RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        20 DECEMBER 2005
      DOCKET NUMBER:  AR20050004067


      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. Rene’ R. Parker               |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. James Hise                    |     |Chairperson          |
|     |Mr. Ronald Blakely                |     |Member               |
|     |Ms. Jeanette McCants              |     |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 comments concerning her integrity be removed
from Parts Va, Vb, VIIa, and VIIc of her Officer Evaluation Report (OER).

2.  The applicant states that her rater stated in Part V of her OER that
she had an integrity and judgment violation during the rating period when
she broke a verbal commitment to remain on active duty past her 4-year
service obligation.  She said that her senior rater also made reference to
the incident in Part VIIc.  The applicant maintains that these
characterizations of her conduct during the rating period are incorrect and
constitutes an injustice and therefore, should be removed from her OER.

3.  The applicant provides a copy of her DD Form 214 (Armed Forces of the
United States Report of Transfer or Discharge), contested OER, Commander’s
Inquiry, Officer Special Review Board (OSRB) Case Summary, and subsequent
OER.

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned in the United States Army Reserve and
entered active duty on 16 May 1999.  She had an 8-year service obligation
with a 4-year commitment to serve on active duty.  Her active duty
commitment expired on or about 15 May 2003.  However, the applicant was not
released until             30 November 2003.  The applicant was credited
with 4 years, 6 months and       15 days of active serve at the time of her
separation.

2.  Fort Campbell instituted a Laser Eye Surgery Program which required
service members interested in receiving this surgery to have 18 months
remaining in the service and 12 months remaining on station after surgery.
The applicant received laser surgery in April 2002.  Based on the
requirements of the program, the applicant needed to extend her active duty
service obligation for 6 months from her original separation date of May
2003 until October 2003, to qualify for laser surgery.

3.  On 28 August 2002, the applicant’s rater counseled her on receiving
approval for laser eye surgery and admonished her for actions that he
(rater) perceived as a breech of integrity.  The rater explained that Fort
Campbell Laser Eye Surgery Program required the battalion commander to
certify in writing that the service member had a minimum of 18 months
remaining in service and 12 or more months on station after the laser
surgery was completed.  The certification had to be submitted prior to the
service member receiving surgery.

4.  The rater said that the applicant prepared paperwork in April 2002
timeframe for the battalion commander to sign stating that she (applicant)
met the requirements for laser eye surgery.  The rater stated he questioned
whether she had 18 months remaining on her 4-year service obligation.  The
applicant informed him that she did not have the 18 months and that she
needed an additional 6 months of service to meet the Fort Campbell
requirement.  The applicant informed the rater that she wanted to fulfill
her 18 months commitment following the surgery but, did not know the
procedures.  He admitted that neither one of them researched to find out if
it was possible for the applicant to extend for 6 months.

5.  The rater said that based upon the applicant’s word in good faith that
she would do whatever paperwork it took to stay on for 18 months following
the surgery, he allowed the paperwork to go to the battalion commander.
The rater stated that both he and the applicant learned that she could not
extend past her 4-year obligation without staying an additional year.  He
explained that since the applicant’s service obligation expired in early
2003, she would have to extend for 6 months, to meet the 18 months
requirement.  However, since a 6-month extension was disallowed, she would
have to stay on active duty until April 2004.

6.  The rater said that unbeknownst to him, the applicant declined a
voluntary indefinite status in June or July.  When he became aware of her
decision in early August, the applicant justified her decision by stating
that to stay in the Army longer than her initial 4-year obligation was
detrimental to her plans for completing her college requirements for
acceptance in dental school.  The rater stated by declining voluntary
indefinite status, the applicant affirmed that she would not extend and
fulfill her commitment under the eye laser surgery agreement.  The rater
said he brought this information to the applicant’s attention but, she
refused to change her decision.  The rater also stated that he talked to
the battalion commander and was informed that the 18-month service
requirement for eye laser surgery was a local requirement and not an
enforceable DA requirement.

7.  In March 2003 the applicant received a change of duty evaluation report
for the period 27 June 2002 through 23 February 2003 which rated her
performance as a Battalion S4.  The rater assessed the applicant’s
performance and potential in Part Va as “Satisfactory Performance, Promote”
with negative comments in Part Vb concerning the applicant’s integrity and
judgment during the rating period.  The senior rater assessed the
applicant’s promotion potential in Part VIIa as “Fully Qualified” with the
comment in VIIb of “I believe that the integrity issue cited above is a
single isolated incident that is not indicative of her character.”  This
was a referred report with comments.

8.  In the applicant’s comments to the senior rater dated 21 March 2003,
she argued that her rater was incorrect in his statement that she broke a
commitment to him and thus resulted in an integrity and judgment violation.
 She explained that she agreed to stay in the Army an additional six months
to qualify for laser eye surgery procedure.  After the eye surgery was
performed, she attempted to extend for six months but, was informed that
the minimum she could extend was for one year, therefore she declined.

9.  The applicant maintains that neither her integrity nor judgment was
compromised by not extending for one year.  She offered that she did not
lie or intend to deceive her rater but, rather agreed to extend for six
months without she or her rater knowing that a 6 month extension was
impossible.  The applicant concluded that the whole incident resulted from
a lack of communication from both sides and not a lack of honesty,
integrity, or judgment on her behalf.

10.  On 21 March 2003, the applicant requested a commander’s inquiry citing
the same contentions listed in her appeal to the Board.  Additionally, she
argued that mentioning that she had an integrity and judgment violation on
her OER constitutes unverified derogatory information that is prohibited by
the regulation.

11.  On 25 April 2003, the Deputy Staff Judge Advocate (SJA) reviewed the
findings and conclusion of the commander’s inquiry performed by the
investigating officer and found that they were legally sufficient.  The
Deputy SJA stated it was clear that the applicant agreed to extend for 6
months but, when told by her branch that she could only extend in
increments of 12 months, she refused.  Her refusal does not indicate an
integrity violation and there is no dishonesty associated with her
decision.

12.  On 27 April 2003, the investigating officer rendered his findings.  He
stated that after his review and inquiry he found that the derogatory
comments do not reflect the actual situation and actions of the applicant.
He reiterated that the requirement was for the applicant to fulfill the 18
months eligibility requirement and not 24 months.  He said that the
memorandum in which the applicant requested laser eye surgery, that had to
be approved by the battalion commander, was not available for inclusion in
the inquiry.  Nevertheless, the fact that the applicant agreed to extend to
meet the 18-month requirement and elected not to go beyond does not in
itself constitute an integrity violation.


13.  The investigating officer states that it is clear and obvious as
validated by the legal review, the alleged integrity and judgment violation
is unproven.  The investigating officer maintains that failure to
communicate on the part of both
rater and applicant contributed greatly to the adverse outcome of the
situation.  He said that the rater and the applicant discovered that she
(applicant) was unable to fulfill the requirement without going beyond the
18-month requirement and failed to inform each other until after the
surgery was performed.  The investigating officer admitted that the rater
allowed the battalion commander to sign a memo approving the applicant’s
surgery with full knowledge that the applicant did not meet the eligibility
requirements.  The investigating officer found that the OER with derogatory
comments lacked fairness and objectivity.

14.  On 9 May 2003, the commander submitted the findings and the results of
his commander’s inquiry.  He stated that the rating officials contend that
the rated officer committed an integrity violation for not electing to
extend beyond the required 18 months eligibility requirement in order to
undergo the Army funded Refractive Eye Surgery; which in itself is not an
integrity violation as determined by the investigating officer and
validated by a legal review from JAG.  He concluded that the results and
findings of the inquiry indicated that the comments were unproven,
inaccurate, and lacked fairness by the rating officials.

15.  The applicant appealed her case through the OSRB and the Board denied
her appeal.  The OSRB consulted the rater and senior rater and both stood
firm on their evaluation of the applicant.  The rater believes that the
applicant manipulated the system.  The senior rater stated that the
applicant received a government benefit worth thousands of dollars without
fulfilling her commitment to extend.  The commander’s inquiry was listed as
a part of the case summary.  The OSRB opined that the applicant had a
responsibility to find out the requirements for an extension prior to
surgery.  Further, the OSRB stated, in not telling the rater that she would
not be able to extend to meet the commitment and avoiding telling him that
there was a problem with what she agreed too, the applicant reinforced the
rater’s perception that she had an integrity problem.  There was no mention
of the results of the commander’s inquiry.

16.  The applicant provided her subsequent OER for the period 24 February
2003 through 31 May 2003 while she was assigned as the Assistant Group S-4.
 This report shows that the rater assessed her performance as “Outstanding”
and the senior rater evaluated her as “Best Qualified.”

17.  Army Regulation 623-105, (Officer Evaluation Reporting System), states
that no references will be made to unproven derogatory information.  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.

18.  Paragraph 3-2g states that rating officials must prepare reports that
are accurate and as complete as possible within the space limitations of
the form. This responsibility is vital to the long-range success of the
Army's mission.  With due regard for the officer's current grade,
experience, and military schooling, evaluations should cover failures as
well as achievements.  However, evaluations will normally not be based on a
few isolated minor incidents.

19.  Paragraph 3-24 states that each report will be an independent
evaluation of the rated officer for a specific rating period.  It will not
refer to prior or subsequent reports.  It will not remark on performance or
incidents occurring before or after the period covered.

20.  The applicant’s record shows that she served in Iraq from 7 March 2003
through 15 June 2003.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record clearly shows that the applicant attempted to live
up to her side of the bargain.  However, there was no mechanism in the
system to allow the applicant to extend for six months as agreed upon.

2.  The commander’s inquiry found the fact that the applicant did not
extend beyond the required 18 months eligibility requirement in order to
undergo eye surgery was not an integrity or judgment violation.  The
commander’s inquiry findings were reviewed by JAG and it was determined
that the applicant’s failure to extend was in itself not an integrity
violation.

3.  The OSRB denied the applicant’s appeal after consulting both the rater
and senior rater.  The OSRB did not mention the results of the commander’s
inquiry in their case summary.  The OSRB cited the applicant’s failure to
verify the requirements for an extension prior to surgery and her failure
to notify her rater of the extension requirements as the rater’s
“perceived” integrity and judgment violation.  The OSRB allowed the
comments to remain on the applicant’s OER.

4.  The fact that the applicant failed to verify the requirements for an
extension, and after receiving the information that she could not extend
for less than 12 months, failed to notify her rater, shows that she did not
exercise the best judgment in this situation.  However, there is no
indication that her actions showed a lack of integrity on her behalf.
Additionally, as noted in the senior rater’s comments concerning the
“isolated incident,” and the applicant’s record, the incident is not
indicative of her performance.

5.  There is no documentation in the applicant’s record that shows she
extended past her original active duty service obligation date.  However,
the Board notes that the applicant served 4 years, 6 months, and 15 days on
active duty and was separated on 30 November 2003 instead of her original
service obligation of 4 years.

6.  The ABCMR does not view the rater’s and senior rater’s comments as
“unproven derogatory information.”  Nevertheless, based on the fact that
this was an isolated incident, the applicant did in fact fulfill the 6
months service obligation bringing her service to the 18 months required
for eye surgery, and in the interest of equity and justice, it would be
appropriate to correct her OER.

7.  It can not be determined if the rater would have assessed the
applicant’s performance and potential in Part Va as “Outstanding
Performance Must Promote” and the senior rater’s assessment of her
promotion potential as “Best Qualified” if not for the incident involving
the extension.  Due to the fact that each report must stand alone and is an
independent evaluation of the rated officer’s performance for that period
alone, her subsequent OER does not provide evidence to justify changing the
rater’s and senior rater’s assessment in parts Va and VIIa.  Therefore, to
make the assumption that the removal of the comments concerning “integrity
and judgment” would automatically qualify the applicant to have the ratings
changed is presumptuous and therefore not warranted.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___JH___  ___RB __  __JM ___  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION





BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected as follows:

      a.  remove the sentence in Part Vb of rated officer “did, however,
make what I would call an integrity and judgment violation during this
rating period when she broke a verbal commitment to me to remain on active
duty past her     4 year obligation.  She willingly incurred this
obligation when she requested in writing and received laser eye surgery at
government expense.  Outside of this unfortunate incident,” and

      b.  remove the sentence in Part VIIc of “I believe that the integrity
issue cited above is a single isolated incident that is not indicative of
her character.”

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
changing parts Va and VIIa.





                                  _______James Hise________
                                            CHAIRPERSON


















                                    INDEX

|CASE ID                 |AR20050004067                           |
|SUFFIX                  |                                        |
|RECON                   |YYYYMMDD                                |
|DATE BOARDED            |20051220                                |
|TYPE OF DISCHARGE       |(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)    |
|DATE OF DISCHARGE       |YYYYMMDD                                |
|DISCHARGE AUTHORITY     |AR . . . . .                            |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |PARTIAL GRANT                           |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.       |111.00                                  |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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