2.  The applicant requests reconsideration of his request that the officer evaluation report (OER) covering the period 1 May 1990 through 5 November 1990 be corrected to reflect a “top block” rating in part VIIa, potential evaluation, instead of the “second block” rating he received.  He also requests that his records be submitted to a special selection board for reconsideration for promotion to the rank of major.

3.  The applicant states, in effect, that his senior rater (SR) unjustly placed him below center of mass (COM) in his SR profile without becoming familiar with his accomplishments during the rating period and without reviewing the support form he (the applicant) provided at the time.  He goes on to state that the SR had an obligation to use all reasonable means available to become familiar with the performance of those officers he rated so as to properly evaluate their performance and he failed to do so. 
In support of his application he submits a statement from his SR.

4.  The applicant’s military records show he was commissioned as a USAR second lieutenant on 12 May 1984 and was ordered to active duty on 16 July 1985.  He accepted a Regular Army appointment on 23 April 1987 while serving in the rank of first lieutenant and was promoted to the rank of captain on 1 January 1990.

5.  The contested OER is a change of rater OER covering the period 1 May 1990 through 5 November 1990 evaluating the applicant as a detachment commander of a special forces signal detachment at Fort Bragg, North Carolina.  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 (two officers were in the top block and one officer, the applicant, was in the second block).  (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.)  The comments in part VIIb were very favorable.  
6.  The applicant appealed the contested OER to the OSRB on 19 November 1991 contending that the OER was inaccurate and did not properly reflect his performance.  In support of his application, he submitted a statement from his SR in which the SR indicated that it was his intent to place the applicant “with the pack”, but due to the sequencing of his OER, his profile did not turn out that way.

7.  The applicant also submitted statements from his rater and group commander who both attests that they would have placed the applicant above the COM.

8.  The OSRB determined that the contested OER was one of three OER’s rendered by the SR over a 2-month period and that he had not established a “pack” (COM).  Therefore, there was no COM the SR could have placed him in.  The OSRB denied his request.

9.  The applicant applied to this Board on 2 February 1996 citing essentially the same reasons as he did to the OSRB.  The Board determined, in effect, that the SR’s explanation that the sequencing of the OER’s he had rendered caused the OER to appear below COM was unfeasible because he had only rendered three reports in a two month period.  Therefore, the Board concluded that the SR had intended to place the applicant where he did. 

10.  The supporting statement provided by the SR (now a colonel) indicates that at the time he rated the applicant, he had only been the commander for a period of 3 months and had rated him based on the information he knew at the time. He further states that he did not review the support form turned in by the applicant and that even if he had, it was not his intent to place the applicant below COM on his profile.  He goes on to state that he was in error in not ensuring that he knew of all of the applicant’s accomplishments and that the applicant’s OER should be corrected to reflect a “top block” rating. 

11.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.

12.  Paragraph 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

13.  Paragraph 9-7 of that regulation also 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 error or inaccuracy is warranted.

14.  Army Regulation 623-105 also states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing a report.

CONCLUSIONS:

1.  Notwithstanding the SR’s previous statement that an administrative error resulted in the applicant being portrayed below COM on his profile, the Board is convinced that either the SR did not keep track of his profile (as small as it was) or that he simply failed in his responsibilities as a SR, in that he failed to consider all of the applicant’s accomplishments which had been outlined on his support form.  Consequently, the applicant was penalized for the shortcomings of the SR.

2.  Although it is apparent to the Board that the SR intended to place the applicant in the second block, given the circumstances in this case and the favorable comments by the SR in the contested OER, it is not apparent that the SR intended to portray the applicant as a below COM officer.

3.  Although the SR evaluation in part VIIa is an evaluation of an officer’s potential, such an evaluation cannot be properly assessed unless the rated officer’s performance during the rated period is properly considered.  The most readily available source of documenting the successes and failures of an officer is the support form.  In this case the SR did not use the information that was available which resulted in an injustice to the applicant. 

4.  The applicable regulation provides that an OER may be corrected if information that was unknown is brought to light that would change an evaluation.  The SR has admitted that he was unaware of the applicant’s accomplishments at the time and agrees that the applicant’s OER should be changed.

5.  Although the Board cannot ascertain that the contested report has prevented the applicant from being selected for promotion, it would be appropriate to correct part VIIa by placing the applicant in the top block (block check) instead of the second block.

6.  Correction of the OER as indicated in the preceding paragraph would constitute a material change in his record. Accordingly, he should also receive promotion reconsideration to the rank of major by all appropriate special promotion selection boards under the criteria of the boards which failed to select him for promotion.

7.  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 changing the SR evaluation in part VIIa on the OER ending 5 November 1990 of the individual concerned to reflect a top block rating instead of a two block rating; and

       b.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion consideration under the criteria followed by the promotion selection boards that previously considered and nonselected him for promotion to the rank of major.

2.  That if selected for promotion, he should be promoted with an appropriate date of rank, or if those officers already selected have not yet been promoted, that he be assigned an appropriate sequence number.

3.  In the event the applicant has been separated from the service, the applicant will be reinstated to active duty (if he so desires) and his records corrected to show that he had no break in service.

4.  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