RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:           10 February 2005
      DOCKET NUMBER:   AR2004104838


      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             |
|     |Ms. Maria C. Sanchez              |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Fred N. Eichorn               |     |Chairperson          |
|     |Mr. Joe R. Schroeder              |     |Member               |
|     |Ms. Laverne V. Berry              |     |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).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of the senior rater's (SR)
comments and rating from the DA Form 67-9 (Officer Evaluation Report (OER))
covering the period 4 June 1998 through 3 June 1999 [hereafter referred to
as the contested OER].

2.  The applicant also requests that a non-prejudicial statement be placed
in his official military personnel file (OMPF) to explain the lack of SR
comments and evaluation on the contested OER.  The applicant requests that
the Human Resources Command conduct a special selection board (SSB) for
reconsideration for promotion to the rank of lieutenant colonel.

3.  The applicant states, in effect, that the U.S. Total Army Personnel
Command (PERSCOM) denied his OER appeal.  The applicant contends that the
contested OER contains the following significant errors:

      a)  the SR on the contested report was also a rating official for the
OER of the applicant's rater;


      b)  the SR refused to counsel him during the rating period;


      c)  the SR did not advise the applicant of his rating standards until
after the rating period;


      d)  the SR used improper standards to rate him;


      e)  the SR's comments were grossly inaccurate when compared to
comments of third parties who knew his performance during that period; and


      f)  that an administrative error was made when the SR gave him a
center of mass block score.

4.  The applicant provides a copy of the OER appeal with the attachments
that he submitted to the Deputy Chief of Staff, G-1, Officer Special Review
Board (OSRB); a five page undated self-authored memorandum and a copy of
the OSRB Case Summary.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant on 5 August 1982
in the United States Army Reserve.  He was ordered to active duty on 6
January 1991 and served until 31 May 2004 at which time he was separated
for the purpose of retirement.
2.  Records show that the applicant was assigned to the Army Reserve
Command in Europe (USAREUR) for duty with the 1st Infantry Division during
the period of the contested OER.

3.  The contested OER was an "Annual" report which covered 12 months of
rated time for the applicant's duties as "Chief of Justice" of the 1st
Infantry Division.  The SR, a colonel serving in the position of Chief of
Staff of Headquarters, 1st Infantry Division, authenticated his portion of
contested OER on 14 June 1999.  The rater, a lieutenant colonel, serving in
the position of Staff Judge Advocate of the 1st Infantry Division,
authenticated his portion of the contested OER on 11 June 1999.

4.  Records show that the contested OER was given to the applicant on 15
June 1999.  Part IIe (Signature of Rated Officer) of the contested OER
contains the applicant's signature and the entry of "14 JUN 99" [14 June
1999].

5.  The contested OER was provided to Headquarters, Department of the Army
officials for processing.  The contested report was profiled on 29 June
1999 and entered on the applicant's Official Military Personnel File
(OMPF).

6.  Entries on the contested OER show that the rater placed his "X" under
"Yes for all the blocks in the Attributes, Skills and Actions categories.

7.  In Part Va (Evaluate the Rated Officer's Performance During the Rating
Period and His/Her Potential for Promotion) of the contested OER, the rater
placed his "X" in the first block (Outstanding Performance, Must Promote)
provided positive comments in Part VIIb (Comment of Specific Aspects of the
Performance and Potential for Promotion).

8.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the
Next Higher Grade) of the contested OER, the SR placed his "X" in the "Best
Qualified" block which resulted in a "Center of Mass" evaluation.

9.  In Part VIIc (Comment on Performance/Potential) of the contested OER,
the SR commented: "[the applicant's name omitted] is one of the finest
soldier-lawyers I know.  He is responsible for the administration of
justice in the largest General Court Martial jurisdiction in the Army.  His
common sense, intellect, and criminal law expertise levels.  A natural
leader and effective supervisor, [the applicant's name omitted] ensured
every action was fairly and expeditiously processed.  Confident in his
abilities, his advice was on target each and every time.  Destined to be a
senior leader in the JAG Corps, [the applicant's name omitted] should be
selected to attend the resident command staff college immediately.  Promote
to LTC when first eligible and assign him only to the toughest jobs.
Obvious potential to serve as a Staff Judge Advocate."
10.  The applicant's evaluation history as a major contains nine OERs of
which two were completed on the DA Form 67-8 and seven were completed on
the DA Form 67-9.

11.  In the two OERs completed on the DA Form 67-8 covering his service as
a major, the applicant received ratings of "1" in the 14 elements of
professional competence and received numerous positive comments under
professional ethics and competence from the same rater.  The rater placed
the applicant in the top block (Always Exceeded Requirements) under Part Vb
(Performance During This Rating Period) and made positive comments on his
performance and listed his achievements under Part Vc (Comments on Specific
Aspects of the Performance).  The rater 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 rater stated that the applicant has outstanding potential
as a future leader in the Judge Advocate General's Corps (JAGC).

12.  The applicant was rated by two different SRs (both in the grade of
colonel) on the DA Forms 67-8.  The applicant received the following
ratings with asterisk indicating the applicant's position on the SR's
profile: (41*/1/0/0/0/0/0/0/0) and (39*/16/0/0/0/0/0/0/0).

13.  The applicant received seven OERs (including the contested OER) as a
major on the DA Form 67-9 which became effective on October 1997.

14.  The applicant was rated by seven different raters on the DA Forms 67-
9.  All of the OERs on the DA Form 67-9 show in Part IV (Performance
Evaluation–Professionalism) that the raters placed his "X" under "Yes" for
all the blocks in the Attributes, Skills and Actions categories.

15.  Under Part V (Performance and Potential Evaluation) of the DA Form 67-
9, 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), five of the
raters identified skills.

16.  The applicant was rated by five different SRs on the seven DA Forms 67-
9.  In Part VII (Senior Rater) on all seven of the DA Forms 67-9, the SRs
placed their "X" in the first block (Best Qualified) under Part VIIa
(Evaluate the Rated Officer's Potential to the Next Higher Grade) which
resulted in placing the applicant in "center of mass" on four of the DA
Forms 67-9 and in "above center of mass" on the remaining three DA Forms 67-
9.

17.  A Total Army Personnel Command memorandum, dated 16 April 2002,
informed the applicant that he was not selected for promotion to the grade
of lieutenant colonel.  This memorandum further informed him that since he
is a two time non-select, a selection board recommended continuation in his
present grade (major) until his eligibility date for retirement.

18.  On 24 April 2003, the applicant appealed the contested OER to the
Deputy Chief of Staff, G-1, OSRB.

19.  The OSRB case summary identifies the contested OER for the rated
period 4 June 1998 through 3 June 1999, as the first appeal of a 12 month
annual report while the applicant was assigned as the Chief of Justice for
the 1st Infantry Division in United States Army Europe.  The case summary
stated that it was not a referred report and a Commander's Inquiry was not
conducted.

20.  The OSRB considered the applicant's contentions that the contested OER
in its entirety is substantively inaccurate and has significant
administrative errors.  The OSRB also considered the applicant's
contentions that the SR was ineligible to evaluate him because he was not
in his supervisory chain.

21.  The OSRB opined that the designation of the Chief of Staff as the SR
was administratively correct and that he is clearly in the supervisory
chain of the Staff Judge Advocate.

22.  Specifically, the OSRB considered the applicant's contention that
administrative error existed because a non-attorney, non-commander, and non-
convening authority senior rated both the applicant and his first line
supervisor.

23.  The OSRB opined that it is not an administrative error for a non-
attorney, non-commander, and non-convening authority to serve as the SR for
an attorney-officer whose sole function is military justice.

24.  The OSRB considered the applicant's contention that an administrative
error was made when the SR refused to counsel him, when the SR used
improper standards to rate him, when the SR padded his rating profile, and
when the SR gave him a center of mass rating.

25.  The OSRB continued that there was no evidence to suggest that the SR
refused to meet the applicant for counseling.

26.  The OSRB opined that the SR's rating of both the first line supervisor
and the applicant does not constitute administrative error.

27.  The OSRB further opined that the applicant's argument that there were
improper standards used for evaluation does not constitute administrative
error.

28.  The OSRB continued that the SR did not commit an administrative error
when he gave the applicant a center of mass rating.

29.  The OSRB considered the applicant's argument that the SR committed an
administrative error when he refused to accept input from the rater and
that the SR's comments were substantively inaccurate when compared to the
superlative comments made by others in the military justice community who
knew his accomplishments.

30.  The OSRB opined that the SR's alleged refusal to incorporate input
from the rater did not constitute administrative error, in fact, the SR had
fully complied with all regulatory requirements.

31.  After reviewing the SR's portion of the contested OER, the OSRB
determined that the comments were favorable.  The OSRB opined that the
applicant's claim that the contested OER is substantively inaccurate when
compared to the superlative comments made by other military officers within
the military justice system is without merit.

32.  The OSRB found that there is no convincing evidence that the contested
OER is inaccurate and does not adequately reflect the applicant's
performance, therefore, the OER should not be amended.

33.  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.

34.  Paragraph 6-10 of Army Regulation 623-105 (Officer Evaluation
Reporting System) states that the burden of proof is placed upon the
applicant to provide clear and convincing evidence to justify deletion or
amendment of an OER.

35.  Paragraphs 3-57 and 6-6a of Army Regulation 623-105 states that an
evaluation report accepted by HQDA and included in the official record of
an officer is presumed to be administratively correct, has been prepared by
the properly designated rating officials and represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.

36.  Paragraph 3-57b of Army Regulation 623-105 states that the requests
that an accepted report be altered, withdrawn or replaced with another
report will not be honored.  The following will not be used to alter or
withdraw a report; neither will they be included in the OMPF: (1)
Statements that they underestimated the rated officer; (2) Statements from
the rating officials that they did not intend to rate him or her as they
did; and (3) Requests that rating be revised.

37.  Paragraphs 3-2g and 3-2h of Army Regulation 623-105 indicate that
rating officials must prepare reports that are honest, fair, accurate and
complete showing the achievements and failures of the rated officer.  These
reports will help the DA selection boards and career managers make
intelligent decisions.  The rating officials also have the responsibility
to balance their obligations to the Army and to the rated officer under
their supervision.

38.  Paragraph 2-6a(2) of Army Regulation 623-105 indicates that the SR
must be a supervisor above the rater and intermediate rater in the rated
officer's chain of command or supervisory chain.

39.  Paragraph 3-5a of Army Regulation 623-105 indicates that the purpose
of DA Form 67-9-1 is for initial face-to-face counseling to assist in
developing the elements of the rated officer's duty description,
responsibilities and performance objectives.

40.  Paragraph 3-5f of Army Regulation 623-105 indicates that the DA Form
67-9-1 provides an opportunity for the rated officer, rater, and
intermediate rater to communicate with the SR.  Failure to comply with any
or all support form requirements will not constitute the sole grounds for
appeal of an OER.

41.  Paragraph 2-15 of Army Regulation 623-105 states that the SR is
responsible to use all reasonable means to become familiar with the rated
officer's performance.  The SR should use the following means when
practical: 1) personal contact; 2) records and reports; 3) the rater's and
intermediate rater's evaluations (if any) of the rated officer given on DA
Form 67-9; 4) information given by the rated officer and the rater and
intermediate rater (if any) on DA Form 67-9-1.

42.  Paragraph 2-15c of Army Regulation 623-105 states the SR is
responsible to assess the rated officer's ability which involves placing
his or her performance in perspective by considering the rated officer's
experience; the relative risk associated with the performance; the
difficulty of the organization's mission; the adequacy of resources; and
the overall efficiency of the organization.

43.  Paragraph 3-22c(2)(a) of Army Regulation 623-105 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 SR population.  This potential is evaluated in
terms of the majority of the officers in the population.  If the potential
assessment is consistent with the majority of officers in that grade the SR
will place his "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 his "X" in the Above Center of Mass/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% 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.  If the rated
officer's potential is below the majority of officers in the SR's
population for that grade and the SR believes the rated officer should be
retained for further development, the SR will place his "X" in the Below
Center of Mass-Retain box.  If the rated officer's potential is below the
majority of officers in the SR's population for that grade and the SR does
not believe the rated officer should be retained on active duty the SR will
place his "X" in the Below Center of Mass-Do Not Retain box.

44.  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 AND CONCLUSIONS:

1.  The applicant requests that the SR's comments and block should be
removed from the contested OER and replaced with a non-prejudicial
statement.

2.  The applicant contends that the SR's comments were inaccurate and did
not reflect his full performance and accomplishments.

3.  Although the applicant provided positive statements from individuals
within the military justice community, these individuals were not in the
applicant's chain of command and were not responsible for rendering OERs on
him.

4.  Evidence shows that the SR's comments were positive and laudatory in
regard to the applicant's accomplishments.  The applicant provided no
evidence in this case to show justification to delete or amend the
contested report.

5.  There is no evidence the applicant requested a Commander's Inquiry to
clarify any error or injustice in the contested OER.

6.  There is no evidence and the applicant has not provided any evidence
which shows that the contested OER failed to represent the honest and fair
evaluation of the applicant by the SR.

7.  Based on the applicable regulations, the contested OER is correct as
constituted and the applicant has failed to meet the burden of proof to
justify amendment of the contested OER.  Therefore, there is no basis to
amend the contested report in this case.

8.  The applicant requested consideration by a SSB for promotion to the
rank of lieutenant colonel.  In the absence of a basis to change or amend
the applicant's records, there is no basis for consideration by a SSB for
promotion to the rank of lieutenant colonel.

BOARD VOTE:

________  ________  ________  GRANT RELIEF

________  ________  ________  GRANT FORMAL HEARING

__jrs____  __fe ____  ___lvb___  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 Eichorn ______
                    CHAIRPERSON

                                    INDEX

|CASE ID                 |AR2004104838                            |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/02/10                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  193  |111.0000/OER                            |
|2.  199                 |111.0100/Rem SR                         |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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