2.  The applicant requests deletion of the senior rater (SR) profile on his officer evaluation report (OER) covering the period 28 November 1992 through 19 May 1993.

3.  The applicant states, in effect, that the SR placed him in the second block of part VIIa with the intent of portraying him as a center of mass (COM) officer.  However, by placing him in the second block of his SR profile, the SR mistakenly portrayed him (the applicant) as a below COM officer.  He goes on to state that the error occurred because the SR lost track of his profile and had established the top block as his COM.  In support of his application, he submits statements from his rater, SR, and several other officers who were aware of his performance during the period of the contested report.

4.  The applicant’s military records show that the applicant was commissioned as a USAR armor second lieutenant on 15 May 1987 with a concurrent call to active duty.   He accepted an appointment into the Regular Army on 27 March 1988 and was promoted to the rank of captain on 1 December 1991.

5.  The contested OER is a change of rater report for the period 28 November 1992 through 19 May 1993, evaluating him as a captain while performing as a squadron S-4 of an armored calvary squadron at Fort Bliss, Texas.

6.  The SR (a lieutenant colonel) placed the applicant in the second block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the COM on the SR’s profile.  Part VIIb contained nothing but favorable comments, including “[the applicant] has performed his duties in an outstanding manner. . . . Has made important and enduring contributions to the combat readiness of the squadron . . . . Clearly demonstrates the ability to command and lead soldiers to success.”

7.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) in 1993 based on the same rationale as he has stated in his application to this Board.  The OSRB opined that although the SR had a top heavy 
profile, it was fully developed and the SR placed the applicant exactly where he wanted him.  The OSRB denied his appeal.

8.  In support of his appeal, he submits a statement from his rater that indicates that he (the rater) discussed the applicant’s outstanding performance with the SR on numerous occasions and that the only viable explanation for the SR’s rating of the applicant is that he made a mistake and lost control of his profile.

9.  The applicant also submitted a statement from the SR of the contested report in which the SR admits that he failed to perform his duties as an SR by failing to sustain a credible and useful profile for promotion and selection boards.  He further indicates that the placement of the applicant below COM on his profile was not his intent at the time he rated the applicant and that the rating he gave the applicant was not a true reflection of his ability and potential to serve with distinction in the years to come.  He further states that he restarted his profile on 1 November 1993 and if given the opportunity to SR the applicant again, he would place the applicant in the COM because he is an outstanding officer with the potential to serve as a field grade officer and make important contributions for the Army in years to come.

10.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 4-16, in pertinent part, states that part VII of the OER provides for evaluation of potential by the SR.  The evaluation is made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  Paragraph 5-32, states, in pertinent part, that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

11.  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.  Given the circumstances in this case, the Board is convinced, unlike the OSRB, that the SR believed that the applicant was at least a COM officer at the time he rated him.  However, he mistakenly placed the applicant in the second block instead of the first, which caused the applicant to be portrayed as a below COM officer which constitutes an injustice to the applicant. 

2.  The Board accepts the SR’s admission that he failed in his duties as a SR by not maintaining a credible profile.  Clearly, this is not a case of retrospective thinking on the part of the SR, but one of either a misguided rating philosophy or failure to properly manage his SR profile.  Although the SR believed that he was portraying the applicant as a COM officer he did not do so.  The structure of his profile (top heavy with a top block COM) would not allow him to portray any of his officers, regardless of their exceptional performance or potential, any higher than COM.  Consequently, by maintaining his profile in the manner in which he did, he could not render a rating that would accurately portray a rated officer’s demonstrated performance and potential any higher than COM.  

3.  The Board believes that it is inherently unfair for the rated officer to bear the burden of the admitted mistakes of the SR.  Therefore, it would be appropriate to correct the contested OER by deleting the SR profile from the contested OER.  Additionally, the documents denying his appeals should be removed from his records.

4. In the interest of justice, 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:
   a.  by deleting the SR profile in part VIIa of the contested OER of the individual concerned; and

   b.  by removing from his records the PERSCOM memorandum dated 8 December 1994, indicating the denial of his appeal of the contested OER.

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 be returned to this Board for permanent filing.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON