PROCEEDINGS

	IN THE CASE OF:       

	BOARD DATE:            17 October 2000
	DOCKET NUMBER:   AR1999031688

	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	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Raymond V. O’Connor, Jr.		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Ms. Linda D. Simmons		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, in effect, that his Officer Evaluation Report (OER) for the period of 1 December 1990 to 30 November 1991 be corrected in part VIIa to reflect a top block rating and that all documents related to his appeal be removed from his Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that his senior rater (SR) inadvertently placed him in the second block on the contested OER and portrayed him as a below center of mass (COM) officer.  He further states that the SR has provided a statement to that effect and asserts that it was the result of an unusual sequence of ratings that left him with the erroneous belief that the second block was his COM, when in fact it was the top block.  The applicant goes on to state that it was not until many months later that he discovered that the report was viewed as adverse because it portrayed him as a below COM officer and although the SR accepted responsibility for his mistake, the Officer Special Review Board denied his appeal.  He goes on to state that such a portrayal as a below COM officer has adverse consequences on one’s promotions and career opportunities and that the individual soldier should not have to bear the consequences of an otherwise imperfect system. 

4.  The applicant’s military records show that he was commissioned as a United States Army Reserve (USAR) First Lieutenant in the Medical Service Corps on 6 June 1989.  He was ordered to active duty in the rank of Captain on 22 June 1989 and was promoted to the rank of Major on 1 October 1996.

5.  On 14 January 1992 he received an annual OER covering the period from 1 December 1990 to 30 November 1991 evaluating him as the Chief, Human Factors Branch at a School of Aviation Medicine in Alabama.  He received maximum ratings and many laudatory comments from his rater. 

6.  In Part VIIa, under Potential Evaluation, the applicant received a second (two) block rating from his SR.  This placed the applicant below COM on the SR’s profile (four officers were in the top block, one officer (the applicant) was in the second block, and one officer was in the third block).  The supporting comments by the SR indicate that the applicant performed in an exceptional manner and that he should be selected for promotion and schooling in order to take advantage of his demonstrated ability to perform in an outstanding manner at the next higher grade.  The report was not considered adverse and as such was not referred to the applicant.

7.  On 27 April 1995, the applicant submitted an appeal of the contested OER to the OSRB contending that the two-block check by the SR was inconsistent with the SR’s narrative comments, that it was the SR’s intent to portray him as a COM officer and he requested that that part VIIa be deleted. 

8.  In support of his request he submitted a statement from the SR in which the SR stated that he intended to portray the applicant as a COM officer and he believed that his ratings went askew due to multiple reports he rendered on a couple of exceptional officers and that a flaw in the system had created a terrible injustice to the applicant.  He further recommended that all boards consider the contested report as an anomaly and that the narrative be considered or take precedence over the block check.  He ended by stating that the board should consider his intentions as stated in the memo and not his actions as reflected in the OER.

9.  The OSRB reviewed the SR’s rating history and determined that he wrote multiple reports on only one captain and the narrative comments were significantly more laudatory than that of the contested report.  The OSRB opined that the comments on the contested report were more consistent with a two-block rating rather than a top-block rating and further opined that if the SR was not satisfied with how his profile was developing, he could have restarted his profile. 

10.  The applicant provided a statement from a surgeon (colonel) who frequently observed him and who contended that he deserved a top-block rating.  The OSRB noted that the surgeon had a credible rating profile but opined that he did not occupy a vantage point approximating that of the SR during the rating period.

11.  The applicant also provided a statement from the dean of the school of medicine (SR’s rater) in which the dean indicated that he believed that the SR’s profile was skewed, and that he had daily contact with the applicant and his performance was excellent.  He further opined that the text of the OER was accurate and that had he been the SR, he would have given the applicant a COM or slightly above COM rating, but definitely not a below COM rating. 

12.  The OSRB opined that the SR had established a propensity for blocking the top block when he rendered the contested report and contended that it was a conscious decision on the part of the SR when he did so.  The OSRB also opined that it did not agree with the SR’s assertion that the narrative contradicted a below COM rating.  The OSRB denied his appeal on 9 June 1995.

13.  In the processing of his application to this Board, the applicant’s appeal was forwarded to the OSRB for an advisory opinion.  As part of this request, the OSRB again reviewed his appeal of the contested OER.  In the process of the appeal the OSRB contacted the SR for additional information.  The SR indicated that he gave the applicant a letter of support because the applicant contacted him stating that he was in the process of applying for a military school or     follow-on assignment and he gave the letter to clarify the rating he rendered.  He further opined that the applicant was not a top-block officer, that the two-block assessment was accurate, fair and objective and that he had not lost control of his profile.  He also stated that the applicant was not of the same caliber of officer as some of the other sharp officers in the unit and that he would rate him in the lower half of COM officers. 

14.  The OSRB reviewed the narratives of the other officers rated by the SR and determined that the narratives for those officers was distinctly different from those of the applicant’s contested report.  The OSRB noted that the applicant’s OER was void of the usual superlatives indicating unlimited potential, early promotion or attendance at schooling.  The OSRB opined that the SR had met his obligation, that the SR did not support the applicant’s allegation that his statement was an admission of failure on his part to execute his designated responsibilities, and that the report accurately reflected the SR’s assessment of the applicant.  The OSRB again denied the appeal and provided the Board with an advisory opinion stating its position to deny the applicant’s request.  The advisory opinion was provided to the applicant for comment; however, to date, no response has been received by the Board. 

15.  A review of the applicant’s OER history shows that the applicant received a subsequent OER from the same rating officials as in the contested OER during the period of 1 December 1991 to 30 November 1992.  He again received maximum ratings from his rater and a second block rating from his SR.  However, this rating placed the applicant in the bottom half of a COM profile (six officers in the top block, six officers in the second block, and two officers in the third block).  The SR again provided laudatory comments which included recommendations for selection for post-doctoral studies, early promotion and positions of greater responsibility.

16.  With the exception of the contested report, the applicant has received COM ratings on all of his evaluations.

17.  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, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

18.  Paragraph 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

19.  Paragraph 9-7 of that regulation also 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 error or inaccuracy is warranted.

CONCLUSIONS:

1.  Notwithstanding the SR’s statement to the OSRB that he was not admitting to having failed to follow the regulatory guidance and that the report was fair and accurate, he, in fact, admitted that the applicant was a COM officer and in his statement, he clearly stated that the narrative comments should take precedence over the block check.   The Board notes that the SR admitted that there were officers who were sharp and much better than the applicant, yet his profile was skewed in such a manner that it could only reflect COM and below COM officers. There clearly was no way, with the SR’s profile, that a truly outstanding officer could be accurately portrayed.  Simply stated, given the explanations provided by the SR, the SR’s profile is not credible.

2.  While the Board agrees that the OSRB’s assessment that the narrative comments in the contested OER do not warrant a top block rating, the Board also finds that it does not warrant a below COM rating as well.  The subsequent OER rendered on the applicant by the same rating officials contain the superlatives noted by the OSRB and yet, the SR’s profile by that time placed the applicant in the bottom half of a COM.  The applicant was still in the second block and yet with the so-called superlatives present, he did not move from the second block to the top block as the OSRB suggested would be necessary to warrant a top block rating that was comparable to the other officers rated by the SR.  Therefore, it is apparent that the problem rested with the SR’s management of his profile.  

3.  The Board finds that the comments by the SR are not indicative of a below COM officer and is convinced that either the SR did not keep track of his profile or that he simply failed in his responsibilities as a SR to ensure that the rating he gave the applicant was the one he intended.  Consequently, the applicant was penalized for the shortcomings of the SR.
4.  Although the applicable regulations require that a report stand alone, a review of the applicant’s OER history clearly shows that the applicant has not shown a tendency of being below COM.  This, coupled with the SR’s profile and the fact that the SR admitted in writing that the narrative comments should take precedence over the block check is further support to the applicant’s argument that his rating was unjust.

5.  However, it is clear that the SR meant to distinguish between the ratings he rendered on other officers (top block) and the rating he gave the applicant.  Therefore, it would be unfair to the other officers rated if the applicant were placed in the top block.  Therefore, the Board finds that the appropriate measure to take in this case is simply to remove the SR’s profile from the contested OER and allow the narrative comments to support the block check without the interpretation of the SR’s profile.

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

RECOMMENDATION:

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

	a.   by deleting the SR profile in part VIIa on the OER ending 30 November 1991 of the individual concerned; and

	b.  by removing from his records the PERSCOM memorandum indicating the denial of his appeal of the contested OER.

2.  That so much of the application as is in excess of the foregoing be denied.

3. That in accordance with paragraph 21e, Army Regulation 15-185, following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

BOARD VOTE:  

__lds____  __rvo ___  ___be___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		__Raymond V. O’Connor, Jr.__
		        CHAIRPERSON

INDEX

CASE ID	AR1999031688	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2000/10/17	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  199	111.0100/REM SR PROFILE	
2.		
3.		
4.		
5.		
6.