IN THE CASE OF:	  

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20100000749 


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 reconsideration of an earlier request 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).  She also requests that the Army Board for Correction of Military Records (ABCMR) denial/proceedings be removed from her OMPF, which is a new issue.

2.  The applicant states when she appeared in front of the ABCMR formal board in October 2009 she had reason to believe her temporary inability to deploy because of an eye condition was held against her by her chain of command.  Her intermediate rater was extremely unhappy when she told him about her glaucoma which rendered her temporarily unable to deploy.  This would have required her intermediate rater to deploy in her place, something he did not want to do which unnecessarily caused the chain of events that followed.  She claims he had a negative view of her and determined she was trying to avoid deployment and he shared this assumption with her Battalion and Brigade chains of command which turned them against her before they met her.

3.  The applicant states, in effect, her chain of command based its evaluation of her upon information that was not true.  She contends that in the process of trying to obtain additional insight into why she was rejected as the chaplain for the 369th and 442nd Signal Battalions she learned that her senior rater incorrectly thought she left a field training exercise each night to return to her quarters while the unit slept in tents.  She points out that she did leave for short periods of time, with the permission of her Battalion Commander and Executive Officer, to use eye compresses as recommended by her doctor but she came back to the field to her tent where she spent every night of the field training exercise.

4.  The applicant states it is clear this erroneous information adversely affected the senior rater's perception of her, he held a negative view of her because this information about her was wrong, and her rater had incorrect information as well, which he passed on to her senior rater.  This is evidenced by the Memorandum of Admonition given to her by the senior rater which specifically cites false deficiencies about which her rater counseled her.

5.  The applicant states the entries contained in her OER were based upon inaccurate information and these inaccuracies were significant enough to further color her raters' perceptions of her overall performance notwithstanding her many accomplishments during the rating period.  Her raters had already been adversely influenced by an intermediate rater who was upset with the news of her eye condition and subsequent inability to deploy.  The OER was unjust as it was based on biased and inaccurate information and it did not truly reflect her overall performance during the rated period.

6.  The applicant provides an email, dated 18 November 2009; a memorandum for record, dated 30 November 2009, from her husband; a memorandum for record, dated 6 July 2007, from the Officer in Charge, 67th Signal Battalion Rear Detachment, Fort Gordon, GA; and a Developmental Counseling Form, dated
4 May 2007.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20090008102, on 7 October 2009.

2.  The applicant provided an email, dated 18 November 2009, from a colonel assigned to Headquarters, Department of the Army, Installation Management Command, Central Intelligence Group.  This email is in response to a request for assistance from a legal assistance attorney at Fort Gordon.  The colonel states, in pertinent part, that he was not in a position to say what occurred within the 63rd Signal Battalion that resulted in the applicant's departure, that he understood the battalion commander [the applicant's senior rater] was not satisfied with the applicant's duty performance, and that no mention was made to any physical condition on the applicant's part.  He states that the example of poor 
performance given to him was the applicant's personal decision to leave the field training exercise without authority each night to return to her quarters while the unit slept in tents and that at that point the command had lost confidence in her ability to support the unit and sought to replace her prior to their imminent deployment to Iraq.

3.  The applicant also provided a memorandum of record, dated 30 November 2009, from her husband [an Army Chaplain].  He states, in pertinent part, that he vehemently disputes the statement in the email that the applicant left the field training exercise without authority each night to return to her quarters.  He testifies that the applicant never returned to her quarters or left the installation during the field exercise in May 2007 and that she only left the field momentarily with permission by her rater and senior rater to do eye compresses as recommended by her doctor.  She returned to the field and to a tent where she slept.  He goes on to state that it is clear from the email that the applicant's senior rater spread this slanderous lie far and wide as further evidenced by the fact that no other commander in the brigade wanted to receive her.  He contends that through this fallacious action the senior rater demonstrated conduct unbecoming an officer and violated the Army values, especially the value of integrity.  His bias against the applicant further manifested itself in her unfavorable OER.  With the unveiling of this lie, the Brigade Commander's findings from an initial inquiry are also called into question, where he found no irregularity or injustices with the OER.  He states that lying about an officer's whereabouts is clearly a grave injustice and constitutes irregularity.  It is clear now that the applicant's entire rating chain was fraught with error when it came to judging her performance as a chaplain and as an officer.  He recommends that the unfavorable OER be expunged.  He further recommends an investigation of the entire rating chain and that appropriate disciplinary measures be taken against them for their shameful actions.

4.  The memorandum for record, dated 6 July 2007, and the Developmental Counseling Form, dated 4 May 2007, provided by the applicant were previously considered by the Board.  These documents were included in the applicant's OER packet, dated 3 August 2007, in her original application and will not be considered by the Board.

5.  The 18 November 2009 email and the 30 November 2009 memorandum of record provided by the applicant are new evidence which warrant consideration by the Board.

6.  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.
7.  On 10 May 2007, the applicant received the contested change of rater OER for the period 29 December 2006 through 11 May 2007.

8.  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.

9.  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.  On 14 June 2007, the applicant responded to the letter of admonition disputing the issues addressed in the admonishment.  

10.  The applicant appealed the OER in question on 3 August 2007, 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.

11.  The Army Special Review Board (ASRB) reviewed the applicant's case on 18 November 2008, and determined that the rating officials were objective and that their comments did not reflect any personal bias or prejudice.  After reviewing all of the available evidence, 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.

12.  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.

13.  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.

14.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, Military Personnel Records Jacket, Career Management Individual File, and the 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 and that ABCMR proceedings and case correspondence relating to denied evaluation report appeals action will be filed on the restricted section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The 18 November 2009 email provided by the applicant was noted.  However, it does not, by itself, serve as sufficient evidence to warrant removal of a duly constituted evaluation of performance and potential.  In fact, it appears to support the position of her raters.



2.  The applicant contends that the contested OER was unjust as it was based on biased and inaccurate information and it did not truly reflect her overall 
performance during the rated period.  However, the ASRB reviewed the applicant's case and this Board granted the applicant a personal appearance in the process of reviewing her case and determined that the rating officials were objective and that their comments did not reflect any personal bias or prejudice, that 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).

3.  The applicant's remaining contentions and allegations raised in regard to the contested OER were carefully considered.  However, the contested OER was prepared by the properly designated rating officials and are properly filed in the applicant's military personnel records in accordance with the governing regulation.  There is no evidence that they were improperly prepared or filed.

4.  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.  Therefore, there is an insufficient basis for granting the applicant’s requested relief. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X_____  __X____  __X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  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 to amend the decision of the ABCMR set forth in Docket Number AR20090008102, dated 7 October 2009.

2.  With regard to the applicant's remaining issue that the ABCMR denial/
proceedings be removed from her OMPF, the Board further determined that 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)                                         AR20100000749



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)