PROCEEDINGS

	IN THE CASE OF: 

	BOARD DATE:            21 AUGUST 2001
	DOCKET NUMBER:   AR1999033380

	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. Kenneth H. Aucock		Analyst	

  The following members, a quorum, were present:

	Mr. James E. Vick		Chairperson	
	Ms. Barbara J. Ellis		Member	
	Mr. William D. Barr		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 his officer evaluation report (OER) for the period 19 June 1990 through 18 June 1991 be expunged from his official military personnel file (OMPF) and that his promotion to lieutenant colonel (LTC) be adjusted to reflect a date of rank commensurate with his year group of 1981, with the restoration of all rights, privileges, and property.

3.  The applicant states that the contested OER does not reflect his actual performance as company commander of Company A, 15th Support Battalion (Forward).  His rater misrepresented his performance and the performance of other minority officers to his senior rater.  To support his request, the applicant attaches a copy of his OER appeal with supporting documents.

4.  The applicant’s military records show that he was commissioned a second lieutenant in the Army Reserve out of ROTC (Reserve Officers Training Corps) on 13 May 1981.  He was appointed a Regular Army officer in the grade of major in the Quartermaster Corps on 10 September 1993.  He is a graduate of the Command and General Staff College and was promoted to lieutenant colonel on 30 July 1998 despite being a one time passover for promotion to that grade.  He has received numerous awards, to include the Defense Meritorious Service Medal, two awards of the Meritorious Service Medal, and three awards of the Army Commendation Medal. The applicant has served in Germany, Korea (two tours of duty), Hawaii, and Saudi Arabia.  He is currently on active duty with an Army staff agency at the Pentagon.
 
5.  A review of the applicant’s 19 OERs in his OMPF shows that throughout his career the applicant’s rating officials considered his performance of duty to be most laudable, and his potential to be virtually unlimited.  On all of his evaluation reports, from when he was a second lieutenant to the present time, his raters have stated that he always exceeded requirements and that he should be promoted ahead of his contemporaries.  Except for the contested OER, his senior raters have placed the applicant either in the center of mass (CM) or above the center of mass (ACM) in the potential evaluation portion of the OER.  

•	On the OER ending in September 1984, when the applicant was a first lieutenant, the applicant’s rater stated that he had the potential to achieve the highest ranks in the Army.
•	On the applicant’s first report after being promoted to captain, the applicant’s senior rater stated that he should attend the Quartermaster Advanced Course and then be given a command.  A report ending in June 1988 shows that the applicant’s rater stated that the applicant should be promoted now and selected for Command and General Staff College (CGSC).  In the following report, the applicant’s senior rater stated that the applicant was the best company grade officer he knew, and a must for below the zone promotion to major.  In the report completed prior to the contested OER, the applicant’s senior rater stated that the applicant would be one of the Army’s future leaders, that he should be promoted now and sent to CGSC. 
•	The two reports after the contested OER, while the applicant was a captain, elicited the comments that the applicant had unlimited potential; that he ranked in the top 10 percent of all captains he [the senior rater] has witnessed.
•	In the applicant’s first report after having been promoted to major, his rater stated that the applicant should be selected immediately for CGSC, selected for promotion to lieutenant colonel at his first consideration, and selected for a challenging battalion command.  Reports subsequent to that report elicited comments such as, “promote now, select for battalion command,” and “one of the best and brightest, sure bet for selection for battalion command, promote now,” and “immediately select for LTC,” and “promote, select for battalion level command.”
•	The senior rater, a brigadier general who at that time was the Assistant Chief of Staff G4/J4 of U.S. Forces in Korea, stated in the applicant’s report ending in September 1997 that the applicant “was the most talented and capable major that has worked for me.  Best leader I have known period.  Promote immediately.  Select for battalion command.  I guarantee his success.”
•	In the first report that the applicant received as a LTC, the applicant’s senior rater stated that the applicant should be sent to senior service college.  The applicant should be promoted immediately to colonel.    

6.  The contested OER shows that the applicant, then a captain, was the commander of A Company, 15th Support Battalion (Forward); and that the applicant’s rater, the battalion commander, gave him all 1’s, in the 14 items in Part IV of that report concerning professional competence, and remarked that the applicant was “Unflappable.  Extremely stable in pressure filled, fluid environments.  Willingly accepts responsibility for his actions and those of his subordinates.  Unquestionable integrity.”  He stated that the applicant always exceeded requirements and should be promoted ahead of his contemporaries.   
Remarks on the applicant’s performance included, “has done an outstanding job commanding his company throughout our preparation for and deployment to Saudi Arabia … has expertly demonstrated that he can lead, motivate and train soldiers to standard under the most difficult operational conditions … has greatly improved the basic discipline, technical competence and morale of his unit … I have great confidence in his considerable ability … Nothing more could be asked of this outstanding leader in terms of dedication, loyalty, and mission accomplishment.”  The applicant’s rater stated that the applicant should be selected for resident CGSC and early promotion to major.

7.  The applicant’s senior rater placed the applicant in the second from the top block in the potential evaluation portion of that report, below center of mass, e.g. 30 officers rated in the top block, 21 (including the applicant) in the second from the top block, 10 in the third from the top, one each in the fourth and the seventh from the top.  In his comments, the applicant’s senior rater stated that “[the applicant] performed outstandingly throughout Operation Desert Shield and Desert Storm.  He ensured his company was expertly trained … has demonstrated the potential for promotion and increased responsibility in field logistics support.”  

8.  On 11 November 1997 the applicant appealed the contested OER.  He stated that the report was a below the center of mass rating and should have been referred, but was not.  He stated that his rater specifically told him that the rating was center of mass.  He stated that the senior rater’s evaluation was inconsistent with the narrative portion of the report and with his performance.  The senior rater had almost no direct contact with him and relied exclusively on the rater’s advice in making the evaluation.  The rater was relieved from command based in part on statements made by him [the applicant].  He stated that while other officers in the same rating chain faced difficulties with promotion, he was promoted soon after receiving the OER; consequently, he had no reason to believe that the OER was in any way damaging to his career.  Only after non selection to LTC was it determined that the rating was below center of mass and the cause of his non selection.  The applicant submitted statements in support of his appeal.

•	In his own statement, the applicant stated that his rater’s personal animosity for him, rather than his actual performance, formed the basis of his recommendation to the senior rater and that the senior rater relied heavily on the recommendation as he was new in the position and had very little personal interaction with him.  The applicant described his relationship with his rater, stated that he attempted to curb his rater’s abusive treatment of subordinates, and talked about the rater’s humiliation of his company commanders and other subordinates.  He stated that his rater’s abuses of power led him to confront his rater about the command climate; and that during an IG investigation into his abuses as well as fraternization with female lieutenants in the battalion, he [the applicant] and several commanders were questioned.  He stated that the investigation led to no action and the battalion commander began to retaliate.  Only after he left the battalion did a second investigation result in the battalion commander being relieved.  The applicant stated that his record of performance clearly deserved a rating better than below center of mass, as evidenced by the statements of those who support his appeal. 
•	In a 1 November 1997 statement the then commanding general of Eighth Army in Korea, a lieutenant general, stated that he was a commander of a brigade which received logistical support from the 15th Support Battalion during Operation Desert Shield/Desert Storm, and could attest to the outstanding supply support he received from the applicant’s company during operations in the desert.  He stated that he believed that the contested OER was of at least questionable veracity.  
•	The applicant’s senior rater, now retired, provided a statement in support of the applicant’s appeal, stating that due to the geographical dispersion of his command, he was not able to observe the applicant’s performance as he would have preferred.  He stated that he regretted the 2 block rating that he gave the applicant.  He based his evaluation relying heavily on the recommendation of the applicant’s rater.  He stated that he now felt in retrospect, that the recommendation of the applicant’s rater was based on personal feelings and did not accurately reflect the applicant’s performance of duty.  He stated that he takes full responsibility for his action, but did not feel that a good officer who had performed magnificently should suffer due to his error in judgment in relying exclusively on the recommendation of the applicant’s rater.  He stated that the applicant’s rater was eventually relieved, and in view of that fact and after careful review of the applicant’s report, he did not feel that the applicant was fairly rated, and that had he the opportunity to redo his rating, he would place the applicant “above center of mass.” 
•	In a 16 October 1997 supporting statement, a retired major who was the chief of G4 Plans and the executive officer of the 15th Forward Support Battalion, stated that he had daily contact with the applicant.  He stated that the climate in which the applicant commanded was one of constant stress and threats by the battalion commander, and their leadership style often clashed, and that while the applicant was loyal to his commander, he also took his responsibilities for taking care of his soldiers to heart.  He stated that he observed that the applicant was the standard bearer for professionalism in his dealing with superiors, peers, and subordinates.  He stated that the applicant’s performance was first rate in every way and his efficiency rating should be a true reflection of his sterling performance. 
•	The applicant received supporting statements from three majors who were also company commanders in adjacent companies of the 15th Battalion during the period of the applicant’s contested OER.  All of these officers attest to the abusive and hostile command climate in the battalion as propagated by the battalion commander.  All attest to the technical and tactical skill, knowledge, professionalism, and leadership abilities of the applicant despite the environment.  The former B Company commander stated that the senior rater was not given a complete or accurate picture of the applicant’s outstanding performance by his rater; and that his rater took every opportunity to belittle the applicant in a vicious manner in public and private.  He stated that after the rater was cleared by an IG investigation, he retaliated against those who testified.  The former commander of C Company stated likewise, attesting to the hostile environment in the battalion, and commenting on the outstanding performance of the applicant as a company commander in spite of that command climate.  He stated that he too was forced to submit an appeal of his OER, which was unjust and inaccurate.  He stated that the battalion commander did not provide sufficient accurate performance information on his company commanders to their senior rater.  He stated that the senior rater was thus unable to render an accurate evaluation of the commanders in the battalion.  He went on to say that the senior rater’s exposure to his company commanders was extremely limited, relying heavily on the rater’s recommendation.  He said that the applicant was a mentor to himself as well as other officers in the battalion and on Fort Hood, and that his abilities to set up rapid refuel points during the war proved crucial to the success of the     2nd Brigade’s mission.  The former commander of D Company stated that the applicant ‘s company consistently outperformed the other three quartermaster companies in the Division Support Command (DISCOM).  She stated that the applicant was a victim of a chain of command that was focused on things other than performance and potential when rating him.  They based their success upon race, personality, likes, and dislikes.  She stated that on numerous occasions the applicant provided assistance to her company during the Gulf War, sharing and motivating and willing to go above and beyond.  She said that the applicant was far more than a great commander and an outstanding leader, but also an excellent mentor and confidant to her and other officers.  She stated that it was well known that the battalion commander had an unconscionable approach to everyone and that he had favorites.  She stated that his poor judgment and selfishness had hindered many officers that served under him.
•	The applicant’s former first sergeant stated that the applicant took over a company plagued with disciplinary problems, low morale, and a history of not providing support to its customers, to being recognized as the best company in the battalion.  He stated that the company provided exceptionally outstanding logistical support to the 2nd Brigade during the Gulf War.  He stated that the applicant’s performance set him apart from other commanders. He said that on many occasions the battalion commander would publicly verbally abuse the applicant and other commanders that did not think like him, and that the battalion commander used an audience to show he was in charge.  He stated that despite the harsh treatment the applicant remained loyal and motivated.  He stated that had the senior rater known of the applicant’s performance, he would not have placed him below center of mass.  
9.  The Officer Special Review Board (OSRB) received the applicant’s appeal on 25 November 1997.  The OSRB case summary indicates that the OSRB reviewed and considered all the documents the applicant submitted in his appeal. The OSRB noted that the OER was not referred but should have been because the report was a “below center of mass” evaluation.  The OSRB discounted the OER rendered on the applicant prior to the contested OER, stating that OER was rendered by a different set of rating officials, and Army Regulation 623-105, paragraph 4-17 states that each report will be an independent evaluation of the rated officer for a specific rating period and it will not refer to prior or subsequent reports.  

10.  The case summary indicates that on 6 January 1998 the OSRB contacted the senior rater, who stated that he used his personal observation (although he stated that he did not get to see the applicant as much as he felt he should have due to the dispersion of units during Desert Shield/Storm), input from the rater, information provided by the rated officer on his support form and the rater’s narrative on the OER.  He stated that he did not request nor was he provided senior rater narrative comments or a recommendation from a rater; and that he always wrote his own senior rater narrative and he made the block check.  He stated that the applicant’s rater was his best battalion commander, and he had total confidence in that officer’s recommendations.  He stated that at the time he rendered his evaluation, he was unaware of any problems in the rater’s command, and that some time after the contested report a situation developed for which the commander was relieved.  The OSRB noted that the rater was rendering OER 90-120 days after the contested report period.  The senior rater stated that the assessment he wrote on the applicant was consistent with his     “2” block rating.  He stated that he had not discussed that rating with the applicant’s rater.  The senior rater stated that he might have had a center of mass in the “2” block but he could not recall.  He stated that his assessment was weighted by input provided by the rater, but reiterated that was the procedure he established with all his battalion commanders.  He stated that in retrospect he wished that he had rated the applicant higher and he felt that the applicant was a good enough officer to have been selected for promotion to lieutenant colonel. 

11.  The OSRB stated that the applicant had not provided clear and convincing evidence to justify deletion or amendment of the OER, and stated that an OER accepted by DA and included in an officer’s official record 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.  The OSRB stated that this was known as a “presumption of regularity.”  

12.  The OSRB stated that there was no evidence that either the rater or the senior rater failed to execute their responsibilities, and that the senior rater was consistent in the word picture he provided within this captain top block and the “2” block performers, which were clearly different.  The OSRB stated that a review of the top block reports rendered by the senior rater to other captains in his profile, during the time frame coinciding with the contested report, revealed a clear distinction in the quality of the senior rater’s comments.  The OSRB listed key phrases from five available top block reports and one “2” block OER rendered in the August 1991 to September 1991 period by the senior rater compared to the applicant’s “2” block.  The OSRB concluded that the senior rater’s narrative on the contested report did not portray the applicant as being distinctly superior to his contemporaries in either performance or potential, and that a review of the available “2” block rating portrayed the applicant as equal to that contemporary.  The OSRB stated that the senior rater’s narrative was void of the usual superlatives, was vague and lacked specific promotion potential and/or schooling recommendations found in the other “top” block reports.   

13.  The OSRB stated that the senior rater in his supporting statement was in retrospect attempting to help the applicant by requesting that the senior rater profile portion be amended due to his error.  The OSRB noted that the regulation cautioned about retrospective thinking, and that claims by rating officials that they did not intend to evaluate as they did would 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 report had it been known at the time of report preparations.  The OSRB stated that the senior rater and the applicant did not provide new information in their statements.  The OSRB opined that the senior rater’s contention that he erred in listening to the recommendation of the rater was without merit; and in discussion with the senior rater, the OSRB noted that the procedure he used for gathering information from the rater was used consistently across his command.  The OSRB stated that the policy of denying appeals based on retrospective thinking ensures that the integrity of the evaluation system is maintained, and that placement of a rated officer within a senior rater profile is assumed to be a conscious decision of the senior rater based on a consistent application of his personal rating philosophy, experience as a rating official and the profile population at that time.  The OSRB stated that the OER system would never survive if the rating officials were allowed to change their minds after the fact, based on second thoughts, many of which derived from non-selection of the rated officer or some personnel action for which the rating officials dislike feeling responsible as time passes and people mellow.  The OSRB stated that the senior rater, by his own statement, was clearly guilty of retrospective thinking.  

14.  The OSRB stated that the OER should have been referred because the “2” block was not center of mass; however, the OSRB stated that it did not believe that the omission to refer the OER to the applicant was a deliberate act, and the omission, in and of itself, was not sufficient grounds to invalidate the OER and the failure to refer a report was not by itself a fatal flaw.  The OSRB noted that when the report was not referred, the applicant could have requested a commander’s inquiry, but did not do so.  The OSRB noted that the applicant had presented no evidence to indicate that the rater had told him that the “2” block rating by the senior rater was a center of mass rating.  The OSRB opined that the rater probably assumed that the “2” block was a center of mass report, and although the assumption was a mistake, the applicant could have requested an office all with the senior rater if he felt that the rating was incorrect.  The applicant did not do so.
15.  While contending that the senior rater relied exclusively on the rater’s advice for his assessment of the applicant, the OSRB stated that the applicant made the mistake of confusing performance with potential, and that the senior rater’s evaluation of potential might not necessarily correlate with either the rater’s performance comments or the senior rater’s own narrative, that in this case the senior rater made the tough but consistent call in the rating that he rendered.

16.  The OSRB stated that the senior rater evaluated the applicant’s potential in accordance with the criteria in the regulation – personal contact, records and reports, the rater’s evaluation, and information given by the rated officer and the rater of the applicant’s support form.  

17.  The OSRB stated that the applicant did not provide convincing evidence that the rater was biased in his rating because of evidence that the applicant provided to the Inspector General for which the rater was later relieved.  The OSRB noted that the rater’s comments were positive and laudatory.  The OSRB stated that neither the applicant nor the senior rater provided substantive proof that the rater might have “poisoned the well” with misinformation in portraying the applicant’s performance and potential.  The OSRB noted that the rater was still in command and rating other captains at least 120 days after the OER close out date.     

18.  The OSRB noted the third party statements of support provided with the applicant’s appeal, but stated that none of those individuals who provided the statements were in a position to either fully understand or appreciate the expectations of the rating officials for the applicant, and as such did not substantiate any evidence sufficiently compelling to overcome the presumption of regularity.

19.  The OSRB concluded that there was not sufficiently convincing evidence that the senior rater’s portion of the report was inaccurate, unjust, and did not adequately reflect the applicant’s performance/potential; and that the report should not be amended or deleted.  

20.  On 23 October 1998 the applicant’s senior rater provided a second supporting statement, disputing the OSRB opinion that his admission of error on the below center of mass rating was because of the “retrospective thinking theory.”  He stated that his admission of error was not because of that theory, but was in not having the total truth of the applicant’s performance as provided by the rater.  He stated that there was new evidence in the nature of an IG investigation into the conduct of the rater which caused his relief from command.  He stated that had he known of the rater’s misconduct in misrepresenting the performance of the rated officer, he would have rated the applicant center of mass, and had the new information been timely disclosed, he would have initiated a commander’s inquiry.  He stated that he disagreed with the conclusion of the OSRB that his narrative remarks were consistent with a below center of mass rating, and that the OER cases of the other officers cited by the OSRB were only a small portion of the many other reports he completed.  He stated that the applicant was not a below center of mass officer, and that his performance had been outstanding.   

21.  In the processing of this case an advisory opinion was obtained from the OSRB.  That opinion indicates that the previous president of the OSRB contacted the senior rater about his new assessment (the 23 October 1998 statement).  The senior rater explained that the process he used to assess the applicant was the same method that he and the rater had used with all other officers he had rated during the contested period, and that he confirmed he had made his own independent assessment, authored his own comments and made the block check on the contested report.  The opinion revealed that the senior rater stated his comments were consistent with comments he had made on other “2” block evaluations, and that the applicant’s demonstrated performance and potential was not comparable to the “top” block officers he had rated at the same time.  The senior rater stated that he had not been provided any new information not available at the time the report was rendered concerning the applicant’s performance.  He stated that there was not an IG/EO/commander’s inquiry conducted at the request of the applicant at the time the report was rated, and stated that the relief of the rater occurred several months after the end of the rating period of the contested report.  The senior rater stated that he had not reviewed any IG inquiry or investigation concerning the rater that substantiated the allegations made by the applicant, and that to his knowledge the rater’s relief was not based on issues alleged by the applicant.  The senior rater stated that when asked about his statement, he confirmed that he had been contacted by the applicant and asked for a support statement, based on the fact that he had been recently promoted to LTC.  The senior rater concluded his opinion at the time of the report was both fair and accurate, that he had not been adversely influenced by the rater, and he was now trying to help the applicant, but he had no new information that might support an inaccurate assessment.  The OSRB noted that the senior rater had stated that his help had been initiated not based on new information but the fact the applicant had been promoted to LTC, and requested help to remove that report.  The only new evidence submitted was his unsupported speculation regarding the circumstances of his job and his rebuttal/assessment of the motives of the rating officials.  The OSRB stated that the applicant had provided no new substantive evidence not previously discussed in the OSRB summary and recommended that the applicant’s request be denied.

22.  The applicant was mailed a copy of the advisory opinion for his information and possible rebuttal on 12 June 2001; however, the mail was returned as not delivered on 28 June 2001.
 
23.  Army Regulation 623-105, paragraph 4-16 concerns the senior rater, and states in pertinent that the senior rater’s evaluation is made by comparing the rated officer’s potential with all other officers of the same grade, or grade groupings.  His evaluation is based on the premise that in a representative sample of 100 officers of the same grade grouping (Army-wide), the relative potential of such a sample will approximate a bell-shaped normal distribution pattern.  This distribution pattern is shown in the senior rater’s portion of the OER.  The pattern means that in a representative sample of 100 officer of the same grade, or grade grouping (Army-wide), only one officer can reasonably be expected to be placed in the top block.  The probability of having an officer of such potential is 1 in 100. Comments by the senior rater are mandatory.  

24.  Paragraph 4-27 states that any report with ratings or comments that, in the opinion of the senior rater, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to DA. 

25.  Paragraph 5-32 states that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  That paragraph states that statements from rating officials that they underestimated the rated officer, that they did not intend to rate him or her as they did, and that ratings be revised, will not be used to alter or withdraw a report; neither will they be included in the OMPF.  An exception is granted only when information which, was unknown or unverified when the report was prepared, is brought to light or verified or this new information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared. 

26.  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.

27.  Appendix N provides information concerning an evaluation report appeal.  Paragraph N-2b(2) states that third party statements form the basis of most substantive appeals.  Statements from individuals who establish they were on hand during the contested rating period, who refute faulting remarks on the evaluation report and who served in positions from which they could observe the appellant’s performance and his/her interactions with rating officials, are both useful and supportive.  Although third party statements can be provided by knowledgeable subordinates, peers, and superiors, additional weight is normally given those statements where the authors occupied vantage points during the contested period that closely approximated those of the rating officials and who would have been knowledgeable of the expectations, guidance and demands of those officials.  An example could be a battalion executive officer that had knowledge of the situation in a company, battery, or troop.  

28.  Paragraph N-2b(3) states in pertinent part that 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 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 for 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.

CONCLUSIONS:

1.  Based on the evidence of record the Board concludes that the senior rater in this case clearly intended to rate the applicant in the second block.

2.  What is not clear is whether the senior rater also intended to rate the applicant as below center of mass.  The Board notes that in his initial statement of support the senior rater stated that he regretted the “2” block rating and that had he the opportunity to redo his rating, he would place the applicant “above center of mass.”  In his conversation with the OSRB he stated that the assessment he wrote on the applicant was consistent with his “2” block rating, but in retrospect he wished that he had rated the applicant higher.  He also stated that he might have had a center of mass in the “2” block but he could not recall.  In his second supporting statement, the senior rater stated that the applicant was not a below center of mass officer, and that his performance had been outstanding.  However, in a subsequent conversation with the OSRB he stated that the applicant’s demonstrated performance and potential was not comparable to the “top” block officers he had rated at the same time.   

3.  It would appear from the senior rater’s comments as noted above that he felt that the applicant did not deserve a top block rating, yet was not a “below center of mass” officer.   

4.  The Board notes that a rating in the second block typically represents the center of mass.  In this senior rater’s case, those officers he rated in the top block could only be represented as within the center of mass, not above the center of mass, and those rated in the second block could only be represented as below the center of mass.  This has resulted in unfair ratings to all of the officers he rated, including the applicant, as shown on the contested report’s senior rater profile.  It would appear to this Board that the senior rater did not properly manage his profile.    

5.  Under the circumstances, the Board concludes that while the second block rating was not improper, it would be unfair to show the departmental profile in that the senior rater, by not properly managing his profile, had misconstrued the applicant as a below center of mass officer, resulting in an adverse evaluation report.  Consequently, it would be in the interest of justice to amend the contested report by deleting the departmental senior rater profile from Part VIIa of the report.  

6.  Additionally, it is further concluded that had the report been properly referred to the applicant he would have had no reason to submit the appeal.  As such, retention of the OSRB appeal denial notification, the memorandum dated          17 February 2000, on the applicant’s OMPF creates an injustice. 

7.  The applicant’s request to adjust his date of rank to lieutenant colonel because of his one time non-selection has been considered.  However, the Board believes that the applicant’s records should be submitted to any duly constituted special selection boards which may have viewed the unaltered report, to determine his promotion status.  

8.  The applicant’s request that the contested OER be removed from his OMPF has been noted; however, that request is not sufficiently supported by his application or the evidence of record.

9.  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 by: 

a.  deleting the departmental senior rater profile in Part VIIa of the contested report, covering the period 19 June 1990 through 18 June 1991, of the individual concerned;

b.  removing from his OMPF all documents related to his appeal of the contested OER;

c.  submitting his records to any duly constituted special selection boards which may have viewed the unaltered report following administrative implementation of the foregoing;

d.  promoting him and assigning him an appropriate date of rank if he is selected for promotion; and

e.  notifying him if he is not selected for promotion.

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

BOARD VOTE:  

__JEV __  __BJE   _  __WDB__  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____James E. Vick_____
		        CHAIRPERSON

INDEX

CASE ID	AR1999033380	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20010821	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.	111.03	
2.	131.00	
3.	193	
4.		
5.		
6.