IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20100015357 


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 an officer evaluation report (OER) [hereafter referred to as the contested report] for the period 16 August 2005 through 16 April 2006.

2.  The applicant states, in effect, that all other forms of appeal have been exhausted and there is no supporting documentation for a rating of this type.  She contends it does not reflect the character of her performance and potential as noted in all prior and subsequent evaluations and its inclusion in her personnel file results in great injustice by giving disproportionate weight to one evaluation out of a career of 11 years.

3.  The applicant argues that there is a time delay in getting the supporting documentation the unit used to attempt to support this evaluation.  She also states she is approximately 3 years behind her peers and still possesses the desire to serve as a leader.

4.  The applicant provides the following:

* memorandum for Commander, U.S. Army Human Resources Command (HRC), dated 22 February 2010, requesting removal of the contested report
* memorandum for Commander, HRC, dated 12 April 2010, requesting removal of the contested report
* memorandum for Commander, HRC, dated 16 January 2009, requesting appeal of the contested report
* her college transcript from Webster University
* seven separate OER's
* five separate letters of support
* DA Form 4037 (Officer Record Brief (ORB))

CONSIDERATION OF EVIDENCE:

1.  The applicant's service records show she enlisted in the U.S. Army under the authority of Army Regulation 145-1 (Senior Reserve Officers' Training Corps (ROTC) Program:  Organization, Administration, and Training) on 25 August 1997 for 8 years.  She entered into an ROTC program at East Tennessee State University, Johnson City, TN.

2.  A DA Form 71 (Oath of Office – Military Personnel) shows she was commissioned as a Reserve second lieutenant on 7 May 1999.  She entered active duty on or about 8 June 1999 to attend the Signal Officer Basic Course with a follow-on assignment to Fort Bragg with a report date of 15 November 1999.  She was promoted to captain on 1 October 2002.

3.  The applicant's records show she received a permanent change of station OER [contested report] with an end date of 16 April 2006 which covered an 
8-month period beginning 16 August 2005.  Her rater was a major (MAJ) and her senior rater was a lieutenant colonel.  The contested report had the following entries:

   	a.  in Part IVa(5) and Part IVa(7) (Performance Evaluation-Professionalism-Army Values), the rater placed an "X" in the "No" block for "Integrity" and "Duty";

   	b.  in Part IVb(1) (Performance Evaluation-Professionalism-Actions), the rater placed an "X" in the "No" block for "Mental";

   	c.  in Part Va (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance-Do Not Promote" block;

   	d.  in Part Vb (Comments), he entered the following comments:

[Applicant] performed satisfactorily as the Battalion S-6 in the garrison environment while the battalion prepared for its deployment to Iraq for Operation Iraqi Freedom 05-07 (OIF 05-07).  In preparation for the battalion's deployment, [Applicant] ensured her section had visibility on all communications systems throughout the battalion and that they were operational.  She also set up classes for company communications specialists to ensure they were trained and able to operate independently.  Upon the battalion's arrival in Kuwait, [Applicant's] professionalism began to deteriorate.  On numerous occasions, she was disrespectful toward a senior officer and failed to respond to corrective counseling.  [Applicant] was sent into Iraq ahead of the advanced party as an embed with the [unit name removed] to assist with and prepare for the battalion's arrival at the forward operating base.  She was given this opportunity to excel, and the transition with the communications infrastructures went well.  Once the battalion arrived in Iraq, [Applicant's] professionalism, duty performance, and bearing were unsatisfactory and remained that way despite numerous written and verbal counselings by her chain of command.   [Applicant] failed to display the Army values of respect and duty.  She failed to show respect to a senior officer on several occasions throughout the rating period, and acted unprofessional on several occasions in front of peers, subordinates, members of other battalions, and members of the brigade staff.  [Applicant] does not possess the discipline or will, required to be an officer in the United States Army.  Overall, an unsatisfactory performance by [Applicant].  [Applicant] has reached her potential in the Army.  Do not promote this officer or assign any further positions of responsibility.

   	e.  In Part VIIa (Senior Rater), the senior rater placed an "X" in the "Yes" block, indicating that a completed DA Form 67-9-1 was received with this report and considered in his evaluation and review.  He further placed an "X" in the "Do Not Promote" block and entered the following comments:

[Applicant] occasionally performed her duties as the Battalion S-6 in a satisfactory manner.  She helped prepare the battalion for its deployment to Operation Iraqi Freedom by tracking all communications equipment in the battalion, ensuring it remained serviceable and that the Soldiers in the battalion were trained on the equipment.  [Applicant] was an asset for the battalion during the onward movement and integration in Iraq.  Upon the battalion's arrival in Iraq, the tactical communications infrastructure was operational and always reliable.  [Applicant's] personal challenges are with discipline and military bearing, and she has been unable to overcome these challenges.  Therefore, she should not be promoted again, and should not be placed in any additional positions of responsibility – [Applicant] has achieved her potential in the Army.

4.  The contested report was dated "17 June 2006" next to the rater's and senior rater's signatures and was not signed by the applicant.  A memorandum from Headquarters, 801st Brigade Support Battalion, dated 16 June 2006, provides information on the applicant's refusal to sign the referred report or to make comments.

5.  On 16 January 2009, the applicant submitted an appeal of the contested report.  In her appeal she states she is serving on active duty and that the above-the-zone board for MAJ will occur in January 2009.  She contends the basis for her appeal is a substantive error.  She challenges the comments made by her rater, stating the only counseling she received was regarding her alleged poor attitude or disrespect.  Interestingly, he gave her the counseling statement 2 days subsequent to the initial counseling.  She goes on to state that her senior rater's commentary is inconsistent.  While he states she occasionally performed her duties, there is not a single counseling that references the fact that she failed to accomplish her duties.  She contends that the commander's inquiry (CI) she requested does not meet the requirements of Army Regulation 623-3 (Evaluation Reporting System), paragraph 6-5e, which states in pertinent part that the rating chain will not use the CI to forward derogatory information about the rated individual.  She contends the CI references personal medical issues which were not contained in the contested report's evaluation.

6.  In the appeal, the applicant also points out the fact that she filed an equal opportunity complaint against her rater's unfair treatment of her and objected to the fact that she was being recommended for a medical evaluation board.  She contends that none of these issues were incorporated into the CI.  Instead of the CI addressing those issues separately and merely attempting to discern whether the evaluation was supported by information obtained within the rating period, it attempts to improperly bolster a negative impression of her and taint the review board's opinion by incorporating information that would otherwise not be presented.  There is no copy of the CI in the applicant's available records and she did not provide a copy.

7.  The Army Special Review Board (ASRB) conducted a thorough analysis of the applicant's issues on 19 August 2009 and concluded that the evidence does not justify altering or withdrawing the contested report.  The ASRB provided the applicant with a copy of the findings and suggested that if she was unable to present any new substantive evidence to the ASRB, she could appeal to the Army Board for Correction of Military Records.

8.  The applicant provided several letters of support which recommend the removal of the contested report from her records.  The letters provide the following comments in support of her request:

	a.  "I believe this report has served its purpose.  [Applicant] has demonstrated growth in her maturity, professionalism, education and work performance.  She is now ready to move forward in her Army Career."

	b.  "I have had the pleasure of knowing and working with [Applicant] while she was assigned as the brigade S-6.  [Applicant] was extremely professional at all times and always maintained her military bearing regardless of the situation.  Whatever flaws she possessed in the past she has definitely overcome in regards to her professionalism."

	c.  "I have known the [Applicant] since August 2008 and she has proven to be an outstanding officer who has all the attributes to serve at the next level in the Army.  I wholeheartedly recommend her for promotion to MAJ."

	d.  "I strongly support removal of the OER covering the period 16 August 2005 through 16 April 2006 from [Applicant's] official military personnel file.  While I cannot speak to the circumstances that surrounded that evaluation, I agree with her assertion that the report has served its purpose by both improving her performance and setting her behind her peers.  I further agree that her continued non-selection for promotion, based solely on this one report, represents an injustice as it reflects a failure to consider her overall potential to serve in positions of greater responsibility.

9.  Army Regulation 623-3 provides the basic rules applicable to modifications of previously submitted evaluation reports.  It states that an evaluation report accepted by Headquarters, Department of the Army, 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 opinions and objective judgment of the rating officials at the time of preparation.  It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored.

10.  Chapter 6 of Army Regulation 623-3 contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-11 outlines the burden of proof that must be met to support a successful OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should 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.

11.  Army Regulation 623-3 also states that for claims of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.

12.  Chapter 6 of the same regulation states that the results of a CI may provide support for an appeal request.  To be acceptable, evidence will be material and relevant to the appellant's claim.  In this regard, note that support forms or academic counseling forms may be used to facilitate writing and evaluation.  However, these are not controlling documents in terms of what is entered on the evaluation form.  Therefore, no appeal may be filed solely because the information on a support form or counseling form, or because the comments of rating officials on the evaluation form, are not identical to those in the applicable support forms or counseling forms.  In addition, if a CI was conducted, the results of the inquiry will be added as an enclosure to the appeal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the contested report was carefully considered and found not to be supported by the evidence provided.

2.  The applicant makes reference to a CI in which the rating chain failed to comply with the regulatory guidance provided by Army Regulation 623-3.  Without a copy of the CI, there is no evidence which supports the applicant's allegations that her rater and senior rater were not in compliance.

3.  The applicant provided several letters of support and none of these letters are from officials who had firsthand knowledge of the applicant's performance at the time the contested report was rendered.  While this is not a requirement, it does add more weight to the applicant's allegations.  The contested report is more than 4 years old and the letters of support are from persons who have knowledge of the applicant's performance now.  Although the applicant's current performance is commendable, it does not provide validity to her claims.

4.  By regulation, to support removal or amendment of a report, there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied 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.  The applicant's arguments provided in this case address her dissatisfaction with the rating and the impact the contested report has had on her promotion to MAJ, but fails to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  Therefore, the applicant is not entitled to removal of this report based on the current evidence.

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)                                         AR20100015357



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ABCMR Record of Proceedings (cont)                                         AR20100015357



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