IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010258 


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 that an officer evaluation report (OER) for the period 1 January 2005 through 7 July 2005 and all evidence of her OER appeal be removed from her official military personnel file (OMPF).

2.  The applicant states she believes the OER in question was not an accurate reflection of her duties during the rating period due to issues between her and her senior rater as noted in the substantiated Inspector General (IG) complaint.  She indicates that she requested that the OER be removed through the Army Special Review Board (ASRB) and was asked for supporting evidence.  She provided evidence from the III Corps IG and the ASRB stated that the "evidence would be persuasive if the appellant had received a referred report" and "however, a review of the contested report shows it was not referred and there are no unfavorable comments made by either her rater or [senior rater]."  She claims since there is no referred report, there should be no appeal documents.  She also states that the OER appeal draws attention to the OER in question.

3.  The applicant provides:

* OER appeal packet with enclosures outlined in the table of contents
* III Corps IG letter, dated 18 April 2006
* ASRB Record of Proceedings, dated 14 February 2008
* email, dated 31 March 2009, subject:  Information Request
* memorandum, dated 3 April 2009, subject:  OER Appeal, [Applicant], New Substantive Evidence
* ASRB memorandum, dated 14 October 2009, subject:  Return Without Action Evaluation Report Appeal [Applicant]
* U.S. Army Human Resources Command memorandum, dated 6 November 2009, subject:  OER Appeal

CONSIDERATION OF EVIDENCE:

1.  The applicant was commissioned as a second lieutenant on 18 January 2001.  She was awarded areas of concentration 67C (Preventive Medical Sciences) and 72D (Environmental Science).  She was promoted to captain on 1 August 2004.

2.  The contested OER is a 6-month change-of-rater OER covering the period 1 January 2005 through 7 July 2005.  This OER shows the applicant was rated "Outstanding Performance, Must Promote" in Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion) by her rater.  She was rated "Fully Qualified" in Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) by her senior rater.  There were no unfavorable comments in Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion) by her rater or Part VIIc (Comment on Performance/Potential) by her senior rater.

3.  A review of the applicant's performance section of her OMPF on the interactive Personnel Electronic Records Management System revealed a copy of the OER in question and the appeal decision memorandum.  Her OER appeal and associated documents are located in the restricted section of her OMPF.

4.  The applicant provided a portion of a letter from the III Corps IG, dated 18 April 2006, responding to her complaints concerning allegations made by her.  This letter states the applicant's contentions that her rater was disrespectful towards her, that her rater improperly had an officer junior in grade counsel her, and that her senior rater improperly stopped the processing of the award recommendation of the Purple Heart for her, were substantiated.

5.  The applicant appealed the OER in question on 20 June 2006 based on substantive and administrative inaccuracy claiming the OER should have been referred to her for comment due to what she believed were negative comments by her senior rater.  She also claimed she did not receive any counseling regarding her performance from either her rater or senior rater and the comments did not reflect her overall performance.

6.  The ASRB reviewed the applicant's case on 14 February 2008 and determined 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 was warranted to correct a material error, inaccuracy, or injustice.  The Board further determined the appeal documentation would be filed in the restricted portion of the applicant's OMPF and the appeal decision memorandum in the performance portion of the OMPF.

7.  On 14 October 2009, the applicant's request for reconsideration of her OER appeal was returned without action by the ASRB.  The letter states that under the provisions of Army Regulation 623-105 (Evaluation Reporting System), then in effect, and currently reiterated in Army Regulation 623-3 (Evaluation Reporting System), substantive evaluation report appeals must be submitted within 3 years of the through date of the report.  In this appeal, the applicant submits as new evidence a letter from the III Corps IG, dated 18 April 2006.  The applicant contends that the IG investigation proved her rater and senior rater demonstrated degrading and unfair treatment during the rating period in question.  The letter states this evidence would be persuasive if the applicant had received a referred report of if the rater and/or senior rater had made derogatory narrative comments on the OER in question.  However, a review of the contested report shows it was not referred and there were no unfavorable comments made by either her rater or senior rater.  The applicant was assessed as "Outstanding Performance, Must Promote" and "Fully Qualified" by her rater and senior rater, respectively.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.

9.  Table 2-1 of Army Regulation 600-8-104 states that an OER will be filed in the performance section of the OMPF and that case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the OMPF.

10.  Army Regulation 623-105, in effect at the time, stated that an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF was presumed to be administratively correct, to have been prepared by the proper rating officials, and to have represented the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also stated that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity referred to in paragraphs 3-39 and 6-7 should not be applied to the report under consideration and action was warranted to correct a material error, inaccuracy, or injustice.

11.  Paragraph 3-34 of Army Regulation 623-3, currently in effect, states the following types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to Headquarters, Department of the Army:

* a relief-for-cause report
* any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Actions in rater's narrative evaluation
* any report with a rating of "NO" in Part IVa-c
* any report with an entry of "FAIL" in Part IVc, indicating noncompliance with Army Regulation 350-1 or an entry of "NO" indicating noncompliance with Army Regulation 600-9
* any report with a performance and potential evaluation in Part Va of "Unsatisfactory Performance, Do Not Promote" or narrative comments to that effect from any rating official
* any report with a performance and potential evaluation in Part Va of "Other" where the required explanation has derogatory information
* any report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa
* any report with a promotion potential evaluation of "Other", in Part VIIa where the required explanation has derogatory information
* any report with a senior rater potential evaluation in the bottom two boxes of Part VIIb
* any report with negative comments in Parts Vb, Vc, VI, or VIIc

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the OER in question was not an accurate reflection of her duties during the rating period due to issues between her and her senior rater.  However, the applicant has not provided sufficient evidence to show the OER did not represent the considered opinion and the objective judgment of the senior rater at the time of preparation.  In addition, there were no unfavorable comments made by either her rater or senior rater.

2.  The applicant contends the appeal documents should not be in her OMPF since the contested OER was not referred.  However, the applicant knew the OER was not referred before she appealed the contested OER to the ASRB.  She appealed the OER in question based on substantive and administrative inaccuracy claiming the OER should have been referred to her for comment due to what she believed were negative comments by the senior rater.

3.  The contested OER was prepared by the properly-designated rating officials and is properly filed in the applicant's military personnel records in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.

4.  The OER appeal is properly filed in the applicant's military personnel records in accordance with the governing regulation.

5.  Based on the foregoing, 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:

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)                                         AR20100010258



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ABCMR Record of Proceedings (cont)                                         AR20100010258



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