PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:            22 May 2003       
	DOCKET NUMBER:   AR2003086044

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Mrs. Nancy L. Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Raymond V. O'Connor		Chairperson	
	Mr. Stanley Kelley		Member	
	Ms. Gail J. Wire		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests that two Officer Evaluation Reports (OERs), for the rating periods 14 May 1996 through 13 May 1997 and 14 May 1997 through      20 January 1998, be removed from his records or, in the alternative, moved to the restricted fiche.

3.  The applicant states that his senior rater (SR) failed to become familiar with his performance, refused to accurately access his ability/performance, and lied about his SR profile.

4.  The applicant’s military records, except for his Reserve Officers' Training Corps (ROTC) records, are not available.  Information contained herein was obtained from alternate sources.

5.  On an unknown date, the applicant, an Aviation Branch officer, was assigned to the 530th Military Police Battalion, 561st Corps Support Group (CSG), 89th Reserve Support Command (RSC) as the battalion operations officer (S-3).  He was promoted to Major, O-4 on 19 July 1995.

6.  By memorandum dated 31 July 1996, the Commander of the 561st CSG (the SR on the two contested OERs) sent his OER support form, along with OER and rating guidance, to his commanders and staff.  

7.  In paragraph 5c of the 31 July 1996 memorandum, the SR indicated that his senior ratings would always address potential.  He would make every effort to personally evaluate every officer he senior rated but the amount of time he could devote to doing so was necessarily limited.  

8.  In paragraph 5d of the 31 July 1996 memorandum, the SR stated, "My Senior Rater curve is a 3-block center of mass – that means I use the top five blocks (with occasional excursions into lower blocks when I wish to completely bury someone) and the average officer appears in the 3rd block down."

9.  The first contested OER is a 12-month annual report for the period 14 May 1996 through 13 May 1997.  The applicant had listed 11 significant contributions on his OER support form for this rating period.  His SR had ranked him in the 3d block (6/11/6/0/0/1/0/0/0) for a below-center-of-mass rating.  His SR made four comments.  He made a general comment that the applicant had worked well and made major improvements in the training and operations area of the battalion.  He made a comment related to the applicant's first-listed significant contribution.  He commented that the applicant was demonstrating his potential by pursuing a branch change.  He commented that the applicant should continue service at staff positions, working towards military police battalion executive officer.

10.  The second contested OER is a 9-month change of rater report for the period 14 May 1997 through 20 January 1998.  The applicant had listed              five significant contributions on his OER support form for this rating period. His SR had ranked him in the 3d block (9/21/10/0/0/1/0/0/0) for a below-center-of-mass rating.  His SR made two comments.  He made a general comment that the applicant had performed well in selected events and he commented that he believed the applicant might make further contributions if assigned to a Judge Advocate General detachment. 

11.  On 24 September 1998, the applicant requested a commander's inquiry into the two contested OERs.  The Commander, 89th RSC apparently appointed Lieutenant Colonel (LTC) R___, Deputy Staff Judge Advocate (DSJA), to make the inquiry.  In a 30 October 1998 memorandum to the commander, LTC R___ noted that the request for inquiry was outside of the timeframe provided for by regulation.  

12.  LTC R___ also noted that one of the applicant's allegations was that if he had known the SR would give him an adverse (i.e., below-center-of-mass) OER, he would not have remained in the position to receive the second OER.  LTC R___ noted that normally an officer does not know the SR's profile until an OER is returned to him after being officially accepted for filing.  However, in this instance the SR made an affirmative representation to his officers concerning his profile and rating methods (i.e., that the average officer appeared in the 3d block).  The representation by the SR was highly disturbing to LTC R___ because it was misleading.  Unless other information was provided, the applicant could have concluded that he was average at the time of the ratings when the SR thought otherwise.  LTC R___ felt that evidence suggested a lack of candor and integrity on the part of the SR and lent credence to the applicant's allegation of bias and a lack of objectivity.

13.  LTC R___ noted that the commander's inquiry was untimely and any action the commander could take would not immediately assist the applicant.  Nevertheless, LTC R___ recommended the SR be asked to explain his conduct to determine if the SR's rating was fair and objective.  The 89th RSC commander's response, if any, is not available.

14.  On 10 May 1999, the applicant appealed the two contested OERs.  He alleged that the SR failed to use all reasonable means to become familiar with the applicant's performance; that he failed to assess the ability of the applicant; and that he failed to consider the information on the applicant's support form when evaluating him.

15.  The applicant provided three statements of support with his appeal.  In addition, his rater on the two contested OERs provided by separate correspondence a statement of support.

16.  The applicant provided a letter of support from Sergeant Major (SGM) Z___, who was the acting battalion command sergeant major during the rating periods in question.  SGM Z___ stated that the applicant volunteered for the S-3 position when other officers were content to remain in their positions as assistant officers. SGM Z___ was not surprised when the SR informed SGM Z___ that he relieved [those officers) during the summer 1997 annual training.  SGM Z___ stated that he agreed the SR was never in a position to accurately assess the applicant's performance.  SGM Z___ found the SR's absence during their 1996 annual training at Fort Leavenworth, Kansas particularly disturbing as the SR worked there and could easily have observed the applicant's performance.  SGM Z___ stated that he was also aware of the personal resentment that the SR had towards the battalion commander, the applicant's rater, due to two grievances the rater had initiated against his higher command.

17.  The applicant provided a letter of support from Captain L___, who was the assistant S-3 and S-1 during the periods in question.  Captain L___ stated that the SR did not observe the applicant performing his duties that he knew of.  He also stated that, during his 19 months with the unit, the SR's total exposure to any of the unit's training that he knew of was accomplished on one occasion for less than 15 minutes.

18.  The applicant provided a letter of support from Captain J___, whose position during the periods in question was assistant battalion operations officer.  Captain J___ stated that consistent observations of the applicant [by the SR] were not made, at least in Captain J___'s presence.  Captain J___ stated that it became apparent that treatment of officers at the battalion was especially skewed while LTC T__ (the applicant's rater) was in command, as expressed by fellow officers in the battalion.

19.  LTC T___, the applicant's rater, attested to the fact the applicant was not a below center of mass performer and, to the contrary, was an effective organizer and trainer who contributed greatly to the unit's success.  He stated that the SR rarely visited his unit to observe training despite the fact the group headquarters was located in the same city.  He also attested to the fact that resentment existed between their two organizations and that it hurt the soldiers of LTC T___'s command.  The OSRB may not have received this letter.  In their case summary they stated, "None of the observers (referring to the letters of support) were serving in a position that approximated a rating official and therefore could not have known the expectations of the rating officials during the contested periods."

20.  On 5 March 2001, the applicant submitted additional information requested by the Officer Special Review Board (OSRB).  

21.  On 22 February 2002, the OSRB determined that the evidence submitted by the applicant did not justify altering or withdrawing the contested OERs.
22.  The OSRB contacted the applicant's rater.  LTC T___ informed the OSRB that he and the SR discussed the OERs and it was clear the SR did not agree with him regarding the quality of the applicant's performance.  He informed the OSRB that the SR was extremely accessible.  They had formal monthly meetings and frequent informal meetings.  The applicant was present for many of those meetings and at times had the opportunity to brief the SR.  LTC T___ informed the OSRB that the fact he filed an Inspector General complaint was not a valid issue as the complaint was directed at a higher level and not at the SR.  In fact the SR was supportive and volunteered to accompany him to the commanding general's office.  LTC T___ stated he believed the SR always considered his point of view and then made his decision.

23.  The OSRB contacted the SR, who stated that he visited the organization several times during each rating period.  On at least one occasion the applicant briefed him.  He conducted regular operations and training briefs at the headquarters during which the applicant was in attendance.  The SR informed the OSRB that he was particularly struck with the applicant's silence in those meetings when the commander (the rater) could not answer operations or training questions.  The SR informed the OSRB that the applicant's performance was below average compared to his peers in the organization.  

24.  The SR informed the OSRB that he wrote the 16 July 1996 memorandum a year before he prepared the first contested OER.  He was wrong to get into such detail.  He could not have anticipated how his profile would change and should not have written the memorandum as he did.  He stated he believed the applicant's OERs were accurate and fair depictions of his performance during each of the contested rating periods.  

25.  The OSRB noted that the rater stated the SR was very accessible and available to discuss organizational and personnel issues to whatever extent was needed.  The rater also stated the SR conducted regular meetings with him and the staff and the applicant was present at those briefings.  The SR stated that the applicant briefed him at least once and he knew who the applicant was.

26.  The OSRB noted that the DSJA memorandum stating that the SR's "misrepresentation…is highly disturbing" was intended for the commanding general.  It was unclear how the applicant obtained that communication and opined that the DSJA's criticism of the SR in an official memorandum was at a minimum improper in the hands of the applicant.  The OSRB also noted that the command decision was conspicuously absent and could have been relevant to the appeal.  The OSRB noted that it was not unusual for a rating profile to change considerably as time passes and the SR could not have known that his profile would change after a significant period of time.  The OSRB opined that despite the SR's failure to adhere to his philosophy as it pertained to his center-of-mass block, his communication process was a good one with exemplary intent.

27.  The OSRB also opined that the SR's memorandum failed to prove he did not assess the applicant honestly and accurately.  The SR regarded the applicant's performance as below-center-of-mass and rated him accordingly.

28.  Apparently, the applicant was promoted to LTC sometime after March 2001.

29.  Army Regulation 623-105, the version effective 30 April 1992, established the policies and procedures for preparing, processing and using the OER.  The regulation provided that an OER accepted for inclusion in the official record of an officer was presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  It stated that the primary purpose of a commander’s inquiry was to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they became a matter of permanent record.  It was not intended to substitute for the appeals process.  The burden of proof in appealing an OER rested with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must have produced evidence that clearly and convincingly nullified the presumption of regularity.  Clear and convincing evidence must have been of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  

30.  Army Regulation 623-105, paragraph 3-12 stated that the SR would use all reasonable means to become familiar with the rater officer's performance.  The following were means that could be used:  (1) personal contact; (2) records and reports; (3) the rater's evaluations of the rated officer as given on the OER; and (4) information given by the rated officer and the rater on the support form.  The SR assessed the ability of the rated officer, considered the information on the support form, and evaluated the rated officer's potential relative to his or her contemporaries. 

31.  Army Regulation 623-105, paragraphs 4-2c and 4-2d stated that rating officials must prepare reports that were accurate and complete as possible.  Evaluations should cover failures as well as achievements.  Rating officials must make honest and fair evaluations.  On the one hand, this evaluation must give full credit to the rated officer for his or her achievements and potential.  On the other hand, rating officials were obligated to the Army to be discriminating in their evaluations so that selection boards and career managers could make intelligent decisions.

32.  Army Regulation 623-105, paragraph 4-8.1 stated that the SR would review the support form to be familiar with the rated officer's responsibilities and objectives.  The narrative in Part VIIb of the OER could be based in part on the rated officers final support form.  

33.  Army Regulation 623-105, paragraph 4-16 stated that Part VIIb of the OER provided for an evaluation of potential by the SR.  The SR's evaluation was made by comparing the rated officer's potential with all other officers of the same grade.
Comments would address the potential evaluation in most cases but could address performance.  

CONCLUSIONS:

1.  The Board concludes that the SR used sufficiently reasonable means to become familiar with the applicant's performance.  Personal contact is not        the only method a SR may use to familiarize himself with a rated officer's performance although it appears the SR did have contact with the applicant during meetings and through at least one briefing.  It appears the applicant's rater discussed the applicant's performance (another acceptable means) extensively with the SR.  It appears the applicant provided a detailed support form to the    SR (yet another acceptable means).  The Board concludes that the SR accomplished this requirement in an appropriate fashion. 

2.  The Board notes that the SR's 31 July 1996 memorandum appears to have been his initial OER guidance to his commanders and staff.  It does not state that it was a change in earlier guidance.  

3.  The Board concludes that there is no problem with the narrative evaluation in the contested OER for the period 14 May 1996 through 13 May 1997.  The regulation stated that the SR's narrative in Part VIIb of the OER could be based in part on the rated officer's final support form; he was not required to base it on the support form.  The narrative appears to the Board to depict the potential of an average officer, which is what the SR stated a 3-block rating would represent.

4.  However, the narrative is not congruent with the actual block rating, which depicts a below-center-of mass officer.  Therefore, the Board concludes that the block rating on the OER for the period 14 May 1996 through 13 May 1997 is inequitable.  To be fair, if the SR had wanted to rate the applicant as below-center-of mass his narrative rating should have matched his block rating.  Since the SR had stated that his 3-block would indicate the average officer, the Board concludes that Part VIIa constitutes an unfair bias against the applicant and that portion of this contested OER should be deleted.

5.  The Board concludes that there is a problem with both the SR's narrative evaluation and block rating on the OER for the period 14 May 1997 through      20 January 1998.  

6.  The SR should have realized before his July 1996 memorandum was 1 year old that his rating profile was out of line with the guidance he put out in that memorandum.  He had a responsibility to the officers he rated to amend his guidance or state that the guidance was out of date and he would not put out further guidance concerning his rating profile.  He failed to do so and therefore the applicant was misled concerning his SR ratings.

7.  The applicant was an Aviation officer working in a Military Police position in a Military Police unit.  The Board concludes that he made a valid point in his OER appeal that he could have at least tried to get out of that military police position if he knew a 3-block rating was actually a below-center-of-mass rating.  The Board concludes that deleting Part VIIa of this contested OER would be equitable.

8.  The Board also notes that the regulation states rating officials must prepare reports that are accurate and complete as possible.  Evaluations should cover failures as well as achievements.  On the one hand, this evaluation must give full credit to the rated officer for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that selection boards and career managers can make intelligent decisions.

9.  The Board concludes that the two-sentence SR narrative rating on the applicant's OER for the period 14 May 1997 through 20 January 1998 is not fair to either the applicant or the Army.  If the SR believed the applicant to be below-center-of-mass, he had a responsibility to cover in his narrative the failures that earned him a below-center-of-mass rating.  It is difficult to see how an Army selection board could make an intelligent decision based upon those two sentences.  The Board concludes that such a narrative rating lends credence to the applicant's contention that, in this OER at least, the SR did lack objectivity.  The Board therefore concludes that deleting Part VIIb of this contested OER would also be equitable.

10.  The Board notes that the applicant is requesting removal from his records of the two contested OERs in their entirety or moving them in their entirety to the restricted fiche.  The Board concludes that this relief should not be granted.  The applicant made no complaints about the rater's portion of these OERs during his appeal.  In his current application to the Board he makes no complaints about the rater's portion of the contested OERs, either.  

11.  In view of the foregoing, the applicant’s records should be corrected but only as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by:

     a.  deleting Part VIIa of the applicant's OER for the period 14 May 1996 through 13 May 1997; and

     b.  deleting Parts VIIa and VIIb of the applicant's OER for the period 14 May 1997 through 20 January 1998. 

2.  That so much of the application as pertains to the removal of the two contested OERs from the applicant's record or the moving of these two contested OERs to his restricted fiche be denied.

BOARD VOTE:  

__rvo___  __sk____  _gjw    ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O'Connor_
		        CHAIRPERSON

INDEX

CASE ID	AR2003086044	
SUFFIX		
RECON		
DATE BOARDED	20030522	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY	Mr. Schneider	
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.