MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            19 April 2000
	DOCKET NUMBER:   AR1999032110

	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. Hubert S. Shaw, Jr.		Analyst	

  The following members, a quorum, were present:

	Mr. James P. Huber		Chairperson	
	Mr. Elzey J. Arledge, Jr.		Member	
	Mr. Van B. Cunningham		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:  Correction of his Officer Evaluation Report (OER) covering his period of service from 1 December 1992 through 30 May 1993 by changing the rater “X” in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade) from “promote with contemporaries” to “promote ahead of contemporaries”.

APPLICANT STATES:  That the rater for this OER “erroneously placed his “X” in the “promote with contemporaries block” intending it to be a positive rating.  The applicant also points out that the rater has made a statement to the effect that his “X” in the “promote with contemporaries” block is in error due to his [the rater’s] lack of knowledge of the “system” and “incorrect advice given to him by others.”  The applicant also contends that it was the rater’s intention not to adversely affect the applicant’s future promotions or career.  

The applicant also contends: “An “X” in anything other than the Promote Ahead of Contemporaries is clearly known throughout the Army as an adverse rating.”  The applicant states the rater said that the applicant always exceeded performance requirements and that he was largely responsible for the design of the Aeromedical Psychology Training Course in Army aviation while serving as the director.  The applicant contends that such comments reflect that the Promote with Contemporaries rating he received is adverse, was inappropriate and results from fundamental misunderstanding of the Army rating system by the rater who is a physician.  He also states that the rater’s acknowledgement of the unjust rating action is supported by several senior officers’ statements regarding the applicant’s performance and potential.

In support of his application, the applicant submitted a one page addendum to his application, a copy of the OER in question, a 30 May 1998 memorandum to the U.S. Total Army Personnel Command (PERSCOM) appealing the OER in question, a 28 December 1994 memorandum from the rater in question to PERSCOM, a 20 December 1994 memorandum of support to PERSCOM from a fellow officer, a 21 February 1995 memorandum of support from the Dean of the U.S. Army School of Aviation Medicine to PERSCOM, and a 12 April 1995 memorandum of support from the Surgeon of the U.S. Army Reserve Command to PERSCOM.

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

That the applicant was appointed a Reserve commissioned officer and entered active duty on 21 June 1989 as a Psychology Intern in the Medical Service Corps.

At the time in question, the applicant was serving as the Chief of the Human Factors Branch of the U.S. Army School of Aviation Medicine in the grade of captain.  The OER in question was the applicant’s fourth OER (not including academic OER”s) since entering active duty and covered the period 1 December 1992 through 30 May 1993.  He received ratings of “1” in all 14 elements of professional competence and positive comments under professional ethics and competence from his rater, a Medical Corps officer in the grade of major.  In Part V (Performance and Potential Evaluation), the rater placed his “X” in the first block (Always Exceeded Requirements).  In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant had established himself as a subject matter expert on human factors at the school; conducted research in the fields of stress, crewmember selection, aviation safety; and was the director of the newly developed Aeromedical Psychology Training which was supported by a tri-service faculty.  The rater also noted the applicant’s instructor support in aeromedical medicine, volunteer teaching and counseling at the Aviation Center, and his status as an adjunct faculty member of Troy State University.  In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed him in the second block (Promote with Contemporaries) and stated:  [The applicant] should be selected for the AMEDD Officer Advanced Course and then utilized as a division psychologist in order to gain more operational aviation experience.”

In Part VIIa (Potential Evaluation), the SR placed his “X” in the second block and commented the applicant “is exceptionally outstanding”, is “extremely intelligent”, is totally dedicated, is a “self starter”, “instills in others a complete sense of confidence and professionalism”, is “highly motivated” and possess “unlimited leadership potential”.  The SR concluded by recommending the applicant for a “Health Psychology Fellowship and positions of greater responsibility.  The SR profile for this report showed one officer in the top block and the applicant as one of two in the second block (1/2*/0/0/0/0/0/0/0).  (The asterisk indicates the applicant’s position.)  The OER was not a referred report because the applicant was rated center of mass (COM) and there were no adverse comments or ratings as defined in the Army regulation governing the processing of OER’s at the time.

The OER in question was received by Headquarters, Department of the Army officials and processed on 15 June 1993.  The OER in question was placed in the applicant’s Official Military Personnel File (OMPF) on 19 July 1993.

The applicant’s evaluation history as a captain shows five other OER’s.  In these OER’s, the applicant received ratings of “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence from four different raters, all majors.  All four raters also placed him in the top block (Always Exceeded Requirements) under Part Vc (Comments on Specific Aspects of the Performance) and in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade).  The four different SR’s evaluated the applicant on these five OER’s.  The applicant was senior rated for each report in sequence as follows:  : OER#1 did not contain a senior rating, but the SR recommended “retention as an RA officer and promotion at the earliest opportunity”; OER#2 (4/1*/1/0/0/0/0/0) with SR comments recommending selection for “promotion and additional military schooling”; OER#3 (6/6*/2/0/0/0/0/0/0) with comments (by the same SR as for OER#3) recommending selection “for post-doctoral studies, early promotion, and positions of greater responsibility.”; OER#4 (1/1*/0/0/0/0/0/0/0) with SR comments recommending selection “now for Major followed by CAS3, and early selection to resident Command and General Staff College”; and OER#5 (0/1*/0/0/0/0/0/0/0) with SR comments recommending selection to resident CGSC, fellowship training director in a MEDCEN, and a MACOM staff positions that take advantage of his unique expertise.”  

The applicant received one OER as a promotable captain and three OER’s as a major.  Of these four OER’s, the first three are on the DA Form 67-8 and the last one is on the DA Form 67-9 which came into use in October 1997.

The applicant was rated (as promotable captain) in a Health Psychology Fellow position by a major.  This OER covered the period of 12 months.  The applicant was rated “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence  The rater placed him in the top blocks for performance and potential with strong comments in both narratives.  The SR for this OER was a colonel who did not render a senior rating on this OER, but did comment that the applicant should be selected for a Department of Army staff position.

The applicant was promoted to major effective 1 October 1996 and subsequently received three OER’s rendered by the same rater and SR for performance in the same duty position for all three reports.

The applicant was rated as a major performing duty as the Chief of Behavioral Medicine and Organizational Health Psychology.  This OER covered the period of 12 months and the rater was a colonel.  The applicant was rated “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence.  The rater placed him in the top blocks for performance and potential with strong comments in both narratives.  The SR for this OER was a colonel who placed the applicant in the top block of SR profile (12*/2/0/0/0/0/0/0/0) with the comments “Promote ahead of contemporaries” and select for resident CGSC.

The next OER covered a 3 month period in the same duty position as the preceding OER with the same rater and SR.  The applicant was rated “1” in all 14 elements of professional competence and received positive comments under professional ethics and competence.  The rater placed him in the top blocks for performance and potential with strong comments in both narratives.  The SR for this OER placed the applicant in the top block of SR profile (18*/2/0/0/0/0/0/0/0) with the comments “Promote ahead of contemporaries” and select for resident CGSC.

The applicant’s next OER was prepared on the DA Form 67-9.  This OER covered 12 months of the applicant’s performance in the same duty position as the two preceding OER’s.  In Part IV (Performance Evaluation-Professionalism), the rater placed his “X” under “YES” in each of the Army Values.  The rater also placed his “X” in the required blocks under Attributes, under Skills (Competence) and under Actions (Leadership).  In Part V (Performance and Potential Evaluation), the rater placed the applicant in the top block (Outstanding Performance, Must Promote) with very positive comments on the specific aspects of the applicant’s performance.  In Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade), the SR placed his “X” in the top block (Best Qualified).  This rating placed the applicant “Center of Mass” based on a total of eleven officers rated.  The SR also made strong comments to include “unlimited potential”, “Select for CGSC”, and “Promote now.”

On 30 May 1998 the applicant submitted an appeal of the OER covering the period 1 December 1992 through 30 May 1993.  His stated ground for appeal was substantive error.  The applicant contended that the rater for the OER in question made an error by placing his “X” in the block “Promote with Contemporaries” and that the rater admitted his mistake in a letter which was submitted in support of the appeal.  The applicant argued in his appeal that the rater interpreted “Promote with Contemporaries” to be equal to “center of mass or above center of mass” and that this interpretation is “reflective of the training and guidance provided to [his] rater.”  The applicant also pointed out that inflation has caused this type of rating to be destructive to a soldier’s career and the intention of his rater was “not to adversely affect [the applicant’s] future promotions or career.”  The applicant further points out that his rater indicated the applicant always exceeded performance requirements” and specifically acknowledged him as the subject matter expert and largely responsible for the design of the Aeromedical Psychology Training Course in Army aviation.

In concluding his appeal, the applicant notes the statements by senior officers who support redress of the “unjust” action by the rater.  The applicant then requests that the rater “X” be moved to the “Promote Ahead of Contemporaries” block or that the entire Part Vd (Potential for Promotion) block be removed.

The rater of the OER in question prepared a 28 December 1994 memorandum in which he states that he understood that “promote with contemporaries” was a positive rating which applied to the majority of the officers who are not in the top 5-10%, but far exceed requirements and are assets identified for retention and promotion.”  The rater further states that he was informed that a vast majority of officers are rated in the “promote ahead of contemporaries” block; therefore, he contends that he has done a disservice to the applicant.  The rater requests that the OER in question be amended by changing the rater “X” to “promote ahead of peers” [sic] contemporaries.

There is no evidence that PERSCOM ever considered the applicant’s appeal of this OER.  The applicant stated on the addendum to his application that an official at PERSCOM advised him to withdraw his appeal and submit his case for consideration by the Army Board for Correction of Military Records instead.

Army Regulation 623-105 established the policies and procedures for the OER system in effect at the time in question.  It provided the opportunity to request a Commander's Inquiry or to appeal disputed reports.  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 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.

Army Regulation 623-105 provided, in pertinent part, that any OER with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred for acknowledgment and comment prior to forwarding to Department of the Army.

Army Regulation 623-105, cautioned, in pertinent part, that “statements of rating officials often reflect retrospective thinking, second thoughts, prompted by an appellant’s nonselection or other unfavorable personnel action claimed to be the sole result of the contested report.  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.” 

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 in question was prepared by the proper rater and SR and covered the correct rating period as evidenced by the applicant’s signature in Part II (Authentication).  Further, the OER in question was forwarded to Department of the Army, accepted by Department of the Army officials, and made a part of the applicant’s OMPF effective 19 July 1993.
2.  On 30 May 1998, almost five years after the OER in question was placed in the applicant’s OMPF, the applicant appealed the OER in question based on substantive error.  However, he later withdrew that appeal and applied to this Board instead.

3.  The Board noted the applicant’s assertion:  “An “X” in anything other than the Promote Ahead of Contemporaries is clearly known throughout the Army as an adverse rating”.  However, the applicant has failed to provide evidence to support this contention.  It is also noted that if the SR believed that this particular action by the rater was adverse, then the SR could have referred the OER to the applicant for comment or rebuttal prior to forwarding the OER to Department of the Army.  The SR did not refer the report; therefore, in his view, the rating in question and the OER in question were not adverse.  Finally, the applicant also had the option of appealing the OER in question which he did not exercise until almost 5 years after the fact and, once submitted, he withdrew it.

4.  Although it is not known whether or not an adverse personnel action prompted the rater to determine his rating of “promote with contemporaries” was “incorrect”, it is clear that “retrospective thinking” by the rater occurred.  The rater stated that he intended to rate the applicant as an officer who was “not in the top 5-10%”, but as one who “far exceed requirements” and was an “asset identified for retention and promotion.”  It appears that the rater did exactly what he intended when he rated the applicant “promote with contemporaries”.  Finally, regulation, in effect at the time, also stated that 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 OER.

5.  The Board noted the memorandums of support from three Army colonels which essentially state their professional opinions of the applicant’s professionalism and manner of performance.  While these memoranda are laudatory of the applicant’s performance, they fail to identify a material error or inaccuracy which warrants granting the relief requested by the applicant.  

6.  Evaluation of the applicant’s OER history indicates that the rating in question is not inequitable or unjust and did not adversely effect the applicant’s career.  The Board notes that the applicant has been a Health Psychology Fellow, was promoted to major, and has served in positions of responsibility.  The applicant’s senior raters have placed him generally in the center of mass of their profiles.  Therefore, a rating of “promote with contemporaries” is not sufficiently divergent from the applicant’s overall rating history to warrant the corrective action requested by the applicant.

7.  Based on the foregoing, there is no evidence which clearly and convincingly overcomes the presumptions that the OER and the rating in question were prepared by the properly designated rating officials and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  As a result, there is no apparent material error or inaccuracy which warrants corrective action.  Therefore, the applicant is not entitled to removal of the rater “X” in the “promote with contemporaries” block or other amendment of his OER which covers his period of service from 1 December 1992 through 30 May 1993  

8.  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 the aforementioned requirement.

9.  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

________  ________  ________  DENY APPLICATION

						Karl F. Schneider
						Director, Army Review Boards Agency

INDEX

CASE ID	AR1999032110	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20000419	
TYPE OF DISCHARGE	NA ACTIVE DUTY CASE	
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY	MR SCHNEIDER	
ISSUES         1.	111.0200.0006	
2.		
3.		
4.		
5.		
6.