2.  The applicant requests deletion of the senior rater (SR) profile on his officer evaluation report (OER) covering the period 3 January 1994 through 17 July 1994.

3.  The applicant states, in effect, that the SR rating in part VIIa is substantially inaccurate and constitutes a manifest injustice.  He goes on to state that the SR’s placement of him in the second block of part VIIa, which portrays him as a below center of mass (COM) or substandard officer is not only inconsistent with the narrative comments regarding his potential and performance, but should also have been referred for comment.  He further states that he was never counseled for substandard performance which implies that the SR considered him at least a COM officer.  He also states that he received an award during the period of the contested OER from the SR and that a review of his record will clearly show that the contested OER is clearly inconsistent on its face and unfairly and adversely impacts his career.

4.  The applicant’s military records show that the applicant was commissioned as a USAR Judge Advocate General Corps first lieutenant on 1 January 1974 with a concurrent call to active duty.  He accepted an appointment into the Regular Army on 18 August 1981 and was promoted to the rank of colonel on 1 November 1991.

5.  The contested OER is a change of rater report for the period 3 January 1994 through 17 July 1994, evaluating him as a colonel while performing as an installation staff judge advocate.

6.  The SR (a major general) 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.  Part VIIb contained nothing but favorable comments, including “[the applicant] has been an exceptional staff judge advocate. . . . His office earned the Army Chief of Staff Award for excellence in legal assistance. . . . Excellent performance from an officer who should be selected for senior service college and assigned to positions of increasing responsibility.”

7.  The applicant appealed the OER in question to the Officer Special Review Board (OSRB) in December 1994 based on the same rationale as he has stated in his application to this Board.  The OSRB opined that although the contested OER should have been referred based on the adverse impact a below COM rating can have on a career, it was not required to be referred because it did not specifically meet the criteria in paragraph 4-27 in that it was up to the SR to determine if it should be referred.  The OSRB further indicated that the SR had rendered 18 ratings of colonels and restarted his profile twice.  Furthermore, although the SR had a propensity for making his top block his center of mass, he had rendered five two-block ratings and the applicant was the only one who had received two two-block ratings from the SR.  The OSRB further opined that the SR intended to send the message to promotion boards that he did not want the applicant promoted to general officer and in this case he met his responsibility of rendering evaluations that will assist boards in selecting only the best qualified.  The OSRB denied his appeal.

8.  A review of the applicant’s OER history reveals that the applicant received a previous OER from the same SR in which he was the only officer rated in a restarted profile and in which he was also placed in the second block.  The report also contains nothing but favorable comments and leads the reader to believe that the applicant has unlimited potential.  Furthermore, with the exception of the contested OER, there is no evidence to show that the applicant was ever rated as a below COM officer.

9.  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.  Paragraph 4-27 states, in pertinent part, that any report with ratings or comments that, in the opinion of the SR, are so derogatory that the report may have an adverse impact on the rated officer’s career will be referred to the rated officer for acknowledgment and comment before it is sent to the Department Headquarters. 

10.  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, unlike the OSRB, that the SR failed to fulfill his responsibilities as a SR, in that the below COM rating in part VIIa is clearly inconsistent with the supporting comments by the SR.  Clearly, recommending an officer for attendance at a senior service college and assignment to positions of increasing responsibility are not indicative of the recommendations one would expect a below COM officer to receive.  The contested OER is contradictory in that it sends the message that he should be sent to advanced schools and given harder jobs, but he should not be promoted.  While the OSRB may consider this type of logic acceptable, the Board is not convinced that the message sent by the SR is correct or appropriate.  Rather, the rating is flawed and constitutes an injustice to the applicant. 

2.  Although the Board recognizes that reports should stand alone, it is important in this case to recognize that although the applicant received a two-block rating from the SR in his previous report, he was the only officer rated in s restarted profile.  Additionally, inasmuch as the profile is considered immature (five or less ratings), a promotion board would have to rely on the SR’s narrative comments to determine the SR’s intent regarding potential.  The SR’s comments in the previous OER, like the contested OER, leaves no room for doubt that the applicant had unlimited potential.  This in itself creates doubt as to the intent of the SR in the contested report.

3.  The Board also notes that the explanation by the OSRB indicating that the SR had given 18 ratings of colonels and that the applicant was the only officer who had received two two-block ratings of the five officers who had received two block ratings during the SR’s two restarts, fails to mention the status (COM, below COM, etc.) of the OER’s at the time they were rendered.  Not only did the SR have two restarts, but he could easily have shown officers in the second block as being COM or the bottom half of a dual COM, however, this was not explained.  Additionally, the applicant’s ratings account for two of the five two-block ratings rendered by the SR which further distorts the picture portrayed by the OSRB. 

4.  Regardless of the intent of the SR, he has either sent the wrong message or he went about it the wrong way.  The Board believes that if the SR did not want the applicant to be promoted, it was his responsibility to counsel the applicant and make the necessary comments to support his rating.  Inasmuch as this did not occur, it is inherently unfair for the rated officer to bear the burden of the mistakes of the SR.  Therefore, it would be appropriate to correct the contested OER by deleting the SR profile from the contested OER.  Additionally, the documents denying his appeals should be removed from his records.

5. 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 deleting the SR profile in part VIIa of the contested OER of the individual concerned; and

   b.  by removing from his records the PERSCOM memorandum dated 3 February 1995, indicating the denial of his appeal of the contested OER.

2.  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