MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:  

	BOARD DATE:  23 July 2002
	DOCKET NUMBER:  AR2002068555

	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. Paul A. Petty		Analyst	

  The following members, a quorum, were present:

	Ms. Jennifer L. Prater		Chairperson	
	Ms. Gail J. Wire		Member	
	Mr. Hubert O. Fry		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 his below center-of-mass Officer Evaluation Report (OER), DA Form 67-9,  for the period 16 May 1998 through 
18 March 1999, be removed from his military record.

APPLICANT STATES:  That the OER is unjust and inaccurate.  In effect, he contends that he was not properly counseled on his performance, that he was not given a duty description or major performance objectives within the first 
30 days or quarterly, that the senior rater had not observed his performance or had contact with him; and that the rater did not support his "no" checks in the leader attributes, skills, and actions section of the OER.  He provides letters of support from the senior rater, the executive officer, the brigade operations officer, and the adjutant.  He also provides a copy of his appeal of the OER and the Officer Special Review Board (OSRB) denial of the appeal.  He states that he was passed over for promotion to major below the zone in 2001 due to the OER in contention and will be considered for promotion in the zone in 2002.

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

He is an Armor captain.  He served as an enlisted soldier from 19 September 1990 through 16 April 1992.  He was commissioned as a second lieutenant Armor officer from the Fort Benning Officer Candidate School on 17 April 1992.  He successfully completed the Armor Officer Basic and Advanced courses.  He completed a 1 ½ year Army sponsored full time bachelor degree program at the University of Louisville.

He has served as a platoon leader and a troop executive officer.  He had one above center-of-mass and two center-of-mass OERs as a first lieutenant.  He was promoted to captain (CPT) on 1 May 1996.  He had one center-of-mass OER as a CPT before he received the below center-of-mass OER now in contention.

After completing the Army sponsored civilian schooling, he was assigned as a commander of an Armored Cavalry Troop (C Troop, 5th Squadron, 15th Cavalry Regiment) at Fort Knox, Kentucky, on 16 May 1998.  The applicant later stated in his OER appeal that he exercised his responsibilities and duties as a commander of C Troop from 5 November 1998 through 18 March 1999.  The applicant requested early release from the command position due to family problems, the unannounced periodic trips of his wife and daughter to an undisclosed location connected with divorce proceedings.  The applicant was worried about the health and welfare of his 4 year old daughter.  He sought professional and religious counseling but without resolution.  He discussed the developing situation and his early release from command with his rater, a lieutenant colonel squadron commander, prior to formally asking for release.  At his request, he was released from command on 18 March 1999, and assigned as staff officer in the U. S. Army Armor Center at Fort Knox.
On 24 May 1999, he received a referred change of duty OER for the period 
16 May 1998 through 18 March 1999.  Only 4 months of the 10 month period were rated.  The other periods were not rated due to code Q - lack of rater qualification and code I - in transit between duty stations.  The OER was a referred report due to the senior rater checking "Do Not Promote" and giving a below center-of-mass rating and the rater checking "Unsatisfactory Performance, Do Not Promote" and checking "No" for: the Leader Attribute, "Mental - possesses desire, will, initiative and discipline;" the Leader Skill, "Interpersonal – shows skill with people: coaching, teaching, counseling, motivating and empowering;" and the Leader Action, "Building – spends time and resources improving teams, groups, and units: fosters ethical climate."  The DA Form 67-9 directs that comments are mandatory in Part Vb of the OER for all "No" entries.  The rater so supported his "No" marks by stating, "Although the troop continued to do fine in the measurable standards of achievement, indicators began to grow that there were underlying tensions within the troop.  The tensions were due to conflicting command guidance and a lack of command presence at training.  (The applicant) was increasingly distracted by personal concerns."  The senior rater supported his evaluation marks with the comment, "(The applicant) took command during major training events and made a smooth transition.  His team began to gel, however, this process then lagged due to lack of command involvement, presence, and guidance.  (The applicant's) personal situation while expected to be temporary, began to take up more and more of his time."

The applicant provided rebuttal to the referred OER on 25 July 1999, stating, in effect, that he had received continuous and positive counseling and never received any adverse counseling or negative reports, that his rater had said he supported and respected his request to be removed early from command, and unconditionally assured him of a positive evaluation with a recommendation for a senior rater center-of-mass report.

On 21 December 1999, the applicant appealed his referred OER to the OSRB, requesting that it be deleted from his record due to substantive error.  He contended that he was not properly counseled on his performance, that he was not given a duty description or major performance objectives within the first 
30 days or quarterly, that the senior rater had not observed his performance or had contact with him; and that the rater did not support his "no" checks in the leader attributes, skills, and actions section of the OER.  He provided letters of support from coworkers.  The brigade assistant adjutant provided a letter of support stating that another company commander in the unit was relieved from duty for poor command performance and was given a center-of-mass OER.  On 27 August 2001, after telephonic interviews with the rater and senior rater, the OSRB denied the appeal finding insufficient convincing evidence that 

administrative errors and substantive discrepancies cited by the appellant overrode the presumption of regularity.  The senior rater stated to the OSRB, "the appellant received the right evaluation and he would not have changed anything based upon the appellant's allegations."

On 30 January 2002, the senior rater provided a letter in support of the applicant's OER appeal.  He stated, in pertinent part, "The applicant demonstrated innate leadership talent, great potential and the competency expected for his grade and time in service as the Commander of Troop C …  He demonstrated great maturity at the time in making the decision to request early removal to attend to a dire family situation.  My Senior Rater Box check should have been a Center of Mass.  The comments were carefully intended to indicate (the applicant's) performance and potential at the time of the rating.  I certainly did not intend to end his career.  …I strongly support the appeal and removal of this OER from (the applicant's) file in order to do the right thing by the service and (the applicant)."

The OSRB provided an advisory opinion to this Board which included a review of the senior rater's letter of support.  The OSRB states, in pertinent part, "The SR (senior rater) in this letter does not claim he erred when authoring the OER.  In fact, he validates that the report was fair and just.  Specifically, he states, '…OER reflects [the applicant's] performance…for four months…'  The SR further states his comments were 'designed specifically to give an accurate and impartial rating…' and in summary, the SR states the evaluation 'is truly a snap shot…' of the applicant's career.  The (OSRB) notes that the remainder of the letter is intended to explain that it was not his [the SR's] intent that the OER would end the appellant's career.  The SR now claims that the 'Box check should have been a Center of Mass.'  The SR fails to support that contention with any evidence of error.  Furthermore, when the (OSRB) contacted the SR back on 9 Aug 01, he made it perfectly clear that the OER was fair and just as written and did not contend that there was a block check error.  Based upon (the OSRB) review of the SR's letter of support, the (OSRB) is satisfied that the attached case summary is an accurate assessment of the appellant's contentions.  The SR comments in this letter of support presented as 'new evidence' is a classic example of retrospective thinking as outlined in AR 623-105.  This letter does not provide significant new evidence to warrant reconsideration…'  The OSRB recommended that the application be denied.  On 4 April 2002, the applicant was sent a copy of the advisory opinion for information and possible rebuttal.  As of the date of this Board, the applicant has not provided any rebuttal.

Army Regulation 623-105 (Officer Evaluation Reporting System), states, in pertinent part, "statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection or other 

unfavorable personnel action claimed to be the sole result of the contested report.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis of altering or withdrawing an evaluation report.  Rating officials may, however, provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparations.  Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared."

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion, it is concluded:

1.  No error or inaccuracy in the OER has been found or demonstrated.  The senior rater stated to the OSRB in August 2001, "the appellant received the right evaluation and he (the senior rater) would not have changed anything based upon the appellant's allegations."  The senior rater stated in his January 2002 letter, "My Senior Rater Box check should have been a Center of Mass.  The comments were carefully intended to indicate (the applicant's) performance and potential at the time of the rating.  I certainly did not intend to end his career."  These comments by the senior rater substantiate that fact that he did not make a error on the evaluation but in retrospect, he did not intend his evaluation to end the applicant's career.  This does not constitute an error.  It is also noted that the senior rater did not say that he made an error when he also checked the promotion potential for the next higher grade as "Do Not Promote."  While the raters comments in support of his "No" marks were not very specific, he did make general comment to support his "No" marks and "Unsatisfactory Performance" evaluation.  It is also noted that the applicant stated in his reply to the referred OER, that he had received continuous counseling.  There is no evidence that he did not receive such counseling.

2.  The applicant contends that the OER is unjust because he asserts that the rater had unconditionally assured him of a positive evaluation with a recommendation for a senior rater center-of-mass report.  The applicant provides no evidence to support this contention and there is no evidence that the rater did not recommend a center-of-mass report.  As part of the OER appeal packet, the brigade assistant adjutant provided a letter of support stating that another company commander in the unit was relieved from duty for poor command performance and was given a center-of-mass OER, suggesting that the applicant's below center-of-mass was inequitable by comparison.  The Board is not provided a copy of the referenced OER or details on the officer's duty and 

performance so it is not possible to compare that with the applicant's circumstances and evaluation.  Additionally, this Board decides each case based on its own merits and not by comparison with other cases or circumstances.  The Board does not find sufficient evidence that the OER was unjust.

3.  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

__jp___  __gw____  ___hf__  DENY APPLICATION

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

INDEX

CASE ID	AR2002068555	
SUFFIX		
RECON		
DATE BOARDED	29929723	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111 – Efficiency/Effectiveness Report	
2.		
3.		
4.		
5.		
6.