IN THE CASE OF:	

		BOARD DATE:	6 October 2009 

		DOCKET NUMBER:  AR20090007917 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 15 July 2004 through 16 April 2005 (hereafter referred to as the contested OER) be completely removed from her records.  

2.  The applicant states that the contested OER contains substantive inaccuracies.  She adds that she was not relieved; she requested to be detailed out of her section due to a hostile work environment.  She also adds that she was never counseled verbally or in writing for the perception of an improper relationship and that she was never charged with any wrongdoing.  She concludes that she would have adjusted her actions if she had known she was creating a negative perception.

3.  The applicant provides a copy of the contested OER; a copy of a memorandum, dated 19 August 2005, to her senior rater; and a copy of Memorandum for Record (MFR), dated 6 March 2009, authored by her rater, in support of her request. 

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 as a Quartermaster (QM) second lieutenant in the U.S. Army Reserve (USAR) and executed an oath of office on 12 May 1989.  She subsequently entered active duty on 4 July 1989, completed several military training courses, served in various staff and/or leadership positions, and was promoted to first lieutenant (1LT).  She was honorably discharged on 15 April 1992.

3.  The applicant’s records further show she was appointed as a QM 1LT in the USAR and executed an oath of office on 14 July 1992.  She again served in various staff and/or leadership positions and was promoted through the officer ranks to major on 19 June 2002.  She was assigned to the 99th Regional Readiness Command, Coraopolis, PA.  

4.  During the month of April 2005, the applicant received the contested OER, a "Relief for Cause" OER which covered 9 months of rated time, from 15 July 2004 through 16 April 2005, while serving as a plans and operations officer.  Her rater was a GS-13 and her senior rater a colonel (COL).  The contested OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Character-Army Values) the rater placed an "X" in the "No" block for "Integrity";

	b.  In Part IVb (Performance Evaluation-Character-Leader Attributes) the rater placed an "X" in the "No" block for "Conceptual";

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Satisfactory Performance-Promote" block and entered the following remarks in Part Vb:

“[Applicant’s] performance of duty has been characterized by motivation and dedication to mission accomplishment.  She represents the G4 in Command Readiness meetings updating staff on mobilizing unit’s current status.  She regularly visits the Operations Center for timely updated information on problems and concerns that require G4 attention for proper staffing for correction.  [Applicant] oversees the G4 portion of Unit Status Reports (USRs) submitted quarterly by all units for correct date and immediate corrections as required.  She reviews the fix-it plans for units preparing for mobilization to identify problem areas for resolution including follow-up to closure.  Due to the loss of personnel, she was tasked with additional duties as Billing Official for G4 IMPAC card holders and also reviewing and approving if justified requests for orders to support Soldiers from Mob/Demob units.  She worked with the G4 staff on unit activation and deactivations to ensure that equipment was distributed for the maximum improvement in unit readiness.  She reviews the constantly changing logistical guidance to distribute to staff highlighting major changes to prevent confusion and ensure everyone is informed including TPU personnel.  [Applicant] consistently assured that the G4 portion of the command slides and battle books are correct before the monthly battle assembly.  [Applicant] maintains a constant 300 plus score on all APFTs setting the example that all soldiers should pursue.  [Applicant] was relieved of her duty for failure to comply with professional officer standards when she entered into an improper relationship with a subordinate junior enlisted officer.”

	d.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Best Qualified" block, indicated that he senior rated 6 officers in this grade, placed another "X" in the "Yes" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review, and entered the following remarks in Part VIIc (Comment on Performance/Potential):

“[Applicant’s] daily duty performance and technical knowledge have always been better than her peers.  She is a team player with total dedication to mission completion and has added to the mission success of the 99th RRC in support of Operation Noble Eagle and Iraqi Freedom. Her consistent pursuit of logistical readiness resulted in no logistical failures at the mobilization station.  [Applicant] continues to demonstrate potential for continued service in the Army and I would recommend her for assignments with increased responsibility.  [Applicant’s] relationship with a subordinate cloud what is otherwise an outstanding career.  Her potential for promotion in the Army remains above the average soldier and should be given careful consideration to assure she is not lost because of this one incident.  I would be proud to serve with [applicant] in the future."

5.  The contested OER was signed by her rater and senior rater on 11 and 18 July 2005 respectively.  It was marked as a referred report and indicates that comments from the applicant were attached.  Additionally, prior to signing the OER on 30 August 2005, the contested OER was referred to the applicant for acknowledgement and/or comments.  She subsequently acknowledged receipt and submitted a statement on her own behalf.  In her statement, dated 19 August 2005, the applicant described her duties during the rating period, chronicled some of her accomplishments and/or achievements, described some of the highlights of her job, and described some of the personal difficulties she was having in the unit because of her gender.  She also admitted that she made some mistakes but did not specifically state what the mistakes were, that she had used poor judgment, and that at times, she was singled out for her personal life/dating habits.  She further added that she was unfairly treated by her rater and another officer throughout the incident and she believed that a verbal counseling would have been sufficient to alert her that she was creating a negative impression and concludes with an apology for the impact the incident had on her section.

6.  The contested OER with the applicant’s comments were processed at HRC-St. Louis, MO, on 19 September 2005. 

7.  The applicant submitted an MFR, dated 6 March 2009, authored by the officer who rated her during the period of the contested OER.  He states that he had not experienced a similar situation before and that he consulted with another officer, the Deputy G4, as well as the governing Army regulation and noticed that a "relief for cause" OER was an option available to him.  After giving several statements during an Army Regulation (AR) 15-6 investigation, he decided to proceed with a “relief for cause” OER.  He adds that he was notified by the Deputy G4 that the applicant had been involved in an improper relationship twice in 2 days at the time and that this triggered an AR 15-6 investigation which took several months to complete.  Nevertheless, he (the rater) completed the OER based on one incident prior to receiving the results of the AR 15-6 investigation.  He adds that the contested OER may have been an error on his part since he did not get the results of the AR 15-6 investigation and was not aware of the proper procedures to submit a relief for cause OER.

8.  There is no evidence in the record that indicates the applicant requested a commander’s inquiry or that she appealed the contested OER to the Army Special Review Board (ASRB).  Additionally, the AR 15-6 investigation the rater referred to in his 6 March 2009 MFR is not available.  On 11 September 2009, the applicant was asked to submit a copy of the AR 15-6 investigation; however, she did not provide a copy of the completed AR 15-6.

9.  Army Regulation 623-105 (Evaluation Reporting System), in effect at the time, prescribes the officer evaluation function of the military personnel system and provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System. It also provides guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously-submitted reports.  It states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer’s record be altered, withdrawn, or replaced with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.  

10.  Paragraph 3-50, AR 623-105 states 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 shown in Part IV, DA Form 67-9.  These standards apply to conduct both on and off duty.  If, for whatever reasons, the relief does not occur on the date the officer is removed from his or her duty position responsibilities, the period of time between the removal and the relief will be nonrated time included in the period of the relief report.  The report will be rendered by the published rating chain at the time of the relief; no other report will be due during this nonrated period.  When an officer is suspended from duties pending investigation every effort should be made to retain the established rating chain until the investigation is resolved.

11.  Paragraph 3-50, AR 623-105 also states that if relief for cause is contemplated on the basis of an informal AR 15-6 investigation, the referral procedures contained in that regulation must be complied with before the act of initiating or directing the relief.  This is irrespective of the fact that the resultant relief for cause report must also be referred to the rated officer.  This does not preclude a temporary suspension from assigned duties pending application of the procedural safeguards contained in AR 15-6.  The potential evaluation in Part Va, DA Form 67-9, must reflect "Do not promote" or "Other".  A "Do not promote" recommendation is consistent with relief action and does not need further explanation.  However, raters who want to make some other recommendation will check "Other" and will explain their recommendation and reasons in view of the action to relieve.  The rating restriction above does not apply to a rater who has not directed the relief and does not agree with the relief.  However, he or she must state his or her nonconcurrence in the proper narrative portions of the OER. The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in his or her narrative portion of the DA Form 67-9.  If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for the relief in an enclosure to the report.

12.  Paragraph 3-50, AR 623-105 also states that if, after a relief report has been submitted to HQDA, additional significant information becomes available, the provisions of Section IX of this chapter will apply.  A rating official may relieve an officer because of information received about a previous reporting period.  For example, a rating official receives information from a completed investigation into a past incident and must relieve the officer to remove him or her from his or her present position or to process him or her for elimination.  When this occurs, a relief report will be prepared; the rated officer will be evaluated on his or her performance during the current rating period only; the rating restriction does not apply; the reason for the relief will be cited in the report; and if necessary, the new information will be referred to the previous rating chain when submitting an addendum.  The minimum time requirements for rating officials do not apply.  All rating officials must evaluate; however, any rating official who has not directed the relief, and does not agree with the relief, may state his or her non-concurrence in the proper narrative portion of the report.  Cases where the rated officer has been suspended from duties pending an investigation should be resolved by the chain of command as expeditiously as possible to reduce the amount of non-rated time involved.  When possible, the rating chain for officers suspended from duty should remain intact with the officer performing alternate duties under that rating chain.

13.  Paragraph 6, AR 623-105 contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful OER appeal.  Paragraph 6-6 states, in pertinent part, that an evaluation report accepted by DA and included in the official record of an officer is presumed to be administratively correct; have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

14.  Paragraph 6-10, AR 623-105 contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states, in effect, that the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the contested OER should be removed from her records. 

2.  The evidence of record shows the contested OER contains comments which allude to the applicant having had an improper relationship with a subordinate.  The applicant considers these comments as being substantively inaccurate.  However, in her statement issued in response to the contested OER, she stated she had “made some mistakes” and that she had used poor judgment.  She alludes to, and apologizes for an “unfortunate incident.”  Her own statement gives some validity to the comments on the OER.

3.  It appears the applicant’s supervisors requested an AR 15-6 investigation into her alleged improper relationship with a subordinate.  A copy of this AR 15-6 investigation is not available for review.  The rater submitted a recent statement in which he states that he initiated a relief for cause OER without being fully familiar with the dynamics of such report and prior to the conclusion of the AR 15-6 investigation.  The rater states he initiated the contested OER before he received the results of the investigation; he does not say the investigation cleared the applicant or invalidated the OER.

4.  In its current state, and given the applicant’s own written statement, the contested OER appears to be correct as constituted.  There is insufficient evidence which shows the contested OER is substantively inaccurate and does not accurately reflect her performance or potential or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  The applicant did not provide sufficiently clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.  

5.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify removal of the contested OER.  Therefore, there is no basis for removal of the contested OER.


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)                                         AR20090007917



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ABCMR Record of Proceedings (cont)                                         AR20090007917



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