APPLICANT REQUESTS:  Correction of an officer evaluation report (OER) covering the period 10 May 1991 to 25 February 1992 to reflect in part Vb, performance, that he “Always exceeded requirements” and in part Vd, potential for promotion, that he be “Promoted ahead of his contemporaries”.

APPLICANT STATES:  That the ratings in the contested OER which indicate that he “Usually exceeded requirements” and that he should be “Promoted with his contemporaries” are an aberration in his file and do not accurately reflect his performance and potential for promotion.  He further states that he did not appeal the OER because he did not believe that he had any appeal options and did not find out otherwise until later when he was denied advanced civil schooling and was advised by his branch that the contested OER could possibly cause his termination from service.  He goes on to state that the ratings he received were the result of a personality conflict between himself and his rater and that his senior rater (SR) did not properly advise him to pursue a commander’s inquiry in the matter.  In support of his application he submits a statement from his SR and civilian co-worker.

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

The applicant initially enlisted on 28 October 1981 and served until 7 September 1984 when he was honorably released from active duty in the pay grade of E-5 and transferred to the Colorado Army National Guard. 

On 10 October 1986, he was commissioned from ROTC as a Regular Army second lieutenant in the Adjutant General (AG) Corps.  He was promoted to the rank of captain on 1 June 1991.

The contested report was a change of rater OER evaluating him as a captain while performing as the chief, soldier family assistance branch, at Fort Sheridan, Illinois.  The report was not considered adverse and as such was not referred to him.

In Part V, performance and potential evaluation, his performance during the period was rated by his rater as having “Usually exceeded requirements.”  (The performance rating portion of the OER contains five blocks and relates to the requirements of the duty position, ranging from “Usually failed requirements” to “Always exceeded requirements”).  The rater recommended that the applicant be promoted with his contemporaries.

On 5 May 1995 he appealed the OER in question to the Officer Special Review Board (OSRB), citing essentially the same reasons as he has cited to this Board.  The OSRB contacted the civilian co-worker and SR for additional information.  The civilian co-worker indicated that there was racial tension in the section and that the rater held the dissatisfaction he had for her against the applicant.  The SR indicated that he knew of no racial problems in the section and that he confronted the rater about the applicant’s rating and the rater refused to change the rating.  The OSRB denied his appeal.

The supporting statement from the SR submitted by the applicant with his appeal indicates that, in the SR’s opinion, the applicant and his rater had different personalities and a different sense of urgency.  He also indicated that the rater never counseled the applicant on his performance or provided him (the SR) with any justification for his ratings.  The SR opines that the applicant always exceeded performance standards and showed potential for promotion ahead of his peers.

The supporting statement from the civilian co-worker indicates that in her opinion, the applicant excelled in every requirement and that because she had difficulty with the applicant’s rater, he held it against the applicant.  She also opined that the rater was upset with having to retire due to being twice nonselected for promotion and that he caused dissension among the workers which created am undesirable environment which existed until the rater’s departure.

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, and 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.  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.

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, it is concluded:

1.  The applicant has failed to show through the evidence submitted with his application or the evidence of record that an error or injustice exists in his case.

2.  The Board is convinced, especially since the rater was confronted by the SR about the ratings, that the rater made a conscious decision not to change it, and that the appraisal of the applicant’s performance and potential during the rating period represents the considered opinion and objective judgment of the rater at the time of preparation.

3.  His contentions have been noted; however, they are not sufficiently supported by the evidence or his application.  He has not shown that he was not rated properly or that the rater violated proper rating procedures.

4.  The applicant’s contention that he was not properly advised by his SR that he could request a commander’s inquiry appears to be without merit.  The provisions for requesting a commander’s inquiry are clearly outlined in the evaluations regulation and they do not place the burden on any one specific person to bring matters of error or injustice in OER’s to a commander’s attention.  The Board also notes that the applicant is an AG officer who should have been familiar with or had some knowledge of these provisions, especially if he was dissatisfied with his rating.

5. In view of the foregoing, there is no basis for granting the applicant’s requests.

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