2.  The applicant requests correction of an officer evaluation report (OER) for the period 12 February 1988 through 11 February 1989, by changing the senior rater’s (SR) profile to reflect his original intent.  As an alternative, he requests that the SR’s block check be moved from the second block to the top block, placing him in the center of mass (COM) of the SR’s profile or that the SR’s profile be removed from the report.

3.  The applicant states that the OER in question is in error because his SR at the time, indicated that he was restarting his profile with a “2” block COM and that he would be the first officer rated under the new profile.  He goes on to state that the SR counseled him on the report, commended him for his performance, and reminded him that he was receiving a “2” block rating against a blank (restarted) profile.   However, when he received the contested OER he realized that the SR’s profile had not been restarted and that the contested report reflected a downturn in performance.  Upon realizing the error, he confronted the SR with the issue.  The SR immediately called the applicant’s branch chief at the Total Army Personnel Command (PERSCOM) and was informed that it was too late to change the report and that the only thing the SR could do to reduce the negative effects of the erroneous report was to render a subsequent laudatory report, which he did.  The applicant also states that there were other officers in the battalion who were aware of the SR’s intentions to restart his profile because he announced it in an officer professional development class.  The other officers were also aware that he was to be the first officer rated under the new profile. He continues by stating that he was subsequently informed by his branch manager that he should not appeal the OER because it would do more harm than good and that despite the contested report, he had a strong file, was in the top third of his year group, and surely would be selected to attend the resident command and general staff course (CGSC).  After multiple nonselections for the CGSC he was informed by his new assignment manager that the contested report was now viewed as a downturn in performance.  In support of his application, he submits statements from his SR and two other officers who were assigned with him during the period in question.

4.  The applicant’s military records show that he was commissioned as a USAR second lieutenant on 8 May 1982 with a concurrent call to duty as an armor officer.  He has remained on active duty and was promoted to the rank of major in the Regular Army on 1 February 1994.

5.  The contested OER is an annual report for the period 12 February 1988 through 11 February 1989, evaluating him as a captain while performing as a battalion S-4 (logistics) officer of an armor battalion at Fort Stewart, Georgia.

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 (seven officers were in the top block and five officers were in the second block, of which the applicant was one).  (The SR potential evaluation portion of an OER contains nine blocks.  A rated officer’s placement in the top block determines that he possesses greater potential than an officer placed in the second through ninth blocks.) Part VIIb contained nothing but favorable comments, including “[the applicant] is the finest S-4 with whom I have had the opportunity to work. . . . An aggressive problem solver who works with a minimum of guidance and consistently demonstrates a degree of flexibility not found in most officers . . ..  Of great importance is his ability to foresee problems, formulate solutions, and establish procedures to prevent recurrence of the problem. . . .  For these reasons and his demonstrated potential, he has been designated to command a tank company in this battalion.”

7.  On 24 April 1995 the applicant appealed the OER in question to the Officer Special Review Board (OSRB) based on substantive inaccuracy, in that the SR placed him in the second block of what he thought was a newly restarted profile, which both he and the SR subsequently discovered was not the case.  He reiterated that the SR was informed to render a second report within 60 days and the problem would be corrected.  Although the SR complied, the problem is still there and has become more significant given the current drawdown that the Army is experiencing. 

8.  In support of his appeal, he submitted a statement from the SR (now a colonel) of the contested report which indicates that he had contacted the PERSCOM approximately 3 weeks prior to rating the applicant and that he explained to the applicant that he was receiving a “2” block rating against a blank profile.  He further reiterated that he rendered three OER’s on the applicant and his performance was uniformly, and without exception, outstanding.  He firmly supported the applicant’s request.

9.  The OSRB reviewed the SR’s profile and determined that the SR had not requested a restart of his profile until 27 March 1989, to be effective 1 April 1989.  The OSRB then contacted the SR regarding his profile.  The SR indicated that he had contacted PERSCOM seeking guidance on the COM philosophy and was informed that he should focus his COM on the second block instead of the first as he was currently doing.  He claimed that he opted to restart his profile and made his request in January 1989.  Following that request, he counseled the applicant that his forthcoming report would be the first against a restarted profile.  He went on to state that he was unaware that his profile had not been restarted until the applicant made him aware of it.  He also stated that he should have followed up on it because he had previously been burned twice on profile restarts.  He went on to state that he immediately called PERSCOM to put the restart in place, knowing that there was little he could do to correct his error.  The subsequent OER he rendered on the applicant was done in a way that was then thought would correct the situation.  The SR made it clear that he was solely responsible for what had happened.  The OSRB determined that there was not sufficiently convincing evidence that the OER was inaccurate, unjust, or that it did not adequately reflect the applicant’s performance and thus denied his appeal.

10.  The applicant submitted a second appeal of the contested OER to the OSRB on 4 July 1995 and included two additional statements from former officers who were on the battalion staff during the period of the contested report and were aware of the circumstances surrounding the report. Both statements indicated that the SR had announced in an officer professional development meeting that he was restarting his profile in January 1989 with the COM being the “2” block, otherwise his COM would be the top block.  The two officers also indicated that the applicant’s performance was outstanding and that the applicant was favored by the SR.  One of the officers indicated that he witnessed the applicant going in to inform the SR of the problem with his SR profile and was informed by the applicant when he came out of the SR’s office that the SR had called PERSCOM only to be told that it was too late to correct the report.

11.  The OSRB again contacted the SR to re-confirm his previous observances and assessments and to discuss the applicant’s new evidence.  The SR reiterated that he had contacted officials at the PERSCOM, but could not remember the name of the person with whom he spoke.  He also reiterated that he never intended to portray the applicant as a below COM officer and that his subsequent report rendered 60 days later, was intended as a corrective measure.  The OSRB determined that there was not credible evidence to substantiate the applicant’s claim of error and denied his request.

12.  A review of the OER’s rendered on the applicant by the SR both prior to and subsequent to the contested report show that he was placed in the top block on both reports.  The OER rendered prior to the contested report indicated that he was a COM officer and the OER rendered after the contested OER showed him as the only officer rated on a restarted profile.

13.  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, in pertinent part, states that an OER is presumed to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

14.  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 Board is convinced that the SR did make his intentions known that he was restarting his profile for captains, and that the applicant was to be the first officer rated on that profile.  

2.  Irrespective of the reasons that caused the SR’s profile not to be restarted, it was the SR’s responsibility to ensure his profile restart was in place at the time he prepared the contested OER and informed the applicant that he would be the only officer on the profile.  The SR failed in his responsibility and has admitted to that failure on more than one occasion.  It is inherently unfair that the rated officer should suffer the consequences of his SR’s mistakes or that he should be portrayed in a manner other than his SR intended.

3.  Clearly, there is no retrospective thinking on the part of the SR involved in this case.  The SR admitted that the error was his fault.  When he discovered the mistake, he unsuccessfully attempted to correct the error.  

4.  Therefore, unlike the OSRB, the Board is satisfied that the SR’s intent at the time he prepared the contested OER was to portray the applicant as a COM “2” block officer.  Therefore, in the interest of justice, it would be appropriate to delete the SR profile from the contested OER.

5.  Additionally, the document denying his appeal should be removed from his records.

6.  In the interest of justice, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

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

    a.  by deleting the SR profile in part VIIa from the OER ending on 11 February 1989 of the individual concerned;

    b.  by removing from his records the PERSCOM memorandum dated 20 June 1995, indicating the denial of his appeal of the contested OER.  



BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON