2.  The applicant seeks reconsideration of his request that the senior rater evaluation of his potential (block VIIa) on his Officer Evaluation Report (OER) for the period 890703-900512 be corrected by moving the block check from the second to the first block, or by deleting the block check altogether.  He contends that this report indicates a decline in his performance and is the cause of his nonselection to lieutenant colonel.

3.  The applicant, now a major, was a captain serving as a company commander of a Personnel Service Company in Germany at the time of the contested OER.  His unit provided personnel support to the 11th Armored Cavalry Regiment (ACR) and the Fulda, Bad Hersfeld, and Wildflecken military communities.  He received one previous OER as a company commander from the same chain of command.  In that report (890730-900729), he was rated in the top block for potential by his senior rater.

4.  The applicant appealed the contested OER to the Officer Special Review Board (OSRB).  In a case summary dated 24 January 1994, the OSRB denied his appeal.  The OSRB contacted the applicant’s rater and senior rater.  The rater (battalion commander) stated that she considered the applicant to be an above average officer and, of her six company commanders, he was “not #1, but he was not #6 either.”  The senior rater (Corps Adjutant General) stated that the applicant was an average performer and that his second evaluation of the his potential was lower because the applicant’s performance changed over time.  He stated that he called the applicant on a weekend about a problem in the 11th ACR and got the distinct impression that the applicant was more interested in staying home than in going to the office to fix the problem.

5.  The applicant next appealed to this Board.  His application was reviewed, and denied, on 24 July 1996.  The Board cited the senior rater’s explanation to the OSRB as the deciding factor in its denial.  The senior rater’s insistence that the applicant was merely an “average performer” and that his performance declined in his second year of command [as witnessed by a decline in satisfaction on the part of the 11th ACR commander] persuaded the Board to recommend that the report be allowed to stand as written.

6.  The applicant provides letters of support from various persons knowledgeable of his performance during the period in question.  The commander of the 11th ACR (then a colonel, now a lieutenant general) wrote that the applicant always provided the best personnel support and indicated that he (the 11th ACR commander) was never dissatisfied with it.  He added that the applicant was one of the five best company commanders in the 11th ACR area.  Letters from battalion commanders in supported units indicate that the applicant’s unit was always responsive and never failed to support their units.  Finally, the applicant’s own battalion commander wrote that he was a good commander and there was no downturn in his performance as a company commander, nor was there ever a complaint from the 11th ACR commander regarding support.  The rater added that the comment that the applicant was “not #1, but not #6 either [among her company commanders]” ascribed to her by the OSRB was not an accurate representation of what she said or her opinion of the applicant.  Finally, several letters state that there was little face-to-face contact between the applicant and the senior rater.

7.  Army Regulation (AR) 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, 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.

CONCLUSIONS:

1.  The applicant received two OER’s while a company commander in Germany. Because the second report [the contested OER] contains a lower senior rating for potential in Block VIIa than the first report, it may be viewed as indicating a downturn in performance.

2.  The senior rater, in his comments to the OSRB, indicated that the applicant’s performance had fallen off during his second year in command and cited as an example his [the senior rater’s] perception that personnel support to the 11th ACR had declined.

3.  The applicant provided numerous letters of support from commanders in the 11th ACR, including a letter from the regimental commander, which categorically refute any contention that the applicant’s unit failed to provide anything short of the finest in personnel support.  The applicant’s rater stated in a letter that she never received a single complaint from the 11th ACR commander or his subordinate commanders.

4.  The Board finds that the applicant has produced evidence that clearly and convincingly overcomes the presumption of regularity referred to in AR 623-105, and that action to correct an apparent material error or inaccuracy is warranted.

5.  In view of the foregoing findings and conclusions, and in the interest of justice and equity, it would, therefore, be appropriate to correct the applicant’s records as indicated below.

RECOMMENDATION:

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

	a.  by removing the senior rater block check and profile from Block VIIa of the contested OER;

	b.  by inserting in the records of the individual concerned an appropriate nonprejudicial statement explaining the absence of the aforementioned senior rater profile; and

	c.  by placing the corrected records of the individual concerned before a special selection board for consideration for promotion to lieutenant colonel.

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

BOARD VOTE:  

                                GRANT AS STATED IN RECOMMENDATION

                               GRANT FORMAL HEARING

                                DENY APPLICATION




		                                            
		        CHAIRPERSON