IN THE CASE OF:	  
		BOARD DATE:	        11 JUNE 2009

		DOCKET NUMBER:  AR20090000793 


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 that her general discharge be upgraded to honorable and the reason and separation code be changed to reflect an honorable discharge.  She also requests that the unfavorable comments listed on her Officer Evaluation Reports (OERs) for the period 1 September 2002 through 
21 January 2003 and from 22 January 2003 through 20 January 2004 be replaced with more favorable comments and/or removed from her Official Military Personnel File (OMPF).  Additionally, she requests a grade determination and an adjustment of her rank, in effect, full relief.

2.  The applicant states, in effect, that she believe actions by her command were extreme and her removal from the captain's promotion list and subsequent discharge were unjust.  She believes she became a target for the chain of command after she reported members of her command who were engaging in illegal wire tapping of several federal agencies.  The applicant opines that acts by her command were based on reprisal. 

3.  In reference to the general discharge, the applicant maintains that the chain of command began to process her for elimination from the service once they realized she had made several protected communications with the Department of Defense Inspector General (IG), United States Secret Service, the Federal Bureau of Investigation (FBI) and several other agencies.  She offers that she communicated with these agencies after discovering that several members of her command engaged in illegal wire tapping.  She says that the wire tapping violated Title 18 of the United States Code (USC) and the United States Signal Intelligence Directive (USSID).  The applicant explains that USSID limits the collection of intelligence information on United States personnel.  

4.  The applicant states that she discovered her chain of command was intercepting, collecting, and storing private phone conversations and electronic mail on her and other people in the United States.  She maintains that in December 2003 she was contacted by the Fort Gordon, U. S. Army Criminal Investigation Command (USACIDC, also known as the CID) and she performed a taped interview.  The applicant insists that she cannot disclose the details of the interview, because she signed a disclosure agreement that prohibits the discussion of intelligence activities.  She adds that three weeks later she received her discharge orders.  She was diagnosed with a personality disorder, deemed unfit for duty, and incompetent 

5.  The applicant states that the Article 15 that the Army Discharge Review Board (ADRB) addressed in their denial of her request for an upgrade of her discharge was suspended by the court-martial convening authority due to extenuating/ mitigating circumstances.  

6.  In a memorandum written to the Deputy Commander, 116th Military Intelligence Group, dated 10 March 2003, the applicant acknowledged receipt of the Relief for Cause (RFC) OER that was referred to her for comment. The correct dates of this OER are 1 September 2002 through 21 February 2003. The applicant submitted the following comments:  She stated that she disagreed with the "No" blocks checked in integrity and loyalty and the rater's comments supporting those ratings.  The applicant explained that she had never discussed anything about J2 and/or J2 files with her rater other than when he was appointed as an investigating officer and conducted an Army Regulation (AR) 
15-6 investigation.  She maintained the files that were found in her possession were copies which traveled with her in her hasty move from the J2 office to the Group S-3 office.  She stated that she did not have time to sort through all of the paperwork and did not want to throw anything away.  She indicated that she had all types of files, to include Soldiers' counseling packets, intermixed with stacks of papers, placed in the files in her overhead storage bin.  The applicant argued that the rater's comment regarding her not having any J2 files was not true because she never said that she did not have any files.

7.  The applicant defined loyalty as it pertains to the OER and stated that she had not been a spy for foreign intelligence, aided the enemy during combat, and/or committed any actions which were prejudicial to good order and discipline.  She also maintained that the rater's comments concerning her work were inconsistent with being loyal.  The applicant offered that she was never counseled concerning disrespecting her rater.  She added that she received a "Yes" in the respect block which was inconsistent with the rater's comments.  Additionally, she stated that she was never counseled on any adverse actions or given the opportunity to correct her deficiencies.  She opined that if her superiors failed to take the time to mentor, coach and develop her and let her know that she was doing something wrong, then she would likely continue to do the same things.

8.  The applicant disagreed with the "No" blocks checked in interpersonal, emotional, and decision making and listed their definition as it pertained to the OER. The applicant stated that during her tenure as the Group S-3 Plans Officer she did not have any subordinates working directly for her and, therefore, she was responsible for completing all tasks.  She maintained that she would not have been successful with the agencies/sections she serviced, if she had not shown some degree of interpersonal skills.  She argued that if she had been unable to control herself emotionally, she would not have been considered a capable staff officer nor would she have provided quality staff work.  The applicant questions the "No" checked in decision-making and opined that the "Yes" checked in conceptual contradicts the "No" rating.  

9.  The applicant stated that some of the comments rendered by her rater and senior rater (SR) show that she did not fail in her performance of duty and support an "Outstanding Performance, Must Promote" and a "Best Qualified" rating instead of the "Do not Promote" ratings she received.  The applicant cites Army Regulation 623-105 (Evaluation Reporting System) as it pertains to a RFC evaluation report and maintains that she did not receive any documents from the relieving official explaining the reason for relief.  She also maintained that she was never asked any questions by the investigating officer or afforded the opportunity to address any questions, issues or concerns in her defense.

10.  The applicant's OMPF shows the applicant received an OER for the period 22 February 2003 through 20 January 2004, due to release from active duty (REFRAD).  In regards to the REFRAD report, the applicant states that her date of rank should be 1 August 2001 and the "No" in duty is incorrect.  Additionally, she states that the rater marked "Yes" in honor, integrity, respect, and selfless service and she points out the contradiction in those areas in regards to duty.  She argues that the "No" the rater rendered in emotional, conceptual, and decision making is incorrect and argues that the lack of either one of those attributes, skills, or actions, as defined on the OER, would have prohibited her from performing her job.  She maintains that these "No" ratings further contradict the "Yes" ratings she received in the other areas.  

11.  The applicant states the rater makes reference to her disrespect, lack of self-control, demonstrated poor judgment, and that she employed unsound judgment when she disobeyed a lawful order from a battalion commander and received an Article 15.  She maintains that all of the punishment was suspended due to extenuating and mitigating circumstances.  She adds that the mere fact the Article 15 is mentioned three times in her OER is double punishment.   

12.  The applicant provides a copy and a "draft" of the contested RFC OER; a copy and the front page of a "draft" of the REFRAD OER; five support statements; an IG Action Request; and two self-authored memoranda:  Comments to Initiation of Elimination Memorandum (6 August 2003), dated
10 September 2003, and Promotion Review Board Rebuttal Comments for the Referred OER, dated 17 November 2003. 

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.  The applicant's records show she was appointed into the United States Army Reserve (USAR) on 17 December 1999 and was entered active duty on 
11 February 2000.

3.  The applicant's record shows that she received a RFC OER for the period
1 September 2002 through 21 February 2003 while serving as the Group S-3 Plans Officer, Headquarters and Headquarters Detachment, 116th Military Intelligence (MI) Group, Fort Gordon, Georgia.  The applicant was rated by the Group S-3, a major, and senior rated by the Deputy Commander, a lieutenant colonel.  This is a 4 month referred OER with 2 enclosures.  The rater and SR signatures are dated 11 April 2003. 

4.  The "Yes" block is not checked in part IId to show the applicant provided comments to the referred OER and there are no comments attached to the contested OER in her OMPF.  In part IVa, "Army Values," the "No" blocks are checked in 2, "Integrity" and 4, "Loyalty."  In part IVb, "Leadership Attributes/Skills/Actions," the "No" blocks are checked in b.1.3., "Emotional – Displays self-control; calm under pressure,"  b.2.2, "Interpersonal – Shows skills with people:  coaching, teaching, counseling, motivating and empowering," and b.3.2., "Decision Making – Employs sound judgment, logical reasoning and uses resources wisely."  In part IVc, the applicant's height is listed as 63 inches and her weight is listed as 129 pounds.  The "Yes" block is checked in part IVd, "Were developmental tasks recorded on DA Form 67-9-1a and quarterly follow-up counseling’s conducted?"  

5.  In part V, the rater assessed the applicant’s performance and potential as "Unsatisfactory Performance, Do Not Promote" with the following comments:

“I recommended that [the applicant] be relieved by my 0-6 commander on 
16 January 2003.  This officer’s disobedience of orders, insubordination and disrespect of senior officers cause me to no longer be able to recommend her for command, promotion or retention in the United States Army.  After suspending her, I discovered that [the applicant] had displayed a lack of integrity, in that she had been dishonest with the command about retaining files and records from her previous job as the Assistant J2.  Although she told several members of the 16th MI Group and Gordon Regional Security Operations Center leadership that she had no J2 files in her possession, I discovered that she had about 1 linear foot of J2 files locked in her overhead storage bin.  [The applicant] lacks loyalty in that she has disobeyed me on several occasions. She has also deliberately disrespected me and other senior officers in front of soldiers.”

6.  The SR assessed the applicant’s promotion potential in part VII as "Do Not Promote" and stated that the "[Applicant] had been relieved for cause for insubordination, being disrespect towards a senior officer and for destruction of government property.  The RFC was directed by the Commander, 116th MI Group on 21 February 2003.  I have lost faith in this officer's ability to do as she is told.  I do not recommend this officer for promotion or command.  I do not recommend this officer for retention on active duty.  [Applicant] refused to sign this evaluation."  "Do not retain" is listed in part VIId, "List 3 future assignments for which this officer is best suited."  

7.  The enclosure to the contested report, dated 21 February 2003, stated that the Commander, 116th MI Group, directed that the applicant be removed from her duties as the Group S-3 on 21 January 2003 and directed her RFC on
21 February 2003.  He said that both senior officers advised him that the applicant's attitude and continual disrespect to senior officers must be addressed. He offered that he conducted an informal Commander's Inquiry (CI) and validated the charges of multiple counts of disrespect, destruction of government documents, and lying by the applicant.  

8.  On 11 June 2003, the major general in command of the United States Army Intelligence and Security Command, Fort Belvoir, Virginia, conducted a supplemental review of the applicant's contested OER.  He stated that the OER was complete and correct as written and required no further comments from him. On 14 June 2003, the applicant's OER and enclosures were added to the OMPF.

9.  The applicant submitted a "draft" copy of the RFC OER that differs from the copy contained in her OMPF in the following areas:  The period covered "from" date is listed as 23 January 2003; there are no enclosures listed in part 1k; the applicant signed the report; the rating official signatures are not dated; the rater's comments in part Va start with "This officer has provided quality staff work above the level I would normally expect for her experience and grade"; and the SR wrote "[Applicant] is a capable staff officer for her grade and time in service.  However, all the capabilities in the world cannot overcome the fact that she does not possess the interpersonal skills necessary for a commissioned officer.  [Applicant] is continually disrespectful to her immediate supervisor and other officers.  Despite our best efforts to educate this officer on the chain of command and the authorities we earn as we advance in rank she does not comprehend the fact that the Army runs on and is dependent on our ability to carry out orders, to respect our seniors, and to fulfill all the Army Values not the ones you choose for that day."

10.  The applicant's OER for the period 22 February 2003 through 20 January 2004 shows she received a REFRAD evaluation report while serving as the Detachment Executive Officer (XO), Headquarters and Headquarters Detachment, 116th MI Group, Fort Gordon Georgia.  The applicant was rated by the Detachment Commander, a captain, and senior rated by the Group Commander, a colonel.  This is a 10 month referred report.  The rater, SR, and applicant’s signatures are dated 15 January 2004.

11.  The "No" block is checked in part IId, indicating that the applicant did not provide comments to the referred report.  In part IVa, "Army Values," the "No" block is checked in 7, "duty."  In part IVb, "Leadership Attributes/Skills/Actions," the "No" blocks are checked in b.1.3., "Emotional – Displays self-control; calm under pressure,"  b.2.1., "Conceptual – Demonstrates sound judgment, critical/creative thinking, moral reasoning," and b.3.2., "Decision Making – Employs sound judgment, logical reasoning and uses resources wisely."





12.  In part V, the rater assessed the applicant’s performance and potential as "Unsatisfactory Performance, Do Not Promote" with the following comments:

In regards to Part IV:  a.7. showed disrespect when she disobeyed a lawful order from a Battalion Commander; b.1.3. displayed a lack of self-control when she disobeyed a lawful order from a Battalion Commander; b.2.1. demonstrated poor judgment when she disobeyed a lawful order from a Battalion Commander; b.3.2. employed unsound judgment when she disobeyed a lawful order from a Battalion Commander.  This was a very difficult rating period for [applicant].  During this period the Group Commander made a command determination to request elimination from the service for [applicant].  Consequently her security clearance was locally suspended which limited her ability to fully contribute to the unit’s mission.  She was also flagged, thus preventing her from receiving the professional development of the Captain’s Career Course.  In regards to Part Vb, [applicant] received a General Officer Article 15 for disobeying a lawful order from a Battalion Commander.  [Applicant] provided input to the weekly training meetings.  She coordinated with, and passed, Ft. Gordon NBC Defense School’s annual inspection.  She planned and coordinated an Officer Professional Development (OPD) on Army Separations.  She also planned and conducted an Officer PT Session and received accolades when she was the OIC of a M9 qualification range.  She assisted in the coordination, advertisement, and scheduling of the 2003-2004 GRSOC Commander’s Cup Competition. Finally, she revised the HHD SOP.  While she continued to make some contributions, the results were short of that expected of an officer of her rank and time in service. 

13.  Part VII shows that the SR was not qualified to rate the applicant.

14.  The applicant submitted a front page "draft" copy of the REFRAD report that differs from the copy contained in her OMPF in the following areas:  The applicant's date of rank is listed as 17 December 1999; period covered "from" date is listed as 24 January 2003; the "Yes" block is checked indicating that comments are attached; and signatures are dated 12 January 2004.

15.  The applicant submitted a copy of the final IG action report, dated 
19 November 2001, concerning alleged fraternization, harassment and sexual misconduct within the 513th MI Brigade.  This report shows that 4 out of 12 allegations that the applicant lodged against members of her unit were substantiated.  The allegations concerning her previous supervisor making inappropriate comments towards her and harassing phone calls were substantiated.  The allegation that the first sergeant (1SG) was disrespectful to her (urination incident) was substantiated.  The allegation that the Battalion XO from October 2000 through April 2001 failed to act on her complaints was substantiated by the AR 15-6 investigating officer, but disapproved by the
AR 15-6 appointing officer.

16.  On 10 September 2003, the applicant provided her comments to a memorandum subject:  "Initiation of Elimination," dated 6 August 2003.  She provided a 12-page chronological list of events that occurred from 24 April 2001 through 16 January 2003 in an effort to discount the information contained on the elimination memorandum concerning her "failure to conform to prescribed standards of dress, personal appearance or military deportment, and defective attitude."  She recalled an incident in which she constantly received harassing phone calls from her previous supervisor, a captain.  She explained that she was given a direct order by her XO not to discuss any events that took place in Headquarters and Headquarters Company (HHC).  The applicant said her previous supervisor approached her to discuss the events that took place, but she refused to talk to him and she informed him of the XO's directive. 

17.  She continued by relating an incident that occurred, on 20 June 2001, when she was counseled for failing to render the proper greeting of the day.  She insisted that neither her counselor nor other members of the company were aware of the greeting of the day.  The applicant denies referring to a senior noncommissioned officer (NCO) as a "dirt bag, dud, stupid, and useless" and explained the problems she encountered with the NCO in regards to following her orders.  The applicant said she counseled the NCO on numerous occasions, but continued to have problems with him.  She felt that her authority with the NCO was being undermined and requested to be reassigned outside of J2.  She said that she was not reassigned until a confrontation occurred between her and a civilian in the J2.  

18.  On 3 April 2002, the applicant stated that she was given permission to retrieve her documents from her computer in the J2.  She added that she was escorted to the office, but the computer was down when she tried to log on.  The applicant also cited an incident that occurred on 11 December 2002, at Letnier Lake Lodge when she did not rise while talking to a major. She maintained that she witnessed several officers failing to rise to the position of attention when addressing senior officers. 

19.  On 15 January 2003, the applicant said she was contacted by the 116th Group Commander's NCO concerning her rater's (on the RFC OER) whereabouts.  She said that after locating her rater she contacted the NCO to inform the group commander that she had located the rater at his home.  The applicant stated that the rater was not in a good mood when he finally showed up to work and insinuated that he took his foul mood out on her.  She stated that she had been the sole carrier of the significant activity and situation report for the past several months without intervention from the rater.  However, during that particular time the rater refused to allow the applicant control of the reports stating that she was not a primary staff officer.  She said she repeated her rater's comments to the group commander.

20.  Additionally, the applicant stated that her height should be listed as 
63 inches and her weight should be listed as132 pounds on the RFC OER.  She added that this information was verified immediately after the Army Physical Fitness Test (APFT).  She also stated that no developmental tasks were recorded on the DA Form 67-9-1a and she was only counseled once by her rater. Therefore, the "No" block should be checked in part IVd.  The applicant continued by responding to information contained in the elimination memorandum and questioning the CI.   

21.  On 17 November 2003, the applicant provided her rebuttal comments to the Promotion Review Board (PRB) concerning the unofficial copy of the RFC referred OER for the period 1 September 2002 through 23 January 2003.  The applicant stated that she did not believe she should have been removed from the 2003 Captain's Promotion List.  She said her command made allegations within the referred OER that had no merit and was not substantiated.  The applicant added that she and her counsel drafted and submitted comments to the SR on the RFC OER, on 10 March 2003.  She offered that the comments on the later version of the report had been adjusted to convey a more negative view which is contrary to the regulation.

22.  The applicant said, to her knowledge there was never any type of investigation conducted, she was never asked any type of questions about alleged wrongdoings, disrespectfulness, or misconduct.  She maintained that it was never proven that she was previously physically, mentally, morally, or professionally unqualified for promotion at any time.  The applicant offered that her chain of command illegally and unjustly flagged her, thus preventing her promotion to captain, her permanent change of station, and attendance at the MI Captains Career Course.  The applicant concluded that she considered the chain of command's actions an act of reprisal that was initiated in an effort to prevent and/or deter her from redressing her grievances through appropriate channels.

23.  The five supporting statements by subordinates speak highly of the applicant's accessibility, concern, and willingness to assist Soldiers with any problems they may encounter.  


24.  The applicant's DD Form 214 shows that she was discharged, on 20 January 2004, under the provisions of Army Regulation 600-8-24, paragraph 4-2b, due to unacceptable conduct, with service characterized as under honorable conditions. Her separation code is listed as "JNC."  The applicant had 3 years, 11 months, and 10 days of total active service.

25.  The applicant's previous OERs for the period 6 August 2001 through 
28 March 2002 and from 29 March 2002 through 31 August 2002 list her height as 62 inches.  Additionally, her medical examination dated 10 July 1998 shows her height as 62 inches.

26.  The applicant's records show her date of rank to first lieutenant (1LT) as 
1 August 2001. 

27.  On 30 November 2007, the applicant appealed to the ADRB to upgrade her discharge.  The ADRB noted that, on 24 July 2003, the applicant received an Article 15 from a general officer for disobeying a lawful command.  The applicant's punishment consisted of a forfeiture of $1,740.60 per month for
2 months ($1,500.00 suspended).  

28.  The ADRB also noted that, on 6 August 2003, the applicant was notified of elimination proceedings under the provisions of chapter 4, Army Regulation
600-8-24, paragraph 4-2 and 4-20 for reasons of substandard performance of duty, moral and professional dereliction, and misconduct.  The applicant was directed to show cause for retention on active duty and advised that she could submit a voluntary resignation in lieu of elimination.  The applicant elected to resign from the Army under the provisions of Army Regulation 600-8-24,
chapter 4, in lieu of further elimination proceedings. 

29.  On 22 October 2003, the Commander, USA Intelligence and Security Command, Fort Belvoir, Virginia recommended the applicant be eliminated from service under the provisions of chapter 4, Army Regulation 600-8-24 and issued a general discharge, under honorable conditions.  On 19 December 2003, the Deputy Assistant Secretary (Army Review Boards) approved the recommendation of the Army Ad Hoc Review Board and directed that the applicant be separated from the Army with a characterization of service of general, under honorable conditions.

30.  The applicant's records do not contain a copy of the Article 15, elimination proceedings, or her request for resignation and she did not provide any copies of these documents with her application.  The ADRB acknowledged that the applicant's elimination proceedings were not part of the available record and therefore, regularity was presumed.  On 28 October 2003, the ADRB denied the applicant's request for an upgrade of her discharge citing that the board determined she was properly and equitably discharged.  Accordingly, her request was denied. 

31.  Army Regulation 600-8-24 (Officer Transfers and Discharges) sets forth the basic authority for officer transfers from active duty to the Reserve Component (RC) and discharge functions for all officers on active duty for 30 days or more. Chapter 4, paragraph 2b outlines the policy and procedure for eliminating an officer from the active Army for substandard performance of duty, misconduct, moral or professional dereliction or in the interests of national security.

32.  The regulation further states that an officer approved for involuntary separation by the Secretary of the Army or his designee for misconduct, moral, or professional dereliction, or in the interest of national security will be separated no earlier than 5 calendar days and not later than 14 calendar days after the officer receives written notification.

33.  Army Regulation 600-8-24, paragraph 1-22 states that when an officer's tour of active duty is terminated due to discharge, retirement, or REFRAD, the period of service will be characterized as " Honorable," "General" ("Under Honorable Conditions"), "Under Other Than Honorable," or "Dishonorable" (warrant officers who do not hold a commission only), depending on the circumstances.  The character of service will be predicated on the officer's behavior and performance while a member of the Army.  Characterization normally will be based on a pattern of behavior and duty performance rather than an isolated incident. However, there are circumstances in which conduct reflected by a single incident may provide the basis of characterization of service.

34.  Army Regulation 600-8-24 states, in pertinent part, that an officer will normally receive an Honorable characterization of service when the quality of the officer's service has met the standards of acceptable conduct and performance of duty and a DD Form 256A (Honorable Discharge Certificate) will be furnished to a discharged officer.  When the separation is based solely on preservice activities, substandard performance of duty, or final revocation of a security clearance under DOD 5200.2-R and Army Regulation 380-67 for reasons that do not involve acts of misconduct, it will be Honorable.

35.  Army Regulation 600-8-24 also states that an officer will normally receive an Under Honorable Conditions characterization of service when the officer's military record is satisfactory but not sufficiently meritorious to warrant an Honorable discharge.  A separation under honorable conditions will normally be appropriate when an officer submits an unqualified resignation or a request for REFRAD under circumstances involving misconduct and/or is separated based on misconduct, including misconduct for which punishment was imposed, which renders the officer unsuitable for further service, unless an Under Other Than Honorable Conditions separation is appropriate.

36.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) specifies SPD code "JNC" as the applicable code used for officer personnel separating for unacceptable conduct.

37.  Army Regulation 623-105 (Evaluation Reporting System) 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 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.

38.  Army Regulation 623-105, paragraph 3-32 states, in pertinent part, that any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the SR for acknowledgment and comment before being forwarded to the Department of the Army.

39.  Additionally, the regulation states that the rated Soldier may comment if he believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER.  Rating officials may not rebut rated Soldier's referral comments.  Extraneous or voluminous material, material already contained in the Soldier's file and enclosures or attachments are not normally in the rated Soldier's best interest and therefore, will be avoided. 

40.  Army Regulation 623-105, paragraph 3-50, states 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.  


41.  Additionally, when an officer is officially relieved of duties and a RFC OER is subsequently prepared, the RFC report requires referral to the rated officer.  If the relief was directed by the SR or someone above the SR in the chain of command or supervision, the report will be reviewed by the first U.S. Army officer in the chain of command above the individual directing the relief.  His or her comments will be prepared as an enclosure to the OER.  

42.  The same regulation states that the rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight data; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  In the event the rated Soldier is not available or refuses to sign, SRs will provide an explanation in their narrative or bullet comments.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the SR will ensure the rated Soldier has an opportunity to see the evaluation.

43.  Army Regulation 623-105 also states 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.

44.  Paragraph 5-15, of the same regulation states that raters of CPTs, LTs, CW2s, and WO1s will ensure a DA Form 67-9-1a is initiated at the initial face-to-face counseling.  The initial developmental tasks will be established and recorded. The rater will obtain the SR's approval and initials. The developmental support form (DSF) will then be used as a working tool throughout the remainder of the rating period.

45.  The same regulation states that third party statements are 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 applicant'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 applicant.  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. 

46.  Army Regulation 623-105 states, in effect, that the primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A Commander's Inquiry will not be used to document differences of opinion among members of the rating chain about a rated Soldier's performance and potential.  Rating official will evaluate a rated individual and their opinions constitute the organization's view of that Soldier.  However, the commander may determine through inquiry that the report has serious irregularities or errors, inaccurate or untrue statements, or lacks objectivity or fairness by rating officials.  

47.  Army Regulation 600-8-29 (Officer Promotions) states, in pertinent part that  an officer's promotion is automatically delayed (that is, the officer is not promoted in spite of the publication of promotion orders) when the officer is the recipient of a referred Academic Evaluation Report (AER), a referred OER, or a Memorandum of Reprimand (directed for filing in the OMPF before the date he or she would otherwise have been promoted) which was not considered by the board that selected him or her for promotion.

48.  Army Regulation 600-8-29 further provides that PRB’s are used to advise the Secretary of the Army in any case in which there is cause to believe that a commissioned or warrant officer on a promotion list is mentally, physically, morally, or professionally unqualified or unsuited to perform the duties of the grade for which he or she was selected for promotion.  An officer, in a grade above second lieutenant, is considered to be on a promotion list when the officer's name appears on a report of a promotion selection board which has been approved by the President or his authorized designee.

49.  An officer may be referred to a PRB, in pertinent part, for a referred OER or punishment under Article 15, whether filed in the restricted or performance fiche of the OMPF. Before the PRB convenes, the officer under review will be informed, by memorandum, of the reason for the action and provided a copy of any information that will be considered by the board.  The officer will be afforded a reasonable opportunity to submit comments on that information to the PRB and the officials reviewing the recommendation.




50.  The DOD Directive Number 7050.6, dated 23 June 2000, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  This directive was reissued on 23 July 2007.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces 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 a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.

51.  Army Regulation 20-1 provides, in pertinent part, that anyone has the right to register complaints orally or in writing with an Army IG concerning matters of Department of the Army interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that her general discharge be upgraded to honorable and the reason and separation code be changed to reflect an honorable discharge.  There is no evidence and the applicant has failed to provide any to show that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant an upgrade.  

2.  The available evidence confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The applicant's resignation from the Army under the provision of chapter 4, Army Regulation 600-8-24, in lieu of further elimination proceedings was voluntary, administratively correct and in compliance with applicable regulations. 

3.  The following comments are made concerning the applicant’s RFC OER, dated 1 September 2002 through 21 February 2003:

	a.  The applicant states she was never counseled concerning any adverse actions or given the opportunity to correct her deficiencies.  She maintains that her superiors did not take the time to mentor, coach, and develop her and let her know when her performance was unacceptable.  She also states that developmental tasks were not recorded on the DA Form 67-9-1a and the "No" block instead of the "Yes" should be checked in part IVd. 

   b.  It is noted that the applicant was an Army first lieutenant with over 3 years of active duty service on the captain's promotion list at the time the RFC OER was rendered.  Therefore, she should have been intimately familiar with the evaluation report process and the need for her to be actively involved in that process.  When the applicant’s rater failed to complete counseling, or provide feedback to her regarding her duty performance, it was her responsibility to seek counseling and feedback.  One cannot argue after the fact that the rater failed in his responsibilities, when the applicant took no active role in her own evaluation process.

	c.  The applicant disagrees with the "No" blocks checked in integrity and loyalty and the rater's comments supporting those ratings.  She maintains that the "Yes" ratings she received in other areas of Army Values on the OER discount and/or contradict the "No" ratings.  She also uses this same logic to discount the "No" ratings received in emotional, interpersonal, and decision-making.  

   d.  The fact that the OER report allows “Yes” and “No” entries in Army Values as well as in Leadership Attributes/Skills/Actions is an indication that the applicant's logic is flawed.  Nevertheless, the applicant has provided no evidence to counter the ratings and the comments rendered by her rating officials.  The applicant's self-authored statements do not substantiate any evidence sufficiently compelling to overcome the presumption of regularity as specified in paragraph 36 of this document.
   
	e.  The applicant also maintains that on 10 March 2003, she and her counsel drafted rebuttal comments to the unofficial RFC OER and submitted the comments to her SR.  She added that the comments on the later version of the OER had been adjusted to convey a more negative report.  

   f.  There is no evidence that the rebuttal comments were seen by the SR since the comments are not attached and posted with the contested report.  The  "Yes" block indicating that comments are attached is not checked.  Additionally, there is no evidence to show the applicant's OER was worse after the submission of her rebuttal comments.  By her own admission, the OER she reviewed was an unofficial copy.  An unofficial copy is merely a working copy of the evaluation report until the OER becomes final and a part of her OMPF.  The fact that the unofficial report differs from the contested OER is not sufficient justification to correct the contested OER.

4.  The following comments are made concerning the applicant’s REFRAD OER, dated 22 February 2003 through 20 January 2004.

	a.  The available evidence shows the applicant's date of rank is 1 August 2001 and not 11 August 2001.  Therefore, her date of rank will be corrected to
1 August 2001.

	b.  The applicant maintains that her height should be listed as 63 inches and her weight should be 132 pounds based on her APFT.  However, she failed to provide a copy of her APFT scorecard to support her claim.  Additionally, the applicant's records show that her height has been consistently recorded as 
62 inches.

	c.  The applicant argues that "No" checked in duty, emotional, conceptual, and decision making is incorrect.  She states that the rater marked "Yes" in honor, integrity, respect, and selfless-service which contradicts those areas in regards to duty.  She argues that the lack of emotional, conceptual, and decision making, as defined on the OER, would have prohibited her from performing her job. 

   d.  The available evidence shows the applicant was afforded the opportunity to voice her concerns via comments to the referred OER or even to seek redress via a Commander's Inquiry, but chose not to use those avenues.  She has failed to provide any evidence to discount the ratings and the comments rendered by her rating officials.  There is no evidence nor has the applicant provided any to show that the contested report was unfair or unjust, or that the comments and ratings listed on the report were not consistent with her performance of duty during the rating period.

5.  The applicant requests a grade determination and an adjustment of her rank to show that she was granted full relief.  Her primary argument stems from her belief that the RFC OER, negative comments and ratings were the retaliatory results of her protected communication with numerous agencies concerning members of the chain of commands involvement in illegal wire tapping activities. However, she has failed to provide evidence to substantiate her claim and the evidence she has provided is not sufficiently clear and compelling to confirm that the RFC OER, subsequent removal from the captain's promotion list and elimination were based on retaliation. 

6.  The available evidence shows the applicant was afforded due process.  On
17 November 2007, she submitted her comments to the PRB requesting that the board retain her on the promotion list.  There is no evidence and the applicant has not provided any to show she was removed from the promotion list unjustly or in error.  In view of these facts, there is no reason to grant the applicant's request.

7.  The Board supports the DoD policy of unrestricted communication with Members of Congress and Inspector General offices, as well as the protection from reprisal against those who make or prepare to make such communications. When such reprisals occur, they constitute an injustice.  Although the applicant implies that she was the victim of reprisal based on her protected communications, there is no credible evidence that the applicant's adverse OERs, removal from the promotion list, and discharge were erroneous, nor is there any evidence that the command's actions were based on reprisal for protected communications under the Whistleblower Protection Act.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x_____  _____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by changing the individual's REFRAD OER, for the period 22 February 2003 through
20 January 2004, in part Id to show her date of rank as “2001 08 01” (1 August 2001).

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to the following:  upgrading the individual's general discharge to an honorable discharge and changing the reason and separation code; removal and/or replacement of the unfavorable comments listed on the individual's OERs, dated 1 September 2002 through      21 February 2003 and 22 February 2003 through 20 January 2004; and a grade determination and an adjustment of her rank.




      _______ _   _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)                                         AR20090000793



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ABCMR Record of Proceedings (cont)                                         AR20090000793



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