IN THE CASE OF:	  

		BOARD DATE:	       28 APRIL 2009

		DOCKET NUMBER:  AR20080019902 


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:

	a.  Removal of the referred officer evaluation report (OER) she received for the period 11 December 2004 through 22 May 2005 from her Official Military Personnel File (OMPF) and from the New York and California Army National Guard (NYARNG and CAARNG) personnel records;

	b.  Destruction and removal of any derogatory memorandums of record;

	c.  Correction of the Department of the Army Inspector General (DAIG) findings to show that her rater and senior rater (SR) showed extreme prejudice towards women;  

	d.  Removal of any and all unfounded derogatory comments and falsehood from the DAIG findings that were created after the rating period; 

	e.  Award of the Purple Heart, the Bronze Star Medal, and the Meritorious Service Medal (3rd Award);

	f.  Correction of promotion board standing, consideration for promotion and selection for the Army War College;

	g.  Removal of any and all false derogatory information from her DA Form 2-1 (Personnel Qualification Record), ARNG Personnel Qualification Record (PQR), and DA Form 4037 (Officer Record Brief (ORB)); and 
	h.  Correction of records to show reprisal and protection under the Whistleblower Protection Act.

2.  The applicant states the following:

	a.  The OER contains substantive inaccuracies, unfair bias, and technical regulatory violations, and did not properly describe how her battalion outperformed other battalions while under her command nor does it account for the many mitigating and contributory circumstances beyond her control; 

	b.  The DAIG findings were not based on fact and explicitly excluded interviews from individuals who observed the truth versus those very officers named in her complaint;

	c.  Her brigade commander, Colonel (COL) Bxxxx, and Division Commander, Major General (MG) Txxxxx, took retribution by bringing a new equal opportunity (EO) officer into the brigade with a clear mission to persuade Soldiers that the disparity existed because of her; 

	d.  Her brigade commander communicated his intent to get rid of her early on because she is a woman and he also made statements to others of this intent.  Furthermore, after her protected communication with the division commander where she presented proof of misbehavior, abuse of power, bias, inequitable resourcing of her battalion, and unfair treatment by the brigade commander, the division commander failed to assist her and provide her with Whistleblower protection status as requested and rather began extreme measures to ruin her;

	e.  She was deprived of the Purple Heart for a personal injury during a rocket attack, the Bronze Star Medal which was presented to another officer, and the Meritorious Service Medal that was already written and approved for her 26 years of service; 

	f.  She had been on top of promotion lists and advanced military education selections throughout her career; however, after the OER was placed in her records, she was forced to retire.  She was given the involuntary choice to separate without benefits or retire based on the Active Guard Reserve (AGR) continuation board.  

3.  The applicant submitted additional documentary evidence through counsel in support of her application.

4.  The supporting evidence is listed as exhibits on the "certification regarding exhibits included in Volume I/II/III" page in each volume.
COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the contested OER be removed from the applicant's records and replaced with an evaluation that correctly reflects her proven outstanding accomplishments as battalion commander.

2.  Counsel makes a statement in the form of an 84-page brief (enclosed). 

3.  Counsel provides three volumes of exhibits in support of the applicant's request as follows:

	a.  Volume I containing her previous OERs, certificates, awards, academic reports, miscellaneous orders, memorandums, various photographs, email exchanges, and equal opportunity complaint documents; 

	b.  Volume II containing several statements and declarations by various individuals, rosters, photographs, charts, slides, and email exchanges; and

	c.  Volume III containing statements and declarations, rosters, photographs, charts, and various requests for documents by her counsel.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  With prior enlisted service, the applicant’s records show she completed the 40-week Warrant Officer Rotary Wing Aviator Course in November 1983 and was subsequently appointed as a warrant officer one (WO1) in the U.S. Army Reserve (USAR) and executed an oath of office on 8 November 1983.  She completed various staff and leadership assignments and multiple periods of active duty service.  On 25 May 1988, she was honorably released from active duty in the rank of chief warrant officer two (CW2).

3.  On 26 May 1988, the applicant was appointed as an aviation second lieutenant in the USAR and executed an oath of office on the same date and entered extended active duty.  She again served in various staff and leadership positions, and completed multiple periods of active duty service.  On 29 September 1992, the applicant was honorably released from active duty in the rank of first lieutenant (1LT).

4.  On 1 January 1994, the applicant was appointed as an aviation 1LT in the CAARNG and executed an oath of office on the same date.  She again served in various command and staff positions and performed multiple periods of active duty service.  She was promoted to major (MAJ) on 22 July 1998 and lieutenant colonel (LTC) on 23 March 2004.

5.  On 11 September 2004, the applicant was ordered to active duty as a member of her ARNG unit in support of Operation Iraqi Freedom and subsequently served in Iraq from 11 December 2004 to 10 June 2005, as the battalion commander of the 1st Battalion, 140th Aviation Regiment.   She was honorably released from active duty to the control of her ARNG unit on 21 June 2005.

6.  Item 24 (Decorations, Medals, Badges, Citations, Campaign Ribbons Awarded or Authorized) of the DD Form 214 (Certificate of Release or Discharge from Active Duty) she was issued shows she was awarded the Meritorious Service Medal (2nd Award), the Army Commendation Medal (4th Award), the Amy Achievement Medal (4th Award), the Good Conduct Medal, the Iraq Campaign Medal, the National Defense Service Medal (2nd Award), the Armed Forces Expeditionary Medal, the Humanitarian Service Medal, the Army Service Ribbon, the Overseas Service Ribbon (2nd Award), the Armed Forces Reserve Medal with M-Device, the Master Army Aviator Badge, the Aircraft Crewman Badge, the Parachutist Badge, the Air Assault Badge, and the Global War on Terrorism Service Medal.  

7.  On 22 June 2005, the applicant was ordered to full-time National Guard duty in an AGR status and was assigned as a plans and operations officer.  She was honorably separated from the ARNG and transferred to the USAR Control Group (Retired Reserve) on 30 June 2006.

8.  The applicant's medical records are not available for review with this case.

9.  An email, dated 7 January 2008, from the Deputy Chief, Army Casualty and Mortuary Branch, Human Resources Command (HRC)-Alexandria, VA, indicated that there was no casualty report recorded for the applicant during her service in Iraq.
10.  Telephonic conversations on 7 and 8 January 2008 with the Deputy Chief of Staff, G1, 42nd Infantry Division, confirmed that there is no record of the applicant being recommended for and/or awarded the Bronze Star Medal and/or the Meritorious Service Medal.

11.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by medical personnel, and the medical treatment must have been made a matter of official record. 

12.  Army Regulation 600-8-22 provides, in pertinent part, that the Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.

13.  Army Regulation 600-8-22 provides, in pertinent part, that the Meritorious Service Medal is awarded to members of the Armed Forces of the United States or of a friendly foreign nation who distinguish themselves by outstanding meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.  Recommendations must be made within 2 years of the event or period of service and the award must be made within 3 years.  There are regulatory provisions for lost recommendations but not for late recommendations, reconsideration, nor for upgrading to a more prestigious award.  The regulation also provides that there is no automatic entitlement to an award upon departure either from an assignment or from the service.  

14.  Title 10 of the U.S. Code, section 1130 (10 USC 1130) provides the legal authority for consideration of proposals for decorations not previously submitted in a timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration (or the upgrading of a decoration), either for an individual or a unit, that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.


15.  During the month of May 2005, the applicant received a "Relief for Cause" OER which covered 5 months of rated time, from 11 December 2004 through 22 May 2005, for her duties as a battalion commander.  Her rater was COL Bxxxx and her SR was MG Txxxxx.  She was relieved by her rater.  The contested OER shows the following entries:

	a.  In Part IVa(4) (Army Values) the rater placed an "X" in the "No" block for "Loyalty"; 

	b.  In Part IVb(3) (Skills) the rater placed an "X" in the "No" block for "Interpersonal";

	c.  In Part IVb(3) (Actions) the rater placed an "X" in the "No" block for "Decision Making," "Motivating," and "Developing";
 
	d.  In Part Va (Evaluate the Rated Officer's Performance During the Rating Period and his/her Potential for Promotion) the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block; 

	e.  In Part Vb (Comments on Specific Aspects of Performance and Potential for Promotion) the rater entered the following comments: 

“During this deployment, I lost confidence in [Applicant’s] leadership and relieved her of command for failing to maintain an effective Operational Readiness (OR) rate, build a cohesive unit, foster an ethical climate, follow command directives and execute the commander's intent.  [Applicant] created discord within her battalion by consistently displaying lack of loyalty to the brigade and her own Soldiers.  [Applicant] blatantly disobeyed specific command directives, refusing to replace maintenance personnel when directed by the brigade commander.  Despite support from the brigade assistance teams on three separate occasions, the battalion was unable to effectively support OIF III OPTEMPO (Operation Iraqi Freedom, III, operational tempo).  Additionally, she prohibited most staff officers in her battalion from providing requested information to the brigade staff, demonstrating her inability to empower individuals to perform their assigned duties and lack of confidence in her Soldiers.  Aware of mental health issues involving Soldier well being and unit safety, [Applicant] failed to report this critical personnel information to the brigade. [Applicant] was counseled many times regarding her negative attitude and her battalion's failures to meet mission requirements.  [Applicant] neither corrected the deficiencies nor built on her units' successes (i.e. the first unit to conduct a night air assault, emergency CASEVACs (casualty evacuations), etc).  She chose not [to] recognize the accomplishments of her Soldiers:  to date, not one Soldier in her battalion has been recommended for an award.  [Applicant] damaged morale within her unit, as evidenced by sworn statements, command climate assessments, focus groups, and brigade equal opportunity interviews and observations.  This climate fostered distrust in her command and compromised her ability to lead.”

	f.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the SR placed an "X" in the "Other" block and an "X" in the "No" block indicating that a completed DA Form 67-8-1 (OER Support Form) was not received with this report and considered in (the SR) evaluation and review;

	g.  In Part VIIe (Comment on Performance and Potential) the SR entered the following comments:

“[Applicant] is a liability to her unit, the aviation brigade, and Task Force Liberty.  She lost the confidence of her commander due to her inability to follow orders and work within the Task Force.  The command climate within the 140th Aviation Battalion is deemed to be negative and the Soldiers have an overwhelming sense of unfairness, fear, and reprisal.  She failed to effectively communicate with her brigade commander to resolve issues, instead perpetuated problems and robbed the aviation battalion of energy that should be devoted to mission accomplishment.  She was resistant to following the brigade commander's instructions, arguing for her point of view to a fault.  She asked for my assistance but failed to execute my directive to find three positive things she could do to change the environment within her command.  I had previously counseled her on 5 March telling her to relax, stay positive, and not be defensive.  Instead, she elected to put her own needs before her mission and her unit. Do not retain this officer.”

16.  On 21 May 2005, by memorandum, the division commander formally notified the applicant of his intent to release her from active duty with a release from active duty (REFRAD) date of 27 May 2005.  He cited the specific reason for REFRAD as the applicant was no longer operationally required.  She acknowledged receipt of this memorandum on the same date and indicated that she did not concur.

17.  On 23 May 2005, by memorandum, the Chief, Reserve Components Personnel, Support Services Branch, HRC-Alexandria, VA, notified the applicant’s division commander that the request for the applicant’s early release from active duty was approved.  However, on 7 June 2005, by memorandum, that office rescinded the approved early release, and on 8 June 2005, he again revoked the rescinded approval.  The applicant was ultimately reassigned in an AGR status to Headquarters and Headquarters Company, 1st Battalion, 140th Aviation, CAARNG, Los Alamitos, CA.

18.  On 26 May 2005, while still at Camp Speicher, Iraq, the applicant filed an equal opportunity complaint.  She stated that she believed she was removed from command because of her gender.  She further alleged that the brigade consisted of certain hostile individuals who were not supportive of women in leadership positions due to the make-up of the brigade and the comments that were frequently made.  She alleged that she was not included in decisions as part of the chain of command and that she was not debriefed after sensing sessions, IG visits, and safety assistance visits.  She stated that her battalion was deprived of much needed aviation spare parts.  She also listed a number of female officers who had been removed from their duties and/or positions.  However, the results of this complaint are not available for review with this case.

19.  On 7 June 2005, as required by Army Regulation (AR) 623-105 (Officer Evaluation Reporting System), the contested OER was referred to the applicant for review and rebuttal.  She subsequently submitted a 10-page rebuttal to the contested OER on 19 June 2005.  Again, as required by AR 623-105, the division commander conducted a supplementary review using the regulation as the principal source of guidance and determined that the OER was complete and correct as written and required no further comments from him.

20.  The contested OER was processed at HRC-Alexandria, VA on 8 July 2005.  However, there is no indication that the applicant appealed this OER within the time frame authorized by AR 623-105.

21.  The applicant submitted a self-authored declaration as well as several statements and/or declarations from former members of her battalion as follows:

	a.  In her declaration, dated 23 February 2006, the applicant describes in detail what happened on the night of her relief from command and the days following that event, including not being given any time to pack her belongings or clear her hand-receipts at Camp Speicher, Iraq; being stranded at Balad, Iraq, and Camp Doha, Kuwait; not being allowed to seek legal advice in a timely manner or afforded the opportunity to use any active duty channels for redress; experiencing difficulties getting a flight out of country; and experiencing a feeling of fear, humiliation, and suspicion.

	b.  In a declaration, dated 7 February 2008, CPT Mxxx Sxxxxxxl states that she was the battalion S1 from November 2004 to January 2006.  She describes the applicant as an honorable, caring, loyal, and dedicated officer and opines that she (the applicant) was the victim of leaders who disliked women in command.  CPT Sxxxxxxl adds that the battalion experienced critical shortages in parts and facilities upon arrival in Iraq and that brigade leadership unevenly distributed resources among subordinate units.  She also adds that the brigade did not provide adequate support to the battalion and continuously provided conflicting guidance as well as attempted to undermine the applicant’s authority as a commander by tasking her subordinates without her knowledge.  CPT Sxxxxxxl concludes that the rendered OER is unjust in view of the battalion’s success in Iraq which was mainly attributed to the applicant’s leadership and support to the mission and Soldiers.

	c.  In a declaration, dated 15 October 2007, CPT Jxxxxxxr Hxxxxxxxxr states that she was the battalion S2 from January 2003 to May 2005 and interacted with the applicant daily.  She states that the battalion was placed in an undeveloped area that lacked basic life support facilities while sister battalions were placed in better locations and received more support from the brigade.  Yet, despite the adverse circumstances, the battalion performed well due to the applicant’s guidance and leadership.  She further opines that the applicant is a loyal, competent, disciplined, and professional Soldier and that some may have felt threatened by her strong leadership style.  

	d.  In a declaration, dated 13 October 2007, MAJ Kxxxxxxe Wxxxxr states that she was the battalion S4 before and during the battalion’s deployment to Iraq and that she interacted with the applicant daily.  She opines that the brigade leadership excluded the applicant from operations, intelligence, and logistics updates, which undermined her efforts as a battalion commander.  She further opines that the applicant is a loyal, concerned, and caring leader who always puts the welfare of others ahead of her own.  

	e.  In a declaration, dated 7 June 2007, Command Sergeant Major (CSM) Txxxxxy Lxxe states that he served as the battalion CSM but did not deploy with the battalion.  However, he has known the applicant as he was her former first sergeant (1SG).  The CSM opines that the applicant is a fair, knowledgeable, impartial, and a good overall leader, and that it was not easy for several members of the unit to accept a woman in the top position. 
 
	f.  In a statement, dated 28 June 2006, LTC Mxxk Vxx Dxxe, Operations and Training Officer, states that he was deployed during the same period as that of the applicant and opines that the 1st Battalion, 140th Aviation exceeded operational tempo and mission support requirements despite the battalion’s logistical issues, limited resources, and unfair tasking, which impacted morale and readiness.  He further opines that the battalion was pushed beyond reasonably capable sustainability of any aviation battalion given its resources.

	g.  In a statement, dated 1 April 2006, first lieutenant (1LT) Rxxxxxd Hxxxxxs states that he was a platoon leader in A Company during the period in question and that he noticed many positive qualities about the applicant such as empowering commanders and staff to exercise their responsibilities and holding them accountable.  She also created a junior officer development program and exuded trust among Soldiers.  The 1LT adds that he blames the applicant’s relief on the unwarranted political maneuvers among senior leaders and the logistical shortages.

	h.  In a declaration, dated 15 July 2007, retired chief warrant officer five (CW5) Hxxxxxd Wxxxxr states that he served as the battalion maintenance officer and aviation materiel officer during the unit’s mobilization and deployment. He opines that the battalion essentially suffered from aircraft parts shortages, maintenance support, time to prepare for forward movement, and once in country, lacked facilities, support, and overall infrastructure.  He further opines that the applicant is an extremely intelligent, faithful, and assertive, yet caring officer and leader who exemplifies everything a LTC should be.  He adds that the battalion’s success was due in large part to the applicant’s vision, guidance, efforts, determination, and perseverance. 

	i.  In a declaration, dated 15 June 2007, chief warrant officer three (CW3) Rxxxxxl Wxxxxxxxxxd states that he was the battalion safety officer during its service in Iraq and that he reported to and interacted with the applicant daily.  Based on his interaction, he states that she is a very intelligent, supportive, and caring leader, and that her leadership enabled the battalion to outperform other battalions despite the lack of resources and support.  

	j.  In a declaration, dated 4 May 2007, CW5 DxWxxxe Bxxxxxg states that he was the battalion aviation materiel officer and interacted with the applicant daily.  He states that the applicant’s “by the book” leadership style may not have been liked by some; yet, she was no different than any other commander given the urgency of the situation in Iraq.  He adds that the battalion lacked resources, infrastructure, and most importantly support from the brigade.  Yet, due to the applicant’s effective and determined leadership, the battalion was able to maintain effective operational readiness and even outperformed other battalions in flight hours.



22.  The applicant's OMPF is void of an IG investigation report.  Furthermore, a 13 January 2009 call, by a member of the Board’s staff, to the Office of the Inspector General, New York State Division of Military and Naval Affairs confirmed the State IG spreadsheet from 2004 to the present does not show or reflect any complaints by the applicant and/or report of investigation pertaining to the Whistleblower Protection Act.  On 22 January 2009, a second phone conversation with the Office of the Inspector General, New York State Division of Military and Naval Affairs confirmed that a search of all databases, spreadsheets, and logs failed to reveal any investigation was conducted with regard to the applicant's OER or her alleged violation of the Whistleblower Protection Act.

23.  The applicant's PQR and ORB are not available for review with this case.  Furthermore, the applicant's DA Form 2-1 does not reflect any derogatory information and/or entries pertaining to her relief or to the contested OER. 

24.  AR 623-105, in effect at the time, states that evaluation reports accepted for inclusion in the official record of an officer 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 appellant 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 appellant.

25.  The same regulation states that third party statements are statements from persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period, who refute faulting remarks on the evaluation report and who served in positions from which they could observe the appellant's performance and their interactions with rating officials are both useful and supportive.  These statements should be specific and not deal in general discussions of the appellant.  Additional weight is normally given to those statements where the authors occupied vantage points during the contested period that closely approximated those of the rating officials. 

26.  AR 623-105 states, in pertinent part, that the rated individual has considerable responsibility in the evaluation process and will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments and a final evaluation and should discuss the duty description and performance objectives with the rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  It notes that rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

27.  AR 623-105 states that the senior rater will use all reasonable means to become familiar with a rated Soldier's performance.  When practical, personal contact, records and reports, and the information provided on the rated Soldier on applicable support forms will be used. 

28.  Paragraph 3-50, AR 623-105 provides that a report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards.  

29.  AR 623-105 states that reports with negative remarks about the rated officer's values or leader attributes/skills/actions in a rating official's narrative evaluations, contain a rating of "no" in part IV, a rating of unsatisfactory performance in part V, or do not promote in part V or VII, or a comment to that effect by any rating official, or a report with any negative comments in any of the narrative portions of an evaluation report, will be referred to the rated officer by the senior rater for acknowledgement and comment before the report is forwarded to Department of the Army.  

30.  Paragraph 6-12 of AR 623-105 states that pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful.  Additionally, the regulation states that a personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation.

31.  Additionally, paragraph 2-16 states, in pertinent part, that all relief reports will be reviewed by the first U.S. Army officer in the chain-of-command who is senior to the individual directing the relief.

32.  The Military Whistleblower Protection Act, Title 10 U.S.C. 1034, as amended, prohibits interference with a military member’s right to make protected communications to members of Congress; Inspectors General; members of Department of Defense (DOD) audit, inspection, investigation or law enforcement organizations; and other persons or organizations (including the chain of command) designated by regulation or administrative procedures.   A protected communication is any lawful communication to a Member of Congress or an IG, as well as any communication made to a person or organization designated under competent regulations to receive such communications, which a member of the Armed Services reasonably believes reports a violation of law or regulation (including sexual harassment, unlawful discrimination, mismanagement, a gross waste of funds or other resources, abuse of authority, or a substantial or specific danger to public health or safety).

33.  DOD Directive 7050.6 updates the policy and responsibilities for military whistleblower protection under 10 U.S. Code, section 1034.  It states, in pertinent part, that it is DOD policy that members of the Armed Forces shall be free to make a protected communication and/or free from reprisal for making or preparing to make a protected communication.  It further states that no person may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing to make a protected communication.

34.  A complaint must be filed within 60 days after the date on which the member becomes aware of the personnel action that is the subject of the allegation.  Section 1034, Title 10 of U.S. Code, requires an expeditious investigation of all allegations of reprisal for whistleblowing submitted by military members.  No investigation is required when a member or former member of the Armed Forces submits a complaint of reprisal to an authorized IG more than 60 days after the date that the member became aware of the personnel action that is the subject of the allegation.  An authorized IG receiving a complaint of reprisal submitted more than 60 days after the member became aware of the personnel action at issue may, nevertheless, consider the complaint based on compelling reasons for the delay in submission or the strength of the evidence submitted.

DISCUSSION AND CONCLUSIONS:

1.  The decision to award an individual the Purple Heart is made by the commander having award approval authority after ensuring the individual meets the criteria for award of the Purple Heart.  In the absence of a completed, authenticated, and verified casualty report, or other evidence which clearly shows the applicant suffered a wound or injury as a result of hostile action, that she was treated for this wound or injury, and that her treatment was made a matter of official record, there is insufficient evidence to award the applicant the Purple Heart in this case.

2.  With respect to award of the Bronze Star Medal and the Meritorious Service Medal, the applicant's contention that she was deprived of the Bronze Star Medal and/or the Meritorious Service Medal is noted.  However, as with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required for award of the Bronze Star Medal and/or Meritorious Service Medal.  Therefore, there is insufficient evidence in this case to grant the applicant the requested awards.  Nevertheless, while the available evidence is insufficient for awarding the applicant the Bronze Star Medal and/or the Meritorious Service Medal, this in no way affects her right to pursue her claim for these awards by submitting a request through her Member of Congress under the provisions of 10 USC 1130.

3.  With respect to promotion and/or senior service school selection, there is no evidence in the available records and the applicant did not provide any evidence that indicate she was selected for promotion and/or senior service school.  The applicant's prior accelerated and/or below the zone promotion as well as being previously placed on top for advanced military education does not guarantee future promotions and/or selections for advanced schooling.

4.  With respect to the applicant's contentions, as well as those of her counsel, that the OER in question is inaccurate, unjust, biased, and just not objective was carefully considered; however, there is insufficient evidence to support her claim. The evidence the applicant and counsel submitted does not adequately support her basic contentions of inaccuracy, bias, injustice, and a lack of objectivity in the rating process.

	a.  By regulation, an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of an officer is presumed to, among other things, represent the considered opinions and objective judgment of the rating officials at the time of preparation.  In order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  The evidence submitted in support of an appeal must be clear and of a strong and compelling nature;

	b.  The declarations submitted in support of the applicant are highly supportive of the applicant.  It is apparent that these officers were in the proximity of the applicant's place of duty and had an opportunity to form their own opinion of her and her performance; however, there is insufficient evidence any of these individuals were in the rating chain and took part in any of the coaching/counseling or professional development sessions that were conducted by members of the rating chain and the applicant.  It is not evident that any of the authors were present when the division commander counseled the applicant and told her to relax, stay positive, and not be defensive.  Additionally, none of the statements were written by persons who occupied vantage points similar to those occupied by the rating officials; 

	c.  The statements submitted in support of the applicant were carefully written and described an individual whose performance was diametrically opposed to the evaluation and comments made by the rating chain.  The statements in support of her appeal describe her as a “great communicator”; but, her rating official stated that “she failed to effectively communicate with her brigade commander.”  The supportive statements describe her as "disciplined and loyal”; but, her rating officials state that “she was unable to follow orders.”  The statements in support of her appeal described her as “an individual who worked hard to ensure that her obligations to the unit and Soldiers were fully satisfied”; yet, again, her rating officials state that “not one Soldier in her battalion had been recommended for an award.”  Notwithstanding the authors' favorable opinions of the applicant, it appears that their observations were of the tactical type, limited geographically to their positions and immediate in time.  The rating officials, however, evaluated the applicant's overall performance and potential in an operational context that covered a much wider area and longer term.

	d.  The narratives provided by the chain of command are uniformly unfavorable.  She, according to the rater and senior rater, had been counseled.  Yet, she remained defensive.  Even when asked by her SR to find three positive things she could do to change the environment within her command, she was unable to do so.  She did not remedy the command climate even with assistance from outside sources.  This is contrary to the applicant's (and counsel's) contention that she was not provided any support.

	e.  While the applicant’s unit, like many other units in combat, may have experienced shortages of parts and adequate life support when initially deployed, presumably dictated by the tactical situation, it appears that she focused her battalion’s energy on questioning the shortages rather than the mission.  In effect, she not only failed to see or recognize that her battalion's mission essential task list (METL) must support and complement higher headquarters’ METL, she failed to translate that to her subordinates, some of whom submitted statements in support of her appeal, and focused their statements on the uneven distribution of resources.  




	f.  There is no credible evidence that the applicant was relieved because of her gender nor can her complaint to her SR regarding the perceived lack of support she received from her rater be properly considered as a protected communications.  It appears she did not make any arguably protected communications until after she was notified of the contemplated relief. 

5.  Based on the evidence in this case, the applicant has failed to prove by a preponderance of the evidence that the OER in question reflects an inherent bias against her by members of the rating chain or that their comments are a direct reflection of their bias, or are unjust, not objective, and inappropriate.

6.  In view of the facts of this case and notwithstanding the applicant’s claims to the contrary, it appears the evaluations contained on the contested OER represent the considered opinions and objective judgment of the rating officials.  As a result, it is concluded that the OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and to remove the contested report from the applicant's record.

7.  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 and counsel have failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  ___X_____  ___X_____  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.




      _______ _   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)                                         AR20080019902



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ABCMR Record of Proceedings (cont)                                         AR20080019902



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