APPLICANT REQUESTS:  In effect, that the Officer Evaluation Report (OER) which he received for the period 931109-940617 be expunged from his Official Military Personnel File and that the period be declared non-rated.

APPLICANT STATES:  In effect, that, as a captain, he was improperly evaluated against majors when he should have been compared against other captains; that the senior rater took “alleged” character flaws into consideration in determining his rating; and that the Officer Special Review Board (OSRB) did not fully appreciate the negative impact of the contested OER on his career when it denied his request for relief.

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

He was born on 27 December 1958 and was appointed a second lieutenant in the Utah Army National Guard on 20 March 1981. On 23 September 1982, he was transferred to the United States Army Reserve (USAR) and entered active duty as a second lieutenant.  He remained on continuous active duty and, at the time of the contested OER, he was a major serving as a company commander in an aviation regiment at Fort Bragg, North Carolina.

The applicant was given command of his company on 2 April 1993 when he was a promotable captain.  Because his command was designated a major’s billet, he was frocked to that rank on 2 May 1993, but did not receive his actual promotion to major until 1 June 1994.  He received two OER’s as a commander in the rank of major.  The first was for the period 930402-931118 and on it the senior rater placed him in the top block of Part VIIa, Potential, and stated in Part VIIb, Comments, that he was the best company commander in the group, with potential to serve at the highest levels of the Army.  He added that the applicant should be selected for battalion command.  The second (contested) OER was his final OER in command and the same senior rater placed him in the second block for potential and said that he had the potential to serve as a lieutenant colonel as “A future Bn S3 or XO.”

Facts relating to the applicant's contention that the contested OER should be removed from the records are contained in an opinion (COPY ATTACHED) from the OSRB.  In June 1995, the applicant appealed the contested OER to the OSRB stating that he was rated below center-of-mass by the senior rater in Part VIIa when he actually performed in an exemplary fashion.  He added that he was never counseled about substandard performance by his rater or senior rater.

The OSRB compared the applicant’s two command OER’s and noted that the senior rater was effusive in his praise of the applicant on the first OER, but subdued in his narrative comments on the second.  The OSRB noted that the rating in Part VIIa was clearly below center-of-mass.  In an attempt to clarify the matter, the OSRB contacted the senior rater who stated that he remembered the applicant and that he stood by his rating of him.  The senior rater indicated that the applicant performed equally well during both OER periods, but during the period of the contested OER, certain “character flaws” came to light which caused him [senior rater] great concern about the applicant’s future potential.

The senior rater related two incidents involving the applicant.  The first dealt with a comment the applicant made about “all black soldiers looking alike.”  He stated that a commander’s inquiry was conducted and the allegation that the applicant made the statement was founded.  He added that the applicant was given a local letter of reprimand and made to apologize to his troops [the applicant argues that he was not “made to apologize,” but did so voluntarily].  The second incident involved the applicant’s behavior toward his new battalion commander during a social function.  The senior rater stated that the applicant became so belligerent toward the battalion commander the he had to intervene and tell the applicant to “settle down” [the applicant flatly denies that this occurred].

The senior rater said that his rating on the contested OER was crafted to reflect that the applicant had the potential to serve as a lieutenant colonel and as a staff officer, but because he seriously questioned whether the applicant should ever be placed in command of troops again, he wrote the OER to reflect that concern.

The OSRB denied the applicant’s request stating that the senior rater’s rating in Part VIIa appropriately reflected his opinion of the applicant’s potential for future service.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-10 provides that promotable officers who have been frocked to a higher grade and are serving in an authorized position for that grade will be rated in that grade.  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.

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.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant was, for most of his tenure as a company commander, a frocked major; he was actually promoted to that rank shortly before he received the contested OER.  Because he was frocked to major and was serving in a major’s billet, he was properly rated as a major.

3.  The contested OER did not take exception to the applicant’s duty performance and he was not rated below center-of-mass because of his performance; he was rated below center-of-mass because of alleged character flaws as perceived by his senior rater.  The applicant does not dispute that an incident occurred involving alleged disparaging remarks about black soldiers; instead, he places his interpretation upon it and argues over whether he was told to apologize or did so without prompting.  Regarding his belligerent attitude towards his new battalion commander, he flatly denies the allegation and the Board is left to decide whose version of events is correct--the applicant’s or the senior rater’s.

4.  Although any below center-of-mass OER will have a negative impact on an officer’s career, the Board believes the contested report to be a fair, objective and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from his OMPF.

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