IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100022280 


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 from her Official Military Personnel File (OMPF) a Relief for Cause Officer Evaluation Report (OER) she received for the period 28 July through 30 October 2006.

2.  The applicant states the OER in question is unfair, unjust, substantively inaccurate, and in violation of the governing Army regulation.

3.  The applicant provides:

* a self-authored memorandum, dated 23 August 2010
* her OER ending 30 October 2006
* an Army Special Review Board (ASRB) appeal memorandum, dated
20 April 2007, with enclosures
* an ASRB Record of Proceedings, dated 29 May 2008

CONSIDERATION OF EVIDENCE:

1.  The record shows the applicant was commissioned a second lieutenant (2LT)/O-1 in the U.S. Army Reserve (USAR) in May 1997 and she was ordered to active duty in that status.  She was promoted to first lieutenant (1LT)/O-2 on 30 November 1998, to captain (CPT)/O-3 on 1 December 2000, and to major (MAJ)/O-4 on 1 December 2006.  As of the date of her application, she was serving on active duty in Korea.


2.  On 22 November 2006, the applicant received a Relief for Cause OER for the period 28 July through 30 October 2006, in which she was evaluated as the Deputy Public Affairs Officer (DPAO) for a forward deployed armored division.

3.  In Part IV (Performance Evaluation - Professionalism) of the contested OER, the rater, the Public Affairs Officer (PAO), a major, gave "No" responses to the following questions in the areas identified:

* a (Army Values) item 2 Integrity
* b (Leader Attributes) item 1 - Mental and item 3 - Emotional
* b2 (Skills) item 1 - Conceptual and item 3 - Technical
* b.3 (Actions) item 1 - Communications, item 2 - Decision Making, and item 5 - Executing

4.  In Part V (Performance and Potential) of the contested report, the rater placed the applicant in block three (Unsatisfactory Performance - Do Not Promote). 

5.  In Part Vb (Comment on Specific Aspects of the Performance) the rater stated he concurred with the directed relief for cause of the applicant due to her substandard performance of duty and failure to comport with expected standards of an officer of her grade and experience.  He further commented that since his initial counseling with the applicant in August 2006, she had not displayed the attributes of a senior captain to perform as the DPAO.  He stated her performance in publishing Public Affairs Guidance, Talking Points, and interaction with the media was repeatedly substandard.  He indicated that he came to find her a liability and not an asset.  He stated the substandard performance culminated when she violated procedures and protocol when she released information on a death of a Solider in blatant disregard of Public Affairs directives and command guidance.  

6.  In Part Vc (Comment on Potential and Promotion) the rater stated he did not believe the applicant had the potential to be promoted to the next higher rank and the Army should not retain her for future service.  

7.  In Part VII (Senior Rater), the senior rater, who was the Chief of Staff, a colonel,  placed the applicant in block 3 (Do Not Promote) in Part VIIa (Promotion Potential).  

8.  In Part VIIc (Comment on Performance/Potential) the senior rater stated he directed the applicant's relief for cause based on her mishandling of a press query on the death of a Soldier killed in Iraq, which resulted in the release of 


highly sensitive information that was not cleared for public release.  He stated her actions demonstrated a reckless disregard for established procedure within the command.  He also commented that this was not an isolated incident and she had a history of poor performance.  He indicated it was his judgment she crumbled under pressure and becomes subversive to superiors when confronted with adversity.  He also stated she had not demonstrated the technical competence and professional judgment expected of an officer of her grade and experience, and he had lost confidence in her ability to perform her duties as the Deputy PAO.  He concluded by stating he questioned whether she had the potential to perform at the field grade level, and stated "do not promote."  

9.  On 21 November 2006, the division commander appointed an investigating officer (IO) to conduct an investigation of the circumstances of the relief for cause of the applicant, under the provisions of Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers).  The IO found the applicant's relief for cause was accomplished in accordance with applicable regulations.  She further determined that the since the cause of the relief was a specific incident of a serious nature there was no requirement for an informal investigation prior to the relief.  The IO further found the applicant was not subject to maltreatment, retribution, or personal bias.  

10.  In response to the investigation findings, the applicant submitted rebuttal remarks in which she admitted to violating command and Army policy regarding the release of information to the press regarding the death of a Soldier that had not been cleared for public release.  

11.  On 20 April 2007, the applicant appealed the OER in question based on substantive inaccuracy claiming:

* prior to the incident that led to her Relief for Cause, she had never been counseled for poor performance contrary to the rater's comments on the contested report
* she stated she had never been counseled for poor duty performance during the rating period
* the governing regulation prohibits comments made on performance or incidents occurring before the rating period except when those comments related to prior activity not known at the time of the previous rating
* no prior poor duty performance or incident is documented
* she only received negative counseling on 4 and 9 May 2006, from a previous rater
* no poor duty performance is documented in the OER she received on
27 July 2006

12.  On 29 May 2008, the ASRB after carefully considering the applicant's appeal of the contested OER unanimously voted to deny the applicant's appeal case.  The board determined that the evidence presented did not clearly and convincingly establish that the report under consideration was materially in error, inaccurate, or unjust.  Therefore, the overall merits of the case did not warrant the relief requested.

13.  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 commanders' inquiries and appeals.

14.  Army Regulation 623-3, 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.  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.

15.  Army Regulation 623-3, chapter 6, contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.

16.  Army Regulation 623-3, paragraph 6-11, outlines the burden of proof that must be met to support a successful evaluation report 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the OER in question is unfair, unjust, substantively inaccurate, and in violation of the governing Army regulation has been carefully considered.  However, there is insufficient evidence to support amendment or removal of the OER in question.  

2.  The evidence of record confirms that the applicant was properly afforded all appellate review opportunities, which included a 15-6 investigation and review by the ASRB.  These reviews confirmed the OER in question was properly accepted and filed in the applicant's OMPF in accordance with the applicable regulation.  

3.  The evidence of record confirms the applicant violated command and Army policy on the release of sensitive information to the press pertaining to the death of a Soldier, and this was the basis for her being relieved of her duties as the DPAO.  Further, although she asserts errors in the comments regarding her work history made on the report, the applicant admitted to the offense that led to her relief from her duties as the DPAO and the report in question.  As a result, it appears the applicant's relief was the result of her violation of policy which resulted in the senior rater losing confidence in her ability to perform her duties as the DPAO.   

4.  In view of the facts of this case and notwithstanding the applicant's claims to the contrary, it appears the evaluations contained on the contested OER represent the considered opinions and objective judgment of the rating officials.  As a result, it is concluded that the OER in question was processed and accepted for filing in the OMPF in accordance with applicable regulations, and there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity, and/or to remove the contested report from the record at this time.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant and counsel have failed to submit evidence that would satisfy this requirement.

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)                                         AR20100022280



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ABCMR Record of Proceedings (cont)                                         AR20100022280



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