2.  The applicant requests correction of an officer evaluation report (OER) covering the period 25 November 1993 through 26 May 1994 by changing the senior rater (SR) potential evaluation in part VIIa from a second block rating to a top block rating.

3.  The applicant states that the SR rendered four top block ratings during the contested period and that his performance surpassed all of his peers who received top block ratings.  He goes on to explain that his rater informed him that his performance and potential clearly placed him as a top block officer.  The rater also informed him that he would recommend to the SR that he receive a top block rating.  However, because he was the junior commander, the SR decided to place him in the second block with the intent to show that he had room to grow in his first command.  He further states that his SR did not at the time believe that a second block rating as a commander would hurt him as long as he remained in the center of mass (COM); however, the SR now realizes that his method of rating is no longer valid and that he should have placed him in the top block as he initially intended.  In support of his application he submits letters of support from the rater, SR, and the division commander.    

4.  The applicant’s military records show that he enlisted on 6 January 1987 for a period of 3 years under the officer candidate school (OCS) enlistment option.  Upon successful completion of OCS on 20 August 1987 he was commissioned as a USAR infantry second lieutenant with a concurrent call to active duty.  He accepted an appointment in the Regular Army on 18 May 1990 and was promoted to the rank of captain on 1 January 1992.

5.  The contested OER is a change of rater report for the period 25 November 1993 through 26 May 1994, evaluating him as a captain while performing as a rifle company commander at Fort Hood, Texas.

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 in the COM on the SR’s profile (18 officers were in the top block, 26 officers were in the second block, of which the applicant was one), and one officer was in the third 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.)  Part VIIb contained nothing but favorable comments, including “[the applicant’s] performance has been outstanding and clearly demonstrates unlimited potential. . . . Is in fact battalion commander material . . . . Select him early for major and command and general staff college, then return him to a battalion as a major as soon as possible.”

7.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) twice in 1995 based on the same rationale as he has stated in his application to this Board.  The OSRB denied his appeals both times.

8.  In support of his appeal, he submits a statement from his rater that indicates that he (the rater) argued with the SR to give him (the applicant) a top block and explained to the SR that to give a second block rating to an outstanding commander would have adverse effects on his career.  He (the rater) also explains that the SR was adamant that the second block would not hurt a young officer by showing that he had room to grow and therefore gave the applicant a second block rating.

9.  The applicant also submitted a statement from the SR (currently stationed in the Pentagon) of the contested report which indicates that at the time he rated the applicant he was inclined to rate the applicant in the top block based on his outstanding potential and because he was being considered for a second command.  However, because the applicant was the most junior commander in the brigade and based on his (the SR’s) experience, giving a junior officer room to grow would not adversely affect his career.  Additionally, because he knew that he would have at least one more opportunity to rate the applicant, he decided to give him a two block rating.  Unfortunately, he later discovered from his colleagues, Total Army Personnel Command (PERSCOM) personnel, and his general officers, that his rating strategy was outdated.   He firmly supports the applicant’s request to have the SR potential rating moved from the second block to the top block.

10.  The applicant also submitted a letter of support from the division commander (major general) at the time of the contested report who is currently stationed in the Pentagon. The division commander indicates that he personally witnessed the applicant’s performance during the contested period and contends that the applicant was one of the best commanders in the division and that he has unlimited potential, which was also recognized by the III Corps commander when he personally selected the applicant for a second command of a prestigious long range surveillance company.  He went on to state that the SR had the best of intentions in his initial evaluation of the applicant but was unaware of the impact his evaluation would have for a command evaluation.  The division commander wholeheartedly supports the applicant’s appeal and contends that his extraordinary potential may not be fully realized if his appeal is denied.

11.  In the processing of this case, a staff member contacted the SR of the contested report for additional information.  The SR indicated that the applicant was an outstanding commander with unlimited potential and that his rater at the time was adamant that the applicant should receive a top block rating.  Furthermore, the rater tried to convince him (the SR) that his rating philosophy in regards to command reports was outdated.  However, the SR stated that he believed that he was right and that it would not hurt to give the applicant a second block command rating for his first command report knowing that he would be able to rate him again.  He went on to state that he subsequently found out, after the damage was done, that he was wrong and that the rater was correct. He then explained that he changed his rating philosophy and began putting all of his good officers in the top block so that they would not be penalized by what he perceived as a rating system gone awry. He also stated that although he always believed the applicant was a top block officer he thought he was helping the applicant by showing that he was improving and still supporting what he perceived was the correct way to manage his profile based on published guidance.  Unfortunately, in the real world, he later found that such was not the case and that he had unjustly penalized the applicant.  Furthermore, after changing his rating philosophy, he rated the applicant in the top block but the rating did not accomplish his original intent because his top block had then become his COM.  He was adamant that the mistake was his and that the report should be changed to reflect a top block rating. 

12.  A review of the OER’s rendered on the applicant both prior to and subsequent to the contested report show that he was placed in the top block on both reports.  Additionally, the applicant assumed a second command and received a top block rating on that report as well.

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, 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.  

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 believed that the applicant was a top block officer at the time he rated him. The SR further believed that by placing the applicant in the second block during his first evaluation as a commander he would be able to show that the applicant had gotten even better by the time he rendered his next report.  However well intentioned the SR’s actions at the time, by placing the applicant in the second block when he knew and admits that the applicant deserved a top block rating was misguided and constitutes an injustice to the applicant.  

2.  Clearly, this is not a case of retrospective thinking on the part of the SR; but one of a misguided rating philosophy.  Although the SR believed that he would not harm the applicant by placing him in the second block, and at the same time he would be properly maintaining his profile in the manner in which he perceived it should be in accordance with Department guidance, he did not objectively rate the applicant based on the applicant’s demonstrated performance and potential.  In short, the SR had an obligation to honestly evaluate the applicant without regard to how it would affect his SR profile.

3.  Although the Board cannot ascertain that the contested report has prevented the applicant from being selected for promotion below the zone, it would be appropriate to correct the contested OER to reflect a top block rating.  Additionally, the documents denying his appeals should be removed from his records. 

4.  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 changing the SR evaluation in part VIIa on the OER ending on 26 May 1994 of the individual concerned to reflect a top block rating instead of a second block rating; and

    b.  by removing from his records the PERSCOM memorandum dated 17 February 1995, indicating the denial of his appeal of the contested OER.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON