MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           3 April 2001
	DOCKET NUMBER:   AR1999031644

	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. Robert J. McGowan		Analyst	

  The following members, a quorum, were present:

	Mr. Walter T. Morrison 		Chairperson	
	Mr. Thomas Baxter 		Member	
	Mr. John T. Meixell 		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 two DA Forms 67-8 (Officer Evaluation Report, or OER) be corrected by either expunging the Senior Rater Potential Evaluation (Part VIIa) or by elevating the rating from the third block to the second block.  The first report (OER #1) was for the period 870613-880612, and the second report (OER #2) was for the period 880613-890221.  He also requests that his records be sent before a Special Selection Board for promotion to lieutenant colonel and that, if selected, he be given the appropriate date of rank, with appropriate credit for time in grade, and all back pay and allowances.

APPLICANT STATES:  That the "3" block ratings which he received on the subject OERs (both company command reports) were below average and not factually supportable; that the senior rater misrepresented his rating standard by stating that the "3" block would be his center of mass, or "average" rating, when in fact it was below center of mass.  He adds that his rater recommended that the senior rater place him in the "2" block on OER #2 and that following the period of the second report, he was selected to become the battalion operations officer (S3), a prestigious position which would not have been offered to a below center of mass officer.

In support of his application, the applicant submits a 6-page supplemental statement prepared by his counsel; copies of the subject OERs; a copy of a 3 August 1998 selective continuation on active duty memorandum from the Total Army Personnel Command; a copy of a 16 July 1987 memorandum from his senior rater explaining his rating philosophy and procedure; a copy of a 3-page performance counseling memorandum used by the senior rater; a copy of the senior rater's DA Form 67-8-2, Senior Rater Profile Report, dated 28 January 1987, which shows 9 ratings of captains distributed as follows - "1" block (2), "2" block (5), "3" block (2), "4" block (2); a copy of a statement purported to be from his rater to the senior rater offering proposed comments and a recommendation that the applicant be placed in the "2" block; a copy of the applicant's Officer Record Brief (ORB) showing that he served as the battalion S3 from 890223 to 891213; a copy of a 22 February 1999 letter of support from his former rater; a copy of an undated memorandum from an officer who "served with [applicant]" and can attest that only the best officers were selected to fill the S3 position; and a copy of a 22 February 1999 memorandum from an officer who was the applicant's battalion S3 at the time of the contested OERs.

COUNSEL CONTENDS:  As stated above.

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

He is a major serving on active duty.  During the period of the contested OERs, he was a captain assigned to Fort McClellan, Alabama, serving as a company commander.  As such, his battalion commander, a lieutenant colonel, rated him and he was senior rated by his brigade commander, a colonel.
The applicant received OER #1 as an annual report.  The rater gave the applicant top marks in Part IVa, Professional Competence, and commented that he was "a talented writer" and "as sharp as they come" in describing his communications skills and military bearing.  In Part IVb, Professional Ethics, the rater commented that the applicant was "Devoted to his soldiers, his unit, and the Army."  In Part Vb, Performance, the rater indicated that the applicant always exceeded requirements, and in Part Vd, Potential for Promotion, she checked the block marked “Promote Ahead of Contemporaries.”  In Part Vc, Comments, she stated, "[Applicant] is doing a super job.  He has his unit moving in all the right ways.  I expect him to realize even greater success in the months ahead.  He is a hard charger, always striving, always caring, always pursuing standards of excellence."  In Part Ve, Comment on Potential, the rater stated that he should be assigned to a corps military police battalion or a division provost marshal office and recommended that he be promoted and selected for Command and General Staff College attendance as soon as possible.

The senior rater placed the applicant in Block "3" of Part VIIa, Senior Rater Potential Evaluation.  The senior rater's profile for Part VIIa showed 46 officers rated, with 10 officers in block "1," 13 officers in block "2," 16 officers (including the applicant) in block "3," 4 officers in block "4," and 3 officers in block "5."  This placed the applicant in the bottom 50 percent of the rated officers, somewhere in the 15th to 49th percentile.  In Part VIIb, Comments, the senior rater called the applicant "an excellent company commander . . . a superb role model . . . and a good trainer."  He recommended that he be promoted and given continued educational opportunities.

The applicant received OER #2 upon relinquishing command.  The rater gave the him top marks in Part IVa, Professional Competence, and commented that he was "mentally and physically fit" and "Lives by his company's motto 'Soldiers First'" in describing his professional ethics.  In Part Vb, Performance, the rater indicated that the applicant always exceeded requirements, and in Part Vd, Potential for Promotion, she checked the block marked “Promote Ahead of Contemporaries.”  In Part Vc, Comments, she stated, "[Applicant] has become an outstanding commander [with] seven brigade streamers for training excellence in the past nine months."  She concluded that "[Applicant] is a classy guy and his company is a class act tough to match."  In Part Ve, Comment on Potential, the rater stated that she had selected him to be her battalion S3 and that he had great potential.  She again said to promote him and send him to the Command and General Staff College as soon as possible.

The senior rater again placed the applicant in Block "3" of Part VIIa, Senior Rater Potential Evaluation.  The senior rater's profile for Part VIIa now showed 72 officers rated, with 15 officers in block "1," 22 officers in block "2," 27 officers (including the applicant) in block "3," 5 officers in block "4," and 3 officers in block "5."  This again placed the applicant in the bottom 50 percent of the rated officers, somewhere in the 11th to 48th percentile.  In Part VIIb, Comments, the senior rater called the applicant " a hard charger [and] exceptional company commander . . . frequently recognized for superior accomplishments . . . we've selected him to be a battalion S3 because he is good."  He recommended that he be promoted and schooled accordingly.

The applicant completed his assignment as a battalion S3 with strong OERs and departed Fort McClellan.  He was promoted to major on 1 July 1993.  In 1997, he was considered for promotion to lieutenant colonel in the primary zone by the FY1997 Army Competitive Category Promotion Selection Board, but he was not selected.  He was not selected for a second time by the FY1998 board, but was selected for continuation on active duty.

In the processing of this case, an advisory opinion was obtained from the Officer Special Review Board (OSRB), Office of the Deputy Chief of Staff for Personnel, Headquarters, Department of the Army.  Although the applicant's appeal of the subject OERs was outside the mandated time limit, the OSRB waived the time limit and adjudicated the appeal.  The OSRB determined that the applicant's request should be denied.  This document was provided to the applicant for his response and/or rebuttal, but none was received.

In considering the applicant's request, the OSRB coordinated with the US Total Army Personnel Command (PERSCOM) Management Support Division (OER Policy).  Both the OSRB and PERSCOM agreed that the contested OERs represent a center of mass rating from the senior rater.  The OSRB then examined the applicant's supporting documentation.  In the rater's letter of support for the applicant, she stated that she was shocked to learn that he had been rated below center of mass by the senior rater.  She added that it was her intent to convey to the senior rater that the applicant was an above center of mass company commander.  The rater was contacted by the OSRB on 24 November 1999.  In conversation with the OSRB, she stated that the applicant was a center of mass officer.  She concluded by telling the OSRB that the senior rating was unjust and that the senior rater was, in her opinion, a sexist and a racist [the applicant is Black].

The OSRB contacted the senior rater.  The senior rater confirmed that it was his intent that the "3" block be his center of mass at the time he was a brigade commander.  He stated that the applicant's selection as a battalion S3 was simply a matter of his being qualified and available when there was an opening, and that the battalion commander recommended him.  He concluded that it was not his intention to hurt the applicant with his rating of him, but that the rating was accurate and fair.

The OSRB undertook a review of the OERs rendered by the senior rater on other captains during the same time frame of the applicant's contested OERs.  There is a consistent difference between the superlatives used by the senior rater for those officers placed in blocks "1" and "2" and the narratives used in the applicant's reports.  The OSRB found that the "narrative word picture used for the [applicant] does not portray him as being superior or equal to his contemporaries in terms of either performance or potential."  The senior rater adhered to his rating philosophy in that "He recommends those he placed in the "top" block for below-the-zone promotion, battalion command or future leadership positions, unlimited potential, and recommends them for early attendance to CGSC [Command and General Staff College].  The "2" block performers are also recommended for early promotions, unlimited potential, and attendance to CGSC.  For the [applicant], the senior rater states 'excellent potential' and 'promote and school accordingly.'"

Army Regulation 623-105, then in effect, established the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provided 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.

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.  The applicant has not shown that the contested reports contain either substantive inaccuracies or administrative deficiencies, or that they were not prepared in compliance with applicable regulations and policy.  The reports appear to represent a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the periods in question.

2.  The Board agrees with the OSRB/PERSCOM opinion that the applicant's "3" block ratings for potential by the senior rater are center of mass rating only if one considers blocks "2" and "3" to represent a split center of mass.   Even so, the applicant's ratings place him in the lower half of the center of mass below the 50th percentile of the senior rater's profile.

3.  The Board concurs with the OSRB that the senior rater's narrative comments for the applicant are not indicative of a "1" or "2" block rating.  The senior rater did not use the same superlatives in describing the applicant's performance and potential as he did for those officers whom he rated above the applicant.  It appears that the senior rater's narrative comments are in consonance with his "3" block rating of the applicant.

4.  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 this requirement.  Because the applicant has failed to demonstrate that the contested OERs are in error and in need of correction, there is no need to refer his record to a Special Selection Board for promotion reconsideration.

5.  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

__wtm___  _tb_____  __jtm ____  DENY APPLICATION

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

INDEX

CASE ID	AR1999031644	
SUFFIX		
RECON		
DATE BOARDED	20010403	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	DIRECTOR	
ISSUES         1.	111.0100.0004	
2.	111.0100.0005	
3.		
4.		
5.		
6.