MEMORANDUM OF CONSIDERATION


         IN THE CASE OF:
        


         BOARD DATE: 18 April 2002
         DOCKET NUMBER: AR2001066536

         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
Mrs. Nancy Amos		Analyst

The following members, a quorum, were present:

Mr. Fred N. Eichorn		Chairperson
Ms. Barbara J. Ellis		Member
Mr. Ronald E. Blakely		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)

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APPLICANT REQUESTS: That her Officer Evaluation Report (OER) for the period 1 August 1998 – 24 January 1999 be expunged from her Official Military Personnel File (OMPF).

APPLICANT STATES: That the contested OER was the product of bias and unprofessional conduct by her rater. Although not explicitly negative, many of the comments are ambiguous and do not reflect her performance as ammunition platoon leader or her potential as an officer. Her rater falsified counseling dates. She was not counseled on the dates indicated. These counseling sessions are imperative for the professional growth of a young officer. He violated command directives regarding mental health referrals by not seeking the opinion of a mental health profession before referring her, providing her with the written referral, or providing her with a list of attorneys who could assist her in this matter. During their unit rotation through the National Training Center (NTC), he counseled her for packing only one shelter-half; however, the battalion packing list called for each soldier to have one shelter-half. Because there were an odd number of females at the NTC, she shared her tent with her male platoon sergeant. She did not see this as a problem due to their professional relationship as leaders. In addition, she was counseled for skipping meals and not taking her prescribed medication during NTC but neither of these accusations was true. Throughout the NTC, she was the target of frequent profanity by her rater. He treated her differently from her male peers. In addition, she was improperly transferred to another unit when she raised concerns about her rater’s conduct and after the 15-6 investigation found she had been subjected to unfair and arbitrary treatment. The proper response should have been to correct the deficiency in the unit, not to transfer her. Supporting evidence is as listed on the DD Form 149. Only page 3 (of 4) and a continuation sheet of the Report of Proceedings by Investigating Officer/Board of Officers, DA Form 1574, are provided; however, the complete investigation is filed on her OMPF.

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

She was commissioned a second lieutenant in the Ordnance Corps and entered active duty. She was promoted to first lieutenant on 1 February 1998.

The applicant’s OER Support Form dated 16 February 1999 indicates her rater conducted face-to-face counseling on 12 August, 7 October, and 10 December 1998.

The contested OER is a 6-rated month Change of Rater report for the period 1 August 1998 – 24 January 1999. In Part IVa, the applicant was rated as “yes” in all seven categories of Army Values. In Part IVb, she was rated “yes” in all the applicable items of Leader Attributes/Skills/Actions. In Part Va, her performance was rated as Outstanding Performance, Must Promote. Comments included “…performed her duties…in an excellent manner…Her platoon spearheaded all assigned tasks with aggressiveness and mission focus…follows orders well and gives 110 percent to the mission…She possesses the potential to learn and develop her skills as an officer…She has the potential for promotion to the next higher grade and should become an excellent officer…” There are no negative comments. The underlined portions have been underlined and marked for deletion on the copy provided with her application but no explanation is given. In Part VIIa, her senior rater (SR) rated her promotion potential as Fully Qualified. In Part VIIa, her SR rated her as Center of Mass. In Part VIIc, her SR included the comments “…has performed in a superb manner…aggressively attacks all assigned tasks…has a solid grasp of the ammunition management system and is tactically sound…proved her skills during the recent … at the National Training Center…demonstrated that she is fully capable of performing at the next higher grade and should be promoted when eligible…continue to groom for company command.”

The applicant was promoted to captain on 1 February 2002.

The partial DA Form 1574 provided by the applicant indicates that the investigating officer (IO) found the applicant’s unit did not use the Junior Officer Developmental Support Form (JODSF) and OER Support Form in accordance with regulatory guidelines and that her JODSF was not properly maintained. The IO found that the applicant had been counseled on the performance of her duties. The IO found that her raters received an OER Support Form from the applicant and that 60 percent of the rated officers were provided a copy of their SR’s OER Support Form and 46 percent were provided a copy of their rater’s OER Support Form. The IO found that her rater used unprofessional teaching, counseling, and disciplinary techniques towards her. Interviews with four of the other officers assigned to the unit indicated her rater would use abrasive language when dealing with them but they took no offense to this type language. The IO confirmed that her rater failed to follow guidelines in requesting the applicant be subjected to a mental evaluation. The IO found that her rater was consistent in his treatment of personnel who worked for him, that he should be more professional when dealing with his soldiers regardless of their rank, but that his behavior did not seem to be racial or gender motivated.

The IO recommended that the unit conduct a battalion level Officer Professional Development Class on the Officer Evaluation Reporting System and that the applicant’s rater be formally counseled on his responsibilities as a commander and rater of junior officers and on his unprofessional teaching and counseling of soldiers.

The applicant appealed her OER on 1 July 1999. The Officer Special Review Board (OSRB) noted that the Group Commander approved the 15-6 findings and recommendations and that he made no determination that the OER was administratively incorrect, that the rating officials did not execute their designated responsibilities or that the rating officials erred in their assessment of her performance and potential. The OSRB found that the applicant did not provide the necessary evidence to delete the OER and denied her appeal.

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER. The regulation also provides 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.

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. 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.

2. The DA Form 1574 the applicant submits in support of her contention does not substantiate her contention that the contested OER was the product of bias on the part of her rater. While the IO found that her rater should have been more professional when dealing with his soldiers, he nevertheless found that her rater was consistent in his treatment of personnel who worked for him and that his behavior did not seem to be racial or gender motivated.

3. The Board notes the applicant’s contention that she was not counseled by her rater on the dates specified by the rater on her OER Support Form; nevertheless,
the IO found that she had been counseled on the performance of her duties.

4. The applicant has provided no evidence to show she was improperly transferred to another unit. As to her belief that the proper response should have been to correct the deficiency in the unit, the Board notes that the IO recommended that the unit conduct OER training and that her rater be formally counseled on his responsibilities and that the Group Commander approved the IO’s findings and recommendations.

5. 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___ __bje___ __reb___ DENY APPLICATION

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

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INDEX

CASE ID	AR200106536
SUFFIX
RECON
DATE BOARDED	20020418
TYPE OF DISCHARGE
DATE OF DISCHARGE
DISCHARGE AUTHORITY
DISCHARGE REASON
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.	111.01
2.
3.
4.
5.
6.