Author: WoodsHN

ABCMR Memorandum of                       AC97-11770
Consideration (cont)

APPLICANT REQUESTS:  That two officer evaluation reports (OERs), for the periods 2 September 1980 through 
25 February 1981 and 26 February through 12 September 1981, be removed from his the performance fiche of his official military personnel records (OMPF).   

APPLICANT STATES:  That he appealed to have these two reports removed from his file in 1987 because (1) his signature had been forged on the report ending 
12 September 1981, (2) both reports incorrectly asserted that he had been given the opportunity to submit an OER support form, and (3) both the rater and senior rater marked his reports down due to a misunderstanding of Army policy, which required them to show due regard of an officer’s current grade, experience, and military schooling.  Instead the rating chain used his lack of experience and schooling as the reason for submitting a below average rating, because he had not attended the Field Artillery Officer Basic Course.  Both rater and senior rater acknowledged this error and wrote in support of his appeal.

He states that the reports were clearly adverse, but neither one was referred to him for comment prior to submission to DA as required by Army Regulation 623-105.  The Officer Special Review Board (OSRB) agreed with his arguments and granted a partial relief.  The forged signature and senior rater profile blocks were masked.

The applicant requests further relief stating that the documents are seriously misleading because (1) despite the removal of the offending senior rater evaluation blocks, they still contain words reflecting “block 3 and 4 performance”, and (2) they were the end product of forged signatures and in direct violation of the governing regulations.  He states that the partial remedy taken by the OSRB in 1987 still allows the highly inaccurate data to diminish the rest of his file.

The applicant continues in his argument stating that fair play requires redress, that the previous appeal determined that illegal procedures had been used, that the rater and senior rater incorrectly applied and violated policy.  He states that documents which have been fraudulently altered should not be allowed to appear as part as his OMPF, that the reports present a major negative impact on board selection and may have contributed to his non-selection for Command and General Staff College (CGSC) and Lieutenant Colonel.   He was supported in his original appeal by his senior rater, and is supported in this application by that same official, now a retired Brigadier General.

The applicant states that the Army now recognizes the potential harm of allowing second lieutenant (2LT) reports in an officer’s performance fiche beyond promotion to Captain and has ordered them removed for the files of officers being considered for CGSC and major [this new policy does not affect his year group].     

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

The OER for the period 2 September 1980 through 
25 February 1981 while he was a 2LT in the Virginia Army National Guard shows that received all 1’s in the 14 blocks of Part IV, Performance Evaluation - Professionalism.  In Part V - Performance and Potential Evaluation his rater indicated that he “Always Exceeded Requirements”, and that his potential for promotion to the higher grade was “Promote Ahead of Contemporaries.”  The rater commented, in part, that the applicant tried to excel in all areas of responsibility, and that his potential was unlimited.

The senior rater (SR), the battalion executive officer serving in the rank of major, commented in part, that the applicant’s performance had been noteworthy, and that he must be credited in part to the tremendous success of the fire direction control unit because of his assistance in a training program.  That official stated that he was limited 
only by his lack of knowledge of field artillery principles, in effect, because he had not yet completed FA OBC.  That official stated that the applicant had all the attributes needed for development into a superior junior grade officer.
In part VIIa, Potential Evaluation, he rated the applicant in the four block (below center of mass).  A review of the SR profile shows that of 19 evaluations rendered at that time, 1 was in the top block, 10 in the two block, 7 in the three block, and 1 in the four block.  That report indicates that a completed report form was received by the SR and considered in his evaluation.  On 9 January 1987 the applicant appealed this OER, requesting that the SR portion be invalidated.  On 15 July 1987 the OSRB granted the applicant partial relief by altering the OER by deleting the SR potential evaluation (block VIIa).

The OER for the period 26 February through 12 September 1981 shows that he received eleven 1’s and three 2’s in the 14 blocks of Part IV.  In Part V his rater indicated that he “Always Exceed Requirements”, and that his potential for promotion to the next higher grade was “Promote Ahead of Contemporaries”.  That official stated that he “performed all duties with enthusiasm and dedication so exemplary that he earned the respect and admiration … His imaginative efforts in many training assignments … was very instrumental in Battery A’s successful training year …he inspired the men with whom he worked … he organized, trained and led … His achievement was exceeded only by his willingness to try and his attitude was an inspiration to all.”

The SR, the same SR aforementioned, commented in part, that the applicant “continuously demonstrated a high degree of professionalism, earning … the greatest respect that a young officer could hope for.  His dedication to duty played a major role in the successful achievements … He served this command will a loyal spirit, innovative ideas … He has exceptional abilities …”  In part VIIa he rated the applicant in the three block (below center of mass).  

A review of the SR profile shows that of 20 evaluations rendered at the time, 1 was in the top block, 10 in the two block, 8 in the three block, and 1 in the four block.  The report indicates that a completed report form was received by the SR and considered in his evaluation.  He appealed this OER concurrently with his appeal of his previous OER stating that his signature on the OER was not valid, that he did not complete an OER support form for the rating period, that he received a 2 in the block corresponding to “Demonstrates appropriate knowledge and expertise in assigned tasks” (Part IV, Performance Evaluation - Professionalism).  He stated that both the rater and senior rater support his appeal, and included their endorsements.  Again, on 15 July 1987 the OSRB granted the applicant partial relief by altering the OER by deleting his signature from the form, by deleting the SR potential evaluation (block VIIa), and by deleting the “x” in the block indicating that a completed report form was received by the SR and considered in his evaluation.

In a 19 November 1997 letter to this Board from the applicant’s former SR (now a retired Brigadier General) at the time of the contested OERs, that official stated that he wrote the appeals board in 1986 recommending that the two reports be removed from the applicant’s file because, under the policy in effect at that time, no officer could have received a top rating if he had not completed OBC.  That individual stated that had that policy not been in effect, the applicant could have received a top rating.  He went on to say that the narrative that accompanied the block check was obviously curbed to match the intent of the policy.  He states that the reports have cause a great deal of damage to the applicant’s career and do not reflect the quality of his service or potential, and cannot imagine what role they serve in their present altered form, other than to represent some unwarranted negative inference.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Chapter 9 of that regulation provides procedures for the appeal of an evaluation report, and states in pertinent part, that an evaluation report 
accepted for inclusion in the official record of an officer is presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of 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 appellant.  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.  
  
DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, and advisory opinion(s), it is concluded:

1.  This Board agrees with the applicant that the rules were not followed in the preparation of the contested reports.  The applicant was rated below center of mass (COM) on both reports, which should have caused the senior rater to refer the reports to him for comment prior to submission to DA.  On appeal, the OSRB decided to alter both reports to mask the senior rater profile, the signature block on one report, and the block on that same report indicating that the senior rater had received a completed support form with the OER.  This action by the OSRB over 10 years ago essentially removed the negative aspects of both reports.

2.  The applicant has submitted no evidence to show that the altered reports diminish the rest of his file.  There is no error in his record nor are the altered reports unjust or inaccurate.  The applicant’s contention that the altered reports would mislead officials who would consider him for promotion, schooling, etc., has no basis in fact.  Were this to be true, and following this line of reasoning, virtually any officer who has an altered report based on an appeal, and benefiting the appellant, would also suffer. 

3.  The comments by both the rater and the senior rater in the reports reflect a high degree of professionalism, achievement, and dedication on the part of the applicant, and clearly indicate that both the rater and senior rater considered him an outstanding officer with unlimited potential.  High praise indeed for a second lieutenant.   Therefore, this Board cannot agree with the applicant that the narratives matched the block 4 and block 3 ratings made by the senior rater.  Nor does it agree with the applicant’s former senior rater that the narrative that accompanied the block check was curbed to match the ratings.  Indeed, it appears that the senior rater’s noteworthy narratives alleviated the damaging block 4 and block 3 ratings.  

4.  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

                       DENY APPLICATION

						Karl F. Schneider
						Acting Director