IN THE CASE OF:	  

		BOARD DATE:	  October 7, 2009

		DOCKET NUMBER:  AR20090008102 


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).


3.  Formal Hearing Case Summary.

4.  Live testimony and any evidence introduced during the hearing.  The applicant did appear before the Board and was not represented by counsel.

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that an Officer Evaluation Report (OER) for the period 29 December 2006 through 11 May 2007, and all documentary evidence that her OER appeal was denied, be removed from her Official Military Personnel File (OMPF). 

2.  The applicant states the OER is inaccurate and the strongly adverse evaluation is based on a rating chain that took no effort to observe her during the rating period and was heavily influenced by the brigade chaplain (a Reservist on active duty) who was strongly prejudiced against female ministers.  

3.  The applicant further states that she believes the Army Special Review Board (ASRB) inexplicably focused on a nonexistent permanent profile that she allegedly failed to annotate on her Officer Record Brief (ORB), and she believes that this misplaced focus colored the ASRB's perception of her case to her disadvantage.  In addition, she claims her case requires the reviewing body to focus upon and be receptive to both circumstantial and direct evidence.  She claims that, as outlined in her reconsideration request, the ASRB appeared to have confused the burden of clear and compelling evidence with the circumstantial character of the evidence in her case.  She claims that evidence of prejudice is often not likely to be direct and obvious.  It is often proven through indirect, circumstantial evidence and the fact finder must be open to the possibility.  

4.  The applicant also contends that an objective look at the ASRB's opinion shows what appears to be an attempt to find evidence to refute the comments of the third-party chaplain who provided a statement in her behalf.  She states that while she understands the search for knowledge outside the record is both allowable and appropriate, it only has value if it is thorough enough to present a complete picture.  She states that in her case, the third-party chaplain statement provided raised the point that the religious doctrine of her rater is/was non-receptive to women in the ministry and would have influenced his attitude toward her.  

5.  The applicant also claims the failure of the ASRB to examine this concern more carefully and more thoroughly, and its failure to factually resolve it, suggests the ASRB itself acted upon its initial misperception of her, and unfortunately for her, this translated into the denial of a fair evaluation of her case.  She further claims that the harsh language used by the ASRB in denying her appeal, along with the glaring legal and factual errors contained within the record of proceedings, compels her to the conclusion that her OER appeal itself did not get a fair and unbiased review.  As a result, she finds herself in the position of not only having received an OER that was inaccurate, biased against her, and unfair; but she was also denied a fair and unbiased review of her appeal.  She states that at this point, she has twice been denied justice.  She has been denied a fair, unbiased, and just evaluation of her performance during the rating period; and a fair, unbiased, and just review of her appeal.  She further contends the retention of this document in her records is unjust and it should be removed from her records.  

6.  The applicant provides the following documents in support of her application:  DA Form 67-9 (OER), dated 10 May 2007; OER Appeal Packet, dated 3 August 2007; ASRB Record of Proceedings; Request for Reconsideration of OER Appeal Packet, dated 12 June 2008; a letter of support, dated 22 September 2009; her ORB; two OERs, one for the period ending 31 October 2008 and one for the period ending 31 May 2009; and DA Form 1059 (Service School Academic Evaluation Report) for the period ending 3 April 1998.

CONSIDERATION OF EVIDENCE:

1.  On 30 November 1997, the applicant was appointed a first lieutenant in the Chaplain Corps of the U.S. Army Reserve (USAR) and on 15 September 1999, she entered active duty as an obligated officer for 3 years.  On 15 September 1999, she was promoted to captain (CPT) and on 11 November 2005, she was appointed a Regular Army (RA) officer.  

2.  On 10 May 2007, the applicant received a change of rater OER for the period 29 December 2006 through 11 May 2007, in which she was evaluated as the battalion chaplain in a Signal Battalion at Fort Gordon, Georgia.  

3.  In Part IV (performance evaluation) of the OER in question, the rater, the battalion executive officer, a major, gave Yes responses to all Army Values and Leadership Attributes questions.  In Part V (performance and potential) the rater placed the applicant in the two block (satisfactory performance-promote) and his comments explaining his performance evaluation in Part Vb were generally favorable.  The rater did comment that the applicant required additional mentorship prior to promotion to major in Part Vc (potential for promotion).

4.  In Part VI (Intermediate Rater) the intermediate rater, the brigade chaplain, a major, provided mostly favorable comments and indicated the applicant had good potential and that she should be selected as a hospital chaplain immediately.  

5.  In Part VII (Senior Rater) the senior rater, the battalion commander, a lieutenant colonel, placed the applicant in the two block (fully qualified) in 
Part VIIa (promotion potential) and provided comments that indicated the applicant's duty performance dictated that she continue to work hard on her skills as an officer and leader in order to be considered for future promotions and assignments of larger responsibility.  

6.  On 24 May 2007, a commander's inquiry into the applicant's OER was completed by the applicant's brigade commander, a colonel, and the applicant was informed of the results.  The reviewing commander indicated that he personally conducted an inquiry into the applicant's allegations by reviewing the OER in question, along with OERs submitted by the applicant, the memorandum regarding the evaluating of chaplains and chaplain assistants, and three developmental counseling forms, dated 12 April, 4 May and 9 May 2007.  The reviewing commander also indicated he discussed the matter with the applicant's entire chain of command.  He indicated that he found no discrepancies, errors, or wrongdoing existed.  He further indicated his recommendation to the battalion adjutant was to forward the OER as it currently stood to Headquarters, Department of the Army (HQDA) for filing in the applicant's OMPF.  

7.  On 31 May 2007, the applicant's senior rater formally admonished the applicant regarding her performance as an officer and leader since her arrival to the battalion.  He stated he had concerns regarding her execution of duties as the battalion chaplain.  His concerns included her military bearing in not being in the proper duty uniform after being directed to do so; her delegating a task to mentor a senior civilian minister, a task that she was specifically given; remaining in her cot rather than supporting night range training; during the Brigade Mission Readiness Exercise in May 2007, she directed two Soldiers to give her a ride after the driver informed her that only two Soldiers could travel in the vehicle; and on 14 May 2007, even after he specifically told her to complete the Soldier Readiness Processing (SRP) even though she had orders in hand, because they had no replacement identified for her and thus her departure date was uncertain, she asked the senior medical officer if she had to participate.  He stated that she had been entrusted as a spiritual leader of her fellow Soldiers and was a key figure in helping to prepare them for deployment.  

8.  On 14 June 2007, the applicant responded to the letter of admonition.  As to the senior rater's concerns regarding the execution of her duties as the Battalion Chaplain, she stated she was at a loss as to what he was referring to.  He mentioned no particular duty.  She stated she always wore what was authorized by Army standards.  Every issue he stated had to do with unit specific standards, which could only be known as one assimilates into that unit.  As soon as she was told what the proper uniform was, she changed into that uniform.  She stated she did not delegate her responsibilities to mentor a senior minister, the lieutenant was tasked by Captain D___ to cover for the applicant while she was undergoing a root canal.  She stated she did not participate at the night range because of more pressing duties.  She was engaged in pastoral counseling with a Soldier.  Also, her medical condition required the application of prescription eye drops at precise times of the day and night.  In light of the limited role she had at the range, she viewed the matter of tending to a Soldier's spiritual needs, and that of her eyes, as more appropriate tasks.  She acknowledged her error in directing the driver of the vehicle to carry three passengers in a two-passenger vehicle.  She disagreed with his version of the events at the SRP.  The applicant stated that she noticed the admonishment came on the last day of her tour with the unit, and at the end of her short rating period.  She wondered if the admonishment was designed not to correct her conduct, but justify his rating.  

9.  On 3 August 2007, the applicant appealed the OER in question based on substantive inaccuracy claiming that her rating chain took no effort to observe her during the performance of her duties and was heavily influenced by the brigade chaplain, who took no effort to hide his abhorrence of any female who claimed to be a minister.  She claimed her OER was based on prejudice only and not on facts.  

10.  The applicant provided a supporting statement from the Installation Chaplain/Chief, Chapel Center, Fort Gordon, a colonel, with her OER appeal.  In this statement, the installation chaplain indicated that the applicant's intermediate rater had been one of his students when he was a small group instructor at the chaplain's advanced course.

11.  The installation chaplain also commented that while the applicant's intermediate rater was one of his students, he displayed a rigid and difficult personality, was often opinionated, and had difficulty getting along with others.  He indicated that of most concern was that the intermediate rater had demonstrated an extremely narrow theological belief system, an attribute certainly not in keeping with the Chaplain Corps.  Further, given the intermediate rater's narrow viewpoint and the doctrine of his endorser, he could easily understand that he would have issues with women in the ministry.  He claims it was no surprise that the intermediate rater was not selected for promotion to major.  He further stated that most recently, in his present duties, he observed the same traits re-emerging, including one incident of engaging his senior chaplain assistant in an inappropriate and heated discussion.  He further indicated he was aware of many other similar situations.  He concludes by stating that all of this convinced him that a personality conflict existed and this was a major factor in the applicant's poor evaluation, which the intermediate rater was responsible for. 

12.  On 18 November 2008, the ASRB reviewed the applicant's case and determined that the rating officials were objective and that their comments did not reflect any personal bias or prejudice.  The ASRB concluded the report in question was not adverse and that the comments from the rating officials were within regulatory guidelines and consistent with the evaluations rendered (blocks checked).  The ASRB also confirmed that the OER in question was not part of her file reviewed by the fiscal year 2007 promotion selection board, which did not select her for promotion to major, and as a result her non-selection was the result of her overall record of service and not the result of the evaluation she received on the OER in question.  The ASRB finally concluded by unanimous vote that the overall merits of the applicant's appeal did not support granting the applicant's requested relief.

13.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-39 provides the basic rule applicable to modifications of previously submitted reports.  It states, in pertinent part, that an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to 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.  Once accepted for filing in an officer’s record, requests that a report be altered, withdrawn, or replaced with another report will not be honored.

14.  Chapter 6 of the ERS regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-7 outlines policies and states, in pertinent part, that evaluation reports accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to 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, as outlined in paragraph 3-39.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states that the burden of proof rests with the appellant.  Accordingly, to 
justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity referred to in paragraphs 3-39 and 6-7 will 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. 

15.  On 7 October 2009, a formal hearing was held in the applicant’s case.  The applicant attended.  One witness testified on the applicant’s behalf.

16.  The applicant testified that the rating officials unjustly gave her an unfair evaluation based on the fact that she suffered from a medical condition that prevented her deployment.  She referred to the statement provided by the DDEMC Chief of Ophthalmology, which indicates she has never received a permanent profile and has never been referred to a medical evaluation board based on her diagnosed condition of normal tension glaucoma.  She testified that she has a serious ophthalmic condition that requires frequent monitoring of her condition.  On 15 May 2007, she received a temporary profile requesting she not deploy without prior arrangements for close follow-up in theater or at regular medical evacuation intervals.  She testified that the Chief of Ophthalmology stated that given the treatment she has undergone and is now undergoing, her successful recovery could result in a return to full deployability.  

17.  The applicant testified that when she arrived at the unit rating officials were very supportive and it was only after she had informed them that she suffered from glaucoma, which prevented her deployment, did they begin treating her unfairly.  She contended the intermediate rater was verbally abusive once he discovered she was unable to deploy and he thought he might have to deploy in her place.  She contended that all of her achievements, which she outlined in her OER support form, were ignored by rating officials, who as a result of her medical condition and inability to deploy unfairly gave her an adverse OER, which was unjust and not a true reflection of her overall performance of duty.  

18.  The applicant testified that her OERs, covering the periods 22 November 2007 through 31 October 2008 and 1 November 2008 through 31 May 2009, in which she was evaluated as the Deputy Chapel Center, Religious Activities and Deputy Chapel Center, Religious Activities Branch and Fund Manager for Fort Gordon, Georgia, contained top block ratings from the raters and senior raters.  The comments were highly favorable and the reports contained recommendations from rating officials that she be promoted to major immediately.  She contended that these OERs were more true indicators of her performance than the contested OER.

19.  The applicant contended that the comments on her Chaplain Officer Basic Course AER indicate she was outstanding in both her military appearance and physical conditioning, and she received the commander's certificate for physical fitness excellence with a score of 370 on the extended scale.  It also indicates she consistently received excellent ratings on her military appearance during every in-ranks inspection and that she excelled in the area of research.  

20.  Her witness, the applicant's husband, who is also an Army chaplain, testified on the applicant's behalf.  He testified that the contested OER is not a true reflection of the applicant's overall performance of duty during the period and that rating officials ignored her accomplishments.  He indicated that the intermediate rater, as the brigade chaplain, was able to strongly influence the other rating officials based on his position and that his input was likely the primary factor in the negative report being rendered.  He states that he was frustrated with the appellate process, which continued to indicate the contested OER was not technically an adverse report when in fact the language used in the report would effective end the applicant's career.  He claims the recommendation of the intermediate rater that the applicant be assigned to a hospital chaplain position effectively ended her ability to progress.  He concluded that the report was unjust and is not an accurate reflection of the applicant's overall performance during the period.  

DISCUSSION AND CONCLUSIONS:

1.  The majority of the Board concluded the applicant had provided insufficient evidence or information to show the contested OER was unjust and should be removed from her record.  

2.  The majority of the Board also concluded that the independent commander's inquiry, which had been completed by the applicant's brigade commander and which found no errors, discrepancies, or wrongdoing in the preparation of the contested OER, was persuasive.  The Board believed that given the trust and confidence the Army entrusts in its brigade commanders, who are selected in part based on their ability to make sound judgments and not be unduly influenced by the biases of others, there is no reason to conclude that those findings were not factually correct.  

3.  In view of the foregoing, the majority of the Board recommended denial of the applicant’s request.

4.  One member of the Board dissented from the foregoing recommendation.  The Board member opined that the applicant's difficulty communicating with her chain of command resulted in some issues of bias and prejudice toward her; however, her inability to deploy as planned with her unit might have played a role in the prejudice.  

BOARD DETERMINATION/RECOMMENDATION:

The evidence and the testimony presented to the Board do 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)                                         AR20090008102





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ABCMR Record of Proceedings (cont)                                         AR20090008102



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