RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2007
	DOCKET NUMBER:  AR20060008360 


	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. W. W. Osborn, Jr.

Analyst


The following members, a quorum, were present:


Ms. Marla J. N. Troup

Chairperson

Mr. John G. Heck

Member

Mr. Donald L. Lewy

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, that the Officer Evaluation Report (OER) for the period ending 17 April 2001 be expunged from her Official Military Personnel File (OMPF) and that her case be referred to the appropriate Special Selection Board (SSB) for reconsideration for promotion to colonel. 

2.  The applicant states, in a 13 page memorandum, that she was improperly rated because her rater required her to operate with “zero defects” but she had inadequate resources to do her job.  Furthermore, her immediate supervisor conducted a year-long campaign to undermine her performance and reputation. The supervisor’s actions were the cause of many of the shortcomings cited by her rater.  The individual assigned to conduct the investigation for the OSRB conducted an inadequate investigation.  

3.  The applicant provides a 13 page brief in support of her request; a memorandum of support from a Army Nurse colonel; a 5 December 2005 memorandum of support from a JA colonel who was a classmate at the JA Basic School; a 17 March 2004 memorandum of support from a retired JA colonel, who is now an associate professor and his Curriculum Vita; a 19 June 2006 memorandum in reference to “Observation of Work Environment in the 21st Theater Support Command, Office of the Staff Judge Advocate" by a JA lieutenant colonel and a letter to the Board from a major general.     

4.  She provides the OSRB case summary, her OERs for the periods ending 17 April 2005 and 17 April 2004; OER Support Form; OERs for the periods ending 19 April 2003, 17 April 2003, 23 June 2000; a self- prepared chronology of the case; memoranda of support dated 8 May 2003 and 20 April 2003; the rater’s 15 March 2001 memorandum for the applicant with a subject line of, “Letter of Concern;” the applicant’s response to the, “Letter of Concern;”  OER Support Form showing initial face-to-face counseling on 23 February 2001; a graph showing average processing time for General Officer Memoranda of Reprimand (GOMORs); unsigned copy of an OER for the period 30 April 2001; another unsigned copy of the same OER showing pen and ink changes to part IVb1; apparently the smooth copy of the unsigned OER: the subject OER for the period ending 17 April 2003; the OSRB case summary; a 14 April 2004 memorandum of support to the OSRB from the Commanding Officer, Army Garrison Fort Buchanan, Puerto Rico; a 15 April 2004 memorandum of support  to the OSRB from a Deputy Chief of Staff, Army Medical Command; and a 
19 February 2004 memorandum of support from the Regional Defense Counsel, 

Region VI Army Trial Defense Service.  She also submits a memorandum of support from a lieutenant colonel who worked in the 21 Theater Support Command as the Officer in Charge, Kleber Law Center; and her OERs for the past few years. 

CONSIDERATION OF EVIDENCE:

1.  The applicant, a Regular Army Judge Advocate General Corps (JA) lieutenant colonel with a date of rank of 1 May 2000 was the Chief, Criminal Law Division, 21st Theater Support Command.  When she received the contested OER, she was responsible for ”the administration of military justice in the largest, most dispersed, general court- martial jurisdiction in the Army with seven legal offices in five countries." 

2.  The OER for the period ending 17 April 2001 shows:

	a.  Her rater, the Staff Judge Advocate marked her “Yes” in all areas of Part IV Performance Evaluation-Professionalism subpart a. Army Values and subpart b. Leader Attributes/Skills/Actions.  In Part V Performance the rater marked her in the Outstanding Performance, Must Promote box.  He described her as having a “strong background” a wealth of experience and talent.”  He credited her with implementing procedures to ensure the orderly administration of military justice.  

	b.  The senior rater, the Commanding General, 21st Theater Support Command marked her potential for promotion in the “Best Qualified” Block.  He commented on her performance and Potential as follows:  “…talent, intelligence and dedication…has impressed me.…helped create the competent confident and courageous military justice team…Whenever I had any issue…would work until she resolved the problem…a great asset …Colonel is in her future.”  He marked her in the Center of Mass of 32 lieutenant colonels.

3.  The applicant’s 14 April 2004 appeal to the Department of the Army, G-1 Officer Special Review Board (OSRB) requested that the OER for the period ending 17 April 2001 be expunged and that the Senior Rater Center of Mass rating be removed from the OER for the period ending 17 April 2003.  

4.  She contended that, in the first instance, the rater and senior rater were “unduly influenced by the immediate superior, LTC D____  W____, who pursued a year long campaign to undermine my performance and reputation.”  The applicant contended:

a.  LTC W____, the Deputy Staff Judge Advocate (SJA), was her immediate superior and supervisor.  No attempt to address any problem through her to COL R____ was ever resolved favorably. 

	b.  The working environment was hostile from the beginning.  LTC W____ 
gave her a negative written counseling before her initial support form was completed.  In response, the applicant stated that, if the Criminal Law Division was broken it must have been broken before she arrived,  After the applicant insisted that she would refute the negative counseling, LTC W____ tore it up.  However, from-then- on the applicant always felt that she was working in a hostile “zero defects” environment.,
	
c.  LTC W____ personally changed a court-martial convening order to include members who were known to be unavailable.  When the inevitable failure occurred, LTC W____ failed to take responsibility and the applicant had to take the hit.

	d.  LTC W____ and COL R____ terminated management systems that had been implemented by their predecessors.  Consequently, the applicant had to accept responsibility for situations over which she had no control.

5.  The OSRB case summary reflects that the applicant was considered in the primary zone for promotion to colonel in December 2004 and not selected.  The applicant’s supporting documents were briefly and adequately described.

6.  The OSRB contacted COL R____ about the first contested OER.  He stated that his rating was based upon his observations of the applicant’s performance and not on any second-hand opinion.  He had counseled the applicant on at least seven occasions.  The rater refutes the charge of reprisal for seeking an audience with the Commanding General by furnishing a copy of an email the applicant had sent him concerning that conference.  It is quite conciliatory in nature.  The rater further stated that he had reassigned the applicant rather than relieving her because he believed that to be in the best interests of both the applicant and the organization.  The rater did acknowledge that the applicant probably did have a personality conflict with LTC W____, whose demeanor was “sometimes gruff.”  However, he had not felt it proper to share his opinions of his deputy SJA with the applicant.   The OSRB did not contact the senior rater.
7.  The OSRB noted that the OERs in question were not referred and that the applicant had not requested a commander’s inquiry.  The OSRB denied her request.

8.  The applicant’s documents submitted to support this appeal to the ABCMR  include the following:

a.  A JA colonel, in a 5 December 2005 memorandum to the OSRB, reports that he was a Basic Course classmate and longtime friend of the applicant.  He heard rumors that her “planned assignment as a corps deputy SJA had been changed."  Those who told him this, attributed it to "vindictive and petty manipulation” by someone “motivated by reasons other than performance.” The applicant was, “the victim of an unfortunate personality conflict.”  The colonel continued by stating that a positive consequence of the situation was that they got to work together.  He, “was her counterpart covering Trial Defense Services [for] Southeastern Europe from 2001-2003, while she provided services for central and northern Europe.  D____ [the applicant] and I worked closely together planning, training, monitoring and managing Trial Defense Services in Europe the Balkans and Southwest Asia.  Her performance was superb but, she was shifted into the Regional Defense Counsel position on short notice.  This brought her into the position under a cloud and affected the leadership’s perception of her."  The JA colonel recommended that she be reconsidered for promotion to colonel.

b.  A retired JA colonel wrote that as the 21st Theater Support Command SJA he had installed systems to track pending actions.  These systems enabled the reduction of processing times.  In the process of being relieved he tried to brief the incoming SJA, COL R____ , but he seemed uninterested in the system.  He had also invited the incoming Deputy SJA, LTC W____, but she failed to attend.  He had known LTC W____ since she had entered the JA Corps.  She is, “aggressive, hostile and profane and inclined to interpret civility as weakness.”  He later learned that COL R___ and LTC W____ had dismantled the tracking systems he had put into place.  Consequently, by the time the applicant became Chief of Military Justice, processing times were out of control.  He got the impression from unsolicited emails from his former subordinates that “LTC W____ was running the office into the ground and the SJA, COL R____ was letting her do it.”  The chief of JA personnel and The Adjutant General consulted him about the situation and soon thereafter the applicant was transferred to the career-enhancing assignment as the Regional Defense Counsel.  Shortly after the applicant’s reassignment he encountered her new senior rater COL Q___ who expressed dissatisfaction with her that seemed to be based on his perception of the previous situation at the 21st Theater Support Command rather than with her current performance. 

c.  A brigadier general, the Deputy Chief of Staff for Force Sustainment,  Army Medical Command, writes that she “received excellent military justice support while the applicant was in charge”.  She added, “Despite the daily turmoil [the applicant] encountered, her ability to provide efficient legal support to her customers was outstanding.”          

d.   A JA lieutenant colonel wrote that he was the officer-in-charge of the Mannheim Law Center, the largest in Europe, while the applicant was Chief of Criminal Law.  He reports that his trial counsels received excellent training and support from the applicant.  He also reported that delays in processing legal actions were justified because chains-of-command were frequently spread-out among different locations.  That delays naturally resulted might not have been apparent to individuals whose major experience was limited to stateside installations. 

e.  In a 23 December letter to the OSRB, a Nurse Corps colonel states that she was stationed with the applicant at Fort Buchannan, Puerto Rico.  She praises the applicant as a fine lawyer, an excellent officer, and a person of integrity.  She offers that the applicant’s non-selection for promotion was due to officers in her chain of command who acted out of “vengeance and spite.”   

f.  Another JA lieutenant colonel relates, in a 27 December 2005 letter to the OSRB, that at one point in his career he was trying a case in an area of the law that came under LTC W____’s purview.  When she disagreed with his approach to the case, she went directly to his senior rater rather than work their differences.  “It was clear to me that LTC W____ was deliberately trying to hurt my career…without having given me the courtesy to discuss it with me first.…”

g.  In the 19 June 2006 letter to the ABCMR yet another JA lieutenant colonel wrote that from June 2000 to July 2002 he was the Officer in Charge of the Kebler Law Center with an office about a mile from the SJA office.  COL R____, the SJA, was his senior rater;  LTC W____  , the Deputy SJA, was his rater; and LTC [applicant], the Chief of Military Justice, was his daily supervisor.  His impression of the situation was that LTC W____, “intentionally attempted to undermine and prevent LTC [applicant] from doing her job.”  He knew of instances when LTC W____ took actions contrary to what the applicant intended. She often made derogatory comments about the applicant’s competency and tried to make her look bad.  For example, LTC W____ modified a court-martial 

order that included members who were not available, then she blamed the applicant for it.  Similarly, LTC W____ often provided advice that contradicted what the applicant had previously offered.  The writer thinks, “It is extremely unlikely, witnessing what I did for nearly a year that [the applicant’s] performance evaluation was not shaped by the hostile actions of LTC W____.”

h.  In an undated letter, sworn to by the author on 17 February 2006, a major general writes that he was the Deputy Commanding General of the 21st Theater Support Command from July 2000 to July 2001.  He relates that the SJA had led the commanding general to believe that the applicant had visited the Office of The Judge Advocate General without letting her chain of command know that she was doing so.  However, the applicant had informed him [the deputy commander] that the SJA had been fully informed.  The commanding general suggested that the matter be discussed with the SJA, but the SJA was further offended that the applicant had consulted the deputy commander “so I explained to him that he should not take offense when junior black officers sought my guidance."  The SJA had "elected not to be straightforward about a situation that had been brewing for months.”  The writer relates that he met with the applicant who filled him in on how mismanaged the office was when she arrived and the deputy SJA’s daily attempts to undermine her [the applicant’s] performance.”  He also reports that he knows from his position as the deputy commanding general and as the commanding general that there were systemic and problematic deficiencies with the office of the SJA.  In July 2001, COL F____ was appointed the SJA and immediately started mending fences.  He concludes in part that, “As a senior leader in the Army, I know that an officer with her years of experience and past favorable evaluations does not just unexpectedly and suddenly fail.…The factors and circumstances impacting [the applicant] were unfortunate, personal and grounded in the lack of effective leadership and managerial skills within the OSJA during her rating period.”                 

9.  The applicant’s performance since the two appealed OERs is reflected by the following.

a.  The applicant’s subsequent OER, for the period ending April 2004, rated her as the SJA at Fort Buchanan, Puerto Rico.  It shows her rater commented, “Promote this officer to Colonel now.…Every project she touches is marked by excellence.  She sets the example professionally and personally.  A definite leader of the JAGC.”  The senior rater, the deputy commanding general, placed her "Above Center of Mass" of 16 rated officers, noted that she overcame all challenges and recommended her promotion to colonel. 

b.  Her OER for the period ending April 2005 also rated her as the SJA at Fort Buchanan.  Her rater commented that the applicant, “easily ranks in the top 5% of officers of her grade.“  The senior rater placed her above the center of mass of 19 rated officers and remarked, “has performed her assigned duties in an outstanding manner.…Promote to colonel and select for Senior Service College.  Assign to the most challenging SJA positions. “ 

c.  She was awarded the Meritorious Service Medal for her service at Fort Buchanan from 21 July 2003 to 28 June 2005.

d.  Her OER for the period ending April 2006 rated her as a deputy Chief Counsel for the Army Contracting Agency.  She was responsible for the coordination of and assisting in the management of the efforts of over 30 attorneys. She was also in charge of the agency’s ethics program.  The rater, the chief of staff, marked her in the Outstanding Performance-Must Promote box and credited her with designing and implementing the ethics program and with streamlining and improving the delivery of all legal services.  Her senior rater marked her in the Best Qualified box and placed her in the Center of Mass of 15 officers of that grade. 

10.  Army Regulation 623-105 prescribes the policies and procedures pertaining to the Officer Evaluation System (OES) and Officer Evaluation Reporting System (OERS).  It also provides guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 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.  

11.  Chapter 6 of the 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. 

12.  Since filing this application, the applicant has submitted the following additional documents in support of her request.
 
a.  The associate professor, a retired JA colonel, writes that he was the 21st Theater Support Command SJA from July 1997 to July 1999.  He relates that when he was replaced by COL R____ in that position he was amazed that COL R____ seemed uninterested in the details of the management system that had been developed to track justice actions.   He also relates that he was one of  LTC W____’s instructors at the JA Basic Course and states that she is very bright, but that is her only positive attribute.  She was invited to attend his briefing of COL R____ on the tracking system but did not attend.  Having known COL R___ “very well from a prior assignment…he was not a strong leader who would stand up to LTC W____’s aggressive style."  He later learned that they had discarded the tracking system and as a result the applicant had inherited a mess. He had hoped that the applicant’s reassignment to the Regional Defense Counsel would succeed, but he later learned later that the Chief of the Trial Defense Service was disenchanted with the applicant’s performance which was attributed to the previous situation at the 21st Theater Support Command and not her performance as the Regional Defense Counsel.

b.  A 19 June 2006 letter from a JA lieutenant colonel supports the applicant’s request.  He writes that he was the Officer in Charge, Kleber Law Center, 21st Theater Support Command.   He relates instances in which the LTC W____ took actions to undermine the work and authority of the applicant and made disparaging comments about the applicant and he believes that she probably made the same kind of comments to the SJA as well as others. 

13.  The applicant’s rater, COL R____, received an OER for the period ending 
19 June 2001.  His senior rater, the commanding general, marked him “Best Qualified,” ranked him “Above Center of Mass” and wrote “Best performance of duty by any officer of any grade or branch I have witnessed in the last four years. Number 1 of the 32 Colonels I have rated as a general officer." 

DISCUSSION AND CONCLUSIONS:

1.  The applicant has attempted to make this case about LTC W____, the applicant’s immediate supervisor and COL R____, her rater.  While the applicant’s supporters question COL R____’s competence and credibility it is quite clear that his senior rater thought so highly of him that the applicant’s supporters are unconvincing. 

2.  Much as the applicant has attempted to make this case about LTC W____, it is not.  LTC W____ may well have exhibited all of the negative habits, traits and behaviors that the applicant’s supporters attribute to her.  However she was not in the applicant’s rating chain and COL R____’s OER clearly indicates he had the judgment, ability, and maturity to make up his own mind about the applicant’s performance.    

3.  The applicant had the responsibility to provide sufficient compelling evidence to the OSRB.  She cannot shift the responsibility to the staff of the OSRB by claiming that its investigation was inadequate.  

4.  The applicant has not shown that the contested OER contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.

5.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  It must be noted that it was not a relief for cause report, it was not referred to the applicant and it contains no derogatory or negative information.

6.  Even if the applicant is correct, and there is no substantiating evidence that she is, the fact that she corrected inaccuracies on the initial version of the subject OER is irrelevant.  

7.  While there may be some disparity between the senior rater’s Center of Mass rating and the words used to describe her performance and potential, the net effect it would seem, is that the verbiage would function to elevate or distinguish the applicant from her peers in the Center of Mass category. 
   
8.  In order to justify correction of a military record the applicant must show , or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  


jBOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__MJNT _  __JGH __  __DLL __  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 for correction of the records of the individual concerned.





__Marla J. N. Troup_____
          CHAIRPERSON




INDEX

CASE ID
AR20060008360
SUFFIX

RECON

DATE BOARDED
20070221
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
111.01
2.

3.

4.

5.

6.