MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        

         BOARD DATE: 17 April 2003
         DOCKET NUMBER: AR2002074072


         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. Hubert S. Shaw, Jr.		Analyst

The following members, a quorum, were present:

Mr. Walter T. Morrison		Chairperson
Mr. Harry B. Oberg		Member
Mr. Ronald J. Weaver		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)

APPLICANT REQUESTS: As stated through counsel, retroactive promotion from April 1998, together with reinstatement and back pay.

APPLICANT STATES: In a 46 page document, essentially that he was not promoted to major based on alleged administrative error and substantive inaccuracy surrounding the Officer Evaluation Report (OER) rendered for the period 11 November 1993 to 9 June 1994 [hereafter identified as the contested OER]. He contends that a "two block" senior rating on the contested OER was the basis for his non-selection for promotion to major.

The applicant argues that administrative error occurred when the senior rater (SR) was advised: 1) that he should adhere to the Officer Evaluation Guide published by the Evaluation Systems Office of the U.S. Total Army Personnel Command, 2) that a center of mass (COM) block rating by the SR with a credible profile was an evaluation worthy of promotion, 3) that there was only "some" inflation in the OER system; but 4) that there were no consequences if the SR failed to comply with the official rating guidance.

The applicant contends that substantive inaccuracy occurred at the promotion board level when two fellow company commanders from the same unit as the applicant were selected for promotion to major by the FY 1998 Major Promotion Selection Board and another one was selected below-the-zone (BZ) by the 1997 Major Promotion Selection Board. He argues that one or all of the company command OERs of these officers were in violation of OER guidance which stated that a SR should not place more than 50 percent of his senior rated officers in the "top block."

The applicant further stated that the promotion board incorrectly interpreted the evaluation he received from the SR of the contested OER. He contends that the OER guide established the "2nd box" COM to be the most commonly used SR philosophy and the one that has the least interpretive risks. The applicant argued that if his two block COM senior rating had been interpreted as a "fully successful" evaluation, then he would have been promoted to major.

In conclusion, the applicant argues that the administrative error causes "great unfairness" in the senior rater evaluations of officers and the substantive inaccuracy causes "great unfairness" in the promotion selection process. He contends that administrative error and substantive inaccuracy worked together and led to his non-selection for promotion. The remainder of the applicant's comments are summarized in the following chapters and appendices.

Chapter II: This chapter is an overview of the events that led to the applicant's current situation. The chapter also contains a detailed explanation of the official


rating guidelines in effect at the time of the OER in question. It also demonstrates how three officers with whom the applicant served were promoted to major even though their senior rater did not follow the official rating guidelines.

Chapter III: In this chapter, the applicant described COL F--------' rating philosophy and compared his rating profile with that of COL M-----[the SR for the applicant's two OERs following the contested OER]. The applicant also provided four detailed reasons why he believes his chances for promotion were seriously hurt by one 2-block COM evaluation:

#1. He specifically pointed out that the Army claims a 2 block COM of mass OER did not hurt his chances for promotion, but his professional development officer at Engineer Branch stated it was his opinion this rating "really hurt his [the applicant's] chances for promotion."

#2. The applicant also noted that SR for the contested OER was known by officials at Engineer Branch as the SR "who still maintained a profile when no one else had one."

         #3. The applicant argued that PERSCOM maintained there is no indication officers with 2 block COM OERs are viewed as "other than successful" by selection boards. However, the applicant also stated that when asked for the data to support this assertion PERSCOM admitted there was none because the records of promotion boards are not retained.

         #4. Finally the applicant challenged the proposition that a 1 block OER and a 2 block COM OER carry the same weight.

In concluding Chapter 3, the applicant states that he has demonstrated how the system failed to stop inflation and that "fair play and due process" entitle [him] to a special selection board.

Chapter IV: This chapter sets forth the following ten significant reasons why the applicant should have been selected for promotion to major in 1998.

         #1. The SR for the contested OER followed the Officer Evaluation Guide and the verbal guidance he received from PERSCOM. The OER in question was deemed by the SR as a fully successful evaluation to ensure the applicant was promoted to major.

         #2. The Army cannot survive by only promoting 35.7 percent of its captains to major. The SR's one block percentage shown on the contested OER was 35.7 percent. The selection rate during the FY 1998 Major Promotion Selection Board was 77 percent. On the contested OER, there were 10 in the
1-block, 17 in the 2-block, and 1 in the 3-block. The applicant asserts that based on a 77 percent selection rate, 11 of the 17 officers with 2-block COM OERs were worthy of promotion.

         #3. The applicant contended that SRs violated PERSCOM's rating guidance and suffered no negative consequences. COL M----- was one of those officers who violated the official rating guidance. His rating profile shows that he developed a clear 1-block COM. The great success of officers he senior rated prove that COL M----- did not lose his credibility as a SR.

         #4. The applicant restated the guidance in the OER guide that a 2-block center of mass OER was deemed to be the rating methodology with the least interpretive risks. He then argues that the 2-block center of mass on the contested OER was misinterpreted. The SR for the contended OER believed this 2-block COM rating was a clear message to the promotion board that the applicant was worthy of promotion to major.

         #5. The applicant stated that the letter of support by the SR for the contested OER was not retrospective thinking. The applicant contends that the Army says retrospective thinking occurs when an officer looks back over a rating decision and decides that if he had to do it allover again he would change the original evaluation. The applicant argues that the letter of support goes far beyond retrospective thinking. He contends that the SR for the contested report now believes that the applicant's evaluation was a mistake and even that his entire rating profile he worked so hard to maintain was a mistake. The applicant stated that the SR made a mistake to believe the official Army line even though the system was flawed, but since he believed in the system, he worked hard to maintain a 1/3 1-block and 2/3 2-block profile. The applicant also contends that the SR also believed a COM block check with a credible profile would allow an officer to get promoted.

         #6. The applicant pointed out the Army publicly admitted in mid-1997 in a video that the OER had become inflated and had lost some of its usefulness to the Army. He stated that this premise comes from the core belief that in a representative sample of officers of the same grade (Army-wide) the relative potential of such a sample will approximate a bell-shaped normal distribution. He states that, by definition, a normal distribution means it is unlikely that more that just a few officers will be above the COM or below center of mass, but that most officers will fall into the center which is deemed to be the 2-block. The applicant argues that If the OER is losing it usefulness, then the 2-block is no longer in the center, or is no longer the most commonly used evaluation. He concludes that when this is allowed to occur it is a violation of the very foundation upon which the OER system was developed.


         #7. The applicant also stated that correspondence from the PERSCOM Inspector General explains how one of the Army's objectives "is to provide each board member a common frame of reference to perform their individual evaluation of officer's files and to compare all DA Form 67-8 OERs in a fair and consistent manner." The applicant questioned how could the promotion board members develop a common frame of reference in an environment where OERs did not follow a common consistent standard? The applicant argues that COL M-----'s 1-block went to the most numerous officers running with the pack, but the 1-block from the SR for the contested OER went to an officer running ahead of the pack. Furthermore, the applicant contended that the 2-block on the contested OER was a rating for a fully successful officer, but COL M-----'s
2-block signaled an officer with less potential than his more numerous 1-block peers. The applicant concluded that it is impossible to develop a common frame of reference when the rating methodologies used by different senior raters are so distinct and to do so causes unfairness to those whose evaluations do not fall in-line with the most common evaluations.

         #8. The true value of an OER must be compared in relative terms. It is impossible to look at the OER I received from COL F-------- in a vacuum. We can look at this OER by itself and we can see that it is a laudatory evaluation and is intended to depict a successful officer with very good potential. But if the majority of my engineer branch peers were beneficiaries of inflated 1-block ratings, is my 2-block rating still going to maintain its intended value?

         #9. Smart officers like COL M----- made a choice between two opposing demands. On one side was the option to follow the official rating guidelines. On the other side was the option to take care of their subordinates to ensure they were promoted and survived the cut to major. From his rating profile we can see that COL M----- violated the official rating guidance. From promotion lists we can also see that Captain M R, Captain S B, and Captain A B [three officers with whom the applicant served] were all taken care of and promoted to major. The choice made by COL M----- is clear to see.

         #10. The applicant concluded that the Army could have avoided all its problems with inflated ratings if it had forced senior raters to adhere to the OER guide. He asserts that this would have prevented inflated ratings and senior raters would have been forced to make the tough decisions demanded of them. He stated: "That is the bottom line - senior raters must make tough decisions. The system fails when that does not happen!"

The applicant's 46 page submission contains seven appendices as follows:

         Appendix A: This appendix contains a letter of support from the SR for the contested OER.

Appendix B: The appendix contains the contested OER and the two other OERs as a company commander.

Appendix C and Appendix D: These appendices contain statistics and hypothetical situations which point out the unfairness of the applicant's non-selection for major.

         Appendix E: This appendix contains a list of the 1998 Army Competitive Category selections for promotion to major.

         Appendix F: This appendix contains the list of officers selected BZ to major.

         Appendix G: This appendix contains several pages from the Register of Graduates of the United States Military Academy showing that the applicant and two other officers were commissioned on 25 May 1988.

COUNSEL STATES: In a 14 page brief essentially that, while the applicant was on active duty, he was "victimized by one performance report" [correctly known as an Officer Evaluation Report (OER) and hereafter referred to as the contested OER]. Counsel asserts that Colonel F--------[SR for the contested OER] "alone of all Engineering O-6s [rank of colonel] tried to 'hold the line' on OERs."

Counsel further notes that the applicant's SR rater was well-meaning and that, by his own admission, Colonel F-------- alone, of all Engineering 0-6s, tried to "hold the line" on OERs. Counsel states that Colonel F-------- gave officers archconservative ratings when everyone else hyper-inflated their marks. Counsel contends that Colonel F-------- now insists that denying this applicant's promotion to major based on his rating would be a "lie and grossly unfair" and he pleads with the board to promote this worthy candidate.

Counsel also points out that the applicant has logically parsed out numerous ways his non-selection was unfair and that he offers the board persuasive statistical and logical analyses which prove the righteousness of his case. Counsel contends the applicant's work is brilliant -- "precisely what one would expect from a careful, painstaking engineer; all the "I's are dotted and all the T's are crossed" and that it is a "most impressive package by a non-advocate--the like of which this civilian attorney has seldom seen." Counsel concludes that for extremely busy board members, however, such proof may be a bit daunting and that an Executive Summary or brief such as that submitted by counsel is apt. He asserts that his brief is "designed to assist busy board members to see, with crystal clarity, the fairness and correctness of the applicant's position."

Counsel then presents what he purports to be the "quick and dirty" version of what happened in the applicant's case. First he contends that this officer's non-selection was caused by an overly-trusting colonel who thought he wrote a competitive report; sadly, he clearly misconstrued what it took to get promoted when approximately 95% of captains were receiving top block reports. He then argues that going into the promotion board, Captain Zuniga's record appeared a surefire cinch for promotion proceeds to display highlights of the applicant's "impressive career" as follows:

"For 22 months, he had successfully commanded a company at Ft. Hood;
he did extremely well, garnering top blocks and excellent comments.

         Less than 2% of Army members can "max" the Army Physical Fitness Test. Physically, this officer earned PT test scores of 298, 300, 300, and
300 while serving as company commander. Obviously, he demonstrated top-notch physical condition, seldom matched.

         Academically, he "exceeded course standards" at the advanced course as a "stand out performer and excellent leader." He was an "excellent tactician and engineer" whose briefings were "clear, concise, and convincing." He was poised and confident, a team player, giving 110%.

         He won high accolades while serving in Kuwait.

         He earned the Bronze Star Medal and the Meritorious Service Medal.

         He 'kept on keeping on' when he joined the Reserves and was promoted to Major there."

Counsel then describes the applicant' s OERs. He states that they were "Superb" and then provides excerpts from some OERs:

         "1992: Rare maturity. Demonstrated highest ethical standards…superb…truly gifted…Overall rating: top block [7-7-0]

         1992: Proven expert never failed to pitch in…absolutely superb…outstanding officer. Overall rating: top block [4-0-0]

         1993: Outstanding knowledge of tactics and combat engineering...remarkable job...outstanding officer. Overall rating: top block
[2-0-0]

         1994: Superior tactician, fully understands...excellent at challenging and developing young officers highest levels of integrity... potential as a future battalion commander. Overall rating: top block [23-18-0]


         1995: Quick to understand...fully tactically proficient with solid grounding...serious about environmental stewardship...definite select for major…C&GSC [correctly known as the U. S. Army Command and General Staff Officers Course] Overall rating: top block [23-18-0]

         1995-1996: Astute, intelligent, able to perform admirably under stressful conditions...select from below the zone for promotion...monitor this talented officer's career closely -- he will command an engineer battalion. Overall rating: top block [1-0-0]

         1996: Very bright, flexible; communications are professional and accurate "clearly one of my command's top performers... one of the Engineer Corps' rising stars and a must selected for early attendance to C&GSC"...Overall rating: top block [3-1-1]

         1996-1997: Rare maturity, superb young officer, truly gifted...Overall rating: top block [7-7-0]

Counsel then concludes that the applicant has a "superior, truly competitive record" based on the top block markings and that he was a "cinch" for promotion to major, but that he was not selected for major and would not be selected for lieutenant colonel as the applicant's SRs had indicated.

Counsel then states his belief why the applicant was not selected for promotion as follows:

         "Because of one mediocre marking by a politically unaware 0-6, Colonel
F--------. Contrary to all other measures of merit, he [Colonel F--------] assumed back in 1993 that this world-class captain could get promoted with a block two. That was particularly disastrous because it was [the applicant's] first OER while in command!"

Counsel restated the SR comments and SR profile for the contested OER:

         "Exceptional intellectual capacity and common sense.. .highest technical and tactical competence.. .exceptional candidate for Battalion level
command.. .outstanding leadership abilities... I rate his company as the most improved in the battalion over the past 12 months...one of the finest officers I have observed...super competent... Overall rating: Two block
[10-17-1]"

Counsel further points out that, notwithstanding the "superb write-up, the applicant received a 2 block and speculates that apparently the promotion board "viewed a one block rating as outcome-determinative for a successful company commander."
Counsel then describes the efforts of the applicant to right the wrong of his non-selection for promotion. He stated that the SR somehow failed to "get the word that inflation creep was necessary, not the outmoded view that senior officers should save the one block for the next Mac Arthur or Patton." He further concluded that other than the misguided report of Colonel F--------, no other shortfall could be found in the applicant's records. Counsel asserts that, as a result of his non-selection, the applicant made plans to join the Army Reserve, requested that his file not be considered in the 1999 promotion process, and submitted his OER appeal in June 1999 with the support of the SR.

Counsel then described the SR's support and consideration of the OER appeal by the Officer Special Review Board (OSRB). He asserted that the SR conducted his rating scheme solely because of PERSCOM guidance. Counsel also noted that the SR employed extremely strong language to support the applicant - words such as "lie" and "grossly unfair." Counsel also points out the SR related that he never questioned guidance from above on how to write an OER and he also revealed that PERSCOM advised him to be stingy with one block ratings, lest he "lose credibility" as an SR.

Counsel further argues that Colonel F-------- was a uniquely hard grader at least when compared to a SR such as Colonel M-----, who also rated the applicant and numerous contemporaries. Counsel also asserts that Colonel M----- was probably more "street smart" in getting his young officers promoted because he gave one block about 50 per cent of the time.

Counsel then asserted the decision of the OSRB was vague and useless in denying redress in June 1999, specifically that, "fairly stated, management comments are gobbledygook; they consist of standard, generic language, lacking any logical heft." Counsel stated the ABCMR failed to address the applicant's issues, specifically "one will look in vain for an independent stand or meaningful rationale to refute his [the applicant's] concerns." Counsel contends the ABCMR essentially fell back on the "bromide" the applicant had failed to provide any new evidence and the response was a stonewalling "you have not carried the burden of proof" approach. Counsel concluded that the ABCMR failed to refute any of the applicant's strong arguments in their January 2000 denial.

Counsel then addressed the Inspector General's (IG) response to the applicant in this matter. Counsel stated that the IG essentially wrote that the two block from Colonel F-------- was not the sole cause for non-selection to major and "blithely" that a two block COM rating was still competitive, indicating a "fully successful" officer! However, counsel also pointed out the Inspector General could cite no other explanation for why the applicant had failed of promotion.
Counsel summarized his argument set forth in this portion of his brief as follows:


         "The System has obviously responded to applicant with a 'because I said so' litany, lacking rationality or common sense. This earnest, dedicated young officer respectfully continued to press for an explanation of why he was a nonselect. He politely contended that the single reason for nonadvancement must be the mediocre 'killer' OER of Colonel F--------. If he was wrong, he argued, could officials provide other reasons except this aberrant mark by a trusting but duped 0-6? What had the applicant failed to do? What other shortfalls appeared in his record? What had he missed? No one could answer his question.

Next, counsel presents 10 reasons why the applicant should be promoted:

         #1. The SR admits he erred badly - he was too harsh a rater. Colonel
F--------, now repentant, has authored an extremely strong letter of support. He concedes he erred in perceiving that a COM 2-block would keep his officers competitive. He also relates that he had been cautioned that an SR top-heavy profile would seriously undermine his credibility. In short, Colonel F-------- believed that he must hold the line against an over inflated rating system. Colonel F-------- explains that he established a profile of 1/3 one block and 2/3 two block. [footnote 2]

[Footnote 2 is cited verbatim as follows: "His ratings in this timeframe corroborate this-they show 35.7% in the one block and 60.7% in the two block--clearly a strong 1/3 and 2/3 split."]

         #2. In contrast, Colonel M-----'s profile shows him an "easy grader." Together, the two extremes were non-credible; they destroyed the applicant's career. A new SR entered the picture, Colonel M-----. He wrote two OERs while he was in command. The second OER covered a full year. Colonel M-----, as SR, provided a one block rating. The third OER covered the last four months of the applicant's command assignment. It also was a top block evaluation. Contrast Colonel F--------'s strict markings with the huge inflation of Colonel
M-----. Colonel M----- had a philosophy 100 % different from Colonel F------. Colonel M----- gave 54.7 % top blocks the first year he rated the applicant; and a whopping 59.5 % one block percentage the second time round. This resulted in contradictory, mixed signals. The two colonels were like the mythical Jack Spratt and his wife. The overgenerous Colonel M---- gave out top blocks easily while the exacting Colonel F-------- graded harshly. [Footnote 3] Counsel concluded reason number 2 with the following assessment:

         " The disparity in rating decisions between these two officers destroyed the credibility of Captain Zuniga in the queue. Despite all the talk about Army values, the statistics demonstrate that senior leadership failed to standardize profiles reflecting such SR extremes. The two colonels' miscues combined to create a substantive inaccuracy for the applicant. In effect, they were a one-two punch, denying him a credible chance for selection to major. He had an overly tough SR, then an overly generous one. As a result, he met the promotion board without reliable OPRs (sic OERs)".

[Footnote 3 is cited verbatim as follows: "Apparently, Colonel F-------- still thought in terms of the "little green book"; some 20 years earlier, that document had advised that a block 3 could keep an officer competitive for promotion."]

         #3. Standing alone the overall block two on the contested OER is not an accurate reflection of applicant's abilities. This was the first of three performance reports the applicant received as a commander. It was a seven-month OER. [footnote 4] Clearly, Colonel F-------- sought to highly praise the applicant. The comments are uniformly glowing. Yet it concluded with a mediocre two block. That makes absolutely no sense. Clearly, this colonel was operating under some outdated philosophy on promotions.

[Footnote 4 is cited verbatim as follows: "Perhaps the block two was a 'throw away' to allow the SR to show obvious progress next time."]

         #4. In relation to the applicant's other reports, the challenged 2-block OER is an aberration - the only report out of seven with less than a one block ranking. It is manifest that the challenged "ticket" fails to accurately represent this top performer. Any objective review of the applicant's stewardship shows an extremely high level of performance. Rater and SR comments are uniformly powerful. Seven other eye-watering evaluations as a captain provide the worth of this applicant - not this one bizarre report.

         #5. Internally, the specific details and extremely strong comments on the contested OER impeach a 2-block. Consider the extremely strong comments on the contested report; there is no way they support a run-of- the-mill block two! A quick little experiment proves the point. Please imagine promotion board voting members having the challenged 1993-1994 OER before them. Suppose, for some reason, that the senior rater block is blank; Board members, therefore, must determine what mark the SR intended. The OER reveals the following:

         "Exceptional intellectual capacity and common sense.

         Constantly demonstrated the highest technical and tactical competence.

         Tremendous physical condition.

         An innate ability to get first-rate efforts from his men despite the most challenging of circumstances.


         Outstanding communications skills; both written and oral.

         I rely on his judgment in all actions.

         A thoroughly professional officer whose strong leadership traits mark him as an exceptional candidate for Battalion level command."

Counsel then postulates that markings on the reverse side of the OER tout a candidate who "always exceeded requirements" and an officer to "promote ahead of contemporaries. " The no-nonsense report, then characterizes the man as "truly an outstanding officer, one who has fully demonstrated his leadership abilities." Comments follow:

         "[Applicant's first name omitted] is one of my top two company commanders.

         Hand-picked to be the HHC Commander because of exceptional maturity and leadership ability.

         A natural leader who quietly and competently leads.

         Widely respected.

         Performed magnificently in support of unit activities.

         The most improved unit in the battalion over the past 12 months.

         If required to send a unit into combat, I would, without hesitation, select HHC under the leadership of this officer.

         Versatile, dedicated, highly talented.

         One of the finest officers I have observed.

         Served with distinction and continues to have a highly successful command tour."

Counsel then asserts for the purposes of this example that the rater concludes:

         "Promote immediately and selected for CGSC. Potential far exceeds that of his peers. Slate for advanced civil schooling and assign him to only the toughest, most challenging positions. Monitored closely for early assignment to high-level staff positions. Would make an excellent Battalion Commander.
Counsel then asserts for the purposes of this example that the SR enthusiastically concurs:

         An outstanding performance in a very difficult job.

         He has improved every area in his unit in the past seven months. He and the company really sparkled during a recent rotation.

         90% plus' Organizational Readiness.

Repeatedly demonstrated that he "could make it happen" under the toughest of training conditions.

         A low-key, straightforward officer who is super competent.

         He has outstanding potential.

         Promote to Major and select for CGSC."

Counsel then summarizes his hypothetical situation with the comment that a
2-block in this case makes absolutely no sense. These comments compel a block one or even below the zone consideration. He continues that somehow, this "outstanding" and "super competent" officer of proven worth ends up getting a rating which - in reality - places him in the bottom 23 percent of his peers and that no matter how hard the system tries to rationalize that, it is clearly absurd.

         #6. Statistically, Army promotion rates impeach this two block OER. Colonel F-------- was placing 36% of his officer in the top block. Feedback from recent promotion boards demonstrates how badly this contested two block OER hurt the applicant. Currently, a little over 70.7% of captains are promoted to major. Unfortunately, Colonel F-------- did nothing to separate the promotables from the also-rans. His arch-conservative ratings awarded only 36% of the eligibles the top block. Meanwhile, on the last round of promotions under the old system, 95% of the captains were receiving the top block. Obviously, Colonel
F--------' markings are singularly unhelpful to decide who is the best qualified for advancement.

#7. Colonel F-------- failed to recognize the obvious--that the system was broken and his stingy rating in an era of runaway inflation resulted in non-promotion. In FY 97, the Army conceded a serious problem with OER and over inflation creep. Through the years, senior leaders had steadily inflated the number of top block evaluations; thus, an SR block one was no longer a reliable tool to cull-out the best performers among those eligible for promotion. To cure the problem, it was necessary to dismantle the entire system. A new OER form was initiated in FY 98. Management's solution was only retroactive. Over inflated OERs still remained in officer records. A few unlucky officers, such as this applicant, experienced ruined careers because their SRs failed to appreciate what sort of report was needed to stay competitive.

         #8. Other officers gained an unfair competitive advantage over the applicant. Hyper-inflation under the old OER system produced an unreliable yardstick to distinguish top performers from average officers. For the lucky majority of officers, diluted top blocks were "business as usual." Unfortunately nothing happened to salvage the careers of officers unlucky enough to be rated by SRs with conservative profiles. The result: Well-intentioned officers such as Colonel F-------- went off in one direction. Meanwhile, more street- smart SRs were developing their own gimmicks to promote better company graders. Result: an unfavorable advantage based on "luck of the draw" in the SR.

         #9. This promotion board has failed to adjust for inflated OERs. Selecting the most deserving officers for advancement becomes well-nigh impossible when the System fails to discount officers such as Colonel F--------, who try to "hold of the line" when everyone else games the system. For almost everyone else, it was evident that the system was bankrupt. Only a handful, such as Colonel F--------, failed to appreciate the fact. Sadly, otherwise impeccable records, such as this applicant's, failed to win promotion. Given no other weakness in the applicant's record, it is manifest that, in this particular case, the selection board failed to take into account the inflated system surrounding the applicant and his misadventure in being rated by Colonel F-------.

         #10. [The applicant's name omitted] should not be blamed because his SR believed the system. There is no easy way to say it: Colonel F-------- accepted the guidance of personnel specialists as gospel. We now know this advice "killed" the applicant. The Colonel was naive enough to accept official guidance and resign himself to the theory that his efforts gave him a "credible profile" sufficient to get his finer officers promoted. He reports that he was also counseled to retain his credibility by being miserly with one block evaluations. To repeat for emphasis, Colonel F-------- was about the only one who didn't "know how the trick was done." Everyone else was giving mere lip service to standards. They were effectively "one blocking" their better officers. Tragically, good souls such as Colonel F-------- simply "did not get the word."

Counsel discusses "precedent" as it relates to the applicant's case. He asserts that unlike a court-martial, board decisions have no precedential value. In other words, each case must stand on its own. Nevertheless, certain principles can be extracted from the published available decisions. These opinions reveal what issues are significant and what distinguishes the cases of successful applicants as follows:


         1. Reports coming before and after the contested evaluation must be considered. AR 1999033930. Is the contested report similar to those before and after this period of observation? Is there a pronounced inconsistency between the challenged "ticket" and the overwhelming majority of other evaluations? AR 1999033930. Is the contested report so different that voting members cannot reconcile it with those coming before and after? In short, is the challenged report an anomaly? AR 2000035696.

         2. Has the rater utilized the proper standard? Did he/she observe the applicant? Does the applicant fully satisfy the requirements of the position? Get good results? Exhibit solid professional values? Display potential? See para 4-3 AR 625-105.

         3. Did the applicant receive a medal or award for the time contested?

         4. Does the rater or SR have a skewed profile? Is this applicant being penalized for shortcomings of his superior rater? AR 1999031688.

         5. Regarding those who speak for the applicant, were they objective observers, privy to the leadership's expectations for this position? In short, were they in the right time and place to know what they are talking about when addressing the challenged appraisal? AR 1999033930.

         6. Is the SR an "easy" grader? Was the challenged evaluation actually a referral, considering the Center of Mass concept? Thus, should it
been referred? AR 2000035696.

         7. What is the SR's rating history? Was his/her profile "out of control?" Restarted?

         8. Are the write-up's words consistent with the ultimate rating? Do terms such as "unlimited potential" or the like impeach the challenged block? AR 2000040225

Considering all these points, the applicant clearly is an officer who fits the "profile" of successful applicants in the cited Board decisions. His case draws positive answers to the questions which hard-working board members have considered when they grant redress.

Counsel concludes his brief with the assertion that a solid performer has done his homework. In this appeal, the applicant has demonstrated why he is such an impressive officer. He has massively analyzed, in-depth, the unfairness of the situation. More specifically, he has: [a] compared the profiles of Colonels F-------and M-----; [b] demonstrated that the lenient one block standards of Colonel
M------ and the strict standards of Colonel F-------- gave mixed and contradictory signals; and [c] confirmed that his nonselection was the result of chance and bad senior SR judgment--not a lack of solid worth. The Board members are invited to scan the excellent materials prepared by this thoughtful applicant. Then, he respectfully asks for the redress requested.

NEW EVIDENCE OR INFORMATION: Incorporated herein by reference are military records which were summarized in a memorandum prepared to reflect the decision of the Army Board for Correction of Military Records (ABCMR) in its consideration of Docket Number AR1999029441 on 16 December 1999.

By application, dated 13 July 1999, the applicant requested that the Army Board for Correction of Military Records (ABCMR) remove the contested OER from his records, that he receive promotion reconsideration to major, that he receive reconsideration for attendance at the U.S. Command and General Staff Officer Course (CGSC) and placement of a statement in his records indicating he will not be penalized for not having obtained a Master's Degree. Attached to the applicant's 13 July 1999 application was his appeal of the contested OER, an
18-page document entitled "Appeal of OER," and an undated memorandum of support by the SR of the contested OER.

The arguments and evidence presented by the applicant in his request for reconsideration were in part previously considered by the ABCMR in Docket Number AR1999029441 on 16 December 1999.

The undated memorandum of support by the SR for the contested OER was considered by the ABCMR on 16 December 1999, and the applicant submitted it in its entirety again with his request for reconsideration.

The brief presented by counsel is considered new evidence; however, by counsel's own admission it is an "Executive Summary." This document is only considered in part because it primarily restates the applicant's contentions and arguments.

This panel of the ABCMR [hereafter referred to as "this Board"] will review the arguments and evidence which were previously reviewed by the ABCMR in its consideration of Docket Number AR1999029441 on 16 December 1999. This Board will address in detail the new arguments and evidence set forth by the applicant and his counsel.

Records show that the applicant assumed command of Headquarters and Headquarters Company of the 20th Engineer Battalion on 11 November 1993 and relinquished command on 29 September 1995.

Records also show that the applicant was considered for promotion to major by the FY 1998 Major Promotion Selection Board, but was not among those officers selected. There is no evidence the applicant was considered by the Fiscal Year 1999 Major Promotion Selection Board.

The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was released from active duty effective 18 July 1999.
The applicant was appointed as a Reserve commissioned officer effective 19 July 1999. On 23 August 1999, he was appointed as a commissioned officer in the Texas Army National Guard. By an 8 June 2001 memorandum, the applicant was notified that he was advanced to major with a date of rank of 31 July 1999. The applicant is currently serving as an officer in the Texas Army National Guard.

The contested OER is a seven-month change of rater OER covering the period 11 November 1993 through 9 June 1994 for duties as a commander of a Headquarters and Headquarters Company of an engineer battalion. This OER was authenticated in Part II (Authentication) by the rated officer (the applicant) on 15 June 1994 and the rater and SR on 16 June 1994.

The applicant received ratings of “1” in all 14 elements of professional competence in Part IVa. (Professional Competence). Under professional ethics, the rater, who was a lieutenant colonel serving as the battalion commander of the engineer battalion to which the applicant was assigned, made positive comments.

In Part V (Performance and Potential Evaluation), the rater placed his “X” in the first block (Always Exceeded Requirements). In Part Vc (Comments on Specific Aspects of the Performance), the rater noted the applicant was "mentally and physically tough" and was "mature." The rater noted that the applicant very successfully led his company through a rotation to the National Training Center. The rater also wrote the applicant's unit was the most improved company over the past 12 months. The rater concluded that the applicant was "one of the finest officers [he] had observed."

In Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade), the rater placed the applicant in the first block (Promote Ahead of Contemporaries) and stated: "Promote immediately and select for CGSC. Slate for advanced civil schooling and assign him to only the toughest, most challenging positions. Monitor closely for early assignment to high level staff positions. Will make an excellent Battalion Commander."

In Part VIIa (Potential Evaluation), the SR, an Engineer Branch colonel, placed his “X” in the second block: 10/17*/1/0/0/0/0/0/0 (the asterisk indicates the applicant’s position). The SR commented that the applicant has been "outstanding," that "he has improved every area in his unit over the past seven months," and that he and his unit "sparkled" during a recent rotation at the National Training Center. The SR then commented positively on the applicant's straightforward manner and "super competence." The SR in concluding his comments wrote: "Promote to Major and select for CGSC."

Records show that the OER did not contain ratings or evaluations that required referral to the applicant. Furthermore the SR did not refer the contested OER to applicant, thereby affirming his opinion that no ratings or comments in the contested OER are so derogatory that the report may have an adverse impact on the rated officer’s career.

Records show the contested OER was processed by Department of the Army officials on 24 June 1994 and placed on the applicant’s OMPF microfiche.

The applicant’s evaluation history as a first lieutenant shows that he received four OER’s. In these OER’s, he received ratings of “1” in all 14 elements of professional competence and positive comments under professional ethics and competence from all of his rating officers. The raters placed the applicant in the top blocks for performance and potential (Part V) with comments in both narratives.

The applicant was senior rated by three different SRs (three lieutenant colonels and one colonel). The applicant received COM senior ratings on all four OERs, as follows with the asterisk indicating the applicant’s position in the SR profile: (4/8/23*/1/0/0/0/0/0), (8/30*/50/2/0/0/0/0/0), and (5/11*/0/0/0/0/0/0/0), (2/9*/0/0/0/0/0/0/0).

The applicant’s evaluation history as a captain shows 13 OER’s of which eight were completed on the DA Form 67-8 and five were completed on the DA Form 67-9.

In the eight OER’s completed on the DA Form 67-8 covering his service as a captain, the applicant received ratings of “1” in all 14 elements of professional competence and received numerous positive comments under professional ethics and competence. All raters placed him in the top block (Always Exceeded Requirements) under Part Vb (Performance During This Rated Period), made positive comments on the applicant’s performance, and listed his achievements under Part Vc (Comments on Specific Aspects of the Performance). All raters placed the applicant in the top block (Promote Ahead of Contemporaries) in Part Vd (This Officer’s Potential for Promotion to the Next Higher Grade). In Part Ve (Comment on Potential), all raters generally recommended promotion to major and selection for resident Command and General Staff College.

For the eight OER’s rendered on a DA Form 67-8 for service as a captain, the applicant was senior rated by six different SR’s (two lieutenant colonels and four colonels). He received COM senior ratings on seven OERs with the asterisk indicating the applicant’s position in the SR profile: (4*/0/0/0/0/0/0/0/0), (2*/0/0/0/0/0/0/0/0), (10/17*/1/0/0/0/0/0/0), (23*/18/1/0/0/0/0/0/0), (28*/18/1/0/0/0/0/0/0), (1*/0/0/0/0/0/0/0/0), and (3*/1/1/0/0/0/0/0/0). The applicant received one above COM senior rating: (7*/7/0/0/0/0/0/0/0).

The applicant received five OER’s as a captain on the DA Form 67-9 which became effective on 1 October 1997.

All of the OERs on the DA Form 67-9 show in Part IV (Performance Evaluation - Professionalism) that the rater placed his “X” under “YES” in each of the Army Values. The rater also placed his “X” under “YES” for all blocks in the Attributes, Skills and Actions categories.

Under Part V (Performance and Potential Evaluation), all raters placed the applicant in the top block (Outstanding Performance, Must Promote) with positive comments on the specific aspects of the applicant’s performance. In Part Vc (Identify any Unique Professional Skills of Value to the Army that this Officer Possesses), each the rater identified professional skills which the applicant possessed.

In Part VII (Senior Rater), all SRs placed their “Xs” in the top block (Best Qualified) under Part VIIa (Evaluate the Rated Officer’s Potential to the Next Higher Grade). He was senior rated once by a brigadier general as COM, three times by two different colonels as COM and once by a lieutenant colonel as above COM.

The applicant appealed the contested OER on 4 June 1999 to the Deputy Chief of Staff for Personnel Officer Special Review Board (OSRB). On 24 June 1999, the Chief of Appeals and Corrections Branch of U.S. Total Army Personnel Command advised that the appeal was submitted to the OSRB and that the OSRB returned the appeal without action. The OSRB indicated that the appeal was returned without action because the applicant did not provide "sufficient evidence of a clear and convincing nature to warrant adjudication" by the OSRB.

The OSRB considered the applicant’s contention that the 2-block COM rating rendered by the SR was not a credible profile. The OSRB found that this contention was not supported by the evidence or a review of the applicant's OMPF. More specifically, the OSRB determined that the evidence demonstrated the SR was rating officers in accordance with the responsibilities outlined in regulatory guidance. The OSRB further determined that each rater developed a rating philosophy consistent with regulation and over time established a credible profile.

The OSRB then opined that the applicant confused performance with potential, specifically that the rater focuses on performance and the SR's evaluation in Part VIIa may not correlate with the rater's performance comments or even the SR's narrative comments in Part VIIb. The OSRB concluded that the SR was clearly meeting the requirement to link day-to-day observations of the rated officer's performance and the longer term evaluation of the rated officer's potential to Department of the Army selection boards.

The OSRB also determined the applicant provided no statements or evidence from any official in the chain of command, an equal opportunity official, an inspector general or a commander's inquiry to substantiate his claim of injustice or to invalidate the rating rendered. The OSRB also concluded that none of the evidence provided overcame the presumption of regularity outlined in paragraph 5-32a of Army Regulation 623-105 (Officer Evaluation Reporting System).

Army Regulation 623-105 (Officer Evaluation Reporting System) establishes the policies and procedures for the OER system. It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports. Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

Paragraph 9-7 of Army Regulation 623-105 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.

Army Regulation 623-105 provides, in pertinent part, that any OER 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 for acknowledgment and comment prior to forwarding to Department of the Army.
Army Regulation 623-105, effective 30 April 1992, states in Appendix F, paragraph F-2b(3): "Statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by the appellant’s nonselection or other unfavorable personnel action claimed to be the sole result of the contested report. As a result, claims by rating officials that they did not intend to evaluate as they did, will not serve as a basis for altering or withdrawing an evaluation report.” The regulation does allow rating officials to provide statements of support contending the discovery of new information that would have resulted in an improved evaluation had it been known at the time of report preparation. This same information is also contained in Army Regulation 623-105, effective 1 October 1997.

Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 2a of this regulation states that special selection boards may be convened under Title 10, United states Code, Section 628 to consider or reconsider commissioned or warrant officers when Headquarters, Department of the Army (HQDA), discovers an officer was not considered because of administrative error, the promotion board acted contrary to law, and/or the promotion board did not have before it some material information.

Army Regulation 15-185 (Army Board for Correction of Military Records) sets forth the policy and procedures for the ABCMR. It provides that, if a request for a reconsideration is received within one year of the prior consideration and the case has not been previously reconsidered, it will be resubmitted to the Board if there is evidence (including but not limited to any facts or arguments as to why relief should be granted) that was not in the record at the time of the Board’s prior consideration. The staff of the Board is authorized to determine whether or not such evidence has been submitted.

Army Regulation 15-185 provides further guidance for reconsideration requests that are received more than 1 year after the Board’s original consideration or after the Board has already reconsidered the case. In such cases, the staff of the Board will review the request to determine if substantial relevant evidence has been submitted that shows fraud, mistake in law, mathematical miscalculation, manifest error, or if there exists substantial relevant new evidence discovered contemporaneously with or within a short time after the Board’s original decision. If the staff finds such evidence, the case will be resubmitted to the Board. If no such evidence is found, the application will be returned without action.

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

1. This Board considered the contention by the applicant and his counsel that he was not promoted to major based on administrative error and substantive inaccuracy, specifically that a 2-block senior rating on the contested OER was the basis for his non-selection for promotion to major by the FY 1998 Major Promotion Selection Board. After review, this Board determined that this contention is without merit because the reasons officers are selected or not selected by promotion boards are not divulged. Therefore, the contention that a 2- block senior rating on a specific OER was the reason the applicant was not selected for promotion to major is purely speculation.



2. This Board reviewed the argument by the applicant and his counsel that administrative error occurred when the SR for the contested OER was advised: 1) that he should adhere to the Officer Evaluation Guide published by the Evaluation Systems Office of the U.S. Total Army Personnel Command, 2) that a center of mass block rating by the SR with a credible profile was an evaluation worthy of promotion, 3) that there was only "some" inflation in the OER system; 4) that there were no consequences if the SR failed to comply with the official rating guidance. This Board found that this argument was without merit for several reasons.

         a. First, there is no evidence presented by the applicant and counsel which demonstrated that the contested OER contains material error or omission.

         b. Secondly, the applicant and his counsel have failed to present evidence which shows that the senior rating and/or narrative comments in Part VII of the contested OER did not represent the SR's considered opinion and objective judgment at the time the contested OER was prepared.

         c. The SR's statement that he made a mistake by maintaining a valid SR profile does not provide evidence of material error or omission in the contested OER. This Board further noted that the SR was confronted with a decision where to place the applicant among all the officers he senior rated and he placed him in the second block. If the SR believed that the applicant's performance was sufficiently outstanding, then he had the opportunity to place him in the top block, but chose not to do so.

         d. The argument by the applicant, his counsel, and the SR for the contested OER that the OER system was flawed due to inflation does not show material error or omission in the contested OER. Furthermore, this argument is specious because all Army officers, including the applicant, were evaluated under the same regulation, were rated and senior rated on the same OER form and received senior ratings which represented the SR's considered opinion and objective judgment at the time of preparation.

         e. This Board also noted that the contested OER was not determined to be adverse by the SR, it was not a referred OER, and the applicant did not appeal or request a commander's inquiry at the time the report was rendered. The applicant only appealed the contested OER after notification that he was not selected for promotion and the SR only determined that he made a mistake by maintaining a valid SR profile after the applicant's non-selection.

         f. Finally and most compelling is the fact that the SR's COM rating in the contested OER is consistent with 10 of 12 other COM senior ratings received by the applicant as a first lieutenant and as a captain. Notwithstanding counsel's repeated reference to "top block" ratings and senior ratings, most of them showed the COM in the top block or immature profiles where the applicant was the only officer senior rated. It is clear to this Board that, over the applicant's military career, he was senior rated as COM and counsel's repeated references to top block reports ignores the fact that they were really COM senior ratings.

3. This Board reviewed the argument by the applicant and his counsel that substantive inaccuracy occurred at the promotion board. Specifically, it is alleged that fellow company commanders from the same unit as the applicant were selected for promotion to major with one or all of their company command OERs in violation of the OER guidance which stated that a SR should not place more than 50 percent of his senior rated officers in the "top block." This Board found that this argument was without merit for several reasons.

a. There is no evidence that SRs were specifically prohibited by regulation or law from placing more that 50 percent of senior rated officers in the top block.

b. The applicant has presented no evidence showing that fellow company commanders from the same unit as the applicant were improperly selected for promotion to major. The applicant has also presented no evidence or argument that the operations of the FY 1998 Major Promotion Selection Board were flawed, not in conformance with guidance from the Secretary of the Army, and/or otherwise not conducted in accordance with law and regulation.

c. The applicant's OER history shows that of eight OERs he received on a DA Form 67-8, he was placed in the top block with more than 50 percent of the senior rated officers on seven of those OERs.

d. Furthermore, this Board noted that two of the applicant's company command OERs show that he was placed in the top block with more than 50 percent of the senior rated officers [23*/18/1/0/0/0/0/0/0 and 28*/18/1/0/0/0/0/0/0].

e. Thus, this Board concluded that the applicant and his counsel merely ignored the fact that the applicant had been treated similarly to those officers who had more than 50 percent of senior rated officers in the top block. So, the argument that the applicant was disadvantaged because other officers had OERs with more than 50 percent of senior rated officers in the top block clearly is without merit and does not demonstrate substantive inaccuracy at the promotion board.

4. This Board reviewed the contention that the promotion board incorrectly interpreted the evaluation received by the applicant from the SR. Specifically the applicant argues that if his 2-block COM rating had been interpreted as a "fully successful" evaluation, then he would have been promoted to major. The Board concluded that this logic is flawed. As previously stated by this Board, there is no evidence that the contested OER was the basis for the applicant's non-selection to major. Furthermore, the applicant has presented no evidence which shows how the promotion selection board viewed the contested OER. The applicant's assertion that he would have been promoted were it not for the SR's two block on the contested OER or the promotion selection board's interpretation of the contested OER is purely speculation on his part.

5. This Board considered the applicant's arguments that administrative error causes "great unfairness" in senior rater evaluations and that substantive inaccuracy causes "great unfairness" in the promotion system and that both have worked together in his case to cause his non-selection for promotion. As previously stated by this Board, the applicant has presented no evidence to support his contentions of administrative or substantive error in either the evaluation or the promotion selection board process.

6. In reviewing Chapter III of the applicant's submission the Board noted the applicant's arguments as to why the 2-block senior rating on the contested OER hurt his chances for promotion as follows:

a. The Army claims a 2-block COM of mass OER did not hurt his chances for promotion, but his professional development officer at Engineer Branch stated it was his opinion this rating "really hurt his [the applicant's] chances for promotion." The Board found that the professional development officer in question is merely rendering his opinion because the promotion selection board does not divulge the reasons for selection or non-selection. The Board also noted that 10 of the applicant's 12 OERs were COM or contained immature profiles, but he does not contest any of those OERs.

b. The SR for the contested OER was known by officials at Engineer Branch as the SR "who still maintained a profile when no one else had one." This Board found that the SR in this case was rendering senior ratings consistent with his considered opinion and objective judgment at the time of preparation. The fact that he maintained a 1/3 limit on officers placed in the 1-block while other officers placed 1/2 or more of their senior rated officers in 1-block does not constitute a material error or omission.

         c. The applicant argued PERSCOM maintained there is no indication officers with 2-block COM OERs are viewed as "other than successful" by selection boards. However, the applicant also stated that when asked for the data to support this assertion PERSCOM admitted there was none because the records of promotion boards are not retained. The argument by the applicant that PERSCOM cannot prove that 2-block COM OERs are viewed as "other than successful" by selection boards does not demonstrate there was a material error or omission related to his non-selection for promotion to major. As previously stated, the reasons for selection and non-selection of officers by promotion selection boards are not released; thus, there is no reason to believe PERSCOM knows how the members of a promotion selection board viewed 2-block COM OERs.

         d. The applicant challenged the proposition that a 1-block OER and a
2-block COM OER carry the same weight. It is patently obvious to the Board that a 1-block OER and a 2-block COM OER are in fact different, and it is equally clear to this Board that the applicant has presented no evidence to show PERSCOM officials, promotion selection boards, and/or Army officials believe or have inferred 1-block and 2-block COM OERs carry the same weight.

7. This Board considered the applicant's conclusion in Chapter III that he has demonstrated how the system failed to stop inflation and that "fair play and due process" entitle [him] to promotion reconsideration by a SSB. However, this Board does not agree with the applicant's conclusion for the following reasons.

         a. The issue in this case has nothing to do with whether or not "the system stopped inflation." Under law, the bases for promotion reconsideration are: failure to consider an officer through administrative error; the promotion board acted contrary to law; and/or the promotion board did not have before it some material information.

b. If, as it appears to this Board, the applicant's definition of inflation revolves around the percentage of officers a SR places in the top block, then it is clear that the applicant's OERs are inflated. As previously pointed out by this Board, the applicant's OER history shows that he received a top block senior ratings along with 50 percent or more of the senior rated officers on seven of eight OERs prepared on the DA Form 67-8.

         c. Therefore, this Board concluded that, contrary to the applicant's inference that he was disadvantaged by inflated senior ratings the OERs of other officers, he has received inflated senior ratings on his OERs. This Board also has determined that the applicant has not provided information which shows that the FY 1998 Major Promotion Selection Board acted contrary to law or did not have before it some material information. Finally, the applicant has not presented evidence which shows some other error or flaw in the promotion selection process justifies his retroactive promotion, restoration to active duty and payment of back pay and allowances based on "fair play and due process."

8. This Board noted that the contested OER did not contain any entries which, by regulation, required referral to the rated officer. The contested OER was not referred to the applicant for comment by the SR, thereby indicating that, in the senior rater’s opinion, there were no comments or ratings so derogatory that the contested OER may have an adverse impact on the rated officer’s career.
9. The contested OER was received by HQDA officials and properly posted to the applicant’s records. As a result, the contested OER is presumed to have been prepared by the properly designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

10. On 4 June 1999, five years after the contested OER was entered into the applicant’s official records, he appealed the report to the OSRB. The OSRB returned his appeal without action based on insufficient evidence and/or supporting documents in support of his appeal.

11. Based on all of the foregoing, this Board has determined that the applicant and his counsel have not presented evidence sufficient to justify action by this Board to grant the relief requested, specifically "retroactive promotion from April 1998, together with reinstatement and back pay."

12. Further, this Board noted that the procedure for promotion reconsideration of officers previously non-select by promotion selection boards is embodied in law and regulation. As a result, the ABCMR, as a general proposition, does not promote officers to grades to which they have previously been non-select without benefit of referral for consideration by a SSB. Therefore, this Board has made the following additional determinations.

         a. Paragraph 2a of Army Regulation 600-8-29 states that special selection boards may be convened under Title 10, United states Code, Section 628 to consider or reconsider commissioned or warrant officers when Headquarters, Department of the Army (HQDA), discovers an officer was not considered because of administrative error, the promotion board acted contrary to law, and/or the promotion board did not have before it some material information.

         b. Upon review of all the facts in this case, this Board determined that there is no basis for referring the applicant for promotion reconsideration by a SSB under the criteria used by the FY 1998 Major Promotion Selection Board. Specifically, there is no evidence of administrative error in the promotion selection process; there is no evidence the promotion board acted contrary to law, and/or there is no evidence that material information was missing at the time of promotion selection board consideration.

13. In consideration of all of the foregoing, this Board has determined that the overall merits of the case, including the latest submissions and arguments are insufficient as a basis for the Board to reverse the previous decision of the ABCMR in Docket Number AR1999029441, dated 16 December 1999.


14. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement.

15. 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

__HBO__ __RJW__ __WTM__ DENY APPLICATION



         Carl W. S. Chun

Director, Army Board for Correction
         of Military Records

---

INDEX

CASE ID	AR2002074072
SUFFIX
RECON
DATE BOARDED	20030417
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY	MR CHUN
ISSUES 1.	131.1000.0000
2.
3.
4.
5.
6.