IN THE CASE OF:	  

		BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090014696 


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 removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 18 March 2007 through 9 August 2007 (hereafter referred to as the contested OER) from her Official Military Personnel File (OMPF).  She also requests her case be expedited and a personal appearance.

2.  The applicant states that the OER was not completed in compliance with Army Regulation (AR) 623-3 (Evaluation Reporting System). 

3.  The applicant provides a copy of the contested OER; a copy of her original appeal, dated 13 July 2009, to the Army Special Review Board (ASRB); a copy of the ASRB's Record of Proceedings, dated 20 August 2009; and a copy of an item-by-item rebuttal, dated 14 August 2009, to the ASRB Record of Proceedings.

4.  On 2 September 2009, the applicant submitted a formal AR 15-6 investigation with allied documents, dated on miscellaneous dates in 2007.  The applicant stated that this packet is "classified"; however, none of the documents within the packet had classified markings.  

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests removal of the contested OER from the applicant's OMPF. 

2.  Counsel states that the senior rater drafted a report that was not in compliance with the governing regulation.  The senior rater disregarded the applicant's performance and potential to the Army by asserting that he predetermined her rating well prior to the reporting periods and then created an adverse trend line predicated on no rater feedback and simply linked to a preconceived rating scheme without any basis regarding performance and potential.  The senior rater recognizes the adversity of the report in his statement. Additionally, the rater should have been disqualified as the rater.  The first report she received from this rating chain was modified by the senior rater because it did not accurately reflect her performance.  The report in question was authored without interaction between the rater and senior rater in the face of the blistering findings of facts and subsequent letter of reprimand received by the rater due to the dysfunctional command environment.  

3.  Counsel provides a 19-page brief (Enclosure 1) in which he summarizes the basis of the error and injustice as follows:  the contested OER was not in conformance with the governing regulation; inconsistent marking; lack of counseling; and lack of objectivity or fairness by rating officials.

4.  On 2 September 2009, the applicant submitted a revised 19-page attorney brief (Enclosure 3) to replace the original brief submitted by her attorney and a 14-page revised item-by-item rebuttal, dated 14 August 2009, to the ASRB Record of Proceedings, to replace that submitted earlier.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she was appointed as an Ordnance Branch second lieutenant and entered the Regular Army on 15 January 1993.  She subsequently completed various military training courses, served in various staff and command assignments within and outside the continental United States, and was promoted to major (MAJ) on 1 September 2003 and lieutenant colonel (LTC) on 1 July 2009.  

2.  During the month of August 2007, the applicant received the contested report, a permanent change of station (PCS) OER which covered 4 months of rated time from 18 March 2007 through 9 August 2007 for the applicant's duties serving as the "Executive Officer" while assigned to the 209th Aviation Support Battalion (ASB), Aviation Brigade Combat Team, 25th Infantry Division.  Her rater was her battalion commander, LTC Fxxxxx, and her senior rater was her brigade commander, Colonel (COL) Bxxx.  The OER shows the following entries:

	a.  In Part IVa(a)(b)(c) (Performance Evaluation-Army Values-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas;
	b.  In Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Outstanding Performance-Must Promote" block, and in Part Vb, he entered the following comments:

[Applicant] has continued her tradition of outstanding performance once again during this rating period.  Her efforts have firmly established this battalion as one of the best Aviation Support Battalions in the Army today.  Her oversight and leadership of all critical functions this battalion executes has been invaluable and has enabled the 25th Combat Aviation Brigade (CAB) to function at the highest OPTEMPO of any CAB deployed in support of the Global War on Terrorism.  Specifically, [Applicant] advised and coordinated our support efforts to the 2nd USMC Border Transition Team, developed and managed our Officer Professional Development Program for the Battalion which included training on counseling, motor pool operations, Unmanned Aerial Vehicle (UAV) operations and stress management, planned and supervised the Battalion's Command Supply Discipline Program which has increased the efficiency of our supply operations, and helped improve our property accountability to the point where we have zero open Financial Liability Investigations (FLIPLs) open.  She has also coached the Lady Lobo's Basketball Team, supervised the procurement and delivery of school supplies to neighboring Iraqi schools, and was selected as a White House Fellow for 2007/2008.

	c.  In Part Vc (Comment on Potential for Promotion), the rater entered the comment "Promote to LTC ahead of peers and select for Battalion Command";

	d.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Best Qualified" block; placed a second "X" in the "Yes" block to indicate he senior-rated 32 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review; and rated the applicant as "Center of Mass (COM)."  He listed three future assignments for which the applicant was best suited, as a Battalion Commander, Division G4, and Joint Staff Officer, and entered the following comments in VIIe (Comments on Performance/Potential): 

[Applicant] continues her superb performance as the 209th Aviation Support Battalion Executive Officer and remains among the top 20% of the Majors I currently senior rate.  Her professionalism and technical competence on all things logistics is unparalleled within the Brigade.  She has brought to bear her considerable talents in all logistics areas, solving critical support issues for this Brigade, and ensuring that there are no logistics constraints on any of our combat operations.  [Applicant] is capable of working multiple complex, multifaceted problems simultaneously and seeing them through to completion.  Her leadership and management as the ASB Executive Officer has been key in establishing the 209th ASB as one of the premiere ASBs in our Army.  Unlimited potential; promote ASAP and select for Battalion Command.

3.  The OER was signed by her rater on 2 August 2007, her senior rater and her on 8 August 2007, and was processed at the U.S. Army Human Resources Command, Alexandria, VA, on 1 October 2007.

4.  On 13 July 2009, the applicant petitioned the ASRB for removal of the contested OER from her OMPF.  She stated that the appeal was based on substantive inaccuracy; specifically, the senior rater COM block check and write-up do not accurately reflect her performance or potential and was inconsistent with a previous letter of recommendation and an annual OER by the same senior rater.

5.  On 20 August 2009, the ASRB notified the applicant that the evidence presented did not establish 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.  Therefore, by unanimous vote, the OSRB determined the overall merits of this case do not warrant the relief requested.

6.  On 24 August 2009, the applicant submitted a DD Form 149 (Application for Correction of Military Records Under the provisions of Title 10, U.S. Code, section 1552) to the ABCMR.  She provided the same evidence she had previously submitted with her appeal to the ASRB as well as new evidence as follows:

	a.  an item-by-item rebuttal to the ASRB's Discussion and Conclusion portion of the Record of Proceedings (Enclosure 2).  

	b.  a copy of an AR 15-6 investigating officer's (IO) findings and recommendation, dated 10 April 2007, as follows:

		(1)  the IO interviewed the battalion commander, all company commanders and first sergeants, the previous company commander, the previous S3 noncommissioned officer-in-charge, the command sergeant major (CSM) and the previous CSM.  The IO found that the CSM used foul and abusive language towards Soldiers; intentionally undermined the authority of officers appointed over him; was disrespectful to the applicant and another Soldier; that the relationship of the command team (Commander, Executive Officer, and CSM) had a negative impact on the unit; that it was clear the Executive Officer and CSM could not work together and did not communicate at all; that Material Release Orders (MRO) were mishandled for the month of September 2006, not resulting in any waste and abuse of government resources; and that the battalion commander had turned over his command responsibility to the CSM and violated a division directive to not modify the Fixed Sit Decon System and inappropriately handled the MRO incident.  The IO also noted the Executive Officer and Battalion Commander did not speak to one another for at least two months; the Executive Officer and CSM did not speak to each other for four (4) months; and

		(2)  the IO recommended relief for cause for the CSM and the Battalion Commander.  He also recommended a change in the command team and other administrative changes.  He finally recommended an investigation be initiated to determine the actions of the applicant concerning her use of foul and abusive language, undermining the authority of the Battalion Commander, and disrespect towards the Battalion Commander and other commissioned officers.

	c.  a sworn statement she gave on 9 August 2007 which she purports to be a part of the Commander's Inquiry into her allegations of sexual harassment by her senior rater.  She also provides a sworn statement from her senior rater, dated 31 August 2007, in which he denies all the allegations the applicant makes in her sworn statement against him and explains how he used his senior rater profile in rating the applicant and indicates that he initiated the Command Climate Survey which evolved into an investigation because he wanted to obtain a clear picture of the situation in his command;

	d.  a copy of a Letter of Recommendation, dated 31 December 2006, to the President's Commission on White House Fellowships written by the same senior rater as in the contested OER.  He stated that the applicant is "the most tactically and technically proficient multifunctional logistics officer I have served with in my career.  Her performance far exceeds that of her peers.  She was selected to serve as the Executive Officer of this unit as a newly assigned officer to the 25th Infantry Division due to her combat experience and proven ability to lead Soldiers under the most challenging circumstances.  She flawlessly executed her unit's deployment and ensured the Combat Aviation Brigade received critical support during all phases of the current operation…She is far ahead of her peers and performs at levels much higher than her rank.  She could command a multifunctional support battalion now and would be my first choice as a logistician for battalion command"; and

	e.  the Letter of Recommendation provided by the senior rater coincided with the rating period covered in her annual OER from 18 March 2006 through 17 March 2007.  The same senior rater assessed her as "Best Qualified, ACOM (Above Center of Mass)" and provided narrative comments of "Outstanding performance by her while serving as the executive officer for the Aviation Support Battalion.  She is among the top 20 % of the officers of this grade that I currently senior rate.  Her superb skills as a warfighting logistician were clearly evident as she expertly reorganized and integrated our Support Operations Section into Brigade staff processes while also synchronizing activities within the Battalion S3.  She took the lead in planning, organizing and executing this Battalion’s deployment and RSOI to Kuwait and then Iraq.  Her exceptional understanding and anticipation of logistic requirements and her individual resourcefulness was the key to the rapid establishment of our operating and training bases while ensuring seamless force integration during RIP operations.  Unlimited potential; promote as soon as possible."  He recommended her selection for battalion command.

7.  AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier 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.  

8.  Paragraph 1-9 of AR 623-3 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pamphlet 623-3.  Potential evaluations will be performance-based assessments of the rated officers or NCOs of the same grade to perform in positions of greater responsibility and/or higher grades.  

9.  Paragraph 2-12 of AR 623-3 stipulates, in pertinent part, raters will provide their support forms, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period; discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period; counsel the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; assess the performance of the rated Soldier, using all reasonable means, to include personal contact, records and reports, and the information provided by the rated officer on DA Form 67-9-1 and/or 67-9-1a; review the applicable support forms at the end of the rating period and, as appropriate, provide more information about the job description or performance objectives to other rating officials for use in preparing their evaluations; verify rated individual's Army Physical Fitness Test (APFT) and height and weight data for entry on the evaluation report; and provide an objective and comprehensive evaluation of the rated Soldier's performance. 

10.  Paragraphs 3-20a and b of AR 623-3 state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.  

11.  Paragraphs 6-3 and 6-4 of AR 623-3 state, in pertinent part, that the primary purpose of a Commander's Inquiry (CI) 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 secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

12.  Paragraph 6-11a of AR 623-3 states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

13.  Paragraph 6-11f of AR 623-3 states for OER appeals that claim an error in the sequencing of OERs into the senior rater profile will not be accepted.  The profile reflects the total of all reports in a single grade written by that senior rater and received and accepted at HQDA as of the day the new report is accepted.  Reports may be delayed in mail handling and administrative processing.  The official profile maintained at HQDA on a given day may be different from that in any personal record.  Appeals based on differences between privately kept records and the DA maintained profile will not be honored.  It is incumbent on the senior rater to ensure reports process at HQDA in the desired sequence. 


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the DA Form 67-9 covering the rating period from 18 March 2007 through 9 August 2007 should be removed from her OMPF.  

2.  The applicant’s request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, it is concluded that the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, it is concluded that a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  With respect to expediting the applicant’s case, the ABCMR usually processes cases in the order they are received.  The Board understands the circumstances that bring about applications to the ABCMR; many are urgent, and for all other kinds of cases, Soldiers who file the same kind of application are usually in similar circumstances and often have similar needs to have their cases processed quickly.  The Board understands the effects that processing times can have on Soldiers and their families.  However, it would not be appropriate for the Board to give preferential treatment to one Soldier over another, and disadvantage a Soldier or another by delaying one case to first process another that was filed later.  Therefore, no matter how short or long the normal processing time, the Board normally processes cases in order based on when they were received.

4.  The contested OER is neither referred nor negative; on the contrary it is a positive OER.  Nevertheless, the contested OER contained comments and/or markings that the applicant perceived to contain alleged errors and/or injustices.  Accordingly, she appealed the OER to the ASRB but was denied relief.  However, the applicant still believes that the evaluation was inaccurate and is not in compliance with the governing regulation. 

5.  The applicant was the Executive Officer of a battalion that was investigated by an IO whose investigation found a dysfunctional command climate.  The applicant, by virtue of her leadership position, was a member of that command, and was not found without fault.  The IO even recommended a separate investigation be initiated regarding the applicant’s use of foul and abusive language, undermining the authority of the battalion commander, and disrespect towards the battalion commander and other commissioned officers.  Furthermore, it was noted that the applicant did not communicate or speak to the battalion commander or CSM for months at a time.  There appears to have been culpability on all parties which contributed to the poor command climate. 

6.  The applicant’s outstanding performance throughout her career is noted.  However, the fact that the contested OER is inconsistent with the other ACOM reports she previously received, albeit from the same rater, has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, "stands alone."  

7.  The contested OER is not a referred report; both the rater and senior rater inserted favorable comments, she was recommended for promotion ahead of her peers and for battalion command.  Her contention that the contested report serves as a "red flag" to the battalion command board and that she was not selected for command as a primary or alternate based on the report, does not invalidate the contested OER.  There is insufficient evidence to show her non-selection for battalion command was attributed to this particular OER.  Promotion and command selection boards alike are not required to divulge the reason for a member’s non-selection.  The applicant could not have possibly known that the contested OER led to her non-selection. 

8.  With respect to the counseling, it appears that the finding of a dysfunctional command and the lack of communication among the leadership, including the applicant, may have contributed to the absence of counseling.  Nevertheless, the applicant was a field grade officer at the time and had a considerable amount of responsibility to ensure the counseling occurred according to regulatory guidance.  Yet, again, the lack of counseling does not invalidate a report.

9.  With respect to an improper marking, mathematically, the applicant and her counsel are correct, rating an officer in the top 20 percent of a 32-officer population places that officer in the top third of the population.  However, there is no regulatory requirement for the senior rater to rate any officer within a population as an ACOM.  The senior rater profile, as the name indicates, belongs to the senior rater.  The senior rater makes an assessment of the rated officer’s potential in comparison with all officers of the same grade.  This assessment is based on officers the senior rater has senior rated or has currently in his/her senior rater population.  Nevertheless, the senior rater is under no obligation to senior rate any of the 32 officers in this case as ACOM. 

10.  With respect to complying with the governing regulation, there is no evidence and the applicant has not provided sufficiently compelling 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. Aside from her dissatisfaction and her disbelief that someone of her caliber would receive a COM rating, the applicant did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify the removal of the contested OER.  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.

11.  In order to justify deletion or amendment of an evaluation 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.  After a comprehensive review of the evidence in the appellant's official record, her contentions and arguments, and the evidence submitted by the appellant in support of her application, other than her dissatisfaction, the appellant failed to show, by clear and convincing evidence, that her OER contained a material error, inaccuracy, or injustice.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ___X___  ___X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   __XXX___   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.
ABCMR Record of Proceedings (cont)                                         AR20090014696



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ABCMR Record of Proceedings (cont)                                         AR20090014696



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