IN THE CASE OF:	   

		BOARD DATE:	  27 October 2011

		DOCKET NUMBER:  AR20110010554 


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 her DA Form 67-9 (Officer Evaluation Report (OER)) covering the rated period 1 August 2005 through 12 March 2006 (hereafter referred to as the contested OER) be expunged from her records or transferred  to the restricted file of her Official Military Personnel File (OMPF) due to injustice.  

2.  The applicant states the basis for her request is injustice.  During the period in question, she was under psychiatric care and was prescribed controlled substances.  Her treatment and subsequent withdrawal from treatment greatly affected the way she processed information.  She further states that she was a victim of sexual assault and requests that the time frame to appeal the OER be waived due to the amount of time it has taken to heal and regain the courage to face this trauma again.  

3.  The applicant provides:

* OER Appeal memorandum
* Medical background information
* Psychiatric treatment summary
* Highlights of prescribing information for PROZAC
* Excerpt from highlights of prescribing information for PROZAC
* G3 assignment background information
* Certificate of Appreciation
* Appeal argument memorandum


* Disputed OER
* Performance counseling 
* OER from Eighth Army G4
* Award recommendation from 101st Airborne Division PAO
* Sexual Assault Prevention training certificate
* Letter from the former Eighth Army Chief of Staff
* Commanding General, Eighth Army memorandum to Rater
* Commanding General, Eighth Army memorandum to Senior Rater

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.  On 29 September 1998, she executed a DA Form 597-3 (Reserve Officers’ Training Corps (ROTC) Scholarship Cadet Contract) enlisting in the U.S. Army Reserve (USAR) (ROTC Control Group) as an ROTC scholarship cadet.  She was appointed as an Ordnance second lieutenant in the USAR and executed an oath of office on 11 May 2002.  She served in various staff and/or leadership positions and was promoted through the officer ranks to captain on 1 September 2005.

3.  During the month of March 2006, the applicant received the contested OER, a "Change of Rater" OER which covered 7 months of rated time, from 1 August 2005 through 12 March 2006, while serving with the Eighth U.S. Army as a battle staff officer.  Her rater was a major (MAJ) and her senior rater a colonel (COL).  The contested OER shows the following entries:

	a.  In Part IVb.3 (Performance Evaluation-Leader Attributes-Actions) the rater placed an "X" in the "No" block for "Decision-Making";


b.  In Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Unsatisfactory Performance" block and entered the following remarks in Part Vb:

	“An overall unsatisfactory performance by a below average officer.  CPT Kxxxxxxxx Jxxxxx’s performance while assigned as a Watch Officer for the Eighth Army Current Operations section was poor.  CPT Jxxxxx struggled to grasp the significance and importance of her job as a Watch Officer for an Army Service Component Command Headquarters and regularly stated her desire to be somewhere other than this critical position.  She never truly gained the trust of her chain of command or the other members of the Watch Team.  CPT Jxxxxx was counseled verbally and in writing numerous times about her poor decision making skills.  These shortcomings were especially evident when she decided to take no action and failed to report a Commander’s Critical Information Requirement that occurred while she was on shift to the command group or to the oncoming Watch Officer at shift change as required.  Also, during an official commander’s inquiry, CPT Jxxxxx was found to be involved in an inappropriate sexual relationship with a senior enlisted soldier between August 2005 and February 2006.  These two examples reflect CPT Jxxxxx’s inability to make sound decisions.  CPT Jxxxxx did nothing during this rating period to prove her potential to serve the Army at her current grade or beyond.  Because of her unsatisfactory performance, poor decision making skills and limited potential, I do not recommend CPT Jxxxxx be considered for promotion, selected to attend the Captain’s Career Course, or retained as a commissioned officer in the U.S. Army.”

	c.  In Part VII (Senior Rater), the senior rater placed an "X" in the "Do Not Promote" block, indicated that he senior rated 7 officers in this grade, placed another "X" in the "Yes" block indicating that a completed DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review, and entered the following remarks in Part VIIc (Comment on Performance/Potential):

	“Concur with rater.  CPT Jxxxxx is a pleasant officer who maintains an adequate level of physical fitness.  Unfortunately, she has shown a marked inability to conduct routine duties unsupervised.  Her ability to make appropriate decisions is poor; during the rated period, CPT Jxxxxx admitted to a long term inappropriate sexual relationship with a senior noncommissioned officer within her assigned staff section.  I recommend CPT Jxxxxx not be retained as a commissioned officer; her poor decision making skills would place Soldiers under her charge at risk.”


4.  The contested OER was signed by her and her rating chain on 5 July 2006.  It was marked as a referred report and she subsequently acknowledged receipt and submitted a statement on her own behalf.  In her statement, dated 16 May 2006, she states the rating and remarks on the contested OER were incorrect and did not adequately assess her job performance during the rating period.  She further states she was removed from her job and received the contested OER within weeks of reporting she was a victim of sexual assault.  During the investigation, she admitted to having relations with her attacker on one occasion, while she was undergoing treatment for severe depression, and was taking PROZAC as prescribed by her psychiatrist.  The applicant further states after she reported being sexually assaulted by a senior noncommissioned officer in the same section she was assigned to, she received the referred OER, was permanently removed without explanation from her position in the section, and was removed from a high-profile tasking she had been selected for above her peers.  In her statement she attests to not receiving an initial counseling until five months after she assumed her position and speaks of an Army Regulation 15-6 (Procedures for Investigation Officers and Boards of Officers) investigation which revealed her rating chain failed to follow OER and developmental counseling procedures as established in Army Regulation 623-105 (Officer Evaluation Reporting Systems).

5.  In her statement, dated 16 May 2006, the applicant also contends her Rater’s comments failed to substantiate his assessment of her perceived inadequate decision making skills and that many of the comments in reference to her performance were inaccurate, conclusory, and baseless.  In addition, her Rater did not acknowledge any of her accomplishments she achieved and had written on her support form.  She further states, in effect, once her rating chain received the derogatory information from the investigation initiated as the result of a single inappropriate encounter with her attacker, they used it as a way to substantiate the poor rating in a retaliatory attempt to discredit her for reporting that a member of her section sexually assaulted her.

6.  The subject OER was subsequently processed by the U.S. Army Human Resources Command, Alexandria, VA.  

7.  There is no evidence in the record that indicates the applicant appealed the contested OER to the Army Special Review Board.  However, the commanders’ inquiry findings the applicant refers to in her 16 May 2006 referral comments is  available.  The inquiry found that the rater failed to provide CPT Jxxxxx with a copy of his and the senior rater’s OER support forms, perform face-to-face counseling within 30 days after the beginning of the rating period, and failed to 


initiate the developmental support form at the initial face-to-face counseling.  The inquiry also found the senior rater failed to ensure a copy of his OER support form was provided to CPT Jxxxxx, had not used all reasonable means to become familiar with the rated officer’s performance, and failed to approve her developmental support form.  After reviewing all the evidence, the commander conducting the inquiry found no fault with the OER entering the statement, “in no way should this request be construed as a directive to make changes to the OER.”

8.  The applicant provides a medical statement from her psychiatrist who states she was undergoing mental health treatment and was prescribed three trials of anti-depressant medication to include PROZAC from 1 March 2005 through            9 January 2006.  She also provides 25 pages highlighting prescribing information for PROZAC.

9.  The applicant provides a letter from the former Eighth Army Chief of Staff supporting her request.  He states the intent of the Rater and Senior Rater to ensure the applicant was not promoted was accomplished when she failed to be selected to MAJ on the last selection board.  However, Army leadership has continued to assign the applicant to positions of increasing responsibility, to include combat, performing admirably and clearly meeting the intent of the rehabilitative assignments afforded her.

10.  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.

11.  Paragraph 3-39 of Army Regulation 623-3 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.

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

13.  Paragraph 6-11 of Army Regulation 623-3 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 contested report is unjust has been carefully considered.  However, the evidence of record does not support the applicant's request to expunge the evaluation from her records or transfer the evaluation to the restricted file of her OMPF due to injustice.  

2.  By regulation, an OER that is accepted by HQDA 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 it represents the considered opinions and objective judgment of the rating officials at the time of preparation.  In order to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the OER 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.

3.  Other than the OER in question and the applicant’s referral comments, her record is void of documentation substantiating the applicant's account of events.   The applicant does not deny the incidents which resulted in her receipt of the perceived unjust comments contained in her evaluation nor did she request to appeal the report in question at the time it was issued or in the 3 years allowed for by regulation.

4.  The applicant's medical condition and treatment were taken into consideration; however, her medical condition in and of itself is not sufficient to support her request.  There is no apparent reason to doubt the applicant; however, her statements alone do not constitute the clear and convincing evidence required to justify deletion or transfer of her OER.  

5.  The evidence of record confirms that the applicant requested a commander's inquiry on the contested OER.  However, after reviewing all the evidence, the commander conducting the inquiry found no fault with the OER, as evidenced in his 10 May 2006 findings.

6.  Given the commander’s inquiry conducted by the responsible commander on the ground found no fault with the contested OER after examining the facts and circumstances surrounding the evaluation and the matters submitted by the applicant, 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.  

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)                                         AR20110010554



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ABCMR Record of Proceedings (cont)                                         AR20110010554



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