IN THE CASE OF:	  

		BOARD DATE:	  10 March 2011

		DOCKET NUMBER:  AR20100014002 


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 two Officer Evaluation Reports (OERs) from her Official Military Personnel File and referral to a Special Selection Board (SSB) for consideration for promotion to major (MAJ)/O-4 under the 2009 promotion criteria.  

2.  The applicant states the basis for her request is substantive administrative and procedural inaccuracy.  An investigation by the National Guard Bureau (NGB) Office of the Inspector General (IG) found improper appointment of an investigating officer (IO), incomplete and improper handling of a Commander's Inquiry (CI), denial of due process, violations of regulatory and procedural process established in Army Regulation 623-3 (Evaluation Reporting System), and further referred matters to the Department of Defense IG (DOD IG) that were consistent with reprisal against her for making Federally-protected communications about mismanagement within the G-1 office of the Maryland Army National Guard (MDARNG).  

3.  The applicant provides 25 items identified in a list of enclosures.  

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army National Guard (ARNG) on 21 February 1992 and she was honorably discharged on 1 February 1995.  On 20 December 1998, she accepted an appointment as a Reserve Commissioned Officer of the Army.  Effective 22 December 1998, she was appointed in the ARNG where she has served through the date of her application.
2.  A DA Form 67-9 (OER) for the period 1 November 2006 through 31 October 2007 shows in Part II (Authentication) the OER was referred to her and she indicated she wished to make comments.  Her rater placed an "X" for "NO" in Part IVb.b.1 (Attributes) for Emotional, b.2 (Skills) for Conceptual, b.3 (Actions/Leadership) for Communicating. 

3.  In Part V (Performance and Potential Evaluation (Rater)), the rater placed an "X" in the box for "Unsatisfactory Performance, Do not Promote" and provided the following comments in Part Vb:

[The applicant] came to the unit with no previous S1 experience.  She took ownership of the GED Plus program and contributed to the success of 88% of enrolled Soldiers in obtaining their GED.  She monitored the LOD process which resulted in resolution of 82% of outstanding cases.  She recommended an AWOL recovery program in cooperation with the full time retention force and partially implemented it.  During this rating period, however, [she] showed poor judgment in her attempt to become the next full time leader of the 581st.  She approached the senior leadership without the knowledge of her chain of command in an effort to market herself for the position.  Because of her focus on this and her anxiety over rumors circulating in the command, her duties suffered.  Though charged to assume command in the Commander's absence, she failed to act successfully as the unit's leader, instead continued to function as the administrative officer alone.  She did not provide oversight and guidance to the entire unit as the acting commander should.  She failed to analyze and attempt to correct statistical data in critical areas which are driving forces in the unit.  She also failed to keep critical database systems updated.  She has proven an immaturity as a leader and an officer.  Based on her performance during this rating period, I do not recommend her for promotion at this time.  

4.  In Part Vc (Comment on Potential for Promotion) her rater wrote she "must mature as an officer and a leader before she should be considered for promotion."

5.  In Part VII (Senior Rater) her senior rater placed an "X" in the box for "Other" and provided the following comments in Part VIIc (Comment on Performance/Potential):

[The applicant] has a bright future ahead of her if she can master her emotions and maintain mission focus.  During this rating period, it became apparent that this was a challenge for her, and she failed to act ably on a number of key issues as either a staff officer or leader.  Despite this her tenure has not been without success:  she racked up a number of administrative achievements as she grew progressively more confident in her abilities.  Notably achieved success with respect to preparing a large contingent [of] new recruits to ship to IADT during the compressed timeframe known as Summer surge.  [She] is a capable officer who needs to take a deep breath, regroup, learn from her mistakes, and move forward.  She is programmed to attend the Multi-Functional Logistics Officer course and should continue to track in that direction.

6.  The record does not include comments the applicant made in response to this OER.  

7.  A DA Form 4856 (Developmental Counseling Form) shows, on 26 February 2008, the applicant was counseled in response to questions she had regarding her referred OER.  Her rater stated, in effect, she did not keep her informed of appointments with senior leaders, failed to show subordinates an image of a strong leader, failed to provide requested data, failed to communicate effectively with her rater, and failed to keep a database updated.  The applicant acknowledged receiving the counseling and indicated she disagreed with the information provided.

8.  The record includes a legal review, dated 27 June 2008, showing an IO's Report was completed in response to a CI regarding the applicant's OER for the period ending 31 October 2007.  The IO Report is not available for review.  The legal review lists eight IO findings: 

	(1)  she received three formal counselings in writing;

	(2)  she initiated contact and spoke with the G-1 regarding her interest in her rater's position without first asking her chain of command for permission;

	(3)  she did not receive her rater's or senior rater's OER support form;

	(4)  her duties suffered as a result of being upset by rumors regarding her unit's leadership;

	(5)  she was informed in writing of her responsibility to keep a data system updated and that she needed to understand and analyze data systems, yet failed to analyze and attempt to correct data in key areas;

	(6)  she did not function in the capacity as acting commander during her rater's maternity leave and did not follow up with spot checks and a "command" presence during the August and September 2007 drill weekends;
	(7)  there is no statement in her OER indicating her rater's displeasure with her lack of communication concerning unit business during the months of August and September 2007; and

	(8)  she failed to keep critical databases updated.

9.  The legal review indicates the IO recommended that the OER be accepted as written with the exception that the OER should be returned to the rater for reconsideration of checking "NO" in item IV.b.2.3 (Technical).  The author of the legal review found that with the exception of findings in 2 and 3, the findings should not be ratified due to the absence of evidence showing the applicant received written counseling addressing her performance.  The author of the legal review recommended the commander return the OER with the inquiry results and legal review to the rater or senior rater and ask them to correct the OER to account for matters revealed in the inquiry.

10.  On 29 July 2008, her senior rater informed her by email that her rater changed the entry in item IV.b.2.3 (Technical) from "NO" to "YES" in accordance with the IO recommendations.  The amended OER is the OER of record for the rating period ending 31 October 2007.

11.  A DA Form 67-9 for the period 1 November 2007 through 15 March 2008 shows in Part II (Authentication) the OER was referred to her and she indicated she wished to make comments.  Her rater placed an "X" for "NO" in Part IVb.b.1 (Attributes) for Emotional, b.2 (Skills) for Conceptual, and b.3 (Actions/ Leadership) for Decision Making.  

12.  In Part Va (Performance and Potential Evaluation (Rater)) the rater placed an "X" in the box for "Unsatisfactory Performance, Do not Promote" and provided the following comments in Part Vb:

[The applicant] is an officer with much potential, who continued during this shortened rating period to polish her skills as an administrative officer.  However, this period was marred by a serious incident which calls into question [her] critical thinking skills and emotional control.  On or about 03 November, she received notification that she was not selected to become the next 581st Full Time Supervisor, a job that she deeply wanted.  She then, without coordinating, left a DA 31 [Request and Authority for Leave] in her supervisor's office and vanished.  This request was for two weeks, including a drill weekend, and had invalid contact information.  When eventually tracked down five days later and told that she was [absent without leave (AWOL)], [she] was surly and unremorseful.  The rest of the rating period was overshadowed by this incident as she sought employment outside of the organization.  That being said, [she] did perform adequately until she transferred.  She attended and graduated from the Reserve Component Multi-Functional Combat Service Support Course.  She continued to supervise the S1 Section and resolved various Trainee personnel issues at a regular clip.  During this time, the Trainee ship rate did increase marginally, aided by personnel operations.

13.  In Part Vc (Comment on Potential for Promotion) her rater wrote she "needs to master her emotions in order for her to realize her full potential.  I believe she is capable of doing this, but she is not ready for promotion at this time."

14.  In Part VII (Senior Rater), her senior rater placed an "X" in the box indicating she was "Fully Qualified" for promotion to the next higher grade and provided the following comments in Part VIIc (Comment on Performance/Potential):

[The applicant] is an officer with unlimited potential.  She possesses the skills, knowledge and abilities to perform at the next higher grade.  During this rating period, [she] unfortunately marred what would have been an outstanding performance by not working well with her superiors.  [She] should be allowed to recover from this incident and groomed for positions of greater responsibility.  Based on this incident, I cannot recommend promotion at this time.  This documented incident appears to be isolated and I believe her abilities will allow her to improve in the future.  [She] is a talented officer.  

15.  On 2 December 2008, she submitted comments in response to the referred OER.  She provided her account of the incident described by the senior rater and the subsequent counseling she received from her battalion commander.  She stated, in effect, that her actual duty performance contradicted her OER.  

16.  On 11 December 2008, the applicant was informed that her rebuttal of her OER was not in compliance with Army Regulation 623-3 because her comments were not directly related to the evaluation on the OER.

17.  On 30 January 2009, an IO provided findings and recommendations in response to a CI regarding the OER for the period ending 15 March 2008.  The IO found the rater and senior rater were justified in their ratings and recommended, in effect, that the evaluation and recommendation not to promote remain the same.  A legal review of the CI recommended ratification of the findings and recommendation.



18.  On 11 June 2009, the Officer Special Review Board (OSRB) denied the applicant's appeal of her OER for the period 1 November 2006 to 31 October 2007.  On 17 December 2009, the OSRB denied the applicant's appeal of her OER for the period 1 November 2007 to 15 March 2008.  

19.  On 28 January 2010, the NGB IG notified the applicant that neither CI was conducted in accordance with Army Regulation 623-3.  They cited improper appointment of the IO and incomplete and improper handling of each CI.  They referred final action to her State IG to ensure regulatory requirements were met.  They also notified her that matters and action relating to both of her OERs were out of the purview of the NGB IG and had been referred to the DOD IG.

20.  A memorandum, dated 20 May 2010, shows the Assistant Adjutant General Army, Maryland Army National Guard (MDARNG), reviewed CIs relating to two referred OERs and found no fault with the rater's or senior rater's comments in either case.  

21.  On 1 July 2010, she was informed that she was considered but not among those selected for promotion and that it was her second non-selection.  

22.  The applicant provides copies of three OERs covering rating periods beginning on 16 March 2008 and ending on 17 February 2010.  The OERs show no negative comments.  Her raters during these periods marked the block for "Outstanding Performance, Must Promote," and her senior raters marked the block for "Best Qualified."  She also provides a letter of support from a general officer and two memoranda of support from senior officers.  These officers commend her as an outstanding officer who should be promoted. 

23.  An advisory opinion from the NGB, dated 23 April 2010, summarizes the NGB IG investigation, the CIs, and the applicant's issues with her referred OERs.  The NGB recommended disapproval of her request for removal of the referred OERs and disapproval of her request to be considered for promotion to MAJ under the 2009 criteria.

24.  A copy of the NGB advisory opinion was provided to the applicant for her review and response.  In her response, she requested to appear in person before the Army Board for Correction of Military Records (ABCMR).  She stated, in effect, that her referred OERs violated provisions of Army Regulation 623-3.  She also summarized the errors noted in the legal review of the IO Report on the first referred OER and the NGB IG findings.  She highlighted the fact that the NGB IG referred a portion of her case to the DOD IG, citing this as evidence that her OERs were in reprisal for protected communications about mismanagement in her command.
25.  Army Regulation 623-3 governs OERs and the OER appeal process: 

	a.  Paragraphs 3-39 and 6-7 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 6-11 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 6-4 provides that alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual or anyone authorized access to the report.  The primary purpose of a 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-fact 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.

26.  Army Regulation 135-155 (ARNG and U.S. Army Reserve - Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) states promotion consideration or reconsideration by an SSB may only be based on erroneous non-consideration or material error which existed in the record at the time of consideration.

27.  Information obtained from the Army Review Board's Legal Advisor indicated that the applicant's Whistleblower complaint was declined by the DAIG because it was untimely, and the DOD IG concurred.  The DAIG closed her case on 18 May 2010.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for the removal of two OERs from her Official Military Personnel File and referral to a SSB.

2.  The available evidence does not show material error or inaccuracy in the OERs warranting removal or amendment of the documents.  The record shows the NGB IG found her chain of command made errors in administering the CIs for each of her referred OERs.  However, the NGB IG findings do not comment on the content of the referred OERs.  Rather, the findings comment primarily on CI procedures.  

3.  The fact that the NGB IG referred a matter to the DOD IG is irrelevant.  If the DOD IG makes a finding showing one or both of the OERs in question were acts of reprisal against her, she may submit a new application to the ABCMR.  

4.  It appears that as a result of the NGB IG investigation, the Assistant Adjutant General Army, MDARNG, reviewed the CIs pertaining to her referred OERs and determined there was no fault with the rater's or senior rater's comments in either case.  

5.  In the absence of evidence showing material error or inaccuracy in her referred OERs, she is not entitled to removal or amendment of these documents.  

6.  Given that there is no basis for removal of the referred OERs, there is also no basis for referring her to an SSB to be considered for promotion to MAJ under the 2009 criteria.

7.  The applicant’s request for a personal appearance hearing was also carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, 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, a personal appearance hearing is not warranted to serve the interest of equity and justice in this case.

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)                                         AR20100014002



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ABCMR Record of Proceedings (cont)                                         AR20100014002



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