| Mr. Carl W. S. Chun | Director | |
| Mrs. Victoria A. Donaldson | Analyst |
| Mr. Fred N. Eichorn | Chairperson | |
| Ms. Margaret V. Thompson | Member | |
| Mr. Eric V. Anderson | Member |
APPLICANT REQUESTS: Removal of Part VII (senior rater) of the DA Form
67-8 (Officer Evaluation Report (OER)) covering the rated period from 13 July 1996 to 4 April 1997 (sic 5 May 1997) or in the alternative removal of OER from his Official Military Personnel File (OMPF).
APPLICANT STATES: In a three page memorandum to the Army Board for Correction of Military Records (ABCMR), that the OER for the period 13 July 1996 to 5 May 1997 [hereafter referred to as the contested OER], is substantively inaccurate and an unjust evaluation of his performance and potential. He states that the basis for his appeal is substantive inaccuracy and error which resulted in an unfavorable rating.
The applicant states that the negative rating has adversely and materially affected selection board reviews that he has faced and will face in the future.
The applicant further states that the negative rating stems mostly from a personality conflict between the rater and the applicant on a consistent basis. He continues that these difficulties were significantly enhanced by the fact that he made statements in response to an Inspector General’s inquiry that resulted in a letter of concern issued to the rater.
In addition, the applicant states that the rater recommended to the senior rater (SR) that he receive a “2 block” in the SR portion of the OER based on a property accountability issue stemming from a report of survey that was appealed and “reversed” on 16 November 1998.
The applicant contends that he received diminished ratings due to bias. He states that the Advisory Opinion “reversing” the Report of Survey and the Memorandums for Record concerning the Commander’s Inquiry contributed to a biased rating by the rater and SR and that the SR placed him “below center of mass” based on the property accountability issue which was later corrected in his favor. He continues that the “reversal” of the Report of Survey was not taken into consideration when preparing the OER.
The applicant also contends that the diminished rating was due to reprisal because the rater received a letter of concern based on statements the applicant provided in the Commander’s Inquiry. He continues that the rater placed him in positions of command responsibility and that is inconsistent with the below center of mass rating received by the SR. In addition, the applicant states that fellow officers describe his performance as “satisfactory” and “center of mass” which clearly indicate that the rater’s recommendation to the SR to place him as a “2 block” which is “below center of mass” was a reprisal action in response to the Commander’s Inquiry.
In support of this application, the applicant submitted a three page brief, dated 3 October 2002, in which he discussed in detail the basis for his application to the ABCMR; a copy of ABCMR Proceedings for Docket # AC98-09320 and AR1998014524; a copy of the Command Philosophy for the Headquarters, Support Command, 1st Cavalry Division, Fort Hood, Texas; a 12 September 1997, memorandum for record; a 22 August 1997, letter of support; a 2 September 1997, letter of support; a 12 September 1997, record of phone conversation; a 16 September 1997, record of phone conversation; a 12 September 1997 record of phone conversation; a copy of the OER for the period 19 July 1995 through 12 July 1996; a copy of the contested OER; and a set of instructions for appealing an OER provided by PERSCOM.
EVIDENCE OF RECORD: The applicant's military records show:
The applicant enlisted on 12 October 1984 as a private E-3 in the United States Army Reserve (USAR). He served a period of enlisted service from 12 October 1984 through 23 August 1990. Upon completion of officer candidate school, he was commissioned a second lieutenant. He is currently serving on active duty as a captain in the USAR.
On 24 February 1999, the ABCMR reviewed the applicant's request seeking relief from pecuniary liability for loss of government property based on an established Report of Survey. The Board determined that there was an injustice in the manner in which the report of survey was processed.
The Board recommended that all of the Department of the Army records related to this case be corrected by showing that the applicant was relieved of pecuniary liability assessed by the report of survey in the amount of $1833.20 and that any monies collected from his military pay be refunded to him.
Records show that the applicant was assigned to the HHD, 215th Forward Support Battalion, 1st Cavalry Division, Fort Hood, Texas during the period of the contested report.
Record shows the contested OER was forwarded to the applicant on 21 May 1997. Part IId (Signature of Rated Officer) shows that the applicant signed the contested OER on 7 May 1997, which attested that the administrative portion of the contested OER was correct.
The contested OER was a change of duty report which covered ten months of rated time for the applicant’s duties as Company Commander. The rater signed his portion of the contested OER on 7 May 1997 and the SR signed the contested OER on 7 May 1997.
The contested OER was provided to Headquarters Department of the Army officials for processing. The contested OER was profiled on 5 June 1997 and entered on the applicant’s OMPF.
Entries on the contested OER show that 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 unit 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 that the applicant concluded his detachment command after a successful three month operational deployment to Kuwait. The rater also wrote that the applicant ensured successful field training and transition within the unit supply.
In Part Vd (This Officer's Potential For the Next higher Grade Is), the rater placed his "X" in the first block (Promote Ahead of Contemporaries). In Part Ve (Comment on Potential), the rater stated that the applicant was competitive for promotion.
In Part VIIa (Potential), the SR, a colonel serving as the brigade commander, placed his "X" in the second block: 33/7*/0/0/0/0/0/0/0 (the asterisk indicates the applicant's position). The SR commented that the applicant "commanded a challenging detachment within the forward support battalion. [The applicant] demonstrated his logistical expertise during a short-notice operational deployment to Kuwait during which all missions were successfully accomplished. Develop this officer's potential for promotion to major with assignments as a staff transportation officer or in an assignment in his functional area. He has the intelligence to perform at field grade level."
Records show that the OER was not referred by the SR to the applicant for comment or rebuttal.
The applicant's evaluation history as a captain contains ten OER's of which four are completed on the DA Form 67-8 and six are completed on the DA Form 67-9.
In the four 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 from two different raters. Both raters placed him in the top block (Always Exceeded Requirements) under Part Vb (Performance During This Rating Period) and made positive comments on the applicant's performance and listed his achievements under Part Vc (Comments on Specific Aspects of the Performance). Both 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), the raters state that the applicant is competitive for promotion to major
The applicant was rated by three different SRs (all in the grade of colonel) on the DA Forms 67-8. The applicant received SR ratings on three of the four DA Form 67-8 reports. The ratings are as follows with asterisk indicating the applicant's position on the SR's profile: (0/1/1*/0/0/0/0/0/0), (89*/43/11/1/0/0/0/0/0), and (33/7*/0/0/0/0/0/0/0). The SR was unable to rate the DA Form 67-8 for the period 6 May 1997 through 30 September 1997 because he was not in the SR position for the required number of days.
The applicant received six OER's as a captain on the DA Form 67-9 which became effective in October 1997.
All of the OER's on the DA Form 67-9 show in Part IV (Performance Evaluation-Professionalism) that the rater placed his "X" under "Yes" for all of the 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 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 of the rater identified skills.
In Part VII (Senior Rater) on five of the DA Form 67-9, the SRs placed their "X" in the top block (Best Qualified) under Part VIIa (Evaluate the Rater Officer's Potential to the Next Higher Grade). In one of the DA Form 67-9 the SR placed his "X" in the second block (Fully Qualified). The applicant was senior rated by three different SRs with two in the grade of lieutenant colonel and one in the grade of colonel. The SR's evaluations resulted in placing the applicant in "center of mass" (COM) on five of the DA Form 67-9s and in "above center of mass" on the remaining DA Form 67-9.
The applicant appealed the contested OER on 27 November 2001 to the Deputy Chief of Staff for Personnel Officer Special Review Boards (OSRB).
The OSRB case summary identifies the appeal as the first appeal of a 10-month, Change of Duty Officer Evaluation Report for the period 13 July 1996 through
5 May 1997 while the applicant was assigned as a Company Commander, HHD, 215th FSB, 1st CAV DISCOM, Fort Hood, Texas. The applicant did not request a Commander's Inquiry.
The "Discussion" portion of the OSRB case summary addressed the applicant's contentions as follows:
a. The SR's profile shows his Center of Mass is the one block. Therefore, the applicant contends that because "the average performance for a captain in command is a center of mass" this injustice needs to be corrected.
b. The rater demonstrated animosity towards the appellant and this justifies correcting the OER.
c. A report of survey found the appellant pecuniary liable for lost property, but this was overturned by an ABCMR decision and justifies correcting the OER.
The Discussion portion of the OSRB case summary also addresses the applicant's claim that the OER be amended to "reflect a true rating devoid of any bias." The OSRB noted that there is nothing derogatory in the contested OER and therefore presumed that the applicant was requesting that the 2-block assessment provided by the SR be corrected to show a 1-block assessment.
The OSRB case summary concluded that the applicant's contention that the contested report is substantively inaccurate and unjust is not proven.
Specifically, the case summary states that the SR's profile shows that his COM was a 1-block. However, this fact alone does not prove that the SR's assessment of the appellant as below COM was not his honest and independent assessment at the time the OER was rendered.
As for the applicant's contention regarding the rater demonstrating animosity towards him, the OSRB case summary finds that although the applicant provides memorandums for record (MFR) from the 15-6 investigating officer, he does not provide the entire investigation or show the results of the investigation which might be relevant. The OSRB determined that the MFRs are taken out of context and as such cannot be presumed to be representative of the situation and at most these documents show that there may have been some command issues. The OSRB determined that the command issues were beyond the scope of the OSRB charter, which is to assess the accuracy and fairness of the contested OER. The OSRB further concluded that as long as the rating officials were in valid positions as raters and there is no evidence to show that a rating was inaccurate and unfair, the OER should stand. There is no evidence provided that shows the rater failed to render a fair and accurate assessment. Therefore the OSRB determined that his contention was unproven.
The OSRB case summary notes that a report of survey found that the applicant was pecuniary liable for lost property, but that was "overturned" by the ABCMR. The OSRB notes that this decision was based on two essential elements: first, that regulatory procedure was violated and second, that "the proximate cause of the loss was not due to willful misconduct or negligence on the part of the applicant." This does not mean that there was not mismanagement on the part of the applicant that may have contributed to the loss.
The case summary continues that the applicant was the company commander responsible for the property and he was therefore, responsible for all that his company did and failed to do.
The OSRB notes that there is no reference in the OER to the report of survey, pecuniary liability, the applicant's management of company property or any derogatory comments on the contested OER.
The OSRB determined that the ABCMR findings are not relevant to the issues of the OER appeal and that the contention is without merit.
The OSRB opined that the rating officials met regulatory guidance and their separate and distinct responsibilities.
The OSRB case summary indicates that the applicant provided third party letters of support and noted that the observers were not in positions that afforded them good opportunity to observe firsthand, the applicant's performance as well as what the rating officials saw in observing the applicant's performance. Therefore, OSRB did not consider them relevant to the OER appeal or the issues raised.
The OSRB concluded that the applicant did not provide and the OSRB did not find elsewhere the necessary evidence to delete or amend the contested report.
The OSRB case summary indicated that the applicant was considered by the Fiscal Year 2001 Promotion Selection Board considering captains for promotion to major and he was not among those recommended for promotion.
Records show the applicant was also considered by the Fiscal Year 2002 Promotion Selection Board considering captains for promotion to major and he was not not among those recommended for promotion.
Army Regulation 623-105 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 that regulation states that the burden of proof in an appeal of an OER rests with the applicant. Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.
Army Regulation 623-105 provides for a Commander’s Inquiry in cases where it brought to the attention of a commander that an officer evaluation report (OER) rendered by a subordinate or a member of a subordinate command may be illegal, unjust or otherwise in violation of this regulation. The primary purpose of a commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record. A secondary purpose of a commander’s inquiry is to obtain command involvement in clarifying errors or injustices after the OER is accepted at Headquarters, Department of the Army. The commander involved will inquire into the matters alleged, but must confine his or her inquiry to matters relating to the clarity of the OER, the facts contained in the OER, the compliance of the OER with the governing regulation, and the conduct of the rated officer and members of the rating chain. The commander does not have authority to direct that an OER evaluation be changed, and the commander may not use command influence to alter the honest evaluation of an officer by a rating official.
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 regulation, the applicant must produce evidence that clearly and convincingly overcome the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.
Paragraph 9-9 of Army Regulation 623-105 states that the prospective appellant should take not of the following: (2) The basis for his or her belief that the rating officials were not objective or had an erroneous perception of his or her performance. Note that a personality conflict between the appellant and a rating official does not constitute grounds for relief; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. (Emphasis added)
Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time the contested OER was rendered establishes the policies and procedures for the OER system. Section I of Chapter 4 addresses evaluation principles. Paragraph 4-1d specifically states that rating officials have a responsibility to balance their obligations to the rated officer with their obligations to the Army. Rating officials must make honest fair evaluations of the officers under their supervision. On the one hand this evaluation must give full credit to the rated officer for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Department of the Army selection boards and career managers can make intelligent decisions.
Paragraph 4-27 of Army Regulation 623-105 requires that certain types of Officer Evaluation Reports (OER) be referred to the rated officer for acknowledgement and comment before they are sent to Headquarters Department of the Army. Listed among those types of OER’s requiring referral are any report with negative remarks about the rated officer’s ethics in Part IVb and/or in the rating officials narrative. Further, the regulation also requires that any report with a potential evaluation in Part Vd of “Do not promote” or narrative comments to that effect from any rating official require referral to the rated officer.
Paragraph 4-11c(4) of Army Regulation 623-105 (Officer Evaluation Reporting System) provides that the rated officer signs and dates the OER before sending it to the rater. The rated officer's signature verifies the accuracy of the administrative data in Part I (except item o), the rating officials in Part II, and the APFT [Army Physical Fitness Test] and height and weight data in Part IV. This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information. Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.
Army Regulation 600-8-29 (Officer Promotions), currently in effect, prescribes the policies and procedures for promotion of officers on active duty. Paragraph 7-11 specifies that officers who discover a material error existed in their file at the time they were nonselected for promotion may request reconsideration by a special selection board. The regulation also states requests for reconsideration will be forwarded to the Commander of the Total Army Personnel Command (PERSCOM) and reconsideration will normally not be granted when the error is minor or when the officer, by exercising reasonable care, could have detected and corrected the error. Further, officers being reconsidered are not afforded the opportunity to correspond with the special selection board and their file will be reconstructed as it should have appeared on the convening date of the promotion board that failed to select the officer for promotion.
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 Board considered the applicant's request for removal of the contested OER.
2. The Board reviewed the applicant's three page self-authored memorandum, the OSRB case summary, a copy of ABCMR Proceedings for Docket number
AC98-09320 and AR1998014524, the letters of support provided by the applicant and his official military personnel file.
3. The Board considered the applicant's contention that the contested OER, is substantively inaccurate and an unjust evaluation of his performance and potential. There is no evidence and the applicant has not provided evidence that substantiate these claims. Specifically, the Board determined that applicant has not provided compelling evidence which shows the contested OER did not represent the honest and fair evaluations of the rater and SR. Therefore the Board determined that this argument is without merit.
4. The Board considered the applicant's contention that the contested OER is inaccurate because the ABCMR "reversed" the Report of Survey findings. The Board noted that the previous ABCMR decision only relieved the applicant of the pecuniary liability assigned in the report of survey. However, the ABCMR decision is not relevant to the OER.
5. The Board also noted that there is no reference on the contested OER to the Report of Survey and that there are no negative comments in any portion of the contested OER. The Board determined that there is no evidence and the applicant has failed to provide evidence to support his contention that he received "diminished" ratings based on the Report of Survey. Therefore the Board determined that this claim is without merit.
6. The Board considered the contentions of the applicant that the contested OER was invalid because of a personality conflict between himself and his rater. Army Regulation clearly states that a personality conflict between the rated officer and a rating official does not constitute grounds for relief; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. There is no evidence and the applicant did not provide evidence that shows conclusively that the OER was prepared inaccurately or unjustly. Therefore, this claim is without merit.
7. The Board noted the contentions of the applicant that he received a "diminished" rating based on the fact that he provided statements to the Inspector General which resulted in a "letter of concern" for the rater. There is no evidence and the applicant has provided no evidence which supports this claim. Therefore, the Board determined that this claim is without merit.
8. The Board considered the applicant's contention that the below COM rating on the contested OER resulted in his nonselection by a Department of the Army Selection Board. After a review of his OMPF, the Board noted that the applicant received a "2-block" on the contested OER and positive narrative rating. This rating is consistent with the ratings prior to and after the contested report. Furthermore, promotion selection boards do not divulge the reasons for non-selection; therefore, the applicant's contention that the contested OER was the basis for his non-selection is merely speculation. As a result, this claim is without merit.
9. The Board reviewed the applicable Army regulation that governs the policies and procedures for promotion of officers on active duty. The Board determined that the applicant's records were correct as constituted; therefore, there is no basis for consideration by a Department of the Army Special Selection Board.
10. The Board reviewed the applicable Army regulation that governs the policies and procedures for preparation and processing of officer evaluation reports for officers on active duty. The Board determined that the contested report was correct as constituted; therefore, there is no basis for removal of the contested OER from his OMPF.
11. The Board further concluded that, in this case, the applicant failed to meet the burden of proof to justify deletion or amendment of the contested OER. Therefore, there is no basis for removal or amendment of the contested OER.
12. 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.
13. 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
_FNE___ __MVT___ ___EVA_ DENY APPLICATION
| CASE ID | AR2002080171 |
| SUFFIX | |
| RECON | YYYYMMDD |
| DATE BOARDED | 20030715 |
| TYPE OF DISCHARGE | (HD, GD, UOTHC, UD, BCD, DD, UNCHAR) |
| DATE OF DISCHARGE | YYYYMMDD |
| DISCHARGE AUTHORITY | AR . . . . . |
| DISCHARGE REASON | |
| BOARD DECISION | Deny |
| REVIEW AUTHORITY | Mr. Chun |
| ISSUES 1. | 111.0000.0000 |
| 2. | |
| 3. | |
| 4. | |
| 5. | |
| 6. |
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