RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:         3 October 2006
      DOCKET NUMBER:  AR20060007915


      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:

|     |Mr. Kenneth L. Wright             |     |Chairperson          |
|     |Mr, Thomas M. Ray                 |     |Member               |
|     |Ms. Sherry J. Stone               |     |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, in effect, reconsideration of her request that
her Officer Evaluation Report (OER) covering the period 21 October 2002
through
17 April 2003 be removed from her Official Military Personnel File (OMPF)
and that no substitution memorandum be filed in its place.

2.  The applicant states, in effect, that she is providing new evidence
that confirms she was reprised against.  She states that the new evidence
shows her agency, and most likely her rater, clearly reprised against her.
She claims reprisal is not only defined as making a protected
communication, but also as preparing to make a protected communication.
She thinks this, in addition to all the other evidence she submitted,
including her phone records, clearly tips the scale at least 51 percent (%)
in her favor, as a preponderance of evidence.

3.  The applicant provides local Inspector General (IG) notes and
Department of the Army Inspector General (DAIG) findings in support of her
application.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were
summarized in the previous consideration of the applicant's case by the
Army Board for Correction of Military Records (ABCMR) in Docket Number
AR20050003737, on 13 October 2005.

2.  During its original review, the Board found sufficient evidence to
support a recommendation that the contested OER be modified by deleting
comments in Part V.  However, it concluded there was insufficient evidence
to support expunging the contested OER from the applicant's record.  The
Board also indicated that the applicant had a Department of Defense
Inspector General (DODIG) complaint pending and that the findings of the
DODIG or DAIG could or could not substantiate her contentions; however, the
information she submitted with her original application provided
insufficient evidence to support granting full relief in her case.

3.  On 29 January 2004, the DODIG notified the applicant that a preliminary
inquiry of her allegations of Whistleblower reprisal had been completed,
and it was determined that her allegations did not warrant further
investigation because the decision to curtail her active duty tour was made
prior to her making a protected communication; the curtailment of her
active duty tour, her referral for a
Mental Health Evaluation (MHE), and her unfavorable OER were based on
documented evidence of substandard performance; and the suspension of
favorable personnel actions (FLAGs) were prompted by unfavorable
information documenting her duty performance.

4.  On 8 February 2006, the DAIG provided a final response to the applicant
regarding her request for assistance.  The response indicated that two
allegations were substantiated.  First, an official improperly backdated an
OER support form related to the applicant's OER that ended on 17 April
2003, in violation of the governing regulation.  Second, the Commander,
Human Resources Command (HRC), St. Louis, improperly directed a memorandum
of admonishment be filed in the applicant's Military Personnel Records
Jacket (MPRJ); however, it also indicated that this document was
subsequently removed from the MPRJ.  The DAIG indicated that the
applicant's allegations that an official improperly touched her in an
inappropriate manner, and that an official improperly lost track of
accounts were not substantiated.

5.  Army Regulation 623-105 prescribes the policies and procedures
pertaining to the Officer Evaluation System (OES) and Officer Evaluation
Reporting System (OERS).  Paragraph 3-57 of the OER 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, and 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.

6.  Chapter 6 of the OER regulation 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.  It states 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 paragraphs 3-57 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.




DISCUSSION AND CONCLUSIONS:

1.  The reconsideration request and new evidence submitted by the applicant
have been carefully considered.  However, there is insufficient evidence to
support removal of the contested OER from the applicant's record, or to
support relief beyond that recommended by the Board during its original
review of the case.

2.  During its original review of the applicant's case, the Board indicated
that the findings of the DODIG or DAIG may or may not substantiate her
contentions, and as a result this could support further consideration of
her case.  However, on
29 January 2004, the DODIG determined, after conducting a preliminary
investigation into the applicant's allegations of Whistleblower reprisal,
that her allegations did not warrant further investigation.  The DODIG also
concluded that there was sufficient evidence showing that the contested OER
was based on documented evidence of the applicant's substandard duty
performance.  It is noted that the DODIG notification to the applicant that
her allegations of reprisal did not warrant further investigation was dated
more than a year prior to her initial application to the Board, which
indicates she had these results when she first applied to the Board, and
that at least the DODIG reprisal investigation was no longer pending at
that time.

3.  Further, the substantiated allegations outlined by the DAIG do not
support removal of the contested OER from the applicant's OMPF.  The
substantiated allegation concerning the letter of admonishment has no
relation to the contested OER.  The substantiated allegation regarding the
backdated OER support form relates to the contested OER; however, the
applicant has failed to provide clear and convincing evidence that the
backdated support form rendered the contested report invalid or unfair.
The DODIG report confirms that the basis for the referred OER in question
was the applicant's substandard performance, and she has failed to provide
a sufficient evidentiary basis to remove the referred report from her OMPF.


4.  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 any new evidence or argument that would satisfy this requirement.
As a result, there is an insufficient evidentiary basis to support amending
the original Board decision.





BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__KLW __  __TMR__  __SJS __  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 to amend the decision of
the ABCMR set forth in Docket Number AR20050003737, on 13 October 2005.




                                  _____Kenneth L. Wright___
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20060007915                           |
|SUFFIX                  |                                        |
|RECON                   |2005/10/13  AR20050003737               |
|DATE BOARDED            |2006/10/03                              |
|TYPE OF DISCHARGE       |                                        |
|DATE OF DISCHARGE       |                                        |
|DISCHARGE AUTHORITY     |                                        |
|DISCHARGE REASON        |                                        |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |Mr. Chun                                |
|ISSUES         1.       |111.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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