IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100000089 


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:

	a.  removal of 94 pages of documents related to an Officer Evaluation Report (OER) appeal from her Official Military Personnel File (OMPF) and her record in the interactive Personnel Electronic Records Management System (iPERMS);

	b.  removal of 13 pages of documents related to and including a General Officer Memorandum of Reprimand (GOMOR) from the performance folder in her OMPF and iPERMS;

	c.  removal of two National Guard Bureau (NGB) Forms 25 (Army National Guard OER Non-Rated Period) for the periods 15 August through 14 September 2005 and 10 January through 28 January 2007; and

	d.  correction of the dates of the NGB Form 25 for the period 3 April 2006 through 2 July 2006 to read 1 May 2006 through 2 July 2006. 

2.  The applicant states:

	a.  The referred OER appeal packet, dated 13 September 1999, filed in her OMPF has served its purpose and its removal would be in the best interest of the Army.  The referred OER has been in her file for 7 years.  Since that experience she has accepted full responsibility for her actions, she has not received any other referred OERs, and she has continued to serve honorably to date.

	b.  During a Department of the Army Active Duty Board's (DAADB) review of the case, [the board] became aware that she made specific allegations of retaliation based on protected communications and it appeared that a review of the allegations may have been warranted under the Whistleblower Protection Act.

	c.  Since 1999 and over the last 10 years, she has made substantial improvements in performance, development, and accepted increased duties and responsibilities.  Additionally, she has successfully completed both military and civilian education requirements, enhancing her professional knowledge and skills, and increasing her overall abilities and potential as an officer.  [The GOMOR in her record] was reviewed by the 2009 major (MAJ) promotion board and caused her to become a non-select for promotion.  These documents have served the intended purpose and it would be in the best interest of the Army to remove such unfavorable information.

	d.  She was selected for promotion to captain (CPT), effective 15 May 2003.  In March 2009, she was non-selected for promotion to MAJ.  With the GOMOR removed, she will have a fighting chance to compete for the 2010 MAJ promotion board.

	e.  An OER is in her record for the period 15 August through 14 September 2005.

	f.  The NGB Form 25 for the period 10 January 2007 through 28 January 2007 is a duplicate record.

	g.  An OER in her record overlaps a portion of the period of the NGB
Form 25, dated 3 April through 2 July 2006.
3.  The applicant provides copies of:
* an OER for the period 2 March 2009 to 6 August 2009
* a DAADB determination
* a GOMOR and supporting documentation
* six NGB Forms 25

CONSIDERATION OF EVIDENCE:

1.  After enlisted service in the Regular Army and the Army National Guard, the applicant was appointed as a Reserve Commissioned Officer of the Army on
15 December 1995.  From that date through the date of her application, she has served as an active member of the U.S. Army Reserve (USAR) and Army National Guard.

2.  A DA Form 4856 (General Counseling Form) shows, on 13 January 1999, the applicant acknowledged having been counseled by her rater for altering her completed OER for the period 14 August 1997 to 13 August 1998 and presenting the altered OER to her senior rater for his signature.

3.  On 26 March 1999, the applicant acknowledged receipt of a GOMOR from the Commander, 89th Regional Support Command (RSC), dated 15 March 1999, reprimanding her for intentionally altering her OER.  She was informed of the intent to file the GOMOR in her OMPF and given 7 working days to respond through her chain of command.

4.  On 29 March 1999, the applicant submitted a memorandum disputing the unfavorable information presented against her.  She stated it appeared the action against her was reprisal for an Inspector General (IG) complaint, dated 29 July 1998, and a Congressional complaint, dated 11 January 1999.  She further stated that it was a common practice for officers and noncommissioned officers in her unit to write, change, alter, type, and retype their evaluation reports.  She closed her memorandum by stating, "Based on previous statements, a counseling statement, and a congressional complaint, I am in a hostile work environment with the potential for violence in the workplace and being harassed because of my race and gender."

5.  On 28 May 1999, the Commander, 89th RSC, in a memorandum to the U.S. Army Reserve Personnel Command, directed the GOMOR be filed in the performance section of her OMPF.  He stated that he had carefully considered all the facts pertaining to the matter, including the applicant's rebuttal and the IG and Congressional complaints she had made.

6.  On 4 August 1999, the Army Reserve Personnel Command, Chief of Military Law noted no legal objection to filing the GOMOR in the applicant's OMPF.

7.  On 18 January 2000, the applicant's unit referred an OER to her for her acknowledgment.  She was informed that her OER for the period 14 September 1998 to 13 September 1999 contained negative ratings and remarks.  On
26 January 2000, the applicant acknowledged receipt of the OER and stated she did not desire to provide any comments at that time.


8.  The referred OER shows in Part IV (Performance Evaluation - Professionalism (Rater)) her rater entered "No" in the blocks assessing her honor and integrity.  He also entered "No" in the blocks for communicating, decision-making, and motivating.  In Part V (Performance and Potential Evaluation (Rater)), her rater marked the block "Unsatisfactory performance, do not promote," and entered the following comments:

Since the last evaluation, [the applicant's] performance has not been at an acceptable level.  She has refused to constantly keep her entire chain of command informed of even the most routine actions as they occur in the personnel arena.  Her honor, integrity, and ability to make sounds [sic] decisions have been compromised by her intentional altering of her last officer evaluation report.  [The applicant] attempted to rewrite her own OER and pass it off as legitimate resulting in her receiving a General Officer Letter of Reprimand.  This single action, in addition to her lying about the event to her senior rater, accounts largely for the reasons this evaluation is now referred.  Her method of tracking OERs has enabled her to change the delinquent rate from 7%, over the year 1997, to about 37%, for the month of July 1999.  The other full-time AGR (Active Guard Reserve) Soldiers working in the Personnel and Administration section feel that they are constantly at odds with their immediate supervisor, and as such, must watch everything they do and say.  This accounts for the low rating in the interpersonal and motivating areas.  [The applicant] has repeatedly placed her civilian education ahead of her military professional goals.  This has resulted in her notifying her chain of command that with the lone exception of one night a week, all other time is her time and she is not available for extra meetings.  Her communication techniques, written and oral, are still in need of improvement.  In my opinion, her potential for promotion to the rank of Captain is now no longer possible or desirable.

9.  In Part VII (Senior Rater), her senior rater marked the block "Do not promote," and entered the following comments:

I concur with the comments of the senior rater.  Her inability to make sound decisions and poor judgment led her to make substantive changes to her own OER.  [The applicant] lacks a clear understanding of the commitment required in being a Soldier.  This is evidenced by her continuing emphasis on her civilian education over and above her military duties.  She recently indicated that she would be available only one night a week for staff meetings because of a conflict with school schedule.  Additionally, as senior [full-time unit support] in the Personnel and Administration section of the headquarters, information flow is usually late and not always correct.

10.  Part VIIb (Potential Compared with Officers Senior Rated in Same Grade) shows the applicant was rated "below center of mass, do not retain."

11.  On 22 March 2000, the DAADB convened to consider the applicant's release from active duty because of misconduct, moral or professional dereliction of duty, and for substandard performance.  The DAADB recommended her release from active duty with an honorable characterization of service.  The DAADB did not recommend she be eliminated from the USAR.

12.  On 11 April 2000, the Deputy Assistant Secretary (Army Review Boards), the decision authority for DAADB recommendations, forwarded the applicant's file to the Director, Office of Departmental Inquiries (ODI), Inspector General (IG), Department of Defense (DOD).  In his cover memorandum, the Deputy Assistant Secretary stated it appeared that a review of the applicant's allegations may have been warranted under the Military Whistleblower Protection Act.  He noted that he would not act on the DAADB's recommendation to separate the applicant from active duty until he had been advised of the findings and conclusions of the Director, ODI.  The record does not contain the response from the Director, ODI.

13.  On 4 May 2000, the Deputy Assistant Secretary (Army Review Boards) approved the DAADB recommendations.  On 14 July 2000, the applicant was released from active duty and transferred to the USAR Control Group (Reinforcement).

14.  On 15 April 2002, she submitted an appeal of her referred OER to the Commander, U.S. Army Reserve Personnel Command, St. Louis.  On
3 February 2003, she was informed that a Special Review Board determined the evidence she submitted did not justify altering or withdrawing the OER.  She was also informed that she could gather additional evidence and submit an appeal to the Personnel Support Division, U.S. Army Reserve Personnel Command or to the Army Board for Correction of Military Records.

15.  The OERs the applicant received prior to her promotion to CPT in 2003 are in the restricted section of her OMPF.

16.  The OERs in the performance section of her OMPF show her raters indicated her potential for promotion as "satisfactory performance, promote" or "outstanding performance, must promote."  These OERs also show her senior raters indicated her promotion potential to the next grade was "fully qualified" or "best qualified."


17.  OERs beginning with the rating period ending 9 January 2007 through the most recent rating period ending 10 May 2010 show the applicant served as an executive officer and as a strength management officer within the G-3/5/7, Headquarters, Department of the Army (HQDA).  In these positions, the applicant was given ratings of "outstanding performance, must promote" and "best qualified."  Senior rater comments on these OERs include the following:

* one of the top Executive Officers in my directorate and the best that I have seen in War Plans in over seven years
* she is a must select for promotion to Major and increased responsibilities
* she successfully handled one of the toughest Division Executive Officer jobs HQDA offers in a manner keeping with the highest ideals of professional performance
* promote immediately to Major and send this outstanding officer to Intermediate-Level Education (ILE) now

18.  On 14 August 2009, the applicant submitted a request to the Department of the Army Suitability Evaluation Board (DASEB) for transfer of her GOMOR to the restricted section of her OMPF.  The DASEB analyst who prepared the case found the applicant had provided sufficient evidence to show the intent of the GOMOR had been served and recommended transfer of the GOMOR to the restricted section of her OMPF.

19.  On 18 November 2009, the DASEB disagreed with the analyst's recommendation.  The DASEB noted the applicant's commendable performance since receiving the GOMOR, but determined it was not in the best interest of the Army to transfer the GOMOR to the restricted section of her OMPF.  The DASEB also directed filing of its decision memorandum in her OMPF.  In its determination, the DASEB stated the following:

The appellant was less than honest when she presented an altered OER to her [senior rater] for re-signature without informing him that she had made significant changes to the OER.  Although it has been ten years since the appellant received the GOMOR, she has not provided any evidence to show she has been disadvantaged or deprived of any rights or privileges normally afforded to those officers who uphold the standards associated with the "Army Values"; no other documents in her OMPF reflect her misconduct.  The appellant did not submit any letters of support from her current chain of command or key leaders supporting the transfer action.  Even now, she does not take responsibility for her actions or shows [sic] the least bit of remorse.  As an officer, she violated her position of trust and responsibility; her integrity, 


a core officer attribute, is seriously questioned.  The DASEB noted her commendable performance since receiving the GOMOR, but determined that it is not in the best interest of the Army to transfer the GOMOR to the appellant's restricted file at this time, and therefore, by unanimous vote, denied the appellants [sic] request.

20.  On 15 January 2010, the applicant responded to the DASEB decision requesting consideration of personal and professional memoranda of reference from peers and her chain of command.  The memoranda, signed by field grade officers and senior Department of the Army civilians, commend her for her performance as Executive Officer for Strategy Plans and Policy, War Plans Division, G-3/5/7, HQDA, a position she assumed on 3 March 2009.

21.  On 16 February 2010, the DASEB returned the applicant's request for reconsideration without action, citing insufficient evidence to change the decision made on 18 November 2009.  

22.  On 31 August 2009, the applicant petitioned the DASEB for transfer of her referred OER for the period 14 September 1998 to 13 September 1999 to the restricted section of her OMPF.  She also requested that the documentation pertaining to her appeal of the OER be moved to the restricted section of her OMPF.  On 10 September 2009, the DASEB returned her request without action and informed her the documents were already in the restricted section of her OMPF.  The DASEB's notification letter was not filed in her OMPF.

23.  The applicant's record in iPERMS includes four NGB Forms 25 for the following periods:  

* 15 August 2005 through 14 September 2005
* 3 April 2006 through 2 July 2006
* 10 January 2007 through 28 January 2007
* 16 July 2007 through 7 September 2007

24.  Her iPERMS record includes an OER for the period 15 August 2005 through 30 April 2006, which overlaps the NGB Form 25 for 15 August 2005 through
14 September 2005 and a portion of the NGB Form 25 for 3 April 2006 through
2 July 2006.

25.  Review of the applicant's OMPF in iPERMS does not show any duplicate NGB Forms 25.


26.  Army Regulation 600-37 (Unfavorable Information) sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files.  It states unfavorable information that should be filed in official personnel files includes indications of substandard leadership ability, promotion potential, morals, and integrity.

	a.  The regulation provides that an administrative memorandum of reprimand may be issued by an individual's commander, by superiors in the chain of command, and by any general officer or officer exercising general court-martial jurisdiction over the Soldier.  The memorandum must be referred to the recipient and the referral must include and list applicable portions of investigations, reports, or other documents that serve as a basis for the reprimand.  Statements or other evidence furnished by the recipient must be reviewed and considered before filing determination is made.

	b.  A memorandum of reprimand may be filed in a Soldier's OMPF only upon the order of a general officer-level authority and is to be filed in the performance section.  The direction for filing is to be contained in an endorsement or addendum to the memorandum.  If the reprimand is to be filed in the OMPF, the recipient's submissions are to be attached.  Once filed in the OMPF, the reprimand and associated documents are permanent unless removed in accordance with Army Regulation 600-37, chapter 7.

	c.  Only letters of reprimand, admonition, or censure may be the subject of an appeal for transfer to the restricted section of the OMPF.  Normally, such appeals will be considered only from Soldiers in grades E-6 and above, officers, and warrant officers.  Such documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

	d.  If an appeal is denied a copy of the letter of notification regarding this outcome will be placed in the commendatory and disciplinary portion of the performance record.  The appeal will be placed in the restricted section of the OMPF.


27.  Army Regulation 623-105 (Officer Evaluation Reporting System), in effect at the time, governed the policies and procedures for the OER system when the applicant's referred OER and her appeal were processed.  The policies cited below have been incorporated into Army Regulation 623-3 (Evaluation Reporting System), which currently governs OERs and the OER appeal process.

	a.  Paragraphs 3-57 and 6-6 provide that an OER accepted by 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, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.

	b.  Paragraph 6-10 states the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

	c.  Paragraph 6-8e states when an appeal is denied, a copy of the memorandum of notification is filed in the performance section of the OMPF.  The appeal correspondence that resulted in a denied or a partially approved appeal will be placed in the restricted section of the OMPF.

28.  Army Regulation 623-3 states the NGB Form 25 is used by the Army National Guard (ARNG) to account for gaps among existing ARNG evaluation reports, missing ARNG reports, and for approved appeals.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of documents related to an OER appeal from her OMPF and her record in iPERMS is not supported by the evidence.

2.  Her request for removal of documents related to and including a GOMOR from the performance portion of her OMPF and iPERMS is partially supported by the evidence.

3.  Her request for removal of two NGB Forms 25 and a change to another NGB Form 25 is partially supported by the evidence.


4.  The applicant's OER appeal and related correspondence are filed in the restricted section of her OMPF.  The DASEB letter notifying her that her request was returned without action was not filed in her OMPF.  There is no evidence of record and the applicant has not provided evidence indicating the appeal or documents related to the appeal were improperly filed or administratively incorrect.  She is not entitled to removal of her OER appeal.

5.  The applicant exhibited extremely poor conduct when she altered her completed OER and presented it to her senior rater for his signature.  There is no evidence that any of the actions taken against her were retaliatory.  In fact, the Deputy Assistant Secretary (Army Review Boards) withheld his decision on her separation from active duty until her case was reviewed by the Director, ODI, a DOD-level IG office.  Although the record does not include the response provided by the Director, ODI, the Deputy Assistant Secretary approved her separation, indicating there was no finding of retaliation.

6.  Since her promotion to CPT in 2003, the applicant's raters have clearly been satisfied with her performance, as evidenced by her OERs.  Since 2007, her raters have consistently rated her promotion potential as "outstanding performance, must promote," and her senior raters have consistently indicated she is "best qualified" for promotion.  Her most recent OERs indicate she has exceeded expectations serving as an executive officer and strength management officer in HQDA.  

7.  The serious nature of her misconduct does not allow for removal of the GOMOR from her record.  However, her commendable performance as a CPT, in particular her outstanding performance serving at HQDA, indicates the intended purpose of the GOMOR has been served.  Transferring the GOMOR and documentation pertaining to her GOMOR appeal to the restricted section of her OMPF in iPERMS would be in the best interest of the Army.  

8.  Review of the applicant's OMPF in iPERMS did not show any duplicate NGB Forms 25.

9.  The NGB Form 25 for the period 15 August 2005 through 14 September 2005 is overlapped by an OER.  She is entitled to removal of this NGB Form 25 from her record.

10.  The NGB Form 25 for the period 3 April 2006 through 2 July 2006 is partially overlapped by her OER for the period 15 August 2005 through 30 April 2006.  She is entitled to correction of this NGB Form 25 to show her non-rated period was 1 May 2006 through 2 July 2006.  


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:

	a.  transferring her GOMOR and documents related to her GOMOR appeal to the restricted section of her OMPF,

	b.  removing from her OMPF the NGB Form 25 for the period 15 August 2005 through 14 September 2005, and

	c.  amending the NGB Form 25 for the period 3 April 2006 through 2 July 2006 to read 1 May 2006 through 2 July 2006.

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 removal of a GOMOR, OER appeal, and duplicate NGB Forms 25 from the record of the individual concerned.

3.  These proceedings and correspondence related to these proceedings should be filed in the restricted section of the applicant's OMPF.



      _______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)                                         AR20100000089



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ABCMR Record of Proceedings (cont)                                         AR20100000089



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