2.  The applicant requests correction of an officer evaluation report (OER) for the period 18 June 1991 through 17 June 1992, by deleting the senior rater (SR) profile in part VIIa, removal from his records of the document prepared by the Officer Special Review Board (OSRB) denying his appeal of the OER, and promotion reconsideration to the rank of lieutenant colonel (LTC) beginning in 1993.

3.  The applicant states that the OER in question is in error because his senior rater (SR) at the time indicated that it was his intent to place him in the center of mass (COM) of his (the SR's) profile.  However, his report was held too long by administrative personnel and resulted in his report arriving at the Total Army Personnel Command (PERSCOM) and being processed along with subsequent reports rendered by the same SR.  As a result, the SR profile placed on the contested OER reflects his potential as being below center of mass (COM) on the SR's profile.  He goes on to state that not only were the reports in his command being batched by the servicing personnel office, they were not being processed on a first in first out basis.  This problem was further compounded by the fact that the SR had tasked the unit adjutant with maintaining his SR profile and the adjutant failed to keep an accurate record of the SR's profile, resulting in the SR being given incorrect information.  In support of his application he submits statements from the SR of the contested OER and the executive officers of the Special Forces Group at the time of the contested OER.  He also submits a letter of support from the commanding general of the Special Forces Command at the time the contested report was rendered.

4.  The applicant's military records show he was commissioned as a Regular Army second lieutenant on 8 June 1977 upon his graduation from the Military Academy at West Point.  He has remained on continuous active duty as a special forces officer and was promoted to the rank of major on 1 April 1989.

5.  The contested OER is an annual report for the period 18 June 1991 through 17 June 1992, evaluating him as a major while performing as a company commander of a special forces company at Fort Campbell, Kentucky.  The report was forwarded to the applicant on 4 August 1992.

6.  The SR (a 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 (10 officers were in the top block and 2 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 "has done an exceptionally outstanding job as a company commander. . . . He possesses unlimited potential   . . . Select for promotion and command of a Special Forces battalion followed by senior service college."  Part VIIb also contains the comment by the SR which stated that "My intended center of mass for this grade is the 2 block."

7.  On 19 January 1993 the applicant appealed the OER in question to the OSRB, based on administrative error (late posting), which had a substantive effect on the OER, in that it became a below COM rating, which did not properly reflect the SR's intent at the time he prepared the OER.  He reiterated that it was the SR's intent to place him in the 2 block and that the 2 block was supposed to indicate that he was in the COM of his profile.

8.  In support of his appeal, he submitted statements from both the rater and the SR of the contested OER.  The rater indicated that based on his discussions with the SR, and the verbiage contained in the report, the SR intended to covey that the applicant is a strong "with the pack" officer.  The rater also indicated that the SR's profile was not an accurate snapshot of the applicant's performance or potential.  The SR also provided a statement in support of the applicant's appeal in which he contended that due to problems in the processing of the reports at the Fort Campbell military personnel office, his profile was inaccurate and did not accurately reflect the applicant's potential.  As a result, he had restarted his SR profile effective 1 November 1992. The OSRB reviewed the OER records and determined that there was not a systemic problem.  

9.  The OSRB then contacted the SR regarding his profile.  The SR indicated that he had tried to keep up with his profile and thought that it was as he had planned.  However, he did not know how his profile had developed until one of the 2-block officers received a profiled copy of his report.  He attributed the problem to a policy at Fort Campbell which required the rating chain not to date the reports, but to allow the personnel office to date the reports.  He also indicated that he has since started dating his reports and that after restarting his profile, he has gotten control of it and that the applicant is now reflected as a COM officer.  The OSRB concluded that despite the SR's sincerity, there was insufficient grounds for favorable action on the appeal.

10.  The current statement provided by the SR (now a brigadier general) indicates that the report itself is correct as it was prepared but that the administrative handling of the OER caused an erroneous structure of his profile to be portrayed when it was finally posted.  The SR also indicated that inefficiency in the maintenance of his SR profile, which he had entrusted his adjutant to maintain for accuracy, was a contributing factor in the error.  Furthermore, he accepted responsibility for the mistakes and believes that it is inappropriate to penalize the applicant for these errors.

11.  The two statements submitted by the incoming and outgoing executive officers (XO) during the period of the contested OER indicate that the outgoing XO discovered the problem with the SR's profile after he departed, and that he notified the SR of the problem.  The incoming XO confirmed that the adjutant (who was new to the job) had been entrusted to keep an accurate working list of the SR's profile and had failed to do so, which resulted in the SR being given bad advice regarding the status of his profile.  He also indicated that he was aware that the SR never intended to portray the applicant as a below COM officer.

12.  The supportive statement submitted by the applicant's former commanding general indicates that the applicant is an outstanding officer and that based on his knowledge of the SR, it is apparent to him that there was an administrative error that contributed to the applicant being profiled as a below COM officer.

13.  A review of the reports signed by the SR during the time frame in question indicates that reports were not processed on a first in first out basis.  It is apparent that the OER's were being batched/delayed, because the dates of the SR's signature and the dates the OER's were processed vary considerably.  There appears to be no consistency in the way the reports were processed, which would appear to have a considerable impact on the SR's profile.

14.  A review of the subsequent OER received by the applicant from the same SR shows that the SR has indeed gotten control of his profile, and that the applicant is reflected as a COM officer.

15.  At the formal hearing, the applicant, his counsel, and the rater of the contested OER presented testimony to the effect, that the SR had made a mistake by placing him below COM on his profile because he had failed to manage his profile correctly and was under the impression that he was placing the applicant in the second block with one other officer on a new profile.  The rater further testified that based on his conversation with the SR, who indicated that the applicant would be portrayed as a COM officer, he fully expected the applicant to be selected for promotion to the rank of lieutenant colonel and further selected for battalion command.  

16.  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.  

17.  Paragraph 5-36 states that reports will be forwarded as quickly as possible in view of their impact on personnel actions that may be under consideration at the Department.

18.  Paragraph 9-2b of that regulation also states that 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 an OER.

19.  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 SR clearly indicated in the contested OER that his COM was supposed to be the "2-block", which is contrary to what is portrayed in the SR profile on the contested OER.

2.  Not only had administrative errors caused the applicant's OER to be processed late, along with other subsequent reports rendered by the SR, which distorted the message the SR intended to send, the SR admitted that he had lost track of his SR profile and had to subsequently restart it to correct the problem.

3.  Clearly, there is no retrospective thinking on the part of the SR involved in this case.  The SR stated on the subject OER where the applicant should fall within his profile.

4.  Therefore, unlike the OSRB, this 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.  While the Board is aware that profiles are placed on OER's based on the date they are received by the Department, had the contested report not been administratively delayed and had the SR kept track of his profile, the error in all likelihood would not have occurred.  Therefore, in the interest of justice, the contested OER should be corrected as requested by the applicant.

6.  Correction of the OER as indicated in the preceding paragraph would constitute a significant material error in his record.  Accordingly, he is entitled to promotion reconsideration to LTC by all appropriate special promotion selection boards which failed to select him for promotion.

7.  Additionally, the document denying his appeal to the OSRB should be removed from his records.

8.  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 from the the OER ending on 17 June 1992 of the individual concerned; 

	b.  by removing the PERSCOM memorandum, dated 19 February 1993, indicating the denial of his appeal of the contested OER from his records; and

	c.  by submitting his records, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by the FY 1993 LTC, Promotion Selection Board.

2.  That if not selected under the criteria established for the FY 1993 promotion board, his records should continue to be submitted to duly constituted special promotion selection boards convened under the appropriate promotion criteria of the boards that nonselected him until he is either selected for promotion or has been afforded all appropriate promotion reconsideration to which he is entitled as a result of this corrective action.

3.  That if he is selected for promotion, he 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.

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.





		                                                            CHAIRPERSON