MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        
         BOARD DATE: 7 February 2002
         DOCKET NUMBER: AR2001060487

         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
Mr. Edmund P. Mercanti		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Margaret K. Patterson		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)

APPLICANT REQUESTS: That the Officer Evaluation Report (OER) she was given for the period covering 1 October 1997 to 19 April 1998 be removed from her records.

APPLICANT STATES: The contested OER contains comments that do not meet regulatory requirements; specifically, the comments are in violation of Army Regulation 623-105, paragraphs 3-16 and 3-27, and Tables 3-2 and 3-4.

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

The applicant, a captain serving as an aviator on active duty, was given an OER for the period covering 1 October 1997 to 19 April 1998, a period that she was performing group Temporary Duty (TDY) with her unit.

In Part IV – Performance Evaluations – Professionalism (Rater), Character, of that OER, she was rated as “No” in “Honor: Adherence to the Army’s publicly declared code of values;” she was rated “No” in “Integrity: Possesses high personal moral standards, honest in word and deed;” and she was rated “No” in “Duty: Fulfills professional, legal, and moral obligations.” In section b, Leader Attributes/Skills/Actions, she was rated as “No” in “Technical: Possesses the necessary expertise to accomplish all tasks and functions; she was rated “No” in “Communicating: Displays good oral, written, and listening skills for individuals/groups;” she was rated “No” in “Decision making: Employs sound judgment, logical reasoning and uses resources wisely.” In Part V – Performance and Potential evaluation, she was rated as “Unsatisfactory Performance, Do Not Promote,” the lowest rating in a three field rating scheme. Her rater stated in part that “Although I frequently found [the applicant] to be dependable and responsible, she had significant lapses in regard to these two attributes, as well as the attribute of integrity. For example, I personally observed her attempt to avoid responsibility for her actions by lying to a field grade officer. I found this integrity violation particularly bothersome, in that she attempted to shift the blame for her mistakes to her superiors. On a second occasion, she failed to be at her appointed place of duty, and attempted to avoid responsibility by manufacturing an excuse that I later found to be untrue. Additionally, she admonished a junior officer for alerting me to her absence. On a third occasion, she violated my direct order not to send electronic mail directly to the commanding officer. Finally, she falsely claimed not to have access to her electronic mail account during an investigation into an electronic message that was sent to the division and corps chain of command. I later determined that she had not been truthful.” Her rater also stated that “. . . the battalion commander and I spent an inordinate amount of time proofing her work products and counseling her regarding her poor attention to detail.” The rater also stated that the applicant was unable to pass the course of instruction which she was attending during the TDY, a course of instruction taken because of the unit’s transition to a different type and model of helicopter. The applicant’s senior rater rated her as “Do Not Promote,” the lowest rating in a three field rating scheme. The applicant’s senior rater stated that “A great deal of time and effort were expended by her chain of command trying to improve her performance with limited results.” The senior rater then referenced the applicant’s failure in the helicopter transition course, and added “This [failure] coupled with her lapses in professional integrity have made her a liability rather than an asset. She currently does not possess the requisite leadership qualities necessary to command an attack helicopter company.” The senior rater placed her below his center of mass in his senior rater profile.

The applicant had initially appealed her OER to the Officer Special Review Board (OSRB). The OSRB stated that coordination between them and the Total Army Personnel Command, OER Section, ascertained that “since the TDY was a unit, and not an individual, event directly related to the performance of mission requirements; was a non-[Academic Evaluation Report] producing course; and was not CAS3; performance at and during the course was a valid topic for inclusion in the OER narrative.” The OSRB then commented that since the regulation states that officers who are performing TDY who are not responsible to their parent organization will be rated by their TDY supervisors, and since the applicant was performing a unit TDY and her rater was participating in the same unit TDY, the comments contained in her OER concerning events during the TDY was appropriate.

As for the applicant’s allegation that unverified derogatory information was entered in her OER in contravention with Army Regulation 623-105, the OSRB stated that when the applicant’s rater was attempting to determine who was responsible for a "junk“mailing," the applicant told her rater that she did not have access to her e-mail account and had not had access for 10 to 14 days. The rater later that day received an e-mail return receipt from the applicant concerning an upcoming command inspection. The rater concluded that either someone “hacked” into the applicant’s e-mail account or she was less than truthful to him. The applicant’s unit then conducted an informal investigation which determined that the applicant’s e-mail account was used to forward unauthorized mailings and the applicant was less than truthful about having access to her account. The OSRB concluded that the rater did not comment on unproven derogatory information.

The applicant submitted a rebuttal to the OSRB’s case summary. In that rebuttal she reiterated her contention that Army Regulation 623-105 is clear in that time spent in a non-Academic Evaluation Report (AER) producing course of less than 60 calendar days is non-rated time. The applicant then reiterates her contention that comments concerning the allegation that she sent junk mail and lied about it could not be mentioned in an OER until it was verified by an investigation. In this case, a completed investigation cannot be located. Therefore, the comments were inappropriately entered in the contested OER.
Army Regulation 623-105, paragraph 3-16 states that non-rated periods are determined by the status of the rated officer. There are three distinct types of non-rated periods. They are periods, regardless of the number of days, between the date an officer departs one duty position and begins performance in a new duty position. Periods, regardless of the number of days, spent performing in a duty position during which the rated officer or the rater does not meet the minimum time requirements for a report to be rendered. This includes periods spent at school for which an academic evaluation report is not required. Periods totaling 30 or more consecutive days that occur during the rating period and that are spent in one or more of the following ways: Ordinary leave; AWOL; In the hospital; Convalescence leave; In confinement; Under arrest; On permissive TDY; On temporary duty (TDY) or special duty (SD) serving as a member of a DA Selection Board or a court-martial; On TDY or SD attending a course of instruction scheduled for less than 60 calendar days; or Attendance at Combined Arms Service and Staff School (CAS3). All periods of TDY or SD other than those mentioned are rated periods. (See Table 3-2).

Table 3-2, Temporary Duty and Special Duty not Related to Principal Duty (other than TDY or SD to attend school), states that for 1 to 89 days of TDY letter input is prepared by the TDY or SD Supervisor and sent to the rated officer's personnel services battalion (PSB). The PSB distributes copies to the rated officer and normal rater. The normal rater will consider this information when he or she prepares the rated officer's next OER. For a period of TDY of 90 days or more, a complete report is prepared as a change-of-duty report by the TDY or SD supervisor and forwarded to DA through the rated officer's PSB. The PSB will annotate the rated officer's records, give him or her a copy of the report, and send the report to HQDA.

Paragraph 3-27, No References Made to Unproven Derogatory Information, states that no reference will be made to an incomplete investigation (formal or informal) concerning an officer. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the OER to HQDA. If the rated officer is absolved, comments about the incident will not be included in the OER. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent information that would be unjustly prejudicial from being permanently included in an officer's OMPF, such as charges that are later dropped, and charges or incidents of which the rated officer may later be absolved. Any verified derogatory information may be entered on an OER. This is true whether the officer is under investigation, flagged, or awaiting trial. While the fact that an officer is under investigation or trial may not be mentioned in an OER until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.

Table 3-4. Codes and Reasons for Non-rated Periods, Code I, is for officers in transit between duty stations, including leave, permissive temporary duty (PTDY), and TDY.

DISCUSSION: Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1. The Board concurs with the OSRB’s assessment that comments on actions taken by the applicant during her TDY could be entered on her OER. Both the stated directive and the intent of the regulation are clear: to insure that raters who have personally observed an officer’s performance rate the officer. In this case, there is no question that this objective was met. The applicant’s normal rater was TDY with her and observed her performance and actions first hand.

2. The Board also concurs with the OSRB’s assessment that unproven allegations were not entered in the applicant’s OER. The applicant’s rater was the person whom the applicant told that she did not have access to her e-mail account and had not had access to that account for 10 to 14 days. The applicant’s rater is then the person who received a return receipt for e-mail sent to the applicant. Whether or not the informal investigation had been concluded on that incident is immaterial. The applicant’s rater entered information to which he personally witnessed.

3. 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___ ___mkp__ ____le__ DENY APPLICATION

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

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INDEX

CASE ID	AR2001060487
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	YYYYMMDD
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY,
REVIEW AUTHORITY
ISSUES 1.	111.04
2.
3.
4.
5.
6.