 1997 through 20 July 1997 (the date prior to the date she departed her unit on leave enroute to her new assignment) may have some merit.  The DAIG indicated that her rater’s closeout OER shows that he had a nonrated period during that time frame.  However, in August 1999 PERSCOM informed her that she should have received a closeout report for that period.  Nonetheless, in an E-mail message to her in April of this year, PERSCOM informed her that her former senior rater had advised that she had a change of rater on 30 June 1997, and therefore would not have been eligible to receive a closeout OER.  Nevertheless, it is the considered opinion of this Board, that the lack of an OER for this 2+ month period, whether warranted or not, is not reason to promote her to lieutenant colonel.  

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

5.  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.

6.  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

__RJW__  __KAN __  __REB   _  DENY APPLICATION

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

INDEX

CASE ID	AR2001057834	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20011025	
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.	131.00	
2.	111.00	
3.	310	
4.	193	
5.		
6.