IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100027556 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 1 January through 3 October 2005 (hereafter referred to as the contested OER) from her records.

2.  The applicant states the primary basis of her appeal is that the appeals process was unjust and unfair.  The secondary basis of her appeal is substantive inaccuracy.  She states she requested an extension to the initial 10-day suspense to rebut her OER because she would be traveling during a permanent change of station (PCS) move and would not be able to get legal counsel while driving across country.  She states she was granted an extension until 31 October 2005.  She states the second and final extension requested by her legal counsel was granted until 9 November 2005 which was the day after her appointment with legal counsel.  She states this extension was not sufficient time for her rebuttal, sent by certified mail, to meet the suspense granted and this was unfair and unjust due to the circumstances of her move.

	a.  She further states the Department of the Army Suitability Evaluation Board (DASEB) determined the intended purpose of the general officer memorandum of reprimand (GOMOR) had been served and approved the transfer of her GOMOR and all related documents to the restricted portion of her official military personnel file (OMPF) thereby setting precedence for removal of the contested OER.  She states the OER is one of the documents that should have been included in "removal of all documents" because it is a referred report which makes mention of the GOMOR in both the rater and senior rater comments.


	b.  She further states that if the Board decides the appeals process was not flawed and unjust, then she requests removal of the OER based on the fact that she has overcome the events in this OER, it has served its purpose, and it is in the best interest of the Army.  She adds that although this was a referred report, her work performance did not waiver and she was given a satisfactory evaluation with a recommendation for promotion with her peers.

3.  The applicant provides her contested OER, five subsequent OER's, email, DASEB memorandum for record (MFR), Army Special Review Boards memorandum, and DA Form 1059 (Service School Academic Evaluation Report).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show she enlisted in the U.S. Army Reserve as a Reserve Officers' Training Corps cadet on 15 September 1997.  She was discharged as an enlisted Soldier and appointed as a Reserve commissioned officer on 8 May 1999 in the rank of second lieutenant in the Medical Service Corps.  She was promoted to captain on 1 February 2003.

3.  On 7 July 2005, she was given a GOMOR for behavior showing a lack of integrity and blatant disregard for a lawful order from a superior commissioned officer.  It was directed that the GOMOR be filed in her OMPF.

4.  She received a permanent change of station OER, a referred report, which covered 9 months of rated time from 1 January to 3 October 2005.  Her rater was a lieutenant colonel and her senior rater was a colonel.  The following information is shown on the contested OER.

	a.  In Part IVa (Army Values) the rater placed an "X" in the "No" blocks for "Honor" and "Integrity."

	b.  In Part IVb3 (Actions (Leadership)) the rater placed an "X" in the "No" block for "Decision-Making."

	c.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Satisfactory Performance - Promote" block and entered the following pertinent remarks in Part Vb (Comment on Specific Aspects of the Performance):  "[Applicant] received a GOMOR from the Post Commander."

	d.  In Part VII (Senior Rater) the senior rater placed an "X" in the "Fully Qualified" block and entered the following remarks in pertinent part in Part Vc (Comment on Performance/Potential):  "she breached core Army Values receiving a GOMOR filed in her OMPF for lack of integrity and judgment.  Based on these findings, the officer would benefit from additional mentorship and education in military leadership."

5.  She requested and was approved extensions to the time allotted to make comments regarding the contested OER.  An MFR, subject:  OER Referral (20050101-20051003) (Applicant), dated 14 November 2005, states that after two extension requests were granted, she and legal counsel were advised of the final deadline of 9 November 2005 with submission to U.S. Army Human Resources Command on 14 November 2005.  The memorandum further states that as of that date, the commander had not received any comments from the applicant.

6.  An Army Special Review Boards memorandum for the Commander, U.S. Army Human Resources Command, subject:  Resolution of Unfavorable Information for [Applicant], dated 1 October 2009, indicated that after careful consideration, the DASEB voted to deny the removal but to approve the transfer of the GOMOR, dated 7 July 2005, and all related documents, in that the intended purpose has been served and it would be in the best interest of the Army.  Accordingly, the Army Special Review Boards requested that the aforementioned GOMOR be transferred from the performance portion of the OMPF to the restricted portion.

7.  On 20 February 2010, she appealed her OER (20050101-20051003).

8.  An Army Special Review Boards memorandum for the Commander, U.S. Army Human Resources Command, subject:  Return Without Action Evaluation Report Appeal (20050101-20051003) for [Applicant], dated 10 March 2010, stated the applicant's appeal was being administratively closed without action due to failure to submit an appeal within 3 years of the through date of the OER.  It was further indicated she had provided no basis or justification which would warrant an exception to the submission time frame.

9.  Army Regulation 623-105 (Officer Evaluation Reporting System (OERS)), in effect at the time, prescribed the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System and OERS.  It also provided guidance regarding redress programs including commander inquiries and appeals.  Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously submitted 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 requests to alter, withdraw, or replace a report that has been accepted for filing in an officer's record with another report will not be honored.  Exceptions are only authorized when information that was unknown or unverified when the report was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared.

10.  Army Regulation 623-105, chapter 6 contains the policies and procedures pertaining to managing the OER redress program.  Paragraph 6-10 of this regulation contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states that 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 referred to in paragraph 3-57 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.

DISCUSSION AND CONCLUSIONS:

1.  While she chronicles PCS-related circumstances beyond her control which led to her requests for extensions of time to provide a rebuttal to the contested OER, she was given two extensions to provide her rebuttal.

2.  While the DASEB approved transfer of her GOMOR to the restricted portion of her OMPF (not removal from her file), this action does not establish precedent or a basis for removal of her OER from her OMPF.  The GOMOR wasn't transferred to the restricted portion of her OMPF because it was invalid; it was moved to the restricted portion based on intent served.  There is no such criterion for OER's.

3.  It is creditable that her work performance did not waiver and she was given a satisfactory evaluation with a recommendation for promotion with her peers.  However, there is insufficient evidence to support her contention that the appeals process was unjust and unfair, that the contested OER is substantively inaccurate and does not accurately reflect her performance or potential, or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  She did not provide clear and convincing evidence to overcome the presumption of regularity and justify the removal of the contested OER.  Based on the applicable regulations, the contested OER is correct as constituted and she did not meet the burden of proof to justify removal of the contested OER.

4.  In view of the foregoing, there is no basis for removal of the contested OER.

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 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)                                         AR20100027556



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ABCMR Record of Proceedings (cont)                                         AR20100027556



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