MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:     

	BOARD DATE:           11 September 2003
	DOCKET NUMBER:   AR2002082502

	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	
	Mrs. Victoria A. Donaldson		Analyst	

  The following members, a quorum, were present:

	Mr. Stanley Kelley		Chairperson	
	Mr. Christopher J. Prosser		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:  Removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period from 7 August 1998 through
30 November 1998 [hereafter referred to as the contested OER].

APPLICANT STATES:  In effect, that the basis for his request is the contested OER is substantively inaccurate. 

First, the applicant refers to the first two sentences in Part Vb (Comment on Specific Aspects of Performance and Potential for Promotion) of the OER which states "[applicant's name omitted] performance during this rating period has been acceptable.  He has been able to meet the standards in all areas."  

Secondly, the applicant refers to the last sentence in Part Vb of the contested OER which states "[applicant's name omitted] is already serving in a position that challenges him, promote with peers."  The applicant continues that in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the second box (Fully Qualified) box is checked. 

The applicant contends that the above statements are substantively inaccurate because his performance during the rating period was outstanding and that he exceeded the standards in all areas.  He continues that this is evidenced by the letters of support he provided and the fact that he scored above the max of 300 on the Army Physical Fitness Test.

In support of this application, the applicant submitted a 20 November 2002 self-authored statement; his DA Form 67-9-1 (OER Support Form); a 8 December 1999 self-authored memorandum to the Commander, U.S. Total Army Personnel Command (PERSCOM); five letters of support; an unsigned 12 March 1999 CASSD 1-2, "AORSE Comment Worksheet"; a DA Form 705 (Army Physical Fitness Test Scorecard); the Aviation Warrant Officer Basic Course class list for Class 96-911; a DA 1059 (Service School Academic Evaluation Report) for the Petroleum Supply Specialist, Basic Noncommissioned Officer, class 93-2 for the period 22 January 1993 through 23 March 1993.

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

The applicant enlisted on 4 January 1984 as a private E-1.  He served in an enlisted status from 4 January 1984 through 17 October 1994.  He was appointed as a warrant officer one on 18 October 1994.  He is currently serving on active duty as a Chief Warrant Officer Two in the Aviation Branch.

Records show that the applicant was serving as an Aeromedical Evacuation Pilot in the 159th Medical Company during the period of the contested report.  

The contested OER was a change of rater report which covered 4 months of rated time for the applicant’s duties as Aeromedical Evacuation Pilot.  

The rater, a captain in the position of section leader, signed his portion of the contested OER on 9 December 1998 and the senior rater (SR) a major serving in the position of Company Commander signed the contested OER on 9 December 1998.  The applicant signed Part IIe (Signature of Rated Officer) of the contested OER on 9 December 1998, which attested that the administrative portion of the contested OER was correct.

Under Part V (Performance and Potential Evaluation) on the contested OER, the rater placed his "X" in the first block (Outstanding Performance, Must Promote) with generally positive comments on the specific aspects of the applicant's performance.  Specifically, the rater wrote that "[The applicant's name omitted] performance during this rating period had been acceptable" and that he "has been able to meet the standards in all areas."  The rater also wrote that "the applicant has unlimited potential to serve in the U.S. Army."

In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses) the rater did not identify any skills.  

In Part VIIa (Senior Rater), of the contested report, the SR placed his "X" in the second block (Fully Qualified) under Part VIIa (Evaluate the Rated Officer's Potential to the Next Higher Grade).  

In Part VIIb the SR placed his "X" in the second box (Center of Mass) which resulted in a "Center of Mass" evaluation.  In Part VIIc (Comment on Performance/Potential) the SR made positive comments regarding the applicant's performance and potential.  Specifically, the SR wrote that the applicant "is a very dependable and conscientious officer and aviator who has contributed to the unit as an aeromedical evacuation pilot and assistant safety officer."  He continues that the applicant "has safely performed all aviation duties accident and incident free in demanding day, night, night vision goggle, and weather conditions.  [Applicant's name omitted] potential in the U. S. Army is unlimited."

Records show that the OER was not referred by the SR to the applicant for comment or rebuttal.

Records show that a copy of the contested OER was forwarded to the applicant on 10 February 1999.

The contested OER was provided to Headquarters Department of the Army officials for processing.  The contested OER was profiled which resulted in a center of mass rating (COM) and entered on the applicant’s OMPF.
The applicant appealed the contested OER on 6 April 2000 to the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB).

The OSRB case summary identifies the rated period and the applicant's duties and noted that he had not requested a Commander's Inquiry.

The OSRB then considered the applicant's contentions, essentially that the rater erred in describing his performance which the applicant contends was "outstanding"; that he never received initial face to face counseling from his rater; and that the SR erred when he evaluated the applicant as "Fully Qualified" instead of "Best Qualified."

The OSRB reviewed the 5 November 1999, letter of support written by the battalion safety officer who served in the position from November 1995 through November 1998.  The author states that he had the opportunity to observe and interact with the applicant on a regular basis.  The OSRB determined that, although the comments were positive, the author was not in a position to observe the interaction between the applicant and his rating officials.  The OSRB determined that the author did not provide any information pertinent or germane to the specific issues raised by the applicant.

The OSRB reviewed the CASSD Form 1-2, AORSE Comment Worksheet dated 12 March 1999 which indicates that the applicant was commended for his accomplishments as Company Safety Officer.  However, the OSRB noted the date of the inspection is over three months after the end of the rating period of the contested OER.

The OSRB reviewed the APFT scorecard confirming that the applicant took and passed the APFT on the date indicated in Part IVc of his OER.  Both the SR and the rated noted on the contested report that the applicant maintained a high level of physical fitness. The OSRB determined that the APFT scorecard provided no additional evidence pertinent to the contested report.

The OSRB reviewed the list of graduates from the Aviation Warrant Officer Basic Class 96-911 which showed that applicant was the Distinguished Graduate. However, the OSRB noted that this academic honor occurred several years prior to the rating period. The OSRB determined that the AER for the period 22 October 1993 through 26 March 1993 has no material bearing on the issues raised by the applicant.

The OSRB reviewed an 18 October 1999, supporting statement provided by the Company Aviation Safety Officer.  The author states that after the applicant became the acting company Aviation Safety Officer that he had to spend more time conducting company business and that these duties caused a problem between the applicant and his rater.  The author explains that his opinion of the applicant's performance of duties and his abilities were superior.  However, the author recounts no first hand observation between the applicant and his rating officials.

The OSRB reviewed a 30 November 1999 statement by the Company Operations Officer.  The author states that he worked closely with the applicant on a daily basis and contends that the applicant's performance in the safety office was outstanding.  He continues that the applicant worked in the safety office and that his rater worked in the hangar with the flight platoon.  The author states that there was often conflict between the applicant and his rater because the rater wanted and needed the applicant to perform flight duties and the applicant was unable to do so because of his Safety Officer duties.

The OSRB reviewed a 25 October 1999 memorandum written by the applicant's senior rater, the Commander of the 159th Medical Company.  The author states that applicant was serving as a medical evacuation pilot and company assistant safety officer which are noted on the contested report.  In addition, the SR states that he worked closely with the applicant during this timeframe because his primary safety officer had been detailed to perform duties as the battalion safety officer.  The SR requests that his assessment of "Fully Qualified" be changed to reflect "Best Qualified" because he did not understand the new OER system.  The author states that after reading the PERSCOM OER after action review that he found that his assessment had apparently placed the applicant in the bottom three percent of the OERs rendered and therefore, he believes this assessment is an injustice to the applicant.

The OSRB reviewed a 13 March 2000 memorandum written by the Commander of the 421st Medical Evacuation Battalion.  The author stated that he had the opportunity to observe the applicant during the time of the contested report and that he found the applicant's work to be "thorough and professional."  He continues that he supports the SR's request to change his assessment form "Fully Qualified" to "Best Qualified" and that the applicant should not be held responsible for the SR's misunderstanding of his responsibilities.

The ORSB contacted the SR by telephone.  Essentially, the SR stated that he remembered the applicant, his rating and his memorandum of support and provided the following information.

a.  The SR described the applicant's duties as primarily a platoon medical evacuation pilot with the major additional duties as the aviation safety officer.  He further indicated that the applicant was required to fulfill his duties in his assigned flight platoon, that his primary duties were as a platoon pilot and he often used his additional duties as a reason to avoid his primary duty as a medical evacuation pilot.  
b.  The SR states that there was a conflict between the rater and the applicant concerning work priorities and that he tried to establish priorities, but maybe failed to communicate them clearly with the applicant or more likely, the applicant just didn't get it.  The SR believes that the rater and the rated officer fully understood the priorities.

	c.  The SR continues that he rated other officers "Best Qualified" during the same period because they were in fact better than the applicant.  The SR stated that he has since learned that "Fully Qualified" places an officer in the lower 3 percent grouping and that he has not rated anyone else as "Fully Qualified" since that time.

d.  The SR stated that he thought that the rating rendered by the rater was fair and objective.  He further states that it was his intent to rate the applicant as "Center of Mass" and that the "Fully Qualified" block apparently places the applicant on a much lower plane.

The OSRB determined that the SR did not err in his assessment and therefore this contention lacks merit.

The OSRB noted that paragraph 6-10 of Army regulation 623-105 (Officer Evaluation Reporting System) effective 1 October 1997, placed the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of OER.  The OSRB determined that such evidence was not found in this case.

The OSRB also noted that paragraphs 3-57 and 6-6a of Army Regulation 
623-105 provide that the OER accepted by HQDA and included in the official military record is presumed to be administratively correct, to have been prepared by the proper designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The OSRB determined that the applicant did not overcome the presumption of regularity and that action to correct a material error or inaccuracy is not warranted. 

The OSRB concluded there is not sufficiently convincing evidence that Parts V and VII of the contested OER are either inaccurate, unjust, and/or do not adequately reflect the applicant's demonstrated performance and potential during the rating period.  Therefore, the OSRB determined that the contested report should not be amended or deleted.

Army Regulation 623-105 paragraph 1-10a states that performance evaluations are assessments on how well the rated officer met his or her duty requirements and adhered to the professional standards of the officer corps.  Performance is evaluated by considering the results achieved, how they were achieved, and how well the officer complied with professional standards.

Army Regulation 623-105 (Officer Evaluation Reporting System) paragraph 6-10 places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an OER.  The OSRB determined that such evidence was not found in this case.

Army Regulation 623-105 states in paragraphs 3-57 and 6-6a that an evaluation report accepted by HQDA and included in the official record of an officer is presumed to be administratively correct, has 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.  

Army Regulation 623-105 paragraph 3-57b states that the requests that an accepted report be altered, withdrawn or replaced with another report will not be honored.  The following will not be used to alter or withdraw a report; neither will they be included in the OMPF: (1) Statements that they underestimated the rated officer; (2) Statements from the rating officials that they did not intend to rate him or her as they did; and (3) Requests that rating be revised.

Army Regulation 623-105 paragraph 2-9b states that the rated officer will begin a discussion of his or her duty description and performance objectives with his or her rater.  This must be done within 30 days after the beginning of each rating period.

Army Regulation 623-105 states in Appendix F, paragraph F-2b(3):  "Statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by the appellant’s nonselection or other unfavorable personnel action claimed to be 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 serve as a basis for altering or withdrawing an evaluation report.”  The regulation does allow rating officials to 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 preparation.  

Army Regulation 623-105 paragraph 3-22c(2)a states that the senior rater makes an assessment of the rated officer's overall potential in comparison with all other officers of the same grade the senior rater has senior rated or has currently in his or her senior rater population.  This potential is evaluated in terms of the majority of the officers in the population.  If the potential assessment is consistent with the majority of officers in that grade the senior rater will place his "X" in the Center of Mass box.  If the rated officer's potential exceeds that of the majority of officer's in the senior rater's population, the senior rater will place his "X" in the Above Center of Mass/Center of Mass box.  (The intent is for the senior rater to use this box to identify their upper third in each grade)  However, in order to maintain a credible profile, the senior rater must have less than 50% of the ratings of a grade in the top box.  Fifty percent or more in the top box will result in a Center of Mass label.  If the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater believes the rated officer should be retained for further development, the senior rater will place his "X" in the Below Center of Mass-Retain box.  If the rated officer's potential is below the majority of officers in the senior rater's population for that grade and the senior rater does not believe the rated officer should be retained on active duty the senior rater will place his "X" in the Below Center of Mass-Do Not Retain box.

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 Board considered the applicant's request for removal of the contested OER.

2.  The Board reviewed the applicant's 20 November 2002 self-authored statement and the documents that he submitted in support of his application.

3.  The Board considered the applicant's contention that the contested OER is substantively inaccurate and an unjust evaluation of his performance and potential. 

	a.  The Board noted the applicant's argument that his OER was substantively inaccurate because his performance during the rating period was outstanding and that he exceeded the standards in all areas.  

b.  Contrary to the applicant's contentions, the SR stated that he intended to place the applicant in the center of mass.

c.  Upon reviewing the evidence, the Board determined that the ratings on the contested report were the objective judgment of the rating officials at the time of preparation of the contested report.

d.  The Board further determined that there is no evidence and the applicant has not provided evidence that Parts V and VII of the contested OER are either inaccurate, unjust, and/or do not adequately reflect his demonstrated performance and potential during the rating period.  

	e.  The Board noted the applicant's assertion that he received a "max" score of above 300 on the APFT and the resulting inference that this accomplishment reflected "outstanding" duty performance.  However, the Board noted that the applicant's APFT accomplishments were described on the contested report by the rater and the SR.  

4.  The Board considered the SR's memorandum of support in which he requests that his rating be changed from "Fully Qualified" to "Best Qualified."  

a.  The Board noted that the SR stated he was a new SR and that the contested report was only the second report that the he had prepared.  

b.  The Board noted that the SR claims that he was unaware that his rating would place the applicant in the bottom three percent of officers rated.  However, there is no evidence and the SR did not provide evidence that supports this claim.

c.  The Board also noted that the SR's memorandum was written 11 months after the completion of the contested report and therefore apparently was based on retrospective thinking and which is not a valid basis for removal of the contested OER.

d.  The Board concluded that the applicant SR's comments did not prove that his rating was flawed and/or it did not represent objective view of the applicant's performance of duty and potential.

5.  The Board also noted that the SR provided a statement to the OSRB.

	a.  The SR stated to the OSRB officials that he intended to rate the applicant as center of mass.

	b.  The SR also stated that he believed that the rater rendered a fair and objective report.

c.  Therefore, the Board determined that the evaluation rendered by the rater and center of mass rating rendered by the SR represented the honest and fair evaluations of the rating officials. 

6.  The Board considered the contentions of the applicant that the contested OER was invalid because of a personality conflict between himself and his rater. 

a.  The Board noted that Army Regulation 623-105 clearly states that a personality conflict between the rated officer and a rating official does not constitute grounds for relief; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 
 
b.  The Board determined that there is no evidence and the applicant did not provide evidence that shows conclusively that the OER was prepared inaccurately or unjustly.  Therefore, this claim is without merit. 

7.  The Board reviewed the applicable Army regulation that governs the policies and procedures for preparation and processing of officer evaluation reports.  

8.  Based on all of the foregoing, the Board determined that the contested report was correctly prepared and is correct as currently constituted.  Therefore, the Board determined that there is no basis for removal of the contested OER from his OMPF.

9.  Based on all of the foregoing, the Board further concluded that, in this case, the applicant failed to meet the burden of proof necessary to overcome the presumption of regularity in regard to the contested report.  Therefore, there is no basis for amendment of the contested OER.  

10.  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.

11.  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

_ SK  ___  __ TAP __  __JTM   _  DENY APPLICATION

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

INDEX

CASE ID	AR2002082502	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20030715	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	Deny	
REVIEW AUTHORITY	Mr. Chun	
ISSUES         1.	111.0000.0000	
2.		
3.		
4.		
5.		
6.