MEMORANDUM OF CONSIDERATION


         IN THE CASE OF
        


         BOARD DATE: 21 November 2002
         DOCKET NUMBER: AR2002074434

         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
Ms. Joyce A. Wright		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Mr. Thomas Lanyi		Member
Mr. Lester Echols		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 his records be reconsidered for selection to the resident Command and General Staff College (CGSC). He also requests that his
DA Form 67-8 (Officer Evaluation Report [OER]), dated 30 September 1998 be changed to reflect an above center-of-mass (ACOM) rating or be removed entirely and that his records appear before a special selection board (SSB) to consider him for resident attendance to CGSC.

APPLICANT STATES: That his senior rater (SR) verified that he was incorrectly informed that he could not rate any officer in the "ACOM" block without appearing before the Chief of Staff of the Army to justify the rating. He was pressured into rating him in the "center-of-mass (COM)" category and not in the "ACOM" block that he stated he would have given him. The improper rating showed a significant decrease in performance from previous evaluations and was the cause for his nonselection to resident CGSC. As a result of his nonselection, his career has been adversely impacted. He has applied to this Board for relief after exhausting all other means available to him. He spoke with his Signal Corps branch chief, who informed him that the only negative in his file was the downtrend in performance from his OER dated 30 September 1998, which he appealed. In support of his application, he submits copies of his appeal and several OERs with supporting documents.

The applicant provides additional facts and argument regarding his case. He states that DA directed that the contested OER be completed as part of the transition from the DA Form 67-8 to the new OER, DA Form 67-9. All officers that had not been rated within 90 days prior to 30 September 1998, were to receive an OER by the end of the fiscal year (FY) 1998 to begin the "new OER system" and to populate the SR's profile. The SR was compelled to give him a "COM" rating per instructions from the Total Army Personnel Command (PERSCOM). He was told that all SRs that rated an officer in the "ACOM" block would have to explain that rating to the Chief of Staff of the Army. The SR informed him that all officers were to start out with COM and that future boards would understand this OER to be the transition OER for the Army. This OER was not consistent with any other OER that he had received from this SR. Each OER recommended that he be selected for resident CGSC and quantifies his performance as either the best captain or top 1% of officers in the unit. His OER following the contested OER was given only 90 days later and was in the "ACOM" category, stating that he is in the top 1% again.

His duty description during all of his evaluations from his SR (who rendered the contested report) was part of a dual rating scheme. The Director of Operations, Readiness and Mobilization, a major general, provided letter input in support of his OER. None of the letter inputs show any decrease in job performance and each of them recommend resident attendance at CGSC. With the exception of his contested OER, he has received all "ACOM" ratings.

He also states that not one signal officer was selected for battalion command last year without having attended resident CGSC. Since the onset of Career Functional Areas, promotion to COL/0-6 without commanding a battalion as a signal officer was not a possibility. His contested OER should have reflected an ACOM rating from his senior rater. Due to this incorrect rating, he was not selected for resident CGSC, which adversely affected his career. He has petitioned this Board for relief.

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

On 14 November 1989, he was appointed as a second lieutenant in the Signal Corps.

He successfully completed the Signal Officer Basic and Advanced Courses and
completed a 1½ year Army sponsored full time masters degree program at the American University.

He was promoted to the rank of major/0-4 on 1 May 1999.

The applicant provides two OERs prior to the contested report which show that he was placed in the top block by the SR. When profiled these top block reports are actually COM reports based on the number of officers placed in the top block.

The applicant provided a copy of his DA Form 1059 (Service School Academic Evaluation Report), which shows that he attended the nonresident Command General Staff Officer Course (CGSOC) (1-250-C3) from 26 November 1997 to 8 February 2001.

Information provided by the PERSCOM, Signal Branch, revealed that the applicant was considered but not selected by the 1998 and 1999 CSC
Selection Board.

The applicant appealed his OER, with an ending date of 30 December 1998, to the Officer Special Review Board (OSRB). A preliminary review had been conducted on the contested report and was returned without action.

The OSRB noted that the applicant provided one "new" statement from his SR who rendered the report. The SR claimed that an individual at PERSCOM told him that he was "to place all of [his] rated officers in the 'COM' block." He further claimed that he intended to give the applicant an ACOM rating but could not because of advice received from PERSCOM. The OSRB found the support statement unconvincing for two reasons. First, the SR did not specify who in PERSCOM provided such advice, and without that information, there was no way to substantiate this claim. Second, and most significant, was that the SR's profile
maintained at PERSCOM did not corroborate his contention that he was not allowed to put officers in the ACOM category. His profile indicated that he placed a number of officers in the ACOM; in fact it indicated that the first 1LT, CPT, MAJ, and LTC he rated were placed in the ACOM category. The OSRB concluded that the advice the SR most likely received from PERSCOM was that Army Regulation 623-105, paragraph 3-22c (2)(a) required the ACOM ratings to be less than 50 percent of his profiled reports. Therefore, since he had placed his first officer in the ACOM category he was restricted from placing his next two rated officers of that grade into the ACOM category. The OSRB also noted that at the time the applicant's report was processed it was one of four reports rendered from the SR. Among that group, the SR rated one officer ACOM and it was clear that the SR knew he could select only one officer to place ACOM and his choice was not the applicant.

The applicant's appeal did not provide sufficient evidence of a clear and convincing manner for the OSBR to consider it at that time under the provisions of Army Regulation 623-105, chapter 6. The applicant was advised that a favorable decision could not be rendered based upon the evidence submitted.
In order to justify either deletion of amendment of this report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.

The applicant provided copies of four OERs received subsequent to the contested OER. All are labeled as ACOM reports.

Army Regulation 623-105 (Officer Evaluation Reporting System), states, in pertinent part, "statements from rating officials often reflect retrospective thinking, or second thoughts, prompted by an appellant's non-selection 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, alone, serve as the basis of altering or withdrawing an evaluation report. Rating officials may, however, 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 preparations. Such statements must describe what the new information consists of, when and how it was discovered, why it was reportedly unknown at the time of report preparation and the logical impact it may have had on the contested report had it been known at the time the report was originally prepared."






Paragraph 3-22 pertains to Part VII, Senior Rater. Subparagraph 3-22c(2)(a) states that the SR makes an assessment of the rated officer's overall potential in comparison with all other officers of the same grade the SR has senior rated or
has currently in his or her senior rater population. This potential is evaluated in terms of the majority of officers in the population. If the potential assessment is
consistent with the majority of officers in that grade the SR will place an "x" in the CENTER OF MASS box. If the rated officer's potential exceeds that of the
majority of officer's in the SR's population, the SR will place an "x" in the ACOM/CENTER OF MASS box. (The intent is for the SR to use this box to identify their upper third in each grade). However, in order to maintain a credible profile, the SR must have less than 50 percent of the ratings of a grade in the top box. Fifty percent or more in the top box will result in a CENTER OF MASS label.

Paragraph 6-6 of Army Regulation 623-105 provides that an OER accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgement of the rating officials at the time of preparation. This is known as a "presumption of regularity". Accordingly, to justify deletion or amendment of the report, the appellant must produce evidence that clearly and convincingly overcomes the presumption referred to above and that action to correct an apparent material error or inaccuracy is warranted.

A HQDA Message Number 02-184, Subject: Fiscal Year (FY) 2002 Army Competitive Category (ACC) Command and Staff College (CSC) Selection Board announces the zones of eligibility, methodology, and administrative instructions for use by the FY 02 CSC Selection Board. This policy mandated that the CSC Selection Board would select eligible officers to attend the resident command and staff colleges and would consider requests for command and staff college constructive or equivalent credit. Officers who meet the following criteria are eligible for consideration for selection to attend a resident command and staff college: (a) Be in the grade of promotable captain or major and have less than 14 years (168 months) of active federal commissioned service as of 30 September 2001; (b) Have not received two previous considerations for
selection to attend a resident CSC; (c) Have not attended, nor declined to attend in residence CSC or equivalent foreign staff college; (d) Be a graduate of, or have credit for completion of, an officer advanced course; and (e) CAS3 completion is not a requirement for selection but is a requirement for attendance.
ACC officers are considered for selection by year group.





A copy of the Professional Development Board Procedures from the Office of the Deputy Chief of Staff for Personnel G-1 was provided to a staff member of the Board. These procedures stated that the Commanding General (CG), of PERSCOM had the authority to refer the record of an officer to the CSC Selection Board even though the officer has exceeded years of service (YOS) criterion for eligibility, and provided he/she was otherwise eligible, in the following instances: (1) When an officer's record should have been seen by a CSC

Selection Board but was not because of administrative error; and (2) When a CSC Selection Board considered and did not recommend for selection an officer whose record contained material error or omission. If an officer is given an additional year of consideration, the officer will be integrated into the year group that will best compensate him/her for the material error or omission in their file.

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. The applicant received a center-of mass rating on his annual OER for the period 971001 through 980930. He was considered but not selected by the
1998 and 1999 CGSC Selection Board. He appealed his report to the OSRB.
A preliminary review was conducted on the contest report and returned without action.

2. The OSRB noted that the applicant provided a statement from his SR, who rendered the report. The SR claimed that he was advised by PERSCOM that he was to place all of his rated officers in the "COM" block. However, he intended to give the applicant an ACOM rating but could not because of advice received from PERSCOM.

3. The OSRB found the support statement unconvincing due to the fact that SR did not specify who in PERSCOM provided such advice and without that information there was no way to substantiate his claim. Another reason was most significant in that the SR's profile maintained at PERSCOM did not corroborate his contention that he was not allowed to put officers in the ACOM category. The SR's profile indicated that he had placed several officers in the ACOM category.

4. The OSRB concluded that the only advice the SR most likely received from PERSCOM was that regulation required the ACOM ratings to be less than
50 percent of his profiled reports. Since the SR had placed his first officer in the ACOM category he was restricted from placing his next two rated officers of that grade into the ACOM category. At the time, the SR should have been aware that


he could only select one officer to place ACOM and his choice was not the applicant. In accordance with regulation, had the SR marked the applicant as
ACOM on the contested report, it would still have received a COM label because the SR would have exceeded the 50 percent ACOM rule.

5. The Board finds that no error or inaccuracy has been found or demonstrated in the contested OER rendered to the applicant. His records show that he completed the non-resident CGSC, while enrolled in the masters program, which was completed on 21 June 2000.

6. The Board notes that the applicant's records appeared twice before the CSC Selection Board and that there is no further entitlement to attend CGSC. The Board also notes that the CG, PERSCOM has the authority to refer the applicant to another board only if material error existed and or if his records contained material error or omission. Based on the foreging, the applicant's case does not meet this criterion. Therefore, he is not entitled to reconsideration for resident CGSC or changes in his OER to reflect an ACOM rating.

7. 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.

8. 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

__fe___ __tl___ __le______ DENY APPLICATION

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

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INDEX

CASE ID	AR2002074434
SUFFIX
RECON
DATE BOARDED	20021121
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	310
2.
3.
4.
5.
6.