2.  The applicant requests, in effect, that his third block rating in part VIIa be changed to a top block rating or as an alternative that part VIIa of the officer evaluation report (OER) covering the period 23 September 1990 through 22 September 1991 be deleted. 

3.  The applicant states that his senior rater (SR) intended to rate him as a center of mass (COM) officer but mistakenly placed him in the third block of part VIIa which placed him well below COM in his SR profile.  He further states that the comments in part VIIb obviously do not coincide with the rating in part VIIa and that the rating will prevent his selection to the rank of major.  In support of his application he submits statements of support from his rater and SR as well as letters from the Air Force commanders to whom he provided support. 

4.  The applicant’s military records show that the applicant was commissioned on or about 19 June 1989 as a USAR Veterinary Corps captain with a concurrent call to active duty.

5.  The contested OER is an annual report for the period 23 September 1990 through 22 September 1991, evaluating him as a captain while performing as the officer in charge of a veterinary branch assigned to Fort Huachuca, Arizona and physically located at Davis Monthan Air Force Base (100 miles away).   

6.  The SR (a colonel) placed the applicant in the third block of part VIIa, the potential evaluation portion of the OER.  This placed the applicant below the COM on the SR’s profile (27 officers were in the top block, 24 officers were in the second block, 11 officers were in the third block, of which the applicant was one), five officers were in the fourth block, and one officer was in the fifth 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. . . . applicant’s potential is considered to be significant . . . should be selected for advanced course and groomed for challenging assignments.”

7.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) on 7 September 1994.  He cited essentially the same reasons for his appeal to that board as he has to this Board.  The OSRB opined that there was a disparity between the statements by the SR and the rater and that the intent of the SR was unclear when compared to his profile and his explanation that the mistake was the result of an administrative error.  The OSRB denied his request.

8.  In support of his appeal, he submits a statement from his rater which indicates that he (the rater) discussed the applicant’s performance frequently with the SR and both agreed that the applicant was a superior and above COM officer.

9.  The applicant also submitted a statement from the SR of the contested report which indicates that he (the SR) made a serious administrative error by placing the applicant in the third block instead of the second block.  He further reiterated that it was his intent to portray the applicant as a COM officer and that his statement supporting a change to a higher block was not the result of a change of mind regarding the applicant’s performance.  He also contended that the applicant should not be penalized for an error that occurred through no fault of his own.

10.  The applicant also submitted statements from the Air Force base and group commanders (major general and colonel) which praise the applicant’s duty performance during the contested period and provides support for his appeal.  

11.  A review of the applicant’s records reveals that the applicant was rated by the same rating chain in the same duty position three times.  The OER’s prior to and subsequent to the contested OER show the officer as a top block COM officer.

12.  The applicant was nonselected for promotion to the rank of major during the 1996 major veterinary corps promotion selection board.

13.  In the processing of this case a staff member of the Board contacted the SR who is presently stationed in Croatia.  The SR was informed that there was a discrepancy in his statement of support, in that he recommends placing the applicant in the second block so that he is reflected as a COM officer.  However, his (the SR’s) COM during the contested report is the top block.  The SR indicated that he was not surprised because he had in fact lost track of his SR profile and was not sure where his COM was at that time. He indicated that his profile got so out of hand that he had to subsequently restart it.  He further indicated that it was his intent to portray the applicant as a COM officer and that if his COM was the top block, that is where the applicant should be placed.  He concurs with any action taken by the Board to portray the applicant on the contested report as a COM officer.    

14.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 4-16 states, in pertinent part, that part VIIa 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 judgement of the rating officials at the time of preparation.

15.  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.  Given the circumstances in this case, the Board is convinced that the SR believed that the applicant was at least a COM officer at the time he rated him.  The SR’s subsequent admission that he lost track of his profile provides a logical explanation as to why the applicant unjustly received a below COM rating from the SR.  Consequently, the applicant’s OER should be corrected as requested.

2.  The SR rated the applicant as a top block COM officer both prior to and subsequent to the contested report.  There is no indication in the contested OER or the supporting statements which would indicate that the applicant’s performance or potential took a downturn during the period in question. 

3.  Clearly this is not a case of retrospective thinking on the part of the SR; but one of not keeping track of his ratings or of failure to properly manage his SR profile.   Irregardless of the reason, the applicant should not be required to bear the burden of the SR’s mistake.

4.  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 third block.

5.  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.

6.  Additionally, the documents denying his appeals should be removed from his records.

7.  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 22 September 1991 of the individual concerned to reflect a top block rating instead of a third block rating;

   b.  by removing from his records the PERSCOM memorandum dated 20 December 1994, indicating the denial of his appeal of the contested OER; 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 fiscal year 1996 Major, Promotion Selection Board.

2.  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.

3.  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