2.  The applicant requests correction of an officer evaluation report (OER) for the period 1 October 1991 through 1 September 1992, by deleting Part VIIa (Senior Rater (SR) profile); removal from his records of the documents prepared by the Officer Special Review Board (OSRB) denying his appeal of the OER; and promotion reconsideration to the rank of lieutenant colonel (LTC) by all boards that nonselected him.  

3.  The applicant states that the OER in question is in error because his senior rater (SR) at the time, indicated that it was his intent to place him in the center of mass (COM) of his (the SR’s) profile.  However, his report was held too long by administrative personnel and resulted in his report arriving late at the Total Army Personnel Command (PERSCOM) and being processed along with subsequent reports rendered by the same SR.  As a result, the SR profile placed on the contested OER reflects his potential as being below COM.  He goes on to state that not only were the reports in his command being batched by the servicing personnel office, they were not being processed on a first in first out basis. This problem was further compounded by the fact that the SR had tasked the unit adjutant with maintaining his SR profile and the adjutant failed to keep an accurate record of the SR’s profile, resulting in the SR being given incorrect information.  He points out that one of the officers in the same SR profile has successfully appealed his case before the Board (personal appearance).  The other officer convinced the Board that he was also incorrectly portrayed as below COM on the SR’s profile due to the SR losing track of his profile.  In support of his application he submits statements from his rater, the SR of the contested OER, and the executive officer of the Special Forces Group at the time of the report.

4.  The applicant’s counsel contends that the applicant’s case is identical in all material respects to a case previously approved by the Board after a formal hearing, where it was established that the SR had lost control of his profile.  He goes on to state that the officer’s copy of the contested OER clearly shows that the report was not dated when it was signed and indicates that a systemic problem existed that attributed to a distorted SR profile.

5.  The applicant’s military records show that he was initially inducted and served a 1 year tour in Vietnam.  Upon completion of his tour in Vietnam he was honorably released from active duty and transferred to the USAR Control Group (Reinforcement).  On 6 September 1978 he enlisted in the Regular Army and served as an infantryman until he completed officer candidate school at Fort Benning, Georgia, and was honorably discharged on 6 September 1979 to accept a USAR commission as a second lieutenant on 7 September 1979 with a concurrent call to active duty.  He was promoted to the rank of major on 1 August 1991.   

6.  The contested OER is a change of rater report for the period 1 October 1991 through 1 September 1992, evaluating him as a major while performing as a company commander of a Special Forces company at Fort Campbell, Kentucky.  

7.  The SR (a colonel) placed the applicant in the second block of part VIIa of the OER.  This placed the applicant below the COM on the SR’s profile (12 officers were in the top block and 7 officers were in the second block, of which the applicant was one). Part VIIb, SR Comments, contained nothing but favorable comments, including the applicant’s  “performance in a very demanding command position has been outstanding. . . .  He is a totally dedicated professional who clearly demonstrates unlimited potential for future contributions to the Army.  He is the kind of combat leader the Army needs. . . .  Promote immediately and select for battalion command.”  Part VIIb also contains the comment by the SR which stated that “My intended center of mass for this grade is the two block.”

8.  On 1 June 1993 the applicant received a change of duty OER in the same position as the contested OER covering the period 2 September 1992 through 1 June 1993.  The same SR as in the contested OER placed the applicant in the second block of part VIIa which placed the applicant in the COM of his restarted profile.  The SR indicated in part VIIb that the applicant is one of the top five commanders in the Group, that he should be promoted to the rank of LTC, and that he should be considered for battalion command at the earliest possible opportunity.  He also indicated that he would fight to secure his services in any future assignment and that the report did not indicate a downturn in performance, but rather that he had restarted his profile.

9.  On 16 December 1992 the applicant appealed the OER in question to the OSRB, based on alleged administrative error (late posting), which he charged had an adverse impact on him in that he was placed below COM, which did not properly reflect the SR’s intent at the time he prepared the OER.  He reiterated that it was the SR’s intent to place him in the two block and that the two block was supposed to indicate that he was in the COM of his profile.      

10.  In support of his appeal, he submitted statements from both the rater and the SR of the contested OER.  The rater indicated that he had recommended a strong COM senior rating and that the SR had clearly lost control of his profile.  The SR also provided a statement in support of the applicant’s appeal in which he contended that due to problems in the processing of the reports at the Fort Campbell military personnel office, his profile was inaccurate, that it contained OER’s from his previous profile, and that it did not accurately reflect the applicant’s potential.  As a result, he had restarted his SR profile.  He fully supported deletion of the SR profile from the contested OER.  The OSRB reviewed the OER records and determined that there was not a systemic problem in processing OER’s at Fort Campbell.

11.  The OSRB then contacted the SR regarding his profile. The SR stated that his records indicated that his profile was developing with about the same number of officers in the first and second block (dual COM).  Therefore, in order to offset any misperceptions, he clarified his intent by using the statement about his intended COM being in the second block.  However, he did not know how his profile had developed until one of the two-block officers received a copy of his report.  He attributed the problem to a policy at Fort Campbell which required the rating chain not to date their reports, but to allow the personnel office to date their reports.  He also indicated that he has since begun dating his reports and that after restarting his profile, he has gotten control of it and that the applicant is now reflected as a COM officer.  The OSRB concluded that despite the SR’s sincerity, there was insufficient grounds for favorable action on the appeal.

12.  The current statement provided by the SR (now a major general) indicates that his portrayal of the applicant’s potential was inaccurate and precludes any reasonable opportunity for promotion of an outstanding officer.  He also indicates that it was his intent to portray the applicant as a COM officer which is clearly indicated by his comments recommending him for promotion and selection for command of a Special Forces battalion. 

13.  The statement submitted by the executive officer (a LTC) during the period of the contested OER indicates that the adjutant (who was new to the job) had been entrusted to keep an accurate working list of the SR’s profile and had failed to do so, which resulted in the SR being given bad advice regarding the status of his profile.  Immediately upon learning of the problem, the SR restarted his profile and took action to ensure he had positive control of his profile.  He also indicated that he was aware that the SR never intended to portray the applicant as a below a COM officer.

14.  A review of the subsequent OER received by the applicant from the same SR shows that the SR had indeed gotten control of his profile, and that the applicant was reflected as a COM officer.  A review of the applicant’s previous and subsequent OER’s reveal that the applicant has never been portrayed as a below COM officer.  The applicant was first considered for promotion to LTC in the primary zone in 1995.  He was twice nonselected for promotion to LTC in 1996 and has a mandatory retirement date (based on his nonselection) of 31 January 1997.

15.  The case currently cited by the applicant which was approved by this Board (after a personal appearance before the Board) involved the same SR’s rating of a Special Forces company commander (major) at Fort Campbell during the period 18 June 1991 through 17 June 1992 (the applicant’s rating period was 1 October 1991 through 1 September 1992).  The SR (then a brigadier general) provided three statements of support in which he contended, in effect, that although a series of errors occurred that caused an erroneous structure of his SR profile, he was ultimately responsible for maintaining his profile and had failed to do so.  He further stated that it was inappropriate to penalize the applicant for these errors.  In addition, the applicant’s rater gave testimony to the Board that he had personally discussed the applicant’s rating with the SR and was personally assured that the applicant would receive a COM rating.  However, when the SR’s profile was placed on the OER it portrayed the applicant as below COM.  The Board in that case determined that irrespective of the administrative errors that may have occurred in the processing of the contested OER, the SR clearly indicated by his comments his intent to portray the applicant as a COM officer.  The SR also indicated that he had lost track of his profile which was further supported by the evidence in the case.  The Board determined that the rated officer should not be held responsible for the errors of the SR and voted unanimously to delete the SR profile of the contested report and grant the applicant promotion reconsideration to the rank of lieutenant colonel.
     
16.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraphs 5-32 and 9-2 provide than 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 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.

17.  Paragraph 4-16 discusses part VII of the OER, and explains how the SR profile is established and underscores its effect on the rated officer.  Paragraph 4-16b(5)a states, in effect, that the rated officer’s evaluation of potential by the SR is to be made by comparing the rated officer’s potential with all other officers of the same grade rated by the SR.  The Department of the Army then uses the reports to record the SR’s rating history (profile).  This profile contains all OER’s rendered by the SR and accepted as correct by the Department for the rated officer’s grade or grade grouping.  The purpose of the profile is to place a rated officer’s OER in perspective by revealing the SR’s general rating tendency.  Part VIIb will contain the SR’s comments and will address the potential evaluation and the rated officer’s performance.

18.  Paragraph 9-7 of that regulation also 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 error or inaccuracy is warranted.

19.  Army Regulation 623-105 also states, in pertinent part, that statements from rating officials often reflect retrospective thinking, or second thoughts.  As a result, claims by rating officials that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing a report.

CONCLUSIONS:

1.  The SR clearly indicated in the contested OER that his COM was supposed to fall in the “two block”, which is contrary to what is portrayed in the SR profile on the contested OER.

2.  Notwithstanding administrative errors which could have contributed to the distorted profile the SR amassed, the SR admitted that he lost track of his profile and had to subsequently restart it to correct the problem.

3.  Clearly, there is no retrospective thinking on the part of the SR involved in this case.  The SR stated on the subject OER where the applicant should fall within his profile and he had supported the applicant’s efforts to appeal the report as early as three months after he rendered the report and as soon as he discovered the error. 

4.  Therefore, unlike the OSRB, this Board is satisfied that the SR’s intent at the time he prepared the contested OER was to portray the applicant as a COM “two block” officer.  Accordingly, it would be in the interest of justice to delete the SR profile from the contested OER.

5.  Correction of the OER as indicated in the preceding paragraph would constitute a significant change in his record.  Consequently, he is entitled to promotion consideration to the rank of LTC by all appropriate special promotion selection boards.

6.  Additionally, the documents denying his appeal to the OSRB should be removed from his records.

7.  In view of the foregoing, 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 deleting the SR profile in part VIIa from the OER ending 1 September 1992 of the individual concerned;

    b.  by removing the PERSCOM memorandum, dated 19 February 1993, indicating the denial of his appeal of the contested OER from his records; 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 FY 1995 LTC, Promotion Selection Board.

2.  That if not selected under the criteria established for the FY 1995 promotion board, his records should continue to be submitted to duly constituted special promotion selection boards convened under the appropriate promotion criteria of the boards that nonselected him until he is either selected for promotion or has been afforded all appropriate promotion reconsideration to which he is entitled as a result of this corrective action.

3.  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.

4.  In the event the applicant has been separated from the service, the applicant should be reinstated to active duty (if he so desires) and his records corrected to show that he had no break in service.

5.  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