MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:            31 March 1999                  
	DOCKET NUMBER:   AR1999021331

	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. Loren G. Harrell		Director	
	Mr. Ed Clark		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. John H. Kerr		Member	
	Mr. Walter T. Morrison		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 her military records be corrected by changing or removing the senior rater (SR) profile from Part VIIa of her officer evaluation reports (OER’s) covering the periods 15 October 1991 through 14 October 
1992, from 15 October 1992 through 14 October 1993, and from 15 October 1993 through 14 October 1994.  She also requests, in effect, promotion reconsideration for lieutenant colonel.

APPLICANT STATES:  That her senior rater (SR) "intended to rate me center of mass and erroneously believed his profile was a 3d block center of mass, when in fact in was a 2d block."  She further states that the error by her SR may have caused her not to be promoted; and might cause her to lose her civilian job as a dual status technician.  Additionally, she requests that Part IVa.4 in the contested OER ending on 14 October 1993 be corrected to show "NA" rather than "2" since she had no subordinates at that time.  In support of the application, she submitted an 8 January 1999 statement signed by a retired colonel who was her SR during the periods of time in question, and a 11 January 1999 letter signed by a lieutenant colonel.

On 23 March 1999 she submitted documentation showing her SR was also her supervisor and rater for her military technician status and gave her Senior System Civilian Evaluation Reports covering the annual periods ending on 
16 October 1992 and 31 October 1994.  He rated her as exceeding four of five critical areas and as meeting the fifth area on the first appraisal.  He gave her a “Highly Successful” rating for the second appraisal, and he recommended her for a sustained superior performance cash award.  She states that this supports her application, showing that for overlapping duties her SR rated her highly for the same periods of time as the OER’s, and he did not intend to rate her below the center of mass.

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

The applicant, a member of the Army Reserve, was serving in the grade of major during the period of time reflected in the contested OERs.  Comments made by the SR (a colonel serving as the 5035th USARF School Commandant) are shown in the OER’s which are attached and need not be reiterated.  In each OER, the SR rated the applicant in the three block.

Her date of rank for major was 20 October 1991, and her PED (promotion eligibility date) for lieutenant colonel was 19 October 1998, based upon completion of 7 years in the lower rank..

In each of the three contested OERs, In Part Vb and Vd, respectively, the second block indicating Usually Exceeded Requirements and the second block reflecting Promote With Contemporaries was checked by the rating officer.  The rating officer provided moderate comments.
As stated by the applicant, the second contested OER ending on 14 October 1993 reflects that she received a "2" rating, in Part IVa.4 (Motivates, challenges and develops subordinates).  At that time she was serving as a training management officer.

A review of the first contested OER SR profile, completed by Department of the Army officials on 1 April 1993, shows that of 36 ratings, eight were in the top block, 21 were in the two block, six, including the applicant, were in the three block, and one was in the four block.  The profile was shown as 8/21/6*/1/0/0/0/0/0 (The * indicates the applicant’s position in the profile.).

A review of the second contested OER SR profile, completed by Department of the Army officials on 31 May 1994, shows that of 46 ratings, the profile was shown as.9/24/10*/3/0/0/0/0/0.

A review of the third contested OER SR profile, completed by Department of the Army officials on 8 March 1995, shows that of 50 ratings, the profile was shown as 10/26/11*/3/0/0/0/0/0.

The SR rated her below center of mass on all three OER’s.  His comments concerning her performance were moderate.

The applicant did not request a Commander’s Inquiry or appeal the OER’s at the time, as provided for by pertinent regulations.

An 8 January 1999 memorandum addressed to the Commander, Army Reserve Personnel Center (ARPERSCOM) and signed by the applicant's SR for the contested OERs, shows, in essence, that he wrote that he erroneously believed at the time that a three block rating represented his center of mass; and that he believed at the time that he had given the applicant a center of mass rating.  Additionally, he wrote that the applicant was not assigned as a rater or senior rater during any of the rating periods and therefore he supported her request for a change to "NA" in her OER ending on 14 October 1993.

An 11 January 1999 letter signed by a lieutenant colonel, also addressed to the ARPERSCOM, supports the applicant's contention that she had no subordinates during the rating period ending on 14 October 1994.

On 17 December 1998 the applicant was notified that the Officer Special Review Board had determined that she had not submitted exceptional justification to warrant waiving the 5-year limit, outlined in Army Regulation 623-105, for OER appeals for the OERs ending on 14 October 1992 and 14 October 1993; and that there was no new information with regard to the OER ending on 14 October 1994 which would have resulted in an improved evaluation.
Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides 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.

The regulation specifies that claims by rating officials that they did not intend to evaluate as they did, i.e., in retrospect, will not necessarily serve as the basis for altering or withdrawing an evaluation report.

Paragraph 3-12, Responsibilities of the SR, shows, in part, that a responsibility of the SR is to evaluate the rated officer’s potential relative to his or her contemporaries.  His or her evaluation is based on the premise that in a representative sample of 100 officers of the same grade or grade grouping (Army-wide) the relative potential of such a sample will approximate a bell-shaped normal distribution pattern.

Paragraph 4-13 of the aforementioned regulation, Part IV, Performance Evaluation - Professionalism, provides that the rater will describe the rated officer on a scale of 1 to 5, with 5 being the highest rating, in each of the areas.  For Block a, item 4, when the rated officer has no subordinates, "NA"  (not applicable) may be placed in the block.

The regulation also provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

Army Regulation 135-155 prescribes the policies and procedures for promotion of Reserve officers.  This regulation specifies that promotion reconsideration by a special selection board may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual's non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  The regulation also provides that boards are not required to divulge the proceedings or the reason(s) for non-selection, except where an individual is not qualified due to non-completion of required military schooling.

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.  Notwithstanding the 8 January 1999 statement written by the SR, a review of the SR profiles show that in the first contested OER, 29 of his 36 ratings were in the top or second block; in the second contested OER, 33 of his 46 ratings were in the top or second block; and in the third contested OER, 36 of his 50 ratings were in the top or second block.  In addition to showing an experienced SR, the figures also show that a reasonable person would not believe, over a 3 year period of time, that a three block rating would reflect a center of mass rating.  Accordingly, his 8 January 1999 statement is considered to represent retrospective thinking and cannot serve as a basis for altering the contested OER’s.

2.  None of the contested OER’s shows a checkmark in the Always Exceeded Requirements block or in the Promote Ahead of Contemporaries block.  Further, the comments in the contested OER’s do not reflect exceptional performance of duty.  They indicate that her promotion was only cautiously supported.

3.  The issue of the "2" rating in Part IVa.4, Motivates, challenges and develops subordinates, has been considered.  The ending date of that OER was 
14 October 1993 and the applicant did not appeal that OER within the 5 years provided by regulation.  Further, presuming for the sake of argument that the single entry is incorrect as contended, it does not represent material error of such a nature that it would have caused her nonselection by a promotion board or, if corrected, would offer a reasonable chance of her being recommended for promotion. 

4.  The applicant’s contention that she only recently learned of her OER profiles cannot be acceptable support to change or remove the OER’s from her record, or to provide promotion reconsideration.  Implicit in the Army's management systems is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The general requirements and workings of the system are widely known and specific details such as promotion board dates and promotion zones are widely published in official, quasi-official and unofficial publications, and in official communications.  Given that the applicant became a major in 1991 and that she had to be considered by a board so that, if selected, she could be promoted by the time she had served 7 years in grade, the applicant knew, or should have known, that she would be considered by a promotion board in 1997 and that she needed to insure, well in advance, that her record would present her career and qualifications to that board in the best possible light.

5.  The applicant’s contentions that her civilian/military technician ratings support the SR’s intention to rate her center of mass and not below center of mass are noted.  However, the civilian appraisals do not convince the Board that her OER’s were inaccurate or unfair.

6.  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

CWB____  JHK____  WTM____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999021331	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	1999 March 31	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.	131.01	
3.		
4.		
5.		
6.