IN THE CASE OF:	   

		BOARD DATE:	  13 October 2011

		DOCKET NUMBER:  AR20110009319 


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 that the entry in Part Va, the first sentence in Part Vb, and comments in Part Vc be expunged from her Officer Evaluation Report (OER) for the period ending 31 May 2010.  She also requests that, if items are expunged from the OER in question, she be considered for reinstatement and be considered by a promotion board.

2.  She states the rater did not give a fair and impartial evaluation, and [the rater's evaluation] differed significantly from the intermediate and senior raters.

3.  She provides 19 documents identified in a list, a memorandum to the Board, and her OER for the period ending 31 May 2011.

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed a Reserve Commissioned Officer of the Army and chaplain effective 30 November 1997.  Effective 11 November 2005, she was appointed an officer in the Regular Army.  She was honorably discharged as a captain/O-3 on 1 September 2011 by reason of non-selection for permanent promotion.

2.  Her DA Form 67-9 (OER) for the period ending 31 May 2010 shows she was evaluated on her performance as a battalion chaplain.  Her rater, the battalion executive officer, placed an "X" in the box for "yes" for all items in Part IV (Performance Evaluation - Professionalism).

3.  In Part Va (Evaluate the rated officer's performance during the rating period and his/her potential for promotion) her rater placed an "X" in the box for "satisfactory performance, promote."

4.  In Part Vb (Comment on specific aspects of the performance, refer to part III, DA Form 67-9 and part Iva, b, and part Vb, DA Form 67-9-1) her rater stated:

"[The applicant] is a very spiritual leader with unlimited potential for continuous growth.  She has participated in several key battalion events meeting the spiritual needs of all of our Soldiers, cadre and students alike; battalion graduations, changes of command/responsibility ceremonies and brigade retirement ceremonies.  [The applicant] also hosted a variety of events to include; senior leader development outings, prayer breakfasts, monthly suicide prevention training and quarterly company chaplain runs.  [She] spearheaded the development of the Barnes Avenue Friendship Chapel (BAFC)  family retreat with 70 participants and managed a budget of $65,000.  [She] conducted a bi-monthly bible [sic] study luncheon for [advanced individual training] Soldiers that provided free a free meal [sic] and spiritual fitness as well.  [She] is the senior pastor of BAFC with a congregation of 150 members.  [She] is in great physical condition, scoring a perfect 300 on the [Army Physical Fitness Test].  Job well done!  Send to ILE [intermediate level education] with peers."

5.  In Part Vc (Comment on  potential for promotion) her rater stated, "[The applicant] has the potential to continue service at her current rank and position."

6.  In Part VI (Intermediate Rater) the brigade chaplain stated the applicant was "a wonderful chaplain who has performed outstanding [sic] in every area of religious report."  The brigade chaplain also stated, "Promote immediately and select as a brigade chaplain.  Not in agreement with 'Rater' comments, I believe [the applicant] has done outstanding."

7.  Part VII (Senior Rater) shows her battalion commander placed an "X" in the box for "best qualified" in Part VIIa (Evaluate the rated officer's promotion potential to the next higher grade).  His comments in Part VIIc (Comment on performance/potential) were positive.  To conclude his comments, he stated, "Promote to major and select for ILE attendance."

8.  On 19 January 2011, the President, Army Special Review Boards, informed her the Officer Special Review Board (OSRB) had denied her request for removal of the block placement in Part Va and the statement in Part Vc.

9.  Her OER for the period ending 31 May 2011 shows her rater, intermediate rater, and senior rater praised her performance as battalion chaplain and stated she should be promoted to major.

10.  The applicant provides a DA Form 4856 (Developmental Counseling Form) showing she received performance counseling from her rater on 25 March 2010 to discuss performance and job knowledge, physical fitness, and communication and timeliness.  In Part III (Summary of Counseling), her rater entered the following:

[Applicant] this counseling statement is to reiterate and discuss your performance since your initial counseling [given] over 90 days ago.

1.  Performance and Job Knowledge:  Getting you to understand and perform your job as the Battalion Chaplain has been a constant struggle.  The more I talk, coach, mentor, and try to teach you the responsibility of a Staff Officer the less you retain or change to make yourself accessible, available, and understanding to the needs of our Soldiers.  I have talked to you more than once about keeping your government cell-phone turned on so that our Soldiers can reach you during a crisis, to only find out a week or two later it's the same thing.  For me to keep repeating myself to a senior captain in the United States Army is unacceptable.  You tend to miss a lot of key events to include the VIP visit from Mr. [C____], and your excuse is always you didn't know.  You were directed to contact me prior to you departing for the day during your initial counseling, doing this ensures that you are aware of any last minute things taking place.  You also attend the Battalion Command and Staff [meetings], during this time we discuss the calendar and upcoming events three weeks out.  The next best thing to do is to keep an open line of communication between yourself and the S3 to know what's going on in the Battalion.  

2.  Physical Fitness:  I expect you to do [physical training (PT)] with the company, not do your own thing.  This means no leaving the formation to run on your own unless it [is] cleared by myself.  Again, if you are not going to be at PT I need to know ahead of time.

3.  Communication and Timeliness:  Keep me informed.  Make sure that all products and any suspenses are met in a timely manner.  Make sure that anything that you have going on in the spiritual arena is properly coordinated six weeks in advance.  Ensure that I am made aware of any tasking concerning you or the Chaplain Assistant outside of the Battalion.

11.  In the "Session Closing" section of the form, the rater entered the statement "If the trends discussed in this counseling [are] not corrected, there will be administrative actions recommended by myself to the Battalion Commander."  The applicant signed the form and checked the box indicating she agreed with the information on the form.

12.  She provides a memorandum from a first sergeant indicating she had been present with the staff for the VIP visit mentioned during her counseling.  The visit was cancelled, and she was left out of the notification process for the rescheduled visit.

13.  She provides a "Memorandum for the Commander," dated 30 March 2010, in which she rebuts the counseling statement.  She stated she initially agreed with the counseling statement, but on further examination decided to rescind her agreement.  The memorandum shows, in effect, she believed her duty performance had been exemplary and she questioned her rater's professionalism and ability to render an objective and fair evaluation.

14.  She provides a memorandum for record, dated 1 May 2010, in which she outlined her significant contributions.  

15.  She provides 11 memoranda for record dated June, July, and August 2010 and April 2011.

	a.  In a memorandum dated 25 June 2010, the brigade chaplain, who was also her intermediate rater, stated he believed her rater had rarely, if ever, personally observed her exceptional spiritual leadership skills and their resulting positive impact on the unit.  He also stated her rater was a new major who had never rated a chaplain before and it was apparent to him she knew little of what a chaplain does.  He stated it was obvious the rater focused on minute issues and allowed them to color her evaluation.  He also indicated the rater misunderstood the chaplains' duty schedule, that the applicant had frequently reported hostility from her rater, and that it was evident to him the rater had prejudged the applicant knowing the applicant was a non-select for promotion more than once.

	b.  Her brigade commander; four chaplains, including the senior installation chaplain; a command sergeant major; a brigade staff officer; and a chief warrant officer 5 each indicated they had knowledge of her performance and stated, in effect, their support for favorable consideration of her request.

	c.  In memoranda for record dated April 2011, a battalion commander and a brigade staff officer expressed their view that her rater's comments were inaccurate.

16.  In her memorandum to the Board, she states she disagreed with the counseling she received from her rater, but did not include her rebuttal in her application to the OSRB because she wrote it while she was upset and frustrated and made some unkind statements about her rater.  She shared her rebuttal with her commander, who spoke with her rater to no effect.  She states her rater did not like her, and the rating she received is evidence of that dislike.  She states her battalion and brigade commanders [later] took the extraordinary measure of changing her rating scheme to ensure she would receive a fair and impartial rating.  She also states she is concerned that the phrase "continuous growth" in the first sentence in Part Vb of her OER can be taken to mean she is not the mature, experienced, competent officer that she was.

17.  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 commander inquiries and appeals.  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 Headquarters, Department of the Army (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.  Once accepted for filing in an officer’s record, requests that a report be altered, withdrawn, or replaced with another report will not be honored.

18.  Paragraph 1-9 of the ERS regulation 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 (NCO) 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 Department of the Army Pamphlet 623-3 (ERS).  Consideration will be given to the following:  (a) the relative experience of the rated officer or NCO; (b) the efforts made by the rated officer or NCO; and, (c) the results that could be reasonably expected given the time and resources available.  Potential evaluations will be performance-based assessments of the rated officers or NCO's of the same grade to perform in positions of greater responsibility and/or higher grades.  Assessment of potential will apply to all officers and NCO's, regardless of their opportunity to be selected for higher positions or grades and ignores such factors as impending retirement or release from active duty; this assessment is continually changing and is reserved for HQDA.

19.  Chapter 6 of the ERS regulation contains the policies and procedures pertaining to managing the evaluation report redress program.  Section III contains guidance on evaluation appeals.  Paragraph 6-7 outlines policies and states that evaluation reports accepted by HQDA and included in the official record of a rated Soldier are 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, as outlined in paragraph 3-39.  Paragraph 6-11 outlines the burden of proof that must be met to support a successful evaluation report 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 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.

20.  Army Regulation 600-8-29 (Officer Promotions) states a Special Selection Board (SSB) may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:

	a.  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error.  This would include officers who missed a regularly scheduled board while on the Temporary Disability Retirement List and who have since been placed on the Active Duty List (Title 10, U.S. Code, section 628(a)(1) (SSB required));

	b.  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or

	c.  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request to expunge information from her OER for the period ending 31 May 2010.

2.  The available documentation shows her rater had clear, documented expectations with regard to the applicant's duty performance, participation in the battalion's physical fitness program, and accessibility and communication.  The counseling statement provided by the applicant shows her rater had counseled her on these expectations on more than one occasion.  While it may be true that her rater did not "like" her, the fact that her rater had to counsel her more than once on basic elements of her role in the battalion's daily operations (being accessible, staying abreast of schedules, and doing PT with the unit) indicates there was a genuine problem beyond mere dislike.  Of note is the fact that none of the information in the counseling statement is shown in the rater's comments on her performance on the OER in question.

3.  The applicant believes the first sentence in her rater's comments in Part Vb may be read as negative; however, that does not appear to be the case when the sentence is read in the context of her rater's full comments in that section of the OER, which are wholly positive.

4.  Her rater marked the box for "satisfactory performance, promote," which is a lukewarm assessment, and her statement that the applicant "has the potential to continue service at her current rank and position" is relatively harsh.  However, the available documentation does not show that this assessment represents anything but the considered opinion and objective judgment of her rater.  The record clearly shows the rater had not been satisfied with the applicant's performance, and it is reasonable to believe she objectively judged the applicant was not ready to serve at a higher level.

5.  There is no requirement that raters, intermediate raters, and senior raters render similar evaluations of a Soldier.  Each individual in the rating chain is held to the same standard of providing their considered opinions and objective judgment.

6.  Careful consideration was given to the supporting memoranda she provides.  While each provides a compelling statement on her behalf, none of the memoranda provide clear and convincing evidence that her rater's assessment is anything but her considered opinion and objective judgment.

7.  In the absence of clear and convincing evidence overcoming the presumption that the OER is administratively correct and factually accurate, there is no basis for granting the requested relief.

8.  Given that there is no basis for expunging information from the OER in question, there is also no basis for considering her for reinstatement or referring her to an SSB to be considered for promotion to MAJ.

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)                                         AR20110009319





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ABCMR Record of Proceedings (cont)                                         AR20110009319



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