RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            3 August 2004
      DOCKET NUMBER:   AR2004101192


      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             |
|     |Mrs. Nancy L. Amos                |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Ms. Gail J. Wire                  |     |Member               |
|     |Mr. John T. Meixell               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his Officer Evaluation Report (OER) for the
period 20 February 1999 through 5 August 1999 be removed from his records
and that his records be reconsidered for promotion to colonel, O-6 and the
Senior Service College.

2.  The applicant states that the contested OER indicated a reduction in
performance when compared to his previous OER and directly led to his
nonselection for promotion to colonel when he was in the primary zone.  The
OER was rendered without any requisite counseling on the part of the rater
or senior rater (SR) as prescribed by regulation.  Two other Recruiting
Battalion commanders (one who shared the same rater and SR and one who
shared the same SR) corroborated that they also were not counseled.

3.  The applicant states that the regulation is very specific about when
and how often the counseling should take place and what it should include.
The November 2002 edition of "The Official U. S. Army Magazine," Soldiers,
stated that counseling was an area of concern identified by the Army
Training and Leader Development Panel study.  The study found that some
units conducted counseling very well while others did not.  The article
cited the regulation which requires raters to conduct a face-to-face
initial counseling session within 30 days of the start of the rating
period.  Periodic follow-up counseling should be conducted, as needed, to
make adjustments to agreed-upon goals."

4.  The applicant further states that the beginning period of the contested
OER was 20 February 1999.  He first met a member of his rating chain, his
intermediate rater, on 9 March 1999.  He first met his SR on 11 April 1999,
when he briefed his SR concerning his unit's production.  The briefing
lasted five minutes at the end of which the SR said, "Got it" and that was
it.  He went face-to-face with his rater for the first time on 10 through
11 June 1999 when they visited five recruiting stations.  During that visit
the focus was on the stations and the ratings he would be negotiating for
his subordinate company commanders upon his change of command.  There was
no further one-on-one contact with any of his raters until his change of
command.

5.  The applicant also states that his rater told him that he would "take
care of me."  During his (the applicant's) Physical Evaluation Board
proceedings, his rater was very supportive and wrote a letter fully
supporting his retention in
the Army.  His rater was also very forthright with him during his first 18
months of command.  With that record of support, he felt there was no cause
for concern when the requisite counseling was not done.

6.  The applicant provides the documents listed as Tabs A through M on the
listed Table of Contents.

CONSIDERATION OF EVIDENCE:

1.  After having had prior service, the applicant was appointed a second
lieutenant and entered active duty on 18 January 1980.  He was promoted to
major effective 1 September 1991.  He was promoted to lieutenant colonel
effective 1 July 1996.

2.  The contested OER is a 6-rated month permanent change of station report
for the period 20 February 1999 through 5 August 1999.  The applicant was
rated as a battalion commander with the U. S. Army Recruiting Battalion
Kansas City in Kansas City, MO.  The SR had rated him as center of mass
with comments including, "(applicant) is an outstanding commander.  He is
dedicated, hard-working, and cared about his soldiers.  He is in the
process of rebuilding his team…to refocus his unit and regain lost
marketshare.  Outstanding success telling the Army story throughout his
area of responsibility.  Front runner in the use of the media…Select for
promotion and Senior Service College."

3.  The applicant’s OERs all contain highly commendable comments.  His OER
history as a field grade officer is as follows:

OER Ending Period            SR Block Rating (* indicates applicant’s
rating)

1 December 1991        2/*2/0/0/0/0/0/0/0
8 June 1992            5/*6/0/0/0/0/0/0/0
8 October 1992         *19/34/4/0/0/0/0/0/0
15 June 1993           *15/23/0/0/0/0/0/0/0
19 June 1994, Academic Evaluation Report, Defense Language Institute, Basic
       Greek, Exceeded Course Standards
19 September 1994, Joint and Combined Staff Officer School Intermediate

      Program, Achieved Course Standards
9 September 1995       *18/12/2/1/0/0/0/0/0
9 September 1996       Not senior rated
8 July 1997            *29/0/0/0/0/0/0/0/0

4.  The applicant was rated under the new OER system as follows:

(As a battalion commander with the U. S. Army Recruiting Command Kansas
City, Kansas City, MO)

12 February 1998       center of mass
19 February 1999       above center of mass
5 August 1999          center of mass (contested OER)

5.  The applicant's post-contested OER evaluation report history is as
follows:

18 May 2000            center of mass
18 May 2001            above center of mass
18 May 2002            above center of mass
18 May 2003            above center of mass

6.  On 9 July 2002, the applicant appealed the contested OER to the Officer
Special Review Board (OSRB).

7.  The OSRB contacted the applicant's rater and SR.  The rater told the
OSRB that when the applicant received the above center of mass OER his
battalion was performing well.  During the second rating period, the
battalion had a significant drop in performance indicators.  The rater
stated that when he visited the applicant, he pointed out the decline and
gave him guidance to fix it, but it did not get fixed.  There was "no
question in his (the rater's) mind that he (the applicant) knew where he
stood."  The rater stated he recommended to the SR the applicant receive a
center of mass rating because he felt the applicant was basically a center
of mass officer.  The rater also felt that the quality of the rated
population generally improved and the applicant was compared to a higher
quality officer during the second rating period.  The rater stated that he
stood by the rating.

8.  The SR told the OSRB that the applicant was "a fairly decent
commander."  He gave the applicant the above center of mass rating the
first time at the urging of the rater.  The SR was not so sure but he had
room to give an above center of mass rating so he gave the applicant the
benefit of the doubt.  The SR stated that, over time, the applicant's
performance was not sufficiently superior relative to his peers to warrant
another above center of mass rating.  He told the OSRB he determined his
ratings by "personally looking at his officers' performance.  Then he made
all the commanders discuss with him why their guy was better
than the next guy.  Commanders had to rank order their officers.  Then he
would square that with my impressions.  The rater and I agreed that (the
applicant) was an average commander.  That's all there was to it."

9.  The OSRB noted that the applicant had provided a completed support form
for the SR, which indicated counseling occurred.  However, even if
counseling had not occurred, that alone would not constitute sole grounds
for an appeal of an OER.

10.  The OSRB noted that the applicant had provided eight support
statements with his appeal.  One general officer stated he was very
familiar with the "tremendous work" the applicant displayed while in
another duty position but did not indicate he had the opportunity to
observe the applicant during the rating period.  Another general officer
stated he had visited the applicant's battalion and was very impressed but
acknowledged that he was in "no position to challenge the evaluation report
rendered by his rightful rater and SR."

11.  The OSRB noted that numerous third party statements from colonels
stated they knew the applicant in the past but had no direct knowledge of
the applicant's performance during the rating period.

12.  The OSRB noted that one colonel from the applicant's former higher
headquarters would have had knowledge of the nine battalion commanders in
the brigade but probably would not have comparable knowledge of the other
  35 officers rated by the SR.  This colonel's comments were limited to how
the applicant compared to the other commanders within the brigade but
provided no first hand knowledge of how he compared to the entire
population the SR rated.  Another colonel stated there was no counseling
but provided no proof.  Another, a lieutenant colonel (promotable),
provided no first hand knowledge of how the applicant compared to the
entire population the SR assessed during the contested rating period.

13.  In October 2002, the OSRB found that the applicant did not provide and
the OSRB did not find the necessary evidence elsewhere to amend or delete
the contested OER.  The OSRB denied his appeal.

14.  On 22 January 2004, the applicant provided his rebuttal to the OSRB
decision with his application to the Board.  His rebuttal was basically
that it appeared the performance of the battalion was the sole determinant
of a commander's worth in the system.  In fact, during the period of the
contested
report, none of the 41 missioned recruiting battalions nation-wide made
their mission.  During his tenure as battalion commander, one battalion
made their assigned mission one month.  He stated that he did not have
frequent contact with his rater.  His SR did not visit the applicant's
battalion during his entire command tenure and without face-to-face contact
face-to-face counseling cannot be conducted as mandated by the regulation.
He provided statements from two former battalion commanders from his
brigade who also stated they were never counseled.

15.  The applicant provided a copy of the November 2002 issue of the Army
magazine Soldiers, which contained an article on the OER system.  The
article stated that an eight-month review of the OER system was conducted
which found that the OER was doing what it was designed to do – assess an
officer's performance and potential.  The review found that many officers
believed that a center of mass check on the OER meant no possibility of
promotion beyond captain.  However, the article related that center of mass
ratings were not a "killer" as borne out by promotion board results.  The
review found that counseling was another area of concern identified by the
review.  The regulation required that raters conduct a face-to-face initial
counseling session with all rated officers within 30 days of the start of
the rated period with periodic follow-up counseling, as needed.  The
article related that counseling did not need to be a formal sit-down
session.  It could be a frank discussion at the motor pool or on the
training range.  It also advised rated officers who were not receiving the
mandatory counseling to seek appropriate opportunities to ask for rater
feedback.

16.  Army Regulation 623-105 establishes the policies and procedures for
preparing, processing and using the OER.  Paragraph 3-4 states that within
the first 30 days the rater conducts the initial face-to-face counseling
with the rated officer and approves the DUTY DESCRIPTION/MAJOR PERFORMANCE
OBJECTIVES on the OER support form.  Paragraph 3-5 states that although the
support form is an official document, it will not be part of an official
file used by selection boards or career managers.  Failure to comply with
any or all support form requirements will not constitute the sole grounds
for appeal of an OER.  Paragraph 3-6 states that correspondence and
telephone conversations may be used as alternatives because of geographic
separation, followed by a face-to-face discussion at the earliest
opportunity.

17.  Army Regulation 623-105, paragraph 3-22 states that the SR's
evaluation is made by comparing the rated officer's performance and
potential with all other officers of the same grade the SR has rated or
will rate.

18.  Army Regulation 623-105 also states that an OER accepted for inclusion
in the official record of an officer is presumed to be administratively
correct, to have been prepared by the proper rating officials and to
represent the considered opinion and objective judgment of the rating
officials at the time of preparation.  The burden of proof in appealing an
OER rests with the applicant.  Accordingly, to justify deletion or
amendment of a report, the applicant must produce evidence that clearly and
convincingly nullifies the presumption of regularity.  Clear and convincing
evidence must be of a strong and compelling nature, not merely proof of the
possibility of administrative error or factual inaccuracy.

19.  Army Regulation 600-8-29 (Officer Promotions) states that an officer
may be considered or reconsidered for promotion by a special selection
board when his or her records contained a material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's OER support form for the contested OER is not available
so it cannot be determined what counseling dates were indicated on that
form.  However, while the regulation requires an initial face-to-face
counseling between the rater and the rated officer within 30 days, the
regulation also states that failure to comply with any or all support form
requirements will not constitute the sole grounds for appeal of an OER.
The applicant is basing his request to remove his OER solely on the grounds
that he did not receive the required counseling.

2.  It is also noted that the regulation provides for minor exceptions to
the rule that initial face-to-face counseling be conducted within 30 days.
Correspondence and telephone conversations may be used as alternatives
because of geographic separation (as appeared to be the situation in the
applicant's case), followed by a face-to-face discussion at the earliest
opportunity.

3.  It is noted that the applicant received a center of mass rating during
his first rating period as a recruiting battalion commander.

4.  The applicant's contentions concerning his performance as a recruiting
battalion commander as compared to the other battalion commanders rated by
his SR are noted.  However, the OSRB summary indicated the SR rated a total
of 35 other lieutenant colonels, not just nine battalion commanders.  The
SR had to evaluate the applicant against all those 35 officers, not just
the other battalion commanders.  In the absence of evidence to the
contrary, it appears the SR made a considered judgment that, compared to
all other lieutenant colonels he had to rate, the applicant was a center of
mass officer.

5.  Since there is an insufficient basis on which to remove the contested
OER from the applicant's records, there is no basis on which to grant him
promotion or service school reconsideration.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__fne___  __gjw___  __jtm___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.




            ___Fred N. Eichorn____
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR2004101192                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20040803                                |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.01                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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