IN THE CASE OF:	  

		BOARD DATE:	        09 DECEMBER 2008

		DOCKET NUMBER:  AR20080014949 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that her DA Form 67-9 (Officer Evaluation Report [OER]) for the period 2 December 2005 through 2 May 2006, which will simply be referred to as her OER throughout the remainder of these proceedings, be removed from her official military personnel file (OMPF) in its entirety.

2.  The applicant essentially states that the rating officials who prepared her OER had personal and professional bias against her because they did not approve of her recommendations as an Investigating Officer (IO) to the 49th Quartermaster Group commander regarding an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation.  She also states that her senior rater, then lieutenant colonel (LTC) S____ C______, told her that he would make sure she would never be promoted to major (MAJ).

3.  The applicant provides a news article which essentially shows that her senior rater on her OER was convicted by a Cumberland County, Pennsylvania, jury on or about 10 September 2008 of conspiring to try and foil a paternity test and other charges in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently a captain (CPT) serving in the Regular Army.  

2.  The applicant's OER shows that she was serving as the Group Chemical Officer for Headquarters and Headquarters Company, 49th Quartermaster Group, Fort Lee, Virginia, when she received a change of rater OER for the period 2 December 2005 through 2 May 2006.  Her rater for this OER was MAJ C____ B_____, and her senior rater was LTC S____ C______.  In Part IVa (Army Values) MAJ B_____ gave the applicant "No" check marks for honor, integrity, loyalty, respect, selfless service, and duty.  He also gave her "No" check marks in Part IVb (Leader Attributes/Skills/Actions) for mental and emotional attributes, conceptual, interpersonal, and tactical skills, and communicating, decision-making, motivating, executing, assessing, developing, building, and learning actions.  MAJ B_____ also checked the not applicable (NA) block in part IVd (Officer Development – Mandatory Yes or No Entry for Raters of CPTs, LTs, CW2, and WO1s) in response to whether or not developmental tasks and quarterly counselings were conducted.

3.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and Higher Potential for Promotion), MAJ B_____ checked the "Unsatisfactory Performance, Do Not Promote" box.  In Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion), MAJ B_____ made the following evaluation:

"[The applicant] is the worst officer I have worked with in 16 years of service.  During the rated period this officer repeatedly failed to follow orders.  She barely fulfilled her duty obligation during the rated period.  She compiled [Unit Status Report] data once a month, made two copies and submitted the data to garrison with minimal incident.  She does not possess the desire, will, initiative, and or discipline expected of someone of her rank, grade, or time in service.  [The applicant] is an alarmist.  Simple things that one would expect a prudent CPT to handle are blown out of proportion by this officer's inability to cope with normal stress.  [The applicant] does not adhere to the Army's publicly declared code of values.  [The applicant] is not loyal, as she was repeatedly heard speaking in a derogatory manner about the unit.  She is not respectful to her superiors, has often come in conflict with her peers and has been very curt and demeaning to those of subordinate rank.  Her poor people skills and her consistent negative behavior is prejudicial to the good order and discipline of this or any other unit.  [The applicant] possesses questionable integrity as well as places her priorities over the priorities of the Army.  This was evident by her manipulation of the leave process to extend her leave without obtaining proper approval from her rater or the Commander.  This officer hears, but fails to listen.  [The applicant's] judgment and logical reasoning skills were always in question.  She failed to assess, develop or build upon performance counselings from her rater.  She displayed an unwillingness to be a member of the team by disobeying orders, failing to learn from written counselings and displaying a negative attitude.  [The applicant] was given numerous opportunities to correct her pattern of misconduct, however she displayed poor judgment by failing to follow advice and directive guidance.  [The applicant] exhibits no potential for advancement, and should not be promoted or retained on active duty."

4.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the applicant's senior rater, LTC C______, checked the "Do Not Promote" box and also indicated that he senior rated 12 officers in the rank of CPT, and that the officer provided a completed DA Form 67-9-2 (Officer Evaluation Report Support Form).  In Part VIIc (Comment on Performance/ Potential), LTC C______ made the following evaluation:

"Concur with the Rater's comments.  [The applicant] is not a self-starter and requires constant supervision to complete all of her assigned tasks.  She has repeatedly demonstrated a negative demeanor amongst subordinates, peers and superiors alike.  Her professional performance and commitment to this organization is woefully lacking when compared to every other commissioned officer within the group.  Because of her unprofessional character, I would not put this person in any position of trust.  I do not consider [the applicant's] potential for further service to the Army to be positive.  I would not recommend her for any higher grade positions or military schooling."

5.  Information from the applicant's formal OER appeal, which was considered by the Officer Special Review Board (OSRB) on 7 August 2008 in Docket Number AR20080000381 is incorporated for reference.  This evidence shows that:

	a.  on 24 July 2006, the applicant requested a commander's inquiry into her evaluation, but that she did not provide the results of that inquiry to the OSRB;

	b.  her OER was referred to her on 7 September 2006 with a suspense date to provide comments by 14 September 2006, which was later changed to 
25 September 2006;

	c.  the applicant submitted a three-page self-authored rebuttal, dated 
5 September 2006, stating why she felt the OER was unsubstantiated and not reflective of her actual duty performance;

	d.  the applicant, MAJ B_____, and LTC C______ all signed the OER and dated it 20 September 2006;

	e.  the applicant provided a copy of an equal opportunity complaint made against MAJ B_____ by another officer.  This officer alleged MAJ B_____ 
sexually harassed her, threatened her with physical harm, and intimidated her. This officer also alleged MAJ B_____ had previously received a letter of concern 
from the group commander regarding his behavior which he had chosen to ignore.  This complaint was made on 31 July 2006.  The officer making the complaint also provided a third party statement of support for the applicant;

	f.  a subsequent Army Regulation 15-6 investigation into MAJ B_____'s conduct was conducted and completed on 21 August 2006.  The IO for this investigation found that MAJ B_____ should be reassigned and that he receive a letter of concern or formal counseling regarding his aggressive behavior towards the officer making the complaint and other personnel in his shop, for his behavior being contrary to good order and discipline, and for using vulgarity and making references to race or gender in the work place.  The recommendations of the IO were approved on 20 September 2006 and the rater was subsequently moved out of the unit.  It is important to note that the applicant's OER was signed by MAJ B_____ on the same day that the recommendations of the IO against him were approved;

	g.  the applicant submitted a copy of a Noncommissioned Officer Evaluation Report she had written for the S2 Noncommissioned Officer in Charge (NCOIC) where he was credited with a commendable rating on the security inspection.  The applicant was the security officer during the inspection;

	h.  the applicant also provided the results of the radiation survey in which only minor deficiencies were noted.  As the chemical officer for the group, this was also an area of her responsibility; and

	i.  the applicant provided five third-party statements which document MAJ B_____'s abusive behavior towards the applicant.  These statements also confirmed that the applicant was competent in her duties.  These statements were from fellow staff officers, company commanders, and the S2 NCOIC.

6.  The applicant essentially stated that the rating officials who prepared her OER had personal and professional bias against her because they did not approve of her recommendations as an IO to the 49th Quartermaster Group Commander regarding an Army Regulation 15-6 investigation.  She also stated that her senior rater, then LTC S____ C______, told her that he would make sure she would never be promoted to MAJ.

7.  The applicant provided a news article which essentially shows that her senior rater for her OER was subsequently tried and convicted by a Cumberland County, Pennsylvania, jury on or about 10 September 2008 of conspiring to try and foil a paternity test and other charges.  The senior rater's OMPF also revealed that he was retired on 31 July 2008 and that the narrative reason for his separation was "Unacceptable Conduct."
8.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, provided that that evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the applicant.

9.  Army Regulation 623-105 also provides, in pertinent part, that when the OSRB grants an appeal resulting in the removal or substantive alteration of an OER that was seen by one or more promotion boards that previously failed to select the applicant, the OSRB will make a determination whether promotion reconsideration by one or more special boards is justified.

10.  Army Regulation 623-105 further provides, in pertinent part, that OERs must be forwarded to reach Headquarters, Department of the Army (HQDA), not later than 90 days after the ending period of the report.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that her OER should be removed from her OMPF in its entirety.  

2.  The evidence of record shows that the IO recommended that MAJ B_____, whose personality was often loud, rude, obnoxious, and had contributed to the adverse relationship between him and a female officer other than the applicant, should be reassigned and that he receive a letter of concern or formal counseling regarding his aggressive behavior towards the officer making the complaint and other personnel in his shop, his behavior being contrary to good order and discipline, and for using vulgarity and making references to race or gender in the work place.

3.  It should also be noted that prior to this investigation, MAJ B_____ apparently was previously issued a letter of concern for essentially creating the same type of hostile work environment, and that during the latest investigation, which is acknowledged was both initiated and completed outside the rating period of the applicant's OER, clearly calls into question MAJ B_____'s ability to keep his emotions in check.  Additionally, the third-party statements from the applicant's peers and subordinates relate directly to an incident that occurred during the period covered in the applicant's OER which described MAJ B_____'s public outburst at the applicant prior to a briefing.  In a memorandum, dated 28 September 2006, a fellow CPT essentially described how MAJ B_____ yelled and screamed at the applicant in front of all the company commanders in the 49th Quartermaster Group and then stomped off yelling and what sounded like the hitting of the walls all the way back to his office.  This CPT also stated that in his 7 years of service, he had never witnessed an officer act in the manner that MAJ B_____ acted toward the applicant.  These comments were essentially echoed in other third-party statements provided by the applicant.  More importantly, the applicant's OER was signed by both MAJ B_____ and LTC C_____ on the same date that the IO's recommendations were approved against MAJ B_____, which was on 20 September 2006.

4.  By not signing the applicant's OER, which had an ending period of 2 May 2006, until 20 September 2006, the rating officials were clearly in contravention with Army Regulation 623-105 which stated OERs must be forwarded to reach HQDA not later than 90 days after the ending period of the report.  By delaying the completion of her OER until well after it was due to HQDA, as well as completing it on the same date that the IO's recommendations against MAJ B_____ were approved, this creates an undeniable impression that her OER was in retaliation for comments made not only to the IO, but also apparently in retaliation for her recommendations as an IO in a previous Army Regulation 15-6 investigation which the applicant stated that both MAJ B____ and LTC C______ disapproved of her recommendations.

5.  Additionally, LTC C______'s subsequent trial and conviction by a Cumberland County, Pennsylvania jury of conspiring to try and foil a paternity test and other charges, as well as his retirement due to "unacceptable conduct" clearly call into question his integrity and judgment.  While both LTC C______'s civil conviction and retirement occurred after the period covered in the applicant's OER, he was obviously involved in a paternity issue with a woman other than his wife regarding a 10-year old daughter they had together, which clearly shows that LTC C______'s integrity and ethics were questionable long before the period covered by the applicant's OER.

6.  Given the evidence provided by the applicant to the OSRB and in view of the evidence of impropriety of both MAJ B_____ and LTC C______ which calls into question their objectivity, integrity, and judgment, it would be in the interest of justice to correct the applicant's military records by removing the contested OER from her OMPF in its entirety and placing a non-prejudicial statement in its place.

7.  Additionally, as the removal of the applicant's OER is significant enough to justify promotion reconsideration if the OER in question was reviewed by a promotion selection board that failed to select her for promotion, she should be reconsidered for promotion after the OER is removed from her OMPF.

BOARD VOTE:

___X_____  ___X_____  __X______  GRANT FULL RELIEF 

________  ________  ________  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 relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by completely removing her DA Form 67-9 for the period 2 December 2005 through 2 May 2006 and any documents associated with this document from her military records, and that she be reconsidered for promotion if this OER was reviewed by a promotion selection board that failed to select her promotion.

2.  The Board wants to thank the applicant for the sacrifices she is making in service to the United States.



      _______XXX__________________
       	     CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20080014949



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ABCMR Record of Proceedings (cont)                                         AR20080014949



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