IN THE CASE OF:	  

		BOARD DATE: 	        14 May 2009

		DOCKET NUMBER:  AR20090003885 


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 a DA Form 67-9 (Officer Evaluation Report (OER)) for the period 1 January 2005 through 21 October 2005 be transferred from the performance section to the restricted section on her Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that Part IVa (Performance Evaluation - Professionalism (Rater)/Army Values) on this OER is marked "No" for integrity and that Part VIIa (Senior Rater/Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) on this OER shows "Do Not Promote."  She contends these actions are not warranted.  She goes on to state that she left Iraq under emergency conditions/complications due to pregnancy and that she was unaware that she had improperly cleared the theater.  She points out that she deployed to Iraq on 1 December 2004 and redeployed on 1 July 2005 after becoming pregnant while on "R&R" [rest and recreation] in May [2005].  She indicates that she miscarried and returned to Iraq in August 2005 and redeployed with her unit in October 2005.  

3.  The applicant states that integrity was not an issue and that she thought she was doing the right actions.  After her pregnancy was confirmed she gathered the required documents for clearing and proceeded to Camp Doha (Kuwait) for final processing.  She was informed that her DA Form 31 (Request and Authority for Leave) was not properly completed and that the form needed a date in the "To" block instead of the entry "NA" [not applicable].  She changed the "NA" entry to 


15 July 2005 on this form.  She claims she contacted her company commander 
of the changes she made on the form via telephone and that she believed she could inform the administrative officer at Fort Hood that she did not wish to take leave but the leave form would cover her days of travel.        

4.  In a memorandum, dated 10 March 2009, the applicant states, in pertinent part, that on 18 May 2005 upon returning from R&R she took a pregnancy test with positive results and she immediately informed her chain of command and further in the statement she indicates that after returning from R&R on 9 June 2005 she found out that she was pregnant.  She states that after being given an official blood test she began the process of gathering the required documents for clearing, that her letter of release was signed by a colonel, and that she flew out of Kuwait on 1 July 2005.  She contends that while traveling through Iraq and Kuwait she was dealing with a situation that was not adequately addressed by the command.  She claims that when she flew to Camp Doha she presented her leave form in which the "From" block had the date 1 July 2005 and the "To" block had the entry "NA."  She was told that the entry "NA" could not be placed in that block and that a date needed to be entered.  She points out that is why she changed the "NA" to 15 July 2005 on the form.  She believed that she could inform the Fort Hood S-1 shop that she did not wish to take leave and the leave form would cover the days of travel.   

5.  The applicant goes on to state while processing for clearing at Camp Doha she became ill (cramping, bleeding, vomiting) and that she was informed that there would not be a Freedom Flight out until 20 July.  She claims a noncommissioned officer advised her to take a copy of her leave form to the R&R site to see if she could fly stand-by since she was returning for medical reasons.  Upon arrival at the R&R site she provided them a copy of her leave form which had the type of leave marked as "other" with the words "Redeploy to Home Station."  She stated that since she was flying home on an R&R flight that entry had to be changed on the form and she crossed out the words "Redeploy to Home Station"  and wrote "R&R" with her initials.  She later went back to the 44th Medical Command Liaison office to inform them she had a been given a seat on the 1 July R&R flight and the only response she was given was "OK."  She states that when she went home if she had known that any of her actions were incorrect she would have stopped and corrected them, that her paperwork went through three screenings, and that she believed the information was true.  She states that she had a miscarriage on 21 July 2005.     

6.  The applicant provides a memorandum, dated 10 March 2009, and nine enclosures outlined in the Index of Enclosures in support of her application.


CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the Regular Army in the rank of captain.     

2.  On 6 June 2005, the applicant requested 5 days of leave, to begin 1 July 2005.  Item 7 (Type of Leave) on her DA Form 31 shows an "X" in the "Other" block with the entry, "Redeploy to Home Station."  However, the entry "Redeploy to Home Station" is crossed out and the entry "R&R" was handwritten in its place.  Item 10b (To) on this form shows the entry "NA."  However, the entry "NA" was crossed out and the entry "15 JUL 05" was handwritten in its place.

3.  The applicant provided medical documentation which shows she had a positive pregnancy test on 7 July 2005. 

4.  The contested OER is a 7-month change of rater OER covering the period 
1 January 2005 through 21 October 2005 for duties as an Executive Officer with the 555th Forward Surgical Team in Iraq.  This OER was authenticated by the rater, the senior rater, and the applicant on 15 December 2005.     

5.  The contested OER reflects a "No" block in Part IVa.2. (Integrity) and the senior rater rated the applicant as "DO NOT PROMOTE" in Part VIIa.   

6.  The applicant  appealed the contested OER on 15 November 2007 to the Army Special Review Boards (ASRB) and requested that the OER be removed from her OMPF.  Her arguments were the same as provided in the application to this Board.  On 7 August 2008, the ASRB granted partial relief by modifying the OER by deleting an entry in Part Vb (Performance and Potential Evaluation (Rater)/Comment on Specific Aspects of the Performance and Potential for Promotion) and deleting an entry in Part VIIc (Senior Rater/Comment on Performance/Potential); and directed that all associated appeal documentation and any directly related investigations or inquiries relating to the evaluation report in question be removed from the applicant's OMPF.   

7.  A review of the applicant’s OMPF on the interactive Personnel Electronic Records Management System (iPERMS) revealed a copy of the OER in question.  

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the Military Personnel Records Jacket, the Career Management Individual File, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an OER will be filed in the performance section of the OMPF.
9.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, stated that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant would produce evidence that established clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 would not be applied to the report under consideration and (2) action was warranted to correct a material error, inaccuracy, or injustice.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the contested OER was prepared by the properly designated rating officials and is properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that it was improperly prepared or filed.  

2.  The applicant has not provided sufficient evidence to show the OER did not represent the considered opinion and the objective judgment of the rater and senior rater at the time of preparation.  In the event a selection choice comes down between two officers with an equal record of service, all information properly filed on an OMPF must be available to board members in order to equitably make their selection choice.  Given the above and the fact the OER was properly filed in her OMPF, it would not be equitable to transfer the OER from the performance section to the restricted section on her OMPF.
  
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.



      _______ _  X _______   ___
               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)                                         AR20090003885





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ABCMR Record of Proceedings (cont)                                         AR20090003885



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