RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         28 September 2006
      DOCKET NUMBER:  AR20050012937


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |


      The following members, a quorum, were present:

|     |Ms. Linda D. Simmons              |     |Chairperson          |
|     |Mr. Paul M. Smith                 |     |Member               |
|     |Ms. Alice Muellerweiss            |     |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:

The applicant's requests, statements, and supporting evidence are provided
in the Amended Supplemental Statement and Exhibits submitted on her behalf
by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests on behalf of the applicant, in effect, that the
following corrections to the applicant's record be made:

      a.  The Relief for Cause Officer Evaluation Report (OER) for the
period
21 November 2001 through 30 June 2002 be set-aside;

      b.  Her non-selection for continuation in the Active Guard Reserve
(AGR) program by the 12 January 2004 Active Federal Continuation Board
(AFSTCB) be set-aside;

      c.  Her 30 September 2004 release from active duty (REFRAD) be
set-aside and she be reinstated to active duty in the AGR with all back pay
and allowances due;

      d.  The 7 February 2003 General Officer Memorandum of Reprimand
(GOMOR) that was transferred to the restricted (R-Fiche) portion of her
Official Military Personnel File (OMPF) on 8 December 2003 be set-aside;

      e.  She be extended Federal Recognition to Chief Warrant Officer Four
(CW4), effective 21 August 2004, or alternatively resubmit her corrected
promotion packet for reconsideration of Federal Recognition retroactive to
September 2003, or grant a comparable remedy of Special Selection Board
(SSB) under the Reserve Officer Personnel Management Act (ROPMA) in a
Federal status; and

      f.  The Relief for Cause OER and GOMOR in question be investigated
and set-aside as unlawful reprisals under the military Whistleblower
Protection Act for the applicant's submission of a Department of Defense
(DOD) Inspector General (IG) complaint requesting a review of her command's
management practices.

2.  Counsel states, in effect, the applicant was assigned as the Chief,
Personnel and Administration of the National Interagency Civil Military
Institute (NICI) in California.  Her rater was the NICI Deputy Director, an
Air National Guard (ANG) lieutenant colonel (LTC), and her senior rater
(SR) was the NICI Director, an Army National Guard (ARNG) colonel (COL).

3.  Counsel claims a GS-15 Department of the Air Force (DAF) civilian was
the NICI Director's rater.  He further indicates that on 30 July 2001, the
applicant received a senior rater option OER that commented on her
outstanding performance, work ethic, technical expertise, and dedication,
and she was given an Above Center of Mass (ACOM) evaluation by the SR, who
at the time was an ARNG COL.  Counsel further states that in November 2001
a new NICI Director, who was an ANG COL, was assigned.  The NICI rating
chain prepared at this time listed the ANG LTC as the applicant's rater and
the new ANG COL as the applicant's senior rater.

4.  In early January 2002, the applicant's rater began his transition leave
for retirement and was scheduled to complete the applicant's OER, a change
of rater report based on the rater's retirement in March 2002.  Counsel
claims that until a new Title 10 Deputy Director could be appointed, a
Title 32 California ARNG LTC informally filled in on some of the Deputy
Director duties; however, he continued to be in the rating chain of the
California ARNG.  Counsel claims that the GS-15 DAF civilian rater of the
Director NICI did not want a Title 32 State officer rating the applicant,
and decided that after the applicant received her March 2002 change of
rater OER and until a Title 10 Deputy Director could be appointed, the
Director NICI would rate the applicant and he would be the SR, and that the
Title 32 State LTC could provide letter input to the report.

5.  Counsel goes on to state that in January 2002, the California ARNG LTC
informed the applicant he wanted to rate her, and at this time the
applicant asked for a support form to verify a new rating chain; however,
the LTC admitted he did not have one because he was rated by his State
unit.  The applicant then called the GS-15 DAF civilian, who confirmed the
2001 rating chain excluded both her retired rater and the Title 32 LTC who
wanted to rate her.  The Title 32 LTC disagreed with this decision and
indicated that he should be the applicant's new rater, and that the
retiring Deputy Director should complete a change of rater report through
November 2001, and not through March 2002.

6.  Counsel further indicates that between November 2001 and March 2002,
the GS-15 DAF civilian rater of the Director, NICI received daily feedback
and made frequent inquiries with the Director, NICI, which included
evaluation of the applicant's performance.  He found no performance
problems, other than a mounting personality conflict between the applicant
and the Director, NICI.  In March 2002, the retiring Deputy Director
completed his portion of the applicant's change of rater OER, and indicated
that the applicant was an extraordinary warrant officer.  The Title 32 LTC
provided comments to the GS-15 DAF civilian, and the applicant was
ultimately given an ACOM evaluation from the SR, who also recommended she
be promoted to CW4.

7.  Counsel further claims that the GS-15 DAF civilian was interviewed in
December 2004, and indicated that he still had no reason to differ from
this evaluation.  He further indicated that a supplemental review of the
applicant's OER was requested in 2003, but never completed by the National
Guard Bureau (NGB).  He states that by April 2002, the applicant became
concerned about legally questionable practices and personnel actions
initiated or approved by the Title 32 LTC and the Director NICI, which she
believed jeopardized the Federal transition of NICI.

8.  Counsel further states that when the NICI Director ignored the
applicant's informal complaints, she submitted a request for an IG
investigation, which as of March 2004 remained open.  Soon after, in August
2002, the Title 32 LTC relieved the applicant of her duties with the
concurrence of the NICI Director.  A Relief for Cause OER was issued
covering the period since November 2001, but with a backdated end date of
30 June 2002, which was purported to show it was effected before the 9 July
2002 IG complaint submitted by the applicant.  The rater's comments were
that the applicant's relief was based on her "repeated insubordination and
inefficiency", and the senior rater assigned a Below Center of Mass (BCOM)
evaluation.  He further recommended the applicant not be retained.

9.  Counsel states that the initial draft of the OER was referred to the
applicant and she provided her first rebuttal comments on 28 August 2002.
When the applicant indicated the OER was in reprisal for her request for an
IG investigation, the NICI Director began an investigation into the
applicant's alleged leave fraud and abuse in mid-October 2002.  The final
OER draft was prepared for signing on 31 October 2002, at which time the
applicant submitted a second rebuttal.  He further states that incredibly
the rater never completed Part IV of the OER, and a supplemental review was
not requested, as is required by regulation because the SR was an ANG
officer.  Thirdly, rating officials failed to obtain or request a relief
review by the first Army officer in the chain of command above the SR.
10.  Counsel contends that although the OER was filed in the applicant's
OMPF in January 2003, the report should have been rejected outright on
multiple grounds and should have not carried a presumption of regularity.
He also states that on 7 February 2003, the Commander, Military District of
Washington (MDW) issued the applicant a GOMOR for leave fraud and abuse,
which occurred during a period covered by an OER issued prior to the Relief
for Cause OER.  He claims the GOMOR was not properly processed and that the
Board should address the GOMOR as part of an unlawful campaign or reprisal,
along with the OER in question.

11.  In support of the application, Counsel provides an Amended
Supplemental Statement and Exhibits A through K identified therein.

CONSIDERATION OF EVIDENCE:

1.  On 1 July 2002, the applicant was relieved of her duties as the NICI
Personnel Officer, which resulted in her receiving a relief-for-cause OER
covering the period 21 November 2001 through 30 June 2002.  Part IV
(Performance Evaluation-Professionalism) contains "No" responses to the
questions on Honor, Integrity, Respect, Selfless-Service and Duty.

2.  In Part V (Performance and Potential Evaluation) the rater placed the
applicant in Block 3 (Unsatisfactory Performance, Do Not Promote), and he
commented that the applicant was being relieved of her duties for repeated
insubordination, inefficiency, and exceeding her authority outside of the
organization.  He further indicated that she consistently refused to
recognize the authority of the Title 32 Army and Air National Guard field
grade officers appointed over her and has refused to be counseled by such
officers for the rating period.

3.  In Part VII (Senior Rater) of the relief for cause OER, the senior
rater placed the applicant in Block 4 (Other), and commented that he
concurred with the rater's evaluation of the applicant.  He further
indicated that he was greatly disturbed by the actions and inaction of the
applicant, and was aware of the damage caused by her irresponsible and
unprofessional behavior.  The senior rater further indicated that the
applicant failed to make satisfactory progress in sustaining full personnel
functions, and she displayed an indifferent attitude toward the welfare and
support required by the Soldiers and Airmen assigned to NICI.

4.  The senior rater additionally commented that the applicant's
performance was consistently below standards expected of an officer of her
rank and experience, and that he had counseled her on insubordination
toward three LTCs assigned to NICI.  He further indicated that she had
steadfastly refused to either recognize the authority of Title 32 officers
appointed over her at NICI or accord them proper respect.  The senior rater
stated that the applicant had limited potential for continued active
service, and he recommended the applicant be removed from Title 10 active
duty and be returned to State control.

5.  On 28 August 2002 and 31 October 2002, the applicant submitted rebuttal
responses regarding the relief for cause OER to the SR, the NICI Director.
She indicated that the report had been written and presented to her after
he learned that she had submitted a memorandum requesting an IG review of
the practices and personnel actions which she had for several months
considered as legally questionable.  She stated that because of this, she
considered the OER reprisal and would seek protection under the
Whistleblower Protection Act.

6.  On 7 February 2003, the applicant received a GOMOR from the Commander,
Military District of Washington, a major general.  The applicant was
reprimanded for leave fraud and abuse.  It states that specifically, during
the period between October 2000 and September 2001, the applicant took
approximately 33 days of leave without first submitting leave requests (DA
Forms 31).

7.  On 7 March 2003, the applicant submitted a response to the 7 February
2003 GOMOR.  She indicated that she was being reprised against based on
requesting an IG investigation into the management practices of her unit.
She further indicated that to the best of her knowledge all leave taken
while she was at NICI was actually and factually reported.  She also
provided a description of the leave processing procedures.

8.  On 21 November 2003, the applicant submitted an appeal of the relief
for cause OER to the Chief, National Guard Bureau.  The applicant contended
the OER was administratively and substantively inaccurate.  She claims the
rating period was improper, the rating chain was improper, and she was
never informed whether a supplementary review was completed in accordance
with the governing regulation, or if it was completed, she was never
provided a copy of the report, nor was she contacted for information to
assist the reviewer.

9.  In her appeal, the applicant also contended that rater and senior rater
comments were unfair and biased, and that they did not accurately reflect
her performance during the rating period.  She further claimed the senior
rater initiated the referred report as a reprisal against her for
requesting an IG review of management practices involving the senior rater.

10.  On 8 December 2003, the Director, Army National Guard, a lieutenant
general, made the filing decision on the applicant's GOMOR as requested by
the MDW Commander.  He directed the applicant's GOMOR be filed in the
restricted portion of her OMPF.

11.  The applicant's OER appeal was received by The Deputy Chief of Staff,
G-1, Officer Special Review Board (OSRB) on 6 January 2004.  During its
consideration of the applicant's OER appeal, the OSRB attempted to contact
the rating officials.  The rater could not be contacted; however, the SR
was contacted.  The SR stated that he stood by his assessment of the
applicant's performance of duty as written in the OER in question.

12.  The SR further indicated that during the rating period, he conducted
numerous counseling sessions with the applicant, both verbal and in
writing, regarding her poor performance of duty and her several incidents
of insubordination toward senior officers.  The SR maintained that the
rater was properly designated and was serving on an Active Duty Special
Work (ADSW) tour as the NICI Deputy Director following the departure of the
applicant's previous rater on or about 18 December 2001.

13.  The SR also informed the OSRB that he was aware of several attempts by
the rater to counsel the applicant on job performance objectives, but the
applicant refused to cooperate in every attempt.  He further indicated that
the applicant never submitted a completed DA Form 67-9-1 and was afforded
the opportunity to provide comments to the referred reports but never
submitted any. The SR stated he finally processed the report in October
2002 (nearly four months after the relief).

14.  The SR also stated that he was not officially aware of the IG
inspection requested by the applicant, but had heard rumors to that effect.
 He further indicates he was never questioned by the IG at any level
regarding the matter, and that at the time the OER was submitted, the
applicant was being investigated for leave fraud and abuse.  He claims this
information was intentionally omitted from the report because the
investigation was not finalized.  Once finalized, the applicant was issued
a GOMOR, which was filed in the restricted portion (R-Fiche) of her OMPF.

15.  The OSRB found that the applicant's contention that the rater and
senior rater comments in the evaluation were unfair and biased, and did not
accurately reflect her performance during the rating period was
unsubstantiated.  The OSRB also found the applicant's contention that the
OER in question was initiated in reprisal for her requesting an IG review
of management practices involving the SR was unsubstantiated.

16.  The OSRB indicated that the IG reprisal investigation was still
ongoing and that if this outcome substantiated the applicant's contention,
it would support a new appeal.  It also determined that the applicant was
informed of the supervisory changes and that the LTC ANG Deputy Director
would be her rater in e-mail traffic between 28 and 29 January 2002, and
that the rater clearly attempted to perform initial counseling with the
applicant.  It finally concluded that the applicant failed to provide the
necessary evidence to delete the OER.

17.  The OSRB further recommended that the NGB conduct a supplementary
review and take appropriate action should administrative errors be
discovered, and it denied the applicant's request to have the entire OER
removed from the record.

18.  On 8 May 2004, the applicant was informed that an AFSTCB that convened
on 12 January 2004, considered, but did not select her for continuation in
the AGR program.  She was advised that she would be released from the AGR
program not later than 30 September 2004.

19.  On 8 July 2004, the Department of Defense (DOD) IG responded to
applicant's complaint, in which she alleged Whistleblower reprisal in that
she received a Relief for Cause OER, her permanent change of station was
delayed, and she received a GOMOR in reprisal for protected communications.
 The DOD IG determined that the applicant's allegation of reprisal did not
warrant an investigation for the following reasons:  her relief for cause
OER was required by Army Regulation after she had been relieved for cause
on 1 July 2002; her PCS was delayed pending the resolution of allegations
she lodged against her unit and an inquiry regarding her leave; and her
GOMOR was based on the results of the inquiry regarding her leave.

20.  Army Regulation 623-105 (Officer Evaluation Reporting System), in
effect at the time, prescribed the officer evaluation function of the
military personnel system and provided principles of support, standards of
service, policies, tasks, rules, and steps governing all work required in
the field to support the Officer Evaluation System (OES) and Officer
Evaluation Reporting System (OERS). It also provided guidance regarding
redress programs including commander inquiries and appeals.
21.  Paragraph 2-19 of the evaluation regulation provided guidance on
supplementary reviews.  It stated, in pertinent part, If the senior rater
for an OER is not an Army officer or DA civilian, a supplementary review
will be conducted by the first Army officer or DA civilian above the senior
rater in the chain of command or supervision.  If no U.S. Army officer or
Department of Army civilian is available above the senior rater in the
chain of command, an additional review by Headquarters, Department of the
Army will be requested by the Personnel Services Branch.

22.  Paragraph 3-57 of the same regulation provides the basic rule
applicable to modifications of previously submitted reports.  It states, in
pertinent part, that an evaluation report accepted by Headquarters,
Department of the Army (HQDA) and included in the official record of an
officer is presumed to be administratively correct, to have been prepared
by the properly designated rating officials, to represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.  It also states that requests that a report that has been
accepted for filing in an officer’s record be altered, withdrawn, or
replaced with another report will not be honored.  Exceptions are only
authorized when information that was unknown, or unverified when the report
was prepared is brought to light or verified; and the information is so
significant that it would have resulted in a higher or lower evaluation had
it be known or verified when the report was prepared.

23.  Chapter 6 contains the policies and procedures pertaining to managing
the OER redress program.  Section III contains guidance on OER appeals and
paragraph 6-10 outlines the burden of proof that must be met to support a
successful OER appeal.  Paragraph 6-6 states, in pertinent part, that an
evaluation report accepted by DA and included in the official record of an
officer is presumed to be administratively correct; have been prepared by
the properly designated rating officials; and to represent the considered
opinions and objective judgment of the rating officials at the time of
preparation.

24.  Paragraph 6-10 of the same regulation contains guidance on the burden
of proof and type of evidence necessary to support the submission of an OER
appeal.  It states, in effect, that the burden of proof rests with the
appellant.  Accordingly, to justify deletion or amendment of a report, the
appellant must produce evidence that establishes clearly and convincingly
that the presumption of regularity referred to in paragraph 6-6 should not
be applied to the report under consideration and that action is warranted
to correct a material error, inaccuracy, or injustice.  Clear and
convincing evidence must be of a strong and compelling nature, not merely
proof of the possibility of administrative error or factual inaccuracy.

25.  The OER regulation further stipulates that statements from rating
officials are also acceptable to support an appeal if they relate to
allegations of factual errors, erroneous perceptions, or claims of bias. To
the extent practical, such statements should include specific details of
events or circumstances leading to inaccuracies, misrepresentations, or
injustice at the time the report was rendered.

26.  Army Regulation 600-37 (Unfavorable Information) sets forth policies
and procedures to authorize placement of unfavorable information about Army
members in individual official personnel files, ensure that unfavorable
information that is unsubstantiated, irrelevant, untimely, or incomplete is
not filed in individual official personnel files and ensure that the best
interests of both the Army and the Soldiers are served by authorizing
unfavorable information to be placed in and, when appropriate, removed from
official personnel files.

27.  Paragraph 3-4 contains guidance on the filing nonpunitive
administrative letters of reprimand, admonition, or censure in official
personnel files.  Subparagraph b contains guidance on OMPF filing, and it
states, in pertinent part, that upon the order of a general officer (to
include one frocked to the rank of brigadier general) senior to the
recipient or by direction of an officer having general court-martial
jurisdiction over the individual these letters may be filed in the
performance portion (P-Fiche) of the OMPF.  There are no provisions
providing for filing in the restricted portion (R-Fiche) of the OMPF.

28.  Chapter 7 of the same regulation provides the policies and procedures
for appeals and petitions for removal of unfavorable information from the
OMPF.  Paragraph 7-2 states that once an official document has been
properly filed in the OMPF, it is presumed to be administratively correct
and to have been filed pursuant to an objective decision by competent
authority.  Thereafter, the burden of proof rests with the individual
concerned to provide evidence of a clear and convincing nature that the
document is untrue or unjust, in whole or in part, thereby warranting its
alteration or removal from the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The contentions of the applicant and counsel and the supporting
documents submitted were carefully considered, and it is determined that
there is sufficient evidence to support partial relief in this case.  The
primary contention of the applicant and her counsel is that the OER and
GOMOR in question were issued in reprisal for the applicant initiating an
IG investigation into the management practices of her unit.  However, the
DOD IG determined, after conducting a preliminary inquiry into the
applicant's allegation under the Whistleblower Protection Act, that her
allegations of reprisal were unsubstantiated.
2.  Further, notwithstanding the numerous substantive and administrative
errors related to the processing of the GOMOR and relief OER in question,
there is insufficient evidence to support a conclusion that these documents
were issued in reprisal for her protected communications.

3.  Instead it appears, although flawed, the documents in question were
issued in good faith, based on the judgment of members of her chain of
command and rating chain, and were considered appropriate and necessary.
However, the evidence does confirm the OER and GOMOR were improperly and
incompletely processed.

4.  The GOMOR was properly processed through the point where the Director,
Army National Guard ordered the GOMOR filed in the performance portion of
the applicant's OMPF.  The investigation concerning the applicant's leave
and fraud abuse uncovered sufficient evidence to warrant and support the
GOMOR, and the applicant's lengthy rebuttal apparently failed to persuade
her chain of command to withdraw the action.

5.  The Commander, Military District of Washington properly delegated the
filing decision for the applicant's GOMOR to the Director, Army National
Guard, and had the Director, Army National Guard denied the applicant's
request for reconsideration of his decision to file the GOMOR in the
performance section of the OMPF, there would be no basis for relief on this
matter.

6.  However, the Director, Army National Guard granted the applicant's
request and directed filing of the GOMOR in the restricted portion of the
OMPF, which is not permitted by the governing regulation.  Therefore,
notwithstanding the fact the preponderance of the evidence supports a
conclusion that the applicant committed the leave and fraud abuse upon
which the GOMOR was based, no matter how well deserved the GOMOR appears to
be, given the processing of the action did not comport with mandatory
regulatory requirements, it should be removed from the record at this time.


7.  The evidence of record also confirms that the NICI and NGB committed a
number of errors in processing the applicant's relief OER that render it
unjust and legally deficient.  Based on the OSRB recommendations, the NGB
obtained input from the applicant's senior rater in order to complete the
portions of Part IVb that the rater failed to complete.  Completing this
section based on the senior rater's input does not comply with the
governing regulation, which states, in pertinent part, that an OER will not
normally be amended to fix an administrative oversight or typographical
error in Part IVb.

8.  More significantly, although the NGB told the applicant a supplemental
review would be completed, it failed to obtain the supplemental review of
the relief OER recommended by the OSRB and required by regulation.  Absent
this review, the relief OER is not complete and should not be a part of the
applicant's record.

9.  Almost four years have elapsed since the command initiated the relief
OER on the applicant, and over two years have elapsed since the OSRB
notified the NGB of the need for a supplemental review.  Despite the clear
guidance of the OSRB and the regulatory requirement, the NGB has failed
through administrative oversight, or simply chose not to take the seemingly
simple step of obtaining this review.  As a result, the relief OER is not
timely or complete and it should be removed from her record.

10.  Notwithstanding the numerous substantive and administrative errors in
the documents in questions, the preponderance of the evidence supports a
conclusion that the documents do in fact accurately represent the
applicant's performance of duty and conduct during this period.

11.  Further, there is insufficient evidence to supporting the applicant's
reprisal allegations under the Whistleblower Protection Act.  As a result,
given the AFSTCB falls within the purview of the ARNG, absent evidence of
reprisal, it would not be appropriate for the Board to recommend the ARNG
set-aside its AFSTCB nonselection of the applicant for continuation in the
AGR program, or to grant the applicant Federal Recognition in, and/or
promotion to CW4.

12.  The applicant is advised that she retains the option to request
reinstatement through normal ARNG channels once the contested documents are
removed from her record.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___LDS _  __PMS__  __AM___  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 by:

      a.  removing the Relief for Cause Officer Evaluation Report covering
the period 21 November 2001 through 30 June 2002 from her OMPF; and

      b.  removing the General Officer Memorandum, dated 7 February 2003,
from her OMPF.

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
reinstatement on active duty in the AGR program with all back pay and
allowances, Federal Recognition or promotion to Chief Warrant Officer Four,
or substantiation of Whistleblower Protection Act reprisal allegations.




                                  ____Linda D. Simmons______
                                            CHAIRPERSON

                                    INDEX

|CASE ID                 |AR20050012937                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2006/09/28                              |
|TYPE OF DISCHARGE       |N/A                                     |
|DATE OF DISCHARGE       |N/A                                     |
|DISCHARGE AUTHORITY     |N/A                                     |
|DISCHARGE REASON        |N/A                                     |
|BOARD DECISION          |Partial Grant                           |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |131.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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