IN THE CASE OF:	  

		BOARD DATE:  10 July 2012

		DOCKET NUMBER:  AR20110016522 


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 an Officer Evaluation Report (OER) for the period 6 July 1998 through 3 January 1999 from her Official Military Personnel File (OMPF).

2.  The applicant states:

	a.  Inspector General (IG) memoranda, dated 24 and 28 June 1999, substantiate she was improperly relieved;

	b.  she was not rated by her rating chain;

	c.  a Report of Survey (ROS) memorandum, dated 14 January 2002, confirms she was improperly relieved from her position; and

	d.  the OER in question was processed over 2 years after it's due date on 17 March 2002 while she was deployed.

3.  The applicant provides;

* the contested OER (a masked report)
* an 801st Combat Support Hospital (CSH) memorandum, subject:  Referred OER, dated 21 September 2000
* a U.S. Postal Service (PS) Form 3811 (Domestic Return Receipt) card
* 
a PS Form 3800 (U.S.P.S. Certified Mail Receipt)
* her rebuttal to the contested OER
* a letter from the IG to her senior rater (a colonel), dated 24 June 1999
* a letter to her from the IG, dated 28 June 1999
* page 9 of her unit's OER Rating Scheme prepared on 3 December 1998
* a memorandum, subject:  ROS WxxDxxxxxx-xxx, Control #xx-xx, dated
30 January 2002
* DA Form 4697 (ROS), dated 21 July 2000
* five memoranda from the 307th Medical Group, dated between
30 November 2001 and 2 February 2002
* her U.S. Army Human Resources Command (AHRC) - interactive Personnel Electronic Records Management System (iPERMS) document listing
* her DD Form 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 5 July 2000 and 30 December 2002

CONSIDERATION OF EVIDENCE:

1.  The applicant was appointed as a Reserve commissioned officer in the rank/grade of second lieutenant (2LT)/O-1 on 31 August 1994.  At the time of her application to this Board she was serving on active duty as a major (MAJ)/O-4.  She was promoted to MAJ on 17 May 2008.

2.  While serving with the 801st Combat Support Hospital, Fort Sheridan, IL, the applicant was forwarded the contested OER, a Relief for-Cause report, covering the period 6 July 1998 through 3 January 1999.  The contested OER evaluated her as a Health Services Materiel Officer, where she directed and supervised hospital personnel in the acquisition, receipt, storage, issue, and distribution of medical equipment, medical repair parts, and medical supplies.

3.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a lieutenant colonel (LTC), evaluated the applicant as follows:

	a.  Part IVa (Army Values) – the "No" block is checked in response to every question; and

	b.  Part IVb (Leader Attributes/Skills/Actions) - the "Yes" block is checked in response to some questions and the "No" block in response to:

* IVb.1. (Attributes) – 

* Mental (possesses desire, will, initiative, and discipline)
* 
IVb.2. (Skills/Competence) – 

* Conceptual (Demonstrates sound judgment, critical/creative thinking, moral reasoning)
* Interpersonal (Shows skill with people:  coaching, teaching, counseling, motivating, and empowering)

* IVb.3. (Actions/Leadership)

* Decision Making (Employs sound judgment, logical reasoning, and uses resources wisely)
* Motivating (Inspires, motivates, and guides others towards mission accomplishment)
* Developing (Invests adequate time and effort to develop individual subordinates as leaders)
* Building (Spends time and resources improving teams, groups, and units; fosters ethical climate)

4.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the third block (Unsatisfactory Performance, Do Not Promote) and provided comments in Part Vb (Comments) that include the following:

	a.  the applicant admitted to having misappropriated U.S. Army property as referenced in a completed Army Regulation 15-6 Investigation (Commanders Inquiry);

	b.  the commander, a brigadier general (BG), approved the recommendation and directed a Relief for Cause OER be written;

	c.  the applicant did not use sound judgment or discipline when making fiscal decisions as demonstrated by the inappropriate means used to acquire her Class A uniform wherein she:

* violated all of the Army values expected in a leader
* displayed poor interpersonal skills among co-workers
* created an atmosphere of discontent within her section

	d.  the applicant’s conceptual skills were reflected in poor judgment and values inconsistent with those expected of a commissioned officer wherein she:

* requested a subordinate person purchase a uniform for her without providing funds for the transaction
* after this action caused a confrontation in the unit, she initiated a statement of charges for the uniform and signed the document for the hospital commander without the authority to do so
* she made no effort to develop a cohesive and respectful environment for subordinate members of her section

5.  In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) the senior rater placed the applicant in the third block (Do Not Promote).  In Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), the senior rater indicated "Below Center of Mass – Do Not Retain."  In
Part VIIc (Comment on Performance/Potential) the senior rater's supporting comments included:

	a.  the applicant is being relieved by order of the commander and his decision is endorsed by the findings of a 15-6 investigation;

	b.  the applicant failed to submit a support form for the rating chain;

	c.  he concurred with the rater comments; and

	d.  the applicant refused to sign the OER although she provided comments.

6.  On an unknown date, the applicant submitted rebuttal comments to the OER wherein she stated:

	a.  it was an unfair and biased assessment of her abilities as an officer;

	b.  her rating chain was incorrect as it did not follow the published rating chain;

	c.  the senior rater refused to communicate with her, indicating he does not talk to lieutenants because there is too much rank discrepancy;

	d.  she never received counseling to establish her objectives, rater or senior rater support forms, or any face to face or follow on counseling;

	e.  she was not removed from her position pending an investigation, but she was instead relieved by a Mr. M____ J____ with the use of a counseling statement;

	f.  the OER in question was improper, it should not have been issued; therefore, the entire report should be thrown out;
	g.  the statement on the contested OER indicating she admitted to misappropriating government property is untrue and she took a polygraph test to prove it as recommended by the Judge Advocate General (JAG) officer;

	h.  she did state "I asked sergeant (SGT) P_____ to purchase a uniform";

	i.  the charge (regarding the uniform purchase) makes no sense because she picked up unit clothing at Fort McCoy, WI and she could have acquired a uniform herself;

	j.  the 15-6 investigation mentioned in the OER has too many inconsistencies and false statements;

	k.  the 15-6 investigator did not speak with her counsel or herself, nor was she forwarded a copy of the report for her comments; and

	l.  it is her belief the contested OER was issued in retaliation for an ROS and many memoranda she wrote to her senior rater regarding equipment accountability in which he refused to act on either; therefore, the OER should be thrown out.

7.  The applicant provides an 801st CSH OER Rating Scheme, dated
3 December 1998.  It lists MAJ M_____ S _____ as her rater and LTC G____ B____ as her senior rater.

8.  The applicant provides two Headquarters, 88th Regional Support Command memoranda from the IG, dated 24 and 28 June 1999, addressed to the senior rater and herself that show:

	a.  The allegation that COL P_____, the senior rater, improperly relieved the applicant from her assigned duties in violation of Army Regulation 623-105 (Officer Evaluation Reporting System) was substantiated.

	b.  The allegation that the senior rater improperly relieved the applicant of her duties in retaliation due to an ROS she had prepared and for making protected communication in violation Department of Defense Directive 7050-6, paragraph D4 was not substantiated.

	c.  The allegation that SGT D____ P____ (supply sergeant) improperly obtained a Class A uniform for the applicant in violation of Army Regulation
700-84 was substantiated.  As a supply sergeant, he should be knowledgeable in 

procedures surrounding the procurement of uniforms for all Soldiers.  His actions are a clear violation of the established standard.

9.  The applicant provides a DA Form 4697 initiated on 20 July 2000 that shows:

	a.  the Supply and Services Division of the 801st CSH completed a 100 percent (%) inventory of equipment that revealed damages, lost, stolen, or misplaced items valued at $196,791.09;

	b.  the applicant notified the hospital commander in writing of the lack of property accountability, lack of supporting documentation, and the lack of current valid hand receipts in according with regulatory provisions; and

	c.  attempts by the applicant to eliminate activities and initiate accountability procedures in accordance with regulatory guidance were met with strong resistance and no command support.  Her subordinate staff was successful in removing her from the position and returning to the status quo.

10.  The contested OER was signed and dated by the rater on 8 September 2000 and the senior rater on 14 October 2000.  A copy was given to the applicant on 22 June 2001.

11.  On 20 November 2001, the ROS Investigating Officer (IO) issued his final recommendation that shows:

	a.  the government property, total cost $139,407.34, was recovered reducing the ROS to $57,383.75 in lost, stolen, or misplaced property;

	b.  due to severe lack of command and control with the 801st CSH and complete disregard of Army regulations in addition to resistance to explicit directives from higher command echelons, COL P_____, the senior rater, and CPT S_____, the property book officer (PBO), should be held pecuniarily liable for the full amount less 10% depreciation ($51,645.37); and

	c.  the cost to the senior rater was $31,750.54 and the PBO was $19,894.83.

12.  The IO issued a letter referencing an addendum to the ROS investigation, dated 14 January 2002, wherein he provided:

	a.  the applicant was the only person actively attempting to do her duty and attain property accountability while directing the change of command inventory for the senior rater;

	b. because of the applicant's efforts, she was "sandbagged by the good ole boys";

	c.  the senior rater strongly disagreed with him when he told him by supporting the efforts to relieve the applicant rather than allowing her to pay for her clothing, eliminated the only person who could and would help him in supply.

13.  The applicant's iPERMS record shows the OER in question was added to the applicant's OMPF on 17 March 2002.

14.  The 15-6 investigation was not available to the Board for review.

15.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It also provides guidance regarding redress programs, including commander inquiries and appeals.

16.  Chapter 6 of the OER regulation contains the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-10 outlines the burden of proof that must be met to support a successful 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 paragraphs 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.  The evidence of record shows a 15-6 investigation stated the applicant admitted she used inappropriate means to acquire a Class A uniform and as a result recommended her transfer from her position which formed the basis for issuance of the relief for cause OER.  However, the applicant's rebuttal to the OER shows she affirmed she never admitted to misappropriating government property and took a polygraph test to prove it as recommended by a JAG official.

2.  The evidence of record confirmed an IG investigation determined the senior rater relieved the applicant from her assigned duties in violation of the applicable regulation.  It also confirmed SGT D____ P____ improperly obtained a Class A uniform.  

3.  In addition, the ROS IO determined the supply personnel conspired and were successful in having the applicant removed from her position.  This ROS IO also determined the applicant's efforts to do her duty and attain property accountability while directing the change of command inventory for the senior rater caused her to be "sandbagged by the good ole boys."

4.  Further, the evidence confirmed that while the SR inappropriately relieved the applicant from her position and issued her the contested report, the ROS investigation determined the SR was held pecuniarily liable for stolen, lost, or misplaced equipment in the amount of $31,750.54.

5.  Finally, the evidence confirms she was not evaluated by her established rating chain on the contested report that was completed and added to her OMPF more than 2 years after its initiation.

6.  Based on the inconsistencies between the 15-6 investigation and the IG and ROS investigations, the unofficial rating chain, and the untimely processing of the contested report, the applicant's OER for the period 6 July 1998 through 3 January 1999 should be removed from the applicant's OMPF in the interest of justice.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ___X ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the Officer Evaluation Report for the period 6 July 1998 through 3 January 1999 from her OMPF; and

	b.  placing a statement in the applicant's OMPF explaining the non-rated period from 6 July 1998 through 3 January 1999 was not caused through any fault of the applicant, and ensuring she is not prejudiced thereby in the consideration of any future personnel actions.



      _______ _   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)                                         AR20110016522



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ABCMR Record of Proceedings (cont)                                         AR20110016522



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