MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 26 July 2001
         DOCKET NUMBER: AR2001054570

         I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Raymond V. O'Connor		Chairperson
Mr. Hubert O. Fry		Member
Mr. Eric N. Andersen		Member

         The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date. In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

         The applicant requests correction of military records as stated in the application to the Board and as restated herein.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

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APPLICANT REQUESTS: That the Senior Rater (SR) profile for the Officer Evaluation Report (OER) for the period covering June through December 1998 be corrected from Center Of Mass (COM) to Above COM (ACOM). He also requests reconsideration for promotion to lieutenant colonel and, if selected, that he be given an appropriate date of rank.

APPLICANT STATES: That his SR had intended to place him in the ACOM block but, because his was the first rating by his SR under the new rating system, his SR mistakenly believed that he could not give the first officer he rated an ACOM rating. Neither the SR or his rater read the regulation governing the new OER system. The applicant then contests the logic behind the denial of his appeal by the Officer Special Review Board (OSRB). In particular, he contests the conclusion by the OSRB that the statements made in his behalf by his rater and SR were retrospective thinking, and that the expanded statement by his SR wasn’t considered new evidence which would warrant reconsideration of the denial of his appeal by the OSRB.

In support of his application he submits a statement from his rater in which he (the rater) explained that he was given the task of briefing the applicant’s senior rater on the new OER system. Because it was a new rating system, he asked for advice on the preparation of the senior rater profile from the applicant’s Functional Area Assignments Officer; his (Infantry) branch; and his own senior rater; and he also reviewed the Total Army Personnel Command’s web page on the new OER system. He admits that he did not read the regulation on preparing OER’s and, based on bad information he received from PERSCOM, believed that an ACOM report would be downgraded to COM if no other officer had been rated by the SR. The statement provided in the applicant’s behalf by his SR reiterates the rater comments and adds that the applicant’s performance was such to warrant an ACOM rating.

EVIDENCE OF RECORD: The applicant's military records show:

The applicant, a major performing duties as Team Chief for the Force XXI Battle Command Brigade and Below System, was given an OER for the period covering June through December 1998. In that OER both the applicant’s rater and SR were extremely laudatory on the applicant’s intelligence, initiative, managerial skills, and research abilities. The applicant’s rater recommended that for future assignments he should be considered for employment at the Center for Army Analysis or the Military Academy. The applicant’s SR stated that the applicant was “the finest analyst I have seen in 30 years working in this profession. As the Army’s lead evaluator/analyst for digitizing the force of the 21^st Century, his performance has been both innovative and first rate.” The SR recommended that the applicant be given future positions as analytical team leader, Military Academy department head, or Department of the Army level staff officer. The senior rater placed the applicant in the COM block in his senior rater profile.
On 23 March 2000 the OSRB returned the applicant’s appeal without being formally considered because the applicant had not submitted sufficient evidence to warrant consideration. On 14 October 2000 the OSRB returned a request for reconsideration to the applicant, stating that he had not submitted any new relevant evidence. The OSRB stated that while the applicant submitted a statement from his rater and a statement from his SR which had not previously been considered by the OSRB, those statements did not substantiate his allegation that the SR misunderstood his responsibilities under the new OER system and that he failed to render a valid and accurate assessment of the applicant compared to his peers on which the reports were rendered.

The applicant’s performance portion of his Official Military Personnel File (OMPF) shows consistently above center of mass ratings prior to the disputed rating, and two COM ratings after the contested report, the first being rendered by the same rater and senior rater whom authored the contested report.

Army Regulation 623-105, paragraph 3-22, states that less than 50 percent of officers a SR evaluates can be placed ACOM on the SR’s profile. If the SR places 50 percent or more of his or her officers ACOM, all of the officers will be considered to have been rated COM. This paragraph also states “a subsequent statement from a rating official that he or she rendered an inaccurate “center of mass” or lower evaluation of a rated officer’s potential in order to preserve “above center of mass” ratings for other officers . . . will not be a basis for appeal.”

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. A difficult scenario is presented to the Board. The Board is provided evidence and argument which shows that the applicant’s senior rater placed the applicant in the COM block based on erroneous information he was given by the applicant’s rater; that it was the SR’s desire to place the applicant ACOM. This evidence and argument was rejected, however, by the OSRB based on the premise that it was retrospective thinking and that it was prompted by the fact that the applicant has now been passed over for promotion twice and is pending involuntary separation.

2. In considering this scenario, the Board must weigh the statements prepared by the applicant’s rater and senior rater. The rater stated that he was given the task of briefing the applicant’s senior rater on the new OER system. Because it was a new rating system, he asked for advice on the preparation of the senior rater profile from the applicant’s Functional Area Assignments Officer, the Infantry Branch, and his own senior rater; and he also reviewed the Total Army Personnel Command’s web page on the new OER system. In this regard, the Board questions why the applicant’s rater would not read the regulation governing the preparation of OER’s under the new rating system since he was obviously willing and able to research the matter independently.

3. While every report must stand by itself, the Board has the luxury of being able to review an applicant’s entire record. In this case the applicant’s record shows consistently above center of mass ratings prior to the disputed rating, and two center of mass ratings after the contested report, the first being rendered by the same rater and senior rater whom authored the contested report. While the second report by the same rater and senior rater could be considered a downward trend in the applicant’s performance, the senior rater’s narrative on the second report appears to be even more laudatory then the first OER. This would make it appear that the senior rater had intended to place the applicant in his COM block on both occasions.

4. In consideration of all the preceding conclusions, the Board must conclude that the preponderance of evidence supports the OSRB’s conclusion, that the OER was an accurate and factual representation of the applicant’s potential for
further service in higher grades; and that the applicant’s rater’s and SR’s statements were prepared for the applicant based solely on the fact that the report led to his imminent separation from the Army.

5. In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION: The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________ ________ ________ GRANT

________ ________ ________ GRANT FORMAL HEARING

___rvo__ ____hof__ ___ena__ DENY APPLICATION

                  Carl W. S. Chun
                  Director, Army Board for Correction
of Military Records

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INDEX

CASE ID	AR2001054570
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20010726
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	111.04
2.
3.
4.
5.
6.