2.  The applicant requests correction of an officer evaluation report (OER) covering the period 8 April 1984 through 29 March 1985 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 the SR option (contested report) OER with the intent of showing that he was one of the best company commanders in the brigade.  However, by placing him in the second block of his SR profile, the SR mistakenly portrayed him (the applicant) as a below center of mass (COM) officer.  He goes on to state that he was not aware of the consequences of the SR’s rating until he was nonselected for attendance at the Command and General Staff College (CGSC).  He further states that he consulted with his assignment manager at the Total Army Personnel Command (PERSCOM) who informed him that the contested OER was the probable cause for his nonselection.  Consequently, he appealed the contested OER to the Officer Special Review Board (OSRB), which denied his appeal and he was subsequently nonselected for promotion to the rank of lieutenant colonel (LTC) and LTC command.  In support of his application he submits letters of support from the rater, SR, the division inspector general, and a platoon sergeant.    
4.  The applicant’s military records show that he was commissioned as a Regular Army armor second lieutenant upon graduation from West Point on 28 May 1980.  He was promoted to the rank of major on 1 May 1992.

5.  The contested OER is a SR option report for the period 8 April 1984 through 29 March 1985, evaluating him as a captain while performing as an armor company commander in Germany.

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 (31 officers were in the top block, 20 officers were in the second block, of which the applicant was one), 14 officers were in the third block, eight officers were in the fourth block, nine officers were in the fifth block, and one officer was in each of the seventh through ninth blocks. (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] is an outstanding commander. . . . Maintenance and property accountability programs are among the best in the brigade . . . . Promote and school ahead of contemporaries.”

7.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) in 1993 based on the same rationale as he has stated in his application to this Board.  The OSRB denied his appeal.

8.  In support of his appeal, he submits a statement from his rater (now a brigadier general) that indicates that he (the rater) discussed the SR option report with the SR because he believed that the applicant was an above average commander.  Furthermore, the rater opined that had the SR believed that he was a COM or lower officer, he would have referred the report to the applicant.  The rater supports the applicant’s appeal and contends that he should be promoted to the rank of lieutenant colonel and selected for battalion command. 

9.  The applicant also submitted a statement from the SR (now a lieutenant general) of the contested report which indicates that at the time he rated the applicant he had informed the battalion commanders to identify their two best company commanders so that he could render SR option reports on them.  The applicant was one of the commanders selected. He further states that the applicant was clearly an above COM performer and that his rating does not clearly reflect the applicant’s performance or accurately depict the rating he intended the applicant to receive.   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 inspector general (now a retired brigadier general) at the time of the contested report.  The division inspector general indicates that he personally inspected the applicant’s company and battalion during the contested period and that the applicant’s company received the majority of the commendable ratings received by the battalion.  Furthermore, he was one of the best commanders in the division and one of the most outstanding and aggressive combat commanders he has ever known.  He went on to state that he was totally familiar with the SR’s profile and that although the SR had the best of intentions in his evaluation of the applicant and other junior officers, he unjustly rated them by failing to manage and understand his SR profile.  He wholeheartedly supports the applicant’s appeal and contends that the injustice must be corrected.

11.  The supporting statement submitted by a former platoon sergeant (now a sergeant major) during the contested period, indicates that the applicant took over the worst company in the battalion, and possibly the brigade, from a commander who had been relieved.  He goes on to state that the applicant turned the company into the best company in the brigade and at the same time ensured that the soldiers were taken care of and received recognition for all of their efforts.  He contended that the applicant was the best commander he had served under in his 25 years of service and would proudly serve with him again. 

12.  A review of the OER’s rendered on the applicant both prior to and subsequent to the contested report (in the same battalion) shows that he was placed in the top block on both reports. 

13.  The applicant was nonselected for resident CGSC (he completed nonresident CGSC on 23 June 1993) and was nonselected for promotion to the rank of lieutenant colonel on the list released in March 1996.

14.  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.  

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.   Notwithstanding the SR’s contentions that he intended to portray the applicant as above COM, he placed the applicant in the second block instead of the first, and he did not have a profile that would have allowed any of the officers he rated to be portrayed as above COM because his COM was the top block.  

2.  Irrespective of the circumstances that led to his placing the applicant in the second block, it is reasonable to presume that he would not have requested that his battalion commanders identify the two best commanders in their battalions so that he could give them a bad SR option report.  Therefore, it is also reasonable to presume that in all likelihood, the SR simply lost control of his SR profile or did not understand the proper way to manage it.  However well-intentioned, the SR’s actions at the time, by placing the applicant in the second block when he knew that the applicant deserved a top block rating was misguided and constitutes an injustice to the applicant.  

3.  Clearly, this is not a case of retrospective thinking on the part of the SR; but one of either a misguided rating philosophy or failure to properly manage his SR profile.  Although the SR believed that he was helping his top performers (company commanders in the rank of captain) by rendering a SR option at the time, the structure of his profile (top heavy with a top block COM) would not allow him to portray any of his officers, regardless of their exceptional performance or potential, any higher than COM. Consequently, by maintaining his profile in the manner in which he did, he could not render a rating that would accurately portray the applicant’s demonstrated performance and potential as above COM.

4.  Although the Board cannot ascertain that the contested report has prevented the applicant from being selected for promotion, schooling, or command selection, it would be appropriate to correct the contested OER to reflect a top block rating and by deleting the SR profile from the contested OER.  

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 LTC 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.  Inasmuch as selection boards for schooling and command are convened to fill billets for specific classes and periods of command, there are no provisions for reconsideration for these types of boards.  Consequently, he cannot receive reconsideration for resident attendance at the CGSC or LTC command selection.

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 changing the SR evaluation in part VIIa on the OER ending on 29 March 1985 of the individual concerned to reflect a top block rating instead of a second block rating; 

    b.  by deleting the SR profile in part VIIa of the contested OER;

    c.  by removing from his records the PERSCOM memorandum dated 9 December 1993, indicating the denial of his appeal of the contested OER; and

    d.  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 LTC, 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 the event the applicant is not selected (during reconsideration) for promotion to the rank of LTC, he will still be entitled to exercise any options to which he was otherwise entitled prior to his reconsideration.  Should the applicant be selected for promotion to LTC based on the actions of this Board subsequent to his separation from the service, authorization is granted to void his separation and return him to active duty in the status he held prior to separation.  

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.

BOARD VOTE:  

                       GRANT AS STATED IN RECOMMENDATION

                       GRANT FORMAL HEARING

                       DENY APPLICATION




		                           
		        CHAIRPERSON