PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 23 SEPTEMBER 2003
         DOCKET NUMBER: AR2002079390


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

Mr. Carl W. S. Chun		Director
Mr. Kenneth H. Aucock		Analyst

The following members, a quorum, were present:

Ms. Jennifer L. Prater		Chairperson
Mr. Arthur A. Omartian		Member
Mr. Patrick H. McGann, Jr.		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

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

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests correction of his officer evaluation report (OER) for the period 990509-991224 to show that his senior rater, in Part VIIa, marked the block "Best Qualified" (BQ) and that the "Fully Qualified" (FQ) block mark be deleted. He also requests that his records be submitted before a special selection board for consideration for promotion to lieutenant colonel, and if selected, he be promoted with a date of rank commensurate with his year group contemporaries, and that he receive all back pay and allowances therewith.

3. The applicant states briefings by the Total Army Personnel Command (PERSCOM) about the new OER policies and the change from DA Form 67-8 to DA Form 67-9 (Officer Evaluation Report) misled and confused some rating officials. His senior rater (SR) marked FQ rather than BQ based on a mistaken understanding of the new policies. The SR believed that part VIIa to be part of the profile process and that the FQ mark was not derogatory. Neither his agency, the Office of the Special Assistant to Secretary of Defense for Gulf War Illnesses (OSAGWI) or his SR was provided a copy of the October 1998 clarifying memorandum from PERSCOM. He sought advice from the PERSCOM Chemical Branch, and was not informed that his was a derogatory OER, precluding him from requesting a Commander's Inquiry. E-mail traffic shows that Chemical Branch was aware of the SR confusion issue, but did not inform him of the problem.

4. In a supplemental application to the Board, the applicant states that PERSCOM denied his appeal based on the unsound, arbitrary, and self-serving findings of the October 1998 internal memorandum, which stated that 7 percent of rating officials were confused by the original new OER briefings, and that the confusion factor was solved when the quantity of FQ OERs fell below 3 percent. PERSCOM endangered the rated officer population by not warning officers about the confused senior raters, electing to keep the issue internal. By selecting a 1 year cut-off date, 30 September 1998, to determine whether a SR was or was not a part of the confused senior rater population, PERSCOM sacrificed those officers that were rated by truly misled senior raters, but whose confusion did not raise its ugly head during the first year of the new OER system. PERSCOM's arbitrary cut off date caused this issue to not be captured accurately.

5. Applicant's counsel states that because of the confused and misleading PERSCOM policy the applicant's SR, a retired lieutenant general, mistakenly checked the fully rather than the best qualified block in Part VIIa of the report. The Officer Special Review Board (OSRB) denied the applicant's appeal; however, it did not have the additional comments by the applicant's rater and SR. The FQ block applies to the bottom 6 percent of all rated officers. The applicant did not fall into that category. The SR misunderstood the meaning of FQ and its relationship to center of mass (COM). His mistake was understandable since PERSCOM recognized that the new OER system had caused confusion. The SR confirmed his misunderstanding to the OSRB.
6. Counsel states that the OSRB  did not answer the question as to what overall rating the SR intended to give at the time of the report, and in its effort to rule against the applicant had gone too far by citing regulations concerning the integrity of the OER system. The SR reiterated to the FY02 promotion board what really happened. His position had never changed. The SR did not view the applicant as an inferior officer deserving a bottom 6 percent ranking, not knowing that a FQ applied to the lower 6 percent of officers. In his narrative, the SR stated, "Promote now; select immediately for battalion command." The fact that the applicant rated another officer on the same day BQ – COM, while rating the applicant FQ – COM, does not refute the SR's rendition of the facts as OSRB has stated. The SR attempted to differentiate one of those officers from the applicant. He had no idea that fully qualified meant utterly incompetent. Counsel states that confusion still existed in December 1999, the same timeframe as the contested OER. The 16 November 1998 memorandum was not provided as an exhibit to the OSRB summary. The sole basis for the applicant not being promoted is the contested and flawed OER.

7. The applicant is a Chemical Corps officer who was commissioned on 1 June 1984, ordered to active duty and who has remained on continuous active duty. He was promoted to major on 1 December 1995.

8. While assigned to the OSAGWI as the Chief, Chemical/Biological Division, he received a complete the record OER for a seven month period from 990509 through 991224. The report was prepared for the express purpose of consideration by an upcoming Department of the Army promotion board. His rating official stated that the applicant's performance was outstanding and that he must be promoted. His SR, a senior executive service official and a retired lieutenant general, indicated in Part VIIa that the applicant was fully qualified, and in Part VIIb, that he was a center of mass officer. In his narrative, the SR stated, "Promote now; select immediately for battalion command." That report shows that his SR senior rated three officers in the grade of major.

9. The applicant's two previous OERs, one a seven month change of rater report, and the other a 12 month annual report, while assigned to the OSAGWI, show that his previous raters considered his performance as outstanding, and that he should be selected for promotion and for command. His rater on the annual report stated that the applicant was among the top ten of percent majors he had observed. His senior rater on those two reports, a member of the senior executive service, stated that the applicant was best qualified. Both were center of mass reports.

10. The OER for the period 991225 through 000913, immediately following the contested report was a change of rater report, and shows that the applicant was assigned to the same position in OSAGWI and rated by the same officials as in the contested report. His rater again stated that the applicant should be promoted immediately. His senior rater indicated in Part VIIa that the applicant was best qualified. Part VIIb indicated that it was a center of mass report. In his narrative, the SR stated, "Promote immediately. Selection for battalion command." The report shows that his SR senior rated two officers in the grade of major.

11. The applicant's three evaluation reports subsequent to the report ending on 13 September 2000 all show that his senior raters considered him best qualified. All three were center of mass reports.

12. On 11 September 2001 the applicant appealed the contested OER, stating that he had been twice non-selected for promotion, and that he had accepted selective continuation of active duty service. He stated that his SR erroneously marked the FQ block instead of the BQ block. He stated that the PERSCOM briefing materials gave his rating officials an erroneous impression of linkage between blocks VIIa and VIIb in the senior rater portion of the new OER. He also stated that his rating officials were not the only ones confused by the briefing information. He stated that documents located on the PERSCOM internet site in the transition from the old OER to the new one clearly show that confusion existed. The OER Reports Journal, published only for members of the personnel community who process OERs, indicated that the confusion continued through March 2001. The applicant cites excerpts from four publications, e.g., "There is no required link between the FQ box and a COM rating, in fact the vast majority of COM ratings are best qualified;" and, "There was never an intended linking between a COM block check and a FQ check. Initially some senior raters perceived a relationship. Over 96 percent are marking BQ;" and, "There is no required link between the two blocks. The senior rater is providing two different evaluations. Bottom line – it is possible, even probable, that an officer receiving a COM label would also receive a BQ in part VIIa." He stated that prior to the FY00 lieutenant colonel selection board his Chemical Branch representative reviewed his file and did not raise any issue about the OER in question. After he was notified that he was nonselected, he again reviewed his OER. Chemical Branch never raised the issue of senior rater confusion described in the cited PERSCOM documents. He stated that e-mail traffic between himself and his branch substantiates that his branch was just as uninformed as his rating chain because PERSCOM did not adequately distribute clarifying information.

13. With his appeal he submits excerpts from publications as indicated above, copies of e-mail correspondence between himself and his branch, and a copy of a 10 September 2001 supporting letter from his former senior rater, who stated –

•         He erroneously believed that blocks VIIa and b were linked and that he had to give him less than the top mark in VIIa. His mistake resulted in his being rated in the lowest 6 percent, rather than where he intended. His achievements merit that block VIIa be changed to read BQ.
•         Based on PERSCOM briefing information, he understood that because of the inflation that occurred with the old OER system, DA desired to have senior raters link block VIIa with block VIIb. This proved not to be the case, and the OER likely sent a derogatory message to the applicant's promotion board. Even after his second senior rating of the applicant in 2000, they had no evidence other than words and perception to support a correction to his May-December 1999 report.
•         The applicant recently found evidence that showed that between December 1998 and January 2000 PERSCOM was aware that a large number of senior raters, to include himself, were misinformed concerning the senior rater's portion of the new OER. Had the clarifications been known, he would have applied them to the officers he senior rated. PERSCOM's lack of emphasis made him responsible for an injurious inaccuracy on the applicant's OER.
•         The applicant was the best qualified officer to fill the position he was placed into. His OER should be corrected to read in block VIIa that he was best qualified.

14. In considering his appeal, the OSRB contacted the applicant's SR, and pointed out that his profile showed that seven months prior to rendering the contested report, the SR assessed another officer as COM-BQ, and on 11 February 2000, the same day he rendered the applicant's FQ-COM report, he rendered a report on another officer as BQ-COM. The OSRB questioned if the SR might have in fact correctly understood the policy pertaining to parts VIIa and b, and that he correctly compared the applicant to his peers, and made a tough but consistent assessment accordingly. In response, the SR stated that he could have been aware that there was no link, that he was trying to make a comparison between the officers he rated that day, and the other officer was especially talented and was promoted below the zone. He stated that he never intended to rate the applicant in the lower 6 percent, and that the applicant should have been promoted in the primary zone, and that if the OER prevented that it was a disservice to the Army. He stated that the individuals he rated subsequently all got promoted, but they were no better than the applicant. In response to the OSRB query on whether the OER was a fair and accurate assessment, the SR stated that it was not, if it put the applicant anywhere below the center of the pack. His performance was solid and it was his intention to rate him as COM.

15. In rendering its decision, the OSRB stated that the applicant had not provided clear and convincing evidence to justify deletion or amendment of the OER. Paraphrasing from the OER regulation, the OSRB stated that an OER accepted by DA and included in the official record of an officer is presumed to be administratively correct, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. The OSRB also stated that the SR's rating history strongly suggested that the SR was aware that Parts VIIa and b were not mandatorily linked. Again, from the OER regulation, the OSRB stated that statements from rating officials claiming that they did not intend to evaluate as they did will not, alone, serve as the basis for altering or withdrawing an evaluation report.

16. Continuing, the OSRB agreed that confusion existed on the part of senior raters who erroneously believed Parts VIIa and b were mandatorily linked. That confusion was addressed in the 16 October 1998 PERSCOM memorandum and set the record straight; therefore, senior raters on OERs rendered subsequent to its publication should have been aware of the correct policy. The OER was completed some 16 months after the policy was clarified, and the SR's history indicated he was aware of the correct policy. The OSRB quoted that portion of the OER regulation cautioning against retrospective thinking – 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, and that 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. The OSRB stated that the policy of denying appeals based on retrospective thinking ensures the integrity of the evaluation system is maintained.

17. The OSRB opined that at the time he rendered the contested report, the SR understood the correct policy pertaining to Parts VIIa and b, correctly comparing the applicant to his peers, and making his assessment accordingly. It was only when he learned that his comparison resulted in the applicant's non-selection for promotion that he reconsidered his evaluation, which constituted retrospective thinking. The OSRB stated that the SR's claim of erroneous perception was refuted by his rating history. The OSRB stated that the applicant did not produce evidence that clearly and convincingly nullified the presumption of regularity. There was no sufficiently convincing evidence that Part VIIa of the contested OER was inaccurate, unjust, and did not reflect the applicant's potential at that time. The report should not be amended. The OSRB recommended that the applicant's appeal be denied.

18. In a 26 July 2002 statement, the applicant's former senior rater took exception to the OSRB summary, stating that it did not address whether he had adequate information about the OER form to rate his performance accurately, or whether the report he rendered carried out his intent to rate the applicant as a center of mass officer. He stated that in indicating that he had not placed all individuals rated center of mass as fully qualified, they attempted to show that he had not consistently linked Part VIIa and b ratings, which according to the ORSB would automatically have justified relief. However, they did not show that in giving the applicant a fully qualified rating that he had placed him in the lower 6 percent of his group – which was not his intention. He stated that he sought to choose the word descriptors as accurately describing qualification, and that if over 90 percent of the officer corps was rated best qualified, inflation in rating has occurred and he could not have carried out his intent to place the applicant in the COM with a lesser rating than it. He stated that at the time he wrote the report, the applicant merited promotion and then command, and that he considered both overdue today, as the result of a straight call based on his misunderstanding of what rating one fully qualified for promotion really meant.

19. In a 10 September 2001 letter of support to the President of the FY02 promotion selection board, the applicant's SR stated that based on information that he had from a PERSCOM briefing, he made a substantive error in evaluating the applicant, that part VIIa should have been BQ instead of FQ. He stated that the erroneous marking was based on incomplete information received concerning PERSCOM's move to the new OER system and PERSCOM's intent concerning the SR portion of the new OER. He stated that he believed that block VIIa and b were linked, and thought as he did not have a top block in b, he could not give him one in a. He did not receive clarifying information until long after the OER had been processed. He stated that is clearly shown by his second senior rater evaluation of the applicant, and his strong recommendation for promotion. He stated that it was his intent to rate as close to the center of mass as he could given his outstanding performance of duty.

20. In a 4 September 2002 memorandum to this Board supporting the applicant's petition, his former rater stated that her office was, and still is, at the end of the line to receive up-to-date personnel information, including the subtle nuances on how to prepare an OER; instead, following the rules as written to the detriment of the applicant. She stated that the senior rater was preparing another complete-the-record report at the same time he was working on the applicant's, and that due to the small number of majors that he senior rated, neither could be rated as above center of mass. Because the other officer demonstrated a higher level of polish, had taught at West Point, was later selected to be the Army Chief of Staff's speechwriter, and was promoted to lieutenant colonel below the zone, the senior rater wanted to clearly differentiate between the two, so he marked the first as best qualified and the applicant as fully qualified, not knowing that this would place the applicant in the 4 to 6 percent of all majors being rated. She stated that the senior rater had been accused of having post evaluation remorse; however, in this instance, the senior rater was as in the dark about the OER nuances as he was.

21. The 16 October 1998 PERSCOM memorandum for record referred to above, discusses the Part VIIa and b disconnect issue, stated that a detailed analysis was done of the first 1000 processed reports under the new OER system, and that analysis revealed that many senior raters were under the mistaken belief that there was a required link between the two block checks, e.g., a center of mass block check in Part VIIb required a fully qualified block check in Part VIIa. The memorandum indicated that the terms, "Best Qualified" and "Fully Qualified" were not explicitly defined in the regulation, possibly contributing to the confusion. Upon identifying the potential problem area the evaluation system office took immediate action to properly educate the field, provided updates to each senior rater, articles and information papers on PERSCOM online, and restructuring OER briefings, resulting in reducing the incident of "Fully Qualified" OERs from the initial 7 percent rate to a 2.7 percent rate, within expected tolerance. However, because some officers received unjust ratings based on their senior raters not being thoroughly informed and educated on certain nuances of the new system, relief should be granted through the appeals process to those rated officers who could establish they were inadvertently mis-rated. OERs having a through date of 30 September 1998 and earlier should be considered by the OSRB for adjudication. The senior rater should provide supporting documentation. The officers should also pass the test that their senior rater involved had not previously given a "Best Qualified – Center of Mass" report.

22. Army Regulation 623-105 prescribes the officer evaluation function of the military personnel system. The current version of this regulation became effective on 1 October 1997.

23. Section IV of Chapter 3 of the regulation provides for the preparation of the DA Form 67-9 (Officer Evaluation Report), and states in pertinent part, "Part VII of the DA Form 67-9 provides for the senior rater's evaluation of the rated officer's performance and potential … In evaluating the whole officer, rating officials may consider the fact than an officer is in a zone of consideration for promotion … Accordingly, 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."

24. It goes on to state, "The senior rater's evaluation is made by comparing the rated officer's performance and potential with all other officers of the same grade the senior rater has rated or will rate. … Part VIIa. Based on the rated officer's duty performance, the senior rater assesses the rated officer's potential to perform duties and responsibilities at the next higher grade compared with all other officers of the same grade and then places an 'x' in the appropriate box."

25. And, "Part VIIb. The senior rater makes an assessment of the rated officer's overall potential in comparison with all other officers of the same grade the senior rater 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 senior rater will 'x' the CENTER OF MASS box. If the rated officer's potential exceeds that of the majority of officer's in the senior rater's population, the senior rater will 'x' the ABOVE CENTER OF MASS box. (The intent is for the senior rater to use this box to identify their upper third in each grade)."

26. Paragraph 3-53 provides for an optional complete-the-record report, and states that at the option of the rater, a report may be submitted on a rated officer who is about to be considered by a DA selection board for promotion, project manager, school, or command.

CONCLUSIONS:

1. The applicant's rater clearly intended for the complete-the-record report to be one that would influence a board in selecting the applicant for promotion to lieutenant colonel. There is no other purpose for submitting that type of report. The senior rater, a retired lieutenant general, knew this.

2. The SR also rated him as he felt that he should have been rated – fully qualified, comparing him with other officers in the same grade. The Board agrees with the OSRB that the SR's rating history suggested that he was aware that there was no mandatory link between Part VIIa and VIIb. Notwithstanding the applicant's contentions, he has provided no evidence to show that at the time that his contested report was prepared, his senior rater was misled or confused concerning the new OER policies.

3. Nonetheless, although the senior rater stated that the applicant was fully qualified, not best qualified, for promotion, his comments are more glowing than his fully qualified rating in Part VIIa – Promote now; select immediately for battalion command. The senior rater wanted the applicant to be promoted, now. It is not logical to assume that the applicant's SR made these comments to mean otherwise; however, the rating that he made, fully qualified, defeats this purpose.
4. In view of the senior rater comments on the contested report, his rating of fully qualified was not a fair assessment, as the senior rater has since stated.

5. In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by amending Part VIIa of the applicant's OER for the period 990509 through 991224 to show Best Qualified vice the Fully Qualified marking shown.

2. That following administrative implementation of the foregoing, his records be submitted to duly constituted special selection boards for promotion reconsideration to lieutenant colonel, and that, if he is selected for promotion to lieutenant colonel, he be promoted and assigned an appropriate effective date and date of rank, and be awarded back pay and allowances.

BOARD VOTE:

__JLP___ __AAO__ __PHM__ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  ____Jennifer L. Prater _____
                  CHAIRPERSON

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INDEX

CASE ID	AR2002079390
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20030923
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	GRANT
REVIEW AUTHORITY
ISSUES 1.	134.00
2.
3.
4.
5.
6.