IN THE CASE OF:	  

		BOARD DATE:	  13 April 11

		DOCKET NUMBER:  AR20100025989 


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:

The applicant defers her request to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests:

* removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period from 17 June 2006 through 31 January 2007 (hereafter referred to as the contested OER) from the applicant's records
* consideration of the applicant's records by an appropriate a special selection board (SSB) for promotion to lieutenant colonel (LTC)

2.  Counsel states the Officer Special Review Board (OSRB) denied the applicant's OER appeal on 25 February 2010; however, the General Officer Memorandum of Reprimand (GOMOR) associated with this same incident was removed from the applicant's records by the Department of the Army Suitability Board (DASEB).  Counsel argues the following points:

* An Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) was required
* She was unable to rebut the evidence of anonymous information and therefore her rights were compromised
* The Equal Opportunity Representative (EOR), a sergeant first class (SFC), was not trained to conduct an investigation

3.  Counsel submits:

* An OSRB Record of Proceedings
* The previous Appeal to the DASEB to Transfer the GOMOR
* Officer Record Brief
* Command Climate Survey (CCS)
* GOMOR

CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she was appointed as an Military Police (MP) second lieutenant in the U.S. Army Reserve with concurrent call to active duty and executed an oath of office on 15 May 1993.  She subsequently entered active duty, completed several military training courses, served in staff or leadership positions, and was promoted to captain on 1 June 1997 and to MAJ on 1 March 2004.

2.  Her records further show she was assigned to Headquarters and Headquarters Detachment, 385th MP Battalion, deployed in support of the Combined/Joint Task Force (CJTF) 76 - Afghanistan. 

3.  On 1 February 2007, the Commanding General (CG), CJTF-76 reprimanded the applicant after a command climate survey between 19 and 23 January 2007 revealed an overwhelming consensus she created a hostile work environment due to her threatening behavior, lack of military bearing, and disparaging treatment of subordinate Soldiers.  The evidence revealed a shocking lack of leadership and communication skills, ability to work with and to supervise others, and regard to fostering a positive work environment where all Soldiers could work as a team.  The GOMOR was directed to be filed in the performance section of her official military personnel file (OMPF).

4.  Additionally, on 1 February 2007, the CG, CJTF-76 delegated in writing authority to relieve the applicant of her duties due to the loss of confidence in her ability to lead Soldiers.  On 4 February 2007, the applicant's brigade commander relieved her.  She was directed to surrender her weapon, draw her personal records, clear her unit receipts, collect her personal belongings, and prepare for departure from Afghanistan. 

5.  During the month of February 2007, the applicant received the contested relief for cause OER which covered 7 months of rated time from 17 June 2006 through 31 January 2007, for the period the applicant performed as the Battalion S3.  Her rater was a LTC (the battalion commander) and her senior rater was a colonel (the brigade commander).  The OER shows the following entries:
	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in the "No" block for "Respect" and "Loyalty." 

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Communicating," "Motivating," and "Building." 

	c.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered the following comments in Part Vb:  [The applicant] provided impressive, articulate presentations and responds to every request I make.  Her technical and tactical proficiency is above average.  [The applicant] is a competent officer; she can take any task she is given and complete it to standard, however, she is unconcerned about her staff's morale and/or climate that permeate the S3.  [The applicant] has created an environment inside the S3 that can only be described as hostile.  I have counseled and attempted to provide mentorship to [The applicant] on her abrasive style of leadership.  I have provided her the opportunity to change her behavior.  She has chosen not to change.  [The applicant's] subordinates have been subjected to an undue amount of stress, negative values, and hopelessness. 

	d.  In Part VIIa (Senior Rater) an "X" is placed in the "Do Not Promote" block. The applicant's potential is rated "Below Center of Mass," and the following comment is entered:  [The applicant] is a tactically and technically proficient officer.  She has served her unit well in these areas.  While her dedication, attention to detail, and work ethics are admirable her ability to coach, mentor, and develop subordinates is far below standards for a field grade officer.  Her negative attitude towards her subordinates indicates poor leadership ability and potential.  There is no recourse but to relieve this officer of her current duties as the S3 of the 385th MP Battalion.  This officer should not be placed in a command or supervisory position.

6.  On 10 May 2007, the contested OER was referred to the applicant for acknowledgement.  The OER indicates she did not provide any comments.  She and her rating officials signed the contested OER on 30 May 2007.

7.  On 31 May 2007, the Deputy CG, CJTF-76, conducted a supplementary review of the applicant's OER and determined the evaluation was complete and correct as written and required no further comments.

8.  On 17 March 2009, the applicant was identified by the 2008 LTC Army promotion Selection Board to show cause for retention on active duty due to substandard performance. 
9.  In her rebuttal statement, she and counsel argued that the GOMOR and OER were based on unsubstantiated anonymous statements derived from the command climate survey.  Since the survey was not an investigation, its results could not be used to issue her a GOMOR.  

10.  On 12 May 2009, the U.S. Army Human Resources Command notified the applicant that the elimination action initiated against her in March 2009 would be terminated and she would be allowed to be retained on active duty.

11.  On 29 October 2009, by unanimous vote, the DASEB denied her petition to remove the GOMOR or in the alternative transfer the GOMOR to the restricted section of her OMPF.  However, on 27 January 2010, the Deputy Assistant Secretary of the Army (Review Boards) after reviewing the DASEB proceedings, findings, conclusions, and recommendations granted the applicant partial relief and transferred the GOMOR to the restricted section of her OMPF.  This action was neither considered retroactive nor did it constitute a basis for promotion reconsideration.

12.  On 25 February 2010, the OSRB denied the applicant's and her counsel's request for removal of the contested OER from her OMPF and consideration for promotion to LTC by an SSB.

13.  AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System:  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in other directives.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.  

	b.  Paragraph 3-36 states when an OER is referred to a Soldier, the rated Soldier may comment if they believe that the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier’s referral comments.

	c.  Paragraph 3-39 states, in pertinent part, evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	d.  Paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. 

14.  AR 600-37 (Unfavorable Information) prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  The regulation states the Army policy is to ensure that unsubstantiated unfavorable information is not placed in personnel files or used for personnel decisions.  Additional objectives are to protect the rights of individual Soldiers and, at the same time, permit the Army to consider all available relevant information when choosing Soldiers for positions of leadership, trust, and responsibility and to provide a means to remedy injustices if they occur.  Paragraph 3-2 states except as indicated in paragraph 3–3, unfavorable information will not be filed in an official personnel file unless the recipient has been given the chance to review the documentation that serves as the basis for the proposed filing and make a written statement, or to decline, in writing, to make such a statement.  This statement may include evidence that rebuts, explains, or mitigates the unfavorable information.  The issuing authority should fully affirm and document unfavorable information to be considered for inclusion in official personnel files.

15. AR 600-8-29 (Officer Promotions) prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list.  It states an SSB may be convened to consider or reconsider commissioned officers for promotion when Headquarters, Department of the Army discovers one or more of the following: an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error, including officers who missed a regularly scheduled board while on the temporary disability list and who have since been placed on the active duty list (SSB required); the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); or the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

16.  AR 600-20 (Army Command Policy) (2008) prescribes the policy and responsibility of command.  The regulation emphasizes that command of an Army organization is a privilege.  The regulation provides a listing of command responsibilities.  Part of a commander’s responsibilities is listed as to show in themselves a good example of virtue, honor, patriotism, and subordination; to be vigilant in inspecting the conduct of all persons who are placed under their command; to guard against and suppress all dissolute and immoral practices, and to correct, according to the laws and regulations of the Army, all persons who are guilty of them; to take all necessary and proper measures, under the laws, regulations, and customs of the Army; and to promote and safeguard the morale, the physical Well-being, and the general welfare of the officers and enlisted persons under their command or charge.

	a.  Paragraph 2-17b states if a relief for cause is contemplated on the basis of an informal investigation under AR 15-6 the referral and comment procedures of that regulation must be followed before initiating or directing the relief.

	b.  Appendix E, paragraph E-7, requires that CCS be anonymous.  

	c.  Paragraph 6-3f(12) states that battalion and company level commanders (and activities/organizations without assigned EO personnel) will appoint EORs in the rank of sergeant (promotable) [SGT(P)] and above in writing.  EORs responsibilities include assisting commanders in addressing EO climate detractors and continuously assist commanders in the conduct of unit climate assessments.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER should be removed from her records.

2.  The evidence of record shows the applicant was reprimanded for substandard conduct and professionalism that fell far below that expected of her as a field grade commissioned officer.  Her verbal abuse and public humiliation of Soldiers caused her chain of command to lose confidence in her ability to lead Soldiers. The GOMOR was directed to be filed in the performance section of her OMPF. 


3.  With respect to the arguments she and her counsel present:

	a.  Contrary to counsel's contention that the DASEB removed the GOMOR from her records, the DASEB actually transferred it to the restricted section of her OMPF.  This transfer, however, did not negate the fact that she was relieved of her duties due her chain of command's loss of confidence in her ability to lead Soldiers.  Therefore, she received the resultant OER.

	b.  With respect to the requirement of an AR 15-6 investigation, the applicant was counseled on her behavior which led to the relief action prior to the relief action as specified in AR 600-20 (Paragraph 2-17a).  A general officer in her chain of command approved and authorized, in writing, her relief for cause.  She was not relieved on the basis of an AR 15-6 investigation so the due process provisions provided in that regulation are inapplicable.  

	c.  With respect to counsel’s contention that she was unable to rebut anonymous information and therefore her rights were compromised in violation of AR 600-37, a Soldier can appeal inclusion of adverse information.  The burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  While the GOMOR is not an issue in this case, the record reflects the applicant was provided the derogatory information on which the GOMOR was based.  The record also reflects she declined to respond to the GOMOR.   

	d.  Additionally, one of the steps in the redress system is the referral process including a Soldier’s opportunity to comment on the referred OER.  The record reflects she declined to comment on the referred OER.  Additionally, there is no evidence in the record that she requested a commander’s inquiry as provided in Chapter 6 of AR 623-3.  

	e.  The OER indicates she was unconcerned about her staff’s morale or the climate in the S3.  She created a hostile work environment in her section.  She was counseled and provided an opportunity to change her behavior.  The evidence in the command survey was merely a reflection of the behaviors observed by her commander.  Therefore, the focus of the OER is on her behavior, and her unwillingness to change.  The anonymous Soldier's feedback substantiate the applicant did not change her behavior.  

	f.  With respect to her contention that the EOR was not trained to conduct investigations, she did not provide any evidence regarding the training of the 

EOR.  She relies on regulatory provisions to establish that an EOR cannot conduct an investigation.  She states that the custom of the service and AR 15-6 prohibits a SFC from investigating an officer.  By regulation, battalion and company level commanders (and activities/organizations without assigned EO personnel) will appoint EORs in the rank of SGT (P) and above in writing.  According to her submission, the EOR held the rank of SFC.  Therefore, the EOR in question held an appropriate rank as required by the regulation.  Additionally, the regulation states that EOR’s responsibilities include assisting commanders in addressing EO climate detractors and continuously assist commanders in the conduct of unit climate assessments.  

4.  The contested OER appears to be correct.  There is no evidence, and the applicant has provided none, to show that her rater and senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly 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.  

5.  The applicant’s arguments provided in this case address her dissatisfaction with her rating and the impact the contested report may have had on her promotion to LTC; but she failed to show any material error, inaccuracy, or injustice related to the report at the time it was rendered.  Furthermore, she is not entitled to an SSB because she does not meet the criteria for an SSB.

6.  In view of the foregoing evidence, she is not entitled to the 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
      
ABCMR Record of Proceedings (cont)                                         AR20100025989



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ABCMR Record of Proceedings (cont)                                         AR20100025989



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