IN THE CASE OF:	  

		BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20110018602 


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 to counsel

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* the informal Army Regulation 15-6 investigation (commonly known as a 15-6 investigation) that formed the basis for the adverse actions taken against the applicant be stricken from the record
* removal of the DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) from the applicant's record
* removal of the General Officer Memorandum of Reprimand (GOMOR) from the applicant's record
* removal of the referred Officer Evaluation Report (OER) for the period 1 May 2008 through 30 April 2009 from the applicant's record
* reinstatement of the applicant on the Fiscal Year 2008 (FY08) Colonel (COL)/O-6 promotion selection list and promotion with retroactive payment of any back pay and allowances
* a personal appearance hearing before the Board

2.  Counsel contends, in effect, the applicant's career has ended on the basis of a second-hand complaint that proved to an unsubstantiated exaggeration contradicted by eyewitnesses and even the alleged victims themselves.  Counsel states:

	a.  the investigation of the applicant's conduct was flawed and the results formed an improper basis for all of the adverse actions taken against her, specifically, laws and regulations were not followed and due process was denied.

	b.  the investigation should have been conducted in accordance with Army Regulation 600-20 (Army Command Policy), Appendix D (Equal Opportunity/
Sexual Harassment Complaint Processing System).  It was not, which led to:

* the applicant and the alleged victims being deprived of due process
* the investigating officer (IO) not consulting with the servicing Staff Judge Advocate (SJA) or legal advisor
* the applicant not being advised of her Article 31 rights
* the command not being advised of the lack of a sound evidentiary basis for the adverse actions that were taken otherwise they would not have been pursued
* a review by the Equal Opportunity Advisor (EOA) not being done
* the investigative report not including several mandatory items, to include but not limited to the list of questions developed with the EOA and the written review of the EOA

	c.  the applicant was punished for failing to obey a lawful general regulation and for conduct unbecoming an officer.  On appeal, the charges deriving from the allegation that formed the central basis of the whole matter were set aside, thus all other allegations and charges, and resulting adverse actions should have been set aside.  The applicant was ostensibly found guilty of violating:

* Article 92, UCMJ, for failing to obey a lawful general regulation by wrongfully using disparaging terms towards Soldiers pertaining to sexual orientation and national origin
* Article 133, UCMJ, for conduct unbecoming an officer and to the disgrace of the Armed Forces by wrongfully creating a hostile work environment by using disparaging terms towards other Soldiers

The Article 92 charge was set aside on appeal.  Since the Article 133 charge was based upon the acts underlying the Article 92 charge, so should it have been set aside, which would have left no basis for any adverse actions.

	d.  the appeal of the referred OER was wrongfully denied and had several flaws and errors, including:

* misstating the chronology of events and resulting bases or lack thereof for the NJP
* incorrectly concluding that the email was not a "second-hand complaint"
* misstating the nature of the statements the applicant made in the course of the investigation and mischaracterizing them as an admission she made the alleged statements
* citing the applicant's failure to initially respond to the referred OER as grounds to deny her subsequent appeal thereof
* concluding the reference to a "formal" investigation in the OER was not erroneous or materially defective, when the investigation that was conducted was "informal," thereby blurring the numerous material and substantive differences between the two and the rights afforded
* concluding the failure of the rating chain to abide by the regulations had no effect and was not grounds for overturning the OER
* wrongfully deciding upon the other stated grounds for appeal

3.  Counsel concludes:

	a.  The NJP punishment was unjust and/or disproportionate to the alleged offenses.  It and the resulting GOMOR should be removed from the applicant's record.

	b.  The referred OER should be removed from the applicant's record based on the following failed duties:

*	the statement is critical and factually inaccurate, false, and misleading
*	the statement shows the senior rater's only basis for his evaluation and comments was the informal 15-6 investigation
*	the statement makes specific reference to the derogatory statements to subordinates that were specifically unfounded and set aside later on appeal, and thus are an improper basis for evaluation and comment on the OER
*	the statement renders the OER facially and materially defective and erroneous

	c.  The GOMOR was directed to be filed in the applicant's restricted section of her Official Military Personnel File (OMPF); however, the restricted section of the OMPF is accessible to and reviewed by the colonel's promotion board.  Thus, the NJP and GOMOR, as well as the later-referred OER, were career killers.

4.  Counsel provides a brief containing Exhibit A through Exhibit S with enclosures. 


CONSIDERATION OF EVIDENCE:

1.  The applicant is a Regular Army lieutenant colonel (LTC)/O-5 serving in the Dental Corps (DC).  In 2008, she was serving as the Chief of Prosthodontics and officer-in-charge (OIC) of a dental laboratory at Liberty Dental Clinic at an overseas location.
 
2.  Soon after her arrival in Iraq, allegations were made against her that she publicly disparaged gays and Hispanics.  In July 2008, the medical company commander conducted sensing sessions with Liberty Dental Clinic personnel.  Following those sessions, the medical company commander counseled the applicant both verbally and in writing.  The gist of the counseling was:

* the Dental Clinic OIC position is by appointment, not rank – the OIC may be junior in rank to clinic dentists
* do not circumvent the chain-of-command or undermine the OIC's authority
* use her higher rank to foster unit cohesion and morale, not dissension, frustration, and despair
* never reprimand a noncommissioned officer (NCO) in public, especially in front of junior enlisted; do it in private

In conclusion, the medical company commander wrote "if the behavior does not change, further action will be taken."

3.  On 13 November 2008, the Dental Clinic OIC sent an email to the medical company commander.  The email stated:

Ever since [applicant] has come to power there are a lot of arguments and discord [at Liberty Dental Clinic].  I personally had to confront her because she was going to the enlisted and officers and making all kinds of insults and accusations against me.  Let it be known that I do not handle that kind of behavior lightly and if it continues, as it has in the past, I will be filing a formal complaint with EO.  When I confronted her she made no apology but did admit to saying it.

4.  Based on the email from the Dental Clinic OIC, on 18 November 2008, the medical company commander directed a 15-6 investigation to determine whether the applicant had created a hostile work environment at Liberty Dental Clinic.  The medical company commander appointed a colonel, DC, as IO.

5.  A DA Form 1574 (Report of Proceedings by IO/Board of Officers) shows the 15-6 investigation was conducted during the period 19-25 November 2008.  


During the investigation, the applicant denied using harsh criticism and demeaning subordinates and suggested any comments attributed to her were taken out of context and simply were her attempt to enforce good order and discipline.

	a.  The IO offered the following in mitigation:

* the applicant had a 17-year unblemished record
* her alleged behavior would be a gross aberration
* personal problems, including the health of her sister and her elderly parents, made it a mistake to volunteer to deploy

	b.  The IO found:

* his professional and social relationship with the applicant did not hinder the investigation
* despite her denial, the preponderance of evidence supports the applicant used harsh criticism and demeaned subordinates
* her comments were unsolicited, unwanted, and offensive in an ethnic or otherwise inappropriate nature, including referring to staff as:
 
   *	lazy Mexicans
   *	gays or homosexuals

* a number of dental clinic and laboratory staff requested not to work with the applicant
* the issues were the same ones raised during the July 2008 sensing sessions
* the matter involved serious allegations of racist/inappropriate comments

	c.  The IO recommended:

* the applicant self-refer for mental health assessment
* command-referral if the applicant did not self-refer
* immediate reassignment within theater, or return to Germany
* consideration for a compassionate transfer to Fort Bragg, NC to be near family
* consideration to issue a letter of reprimand and/or make the applicant apologize
* a Command Climate Survey followed by mandatory EO and Prevention of Sexual Harassment training
6.  On 29 December 2008, the applicant accepted punishment under the provisions of Article 15, UCMJ, for:

*	failing to obey a lawful general regulation, Army Regulation 600-20, by wrongfully using disparaging terms towards other Soldiers pertaining to sexual orientation and national origin; violation of Article 92, UCMJ
*	wrongfully creating a hostile work environment by using disparaging terms towards other Soldiers pertaining to sexual orientation and national origin, which conduct was unbecoming an officer, and was to the disgrace of the Armed Forces, violation of Article 133

7.  The applicant received a written reprimand and it was directed that her DA Form 2627 be filed in the restricted section of her OMPF.  A review of the interactive Personnel Electronic Records Management System (iPERMS) shows the applicant's DA Form 2627 is properly filed in the restricted section of her OMPF.

8.  On 6 January 2009, the official release of the FY08 Colonel, DC, selection board results was announced and contained the applicant's name for selection.

9.  On 25 January 2009, the applicant elected to appeal the Article 15 punishment and submit additional matters.

10.  After considering all matters presented in appeal, on 18 February 2009, the appeal authority, a major general, granted the applicant's appeal, in part, in that the Article 92 charge, failing to obey a lawful general regulation was set aside.  However, the Article 133 charge, conduct unbecoming an officer would remain in effect and that the written reprimand punishment imposed was determined to be both just and proportionate to the Article 133 charge.

11.  On 9 February 2009, the applicant received the GOMOR attendant to her Article 15.  It reprimanded her for her unprofessional conduct by using disparaging terms towards other Soldiers pertaining to sexual orientation and national origin, belittling Soldiers in front of each other and in front of patients, and creating a hostile work environment.  The GOMOR noted it was imposed as punishment under Article 15, UCMJ, and not as an administrative action under the provisions of Army Regulation 600-37 (Unfavorable Information).

12.  On 5 May 2009, the applicant was notified that her selection for promotion to colonel was being referred to a Promotion Review Board (PRB).

13.  On 19 May 2009, the applicant submitted written matters in her defense and requested a delay in the PRB's decision based on her pending appeal of her NJP and GOMOR.

14.  On 10 June 2009, the applicant submitted a request to set aside her NJP, UCMJ punishment.  The reasons for the request are as follows:

*	she never committed the offenses alleged and this fact was never properly addressed in the NJP hearing
*	the allegations were based on a faulty 15-6 investigation

*	the report had contradictory statements in which witnesses stated she verbally abused subordinates but the alleged "victims" did not support these allegations in their own statements

*	she accepted the NJP, contrary to her wishes, because her detailed military defense counsel advised her that she would be afforded a forum to defend herself, but she did not get that chance
*	she would have wanted a trial by court-martial, at which time she could have presented a defense to the false allegations
*	she was willing to go before a court-martial if the NJP was set aside solely for that purpose
*	the contradictions in the statements in the 15-6 investigation should have been resolved prior to her NJP hearing, or the witnesses themselves should have been present
*	it is important to note that much of the 15-6 investigation focused on her alleged harsh leadership style as opposed to any violations of the UCMJ
*	the investigator did not sift through the evidence and attempt to reconcile contradictions

*	he did not re-interview witnesses when contradictory statements were given, and his recommendations were focused on her mental health, which was not germane to the investigation or within his field of expertise

*	she and the investigator had a history and he was very vocal in his protest at being subordinate to her when they were both LTCs assigned to the same overseas clinic in 2003
*	the very basis of the NJP was fatally flawed by a biased, contradictory, and poorly-conducted investigation
*	her military defense counsel was young and inexperienced and she trusted his advice
*	although it was directed that her NJP be filed in the restricted section of her OMPF, it was filed in the performance section

*	she lost her promotion to colonel and she was being considered for a show cause hearing

15.  On 24 November 2009, the commander denied the applicant's appeal to set aside her NJP.

16.  The applicant received a referred OER for the period 1 May 2008 through 30 April 2009.  The referred OER contained the following comments:

*	"…it became evident that her leadership and interpersonal skills were significantly lacking"
*	"a formal investigation into a hostile working environment, created by derogatory comments made by her directly to and about her junior staff was substantiated"
*	"Do not promote or select for a residency program at this time"
*	"[applicant] created a hostile work environment"
*	"[applicant] is not prepared to command at this time and will best serve the Army Medical Department as a clinician"
*	"…a formal investigation substantiated allegations that [applicant] made derogatory comments towards her subordinate Soldiers resulting in a hostile work environment"
*	"the potential for further advancement within the Army does not exist at this time"

17.  On 7 January 2010, the applicant was advised that the Secretary of the Army decided to remove her name from the FY08 Colonel, DC Promotion List.

18.  On 10 March 2011, the applicant's appeal to the ABCMR was returned without action based on her failure to exhaust all available administrative remedies.  The applicant had failed to submit her appeal regarding her referred OER to the Human Resources Command (HRC), Officer Evaluations Appeals Branch.

19.  On 5 May 2011, the Officer Special Review Board (OSRB) determined the applicant's appeal of her referred OER did not warrant relief and unanimously denied the case.  The OSRB stated the applicant had not provided sufficient evidence showing the contested report was inaccurate, unjust, or otherwise flawed.

20.  Army Regulation 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice and implements the Manual for Courts-Martial (MCM).  Chapter 3 of the regulation implements and amplifies Article 15 of the UCMJ and Chapter XXVI of the MCM.  Figure 3-3 shows the DA Form 2627 including Note 6 that states:  "The imposing commander will initial the appropriate block.  The OMPF performance fiche is routinely used by MOS/specialty career managers and DA selection boards.  The OMPF restricted fiche is not given to MOS/specialty career manager or DA selection boards without approval of the Commander, MILPERCEN (currently known as HRC) or selection board proponent."

21.  Army Regulation 27-10 provides the applicable policies for NJP.  The regulation states that NJP may be imposed to correct, educate, and reform offenders who the imposing commander determines cannot benefit from less stringent measures; preserve a Soldier's record of service from unnecessary stigma by record of court-martial conviction; or further military efficiency by disposing of minor offenses in a manner requiring less time and personnel than trial by court-martial.  All Article 15 actions, including notification, acknowledgment, imposition, filing determinations, appeal, action on appeal, or any other action taken prior to action being taken on an appeal, except summarized proceedings will be recorded on DA Form 2627.  The regulation also states that absent compelling evidence, a properly completed, valid DA Form 2627 will not be removed from a Soldier's record.

22.  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 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.

	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 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 DA Pamphlet 623-3.  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.

	b.  Paragraph 2-2 states that rating chains will correspond as nearly as practicable to the chain of command and supervision within an organization, regardless of component or geographical location.  They will be established by name, given effective dates, published, and distributed manually or electronically to each rated officer, NCO, and civilian member of the rating chain.  Any changes to the rating chains will also be published and distributed as required.  No changes may be retroactive.

	c.  Paragraph 2-10 provides guidance for rating chain members.  The rated Soldier will participate in counseling, assessments and a final evaluation.  Assessment will be conducted with the rating chain throughout and at the end of the rating period.  Rated Soldiers have the opportunity to express their own views during the assessment.

	d.  Paragraph 2-12 stipulates that raters will provide their support form, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period; discuss the scope of the rated Soldier's duty description with the rated Soldier; advise the rated Soldier as to changes in their duty description and performance objectives, when needed, during the rating period; assess the performance of the rated Soldier, using all reasonable means, to include personal contact, records and reports, and the information provided by the rated officer on DA Forms 67-9-1 and/or 67-9-1a; review the applicable support forms at the end of the rating period and, as appropriate, provide more information about the job description or performance objectives to other rating officials for use in preparing their evaluations; verify rated individual's  Army Physical Fitness Test (AFPT) and height and weight data for entry on the evaluation report; and provide an objective and comprehensive evaluation of the rated Soldier's performance.

	e.  Paragraph 2-15 states the senior rater is the senior rating official in the military rating chain or as officially designated by the academic institution.  Senior 


raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course of standards.  Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with the rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army; consider the information on the applicable support forms when evaluating the rated individual; evaluate the rate Soldier's potential relative to their contemporaries; and ensure that all reports, which the senior rater and subordinates write, are complete and provide a realistic evaluation in compliance with procedures established in DA Pamphlet 623-3.

	f.  Chapter 6 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.

	g.  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.

23.  Army Regulation 15-6 establishes procedures for investigations and boards of officers not specifically authorized by any other directive.  Results of investigations are reported on a DA Form 1574.

	a.  Paragraph 1-9 states there is no requirement to refer the investigation to the individual if the adverse action contemplated is prescribed in regulation or other directives that provide procedural safeguards, such as notice to the individual and opportunity to respond.


	b.  Paragraph 1-9 also states that if an investigation is conducted using the procedures of this regulation, the information obtained, including findings and recommendations, may be used in any administrative action against an individual, whether or not that individual was designated a respondent, and whether formal or informal procedures were used.

	c. Paragraphs 3-14 and 3-15 state that in an informal investigation or board, the report will be written unless the appointing authority has authorized an oral report.  Written reports of informal investigations will use DA Form 1574; however, its use is not required unless specifically directed by the appointing authority.  Every report, oral or written, on a DA Form 1574 or not, will including findings and, unless the instructions of the appointing authority indicate otherwise, recommendations.

	d.  Paragraphs 4-1 and 4-2 stipulate that informal procedures may be used by a single IO or by a board of two or more members.  (One officer is not designated a board unless procedures are formal).  An informal investigation or board may use whatever method it finds most efficient and effective for acquiring information.  A board may divide witnesses, issues, or evidentiary aspects of the inquiry among its members for individual investigation and development, holding no collective meeting until ready to review all the information collected.  Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means.  Informal procedures are not intended to provide a hearing for persons who may have an interest in the subject of the investigation or board.  No respondent will be designated and no one is entitled to the rights of a respondent.  The IO or board may still make any relevant findings or recommendations, including those adverse to an individual or individuals.

24.  The 15-6 IO Handbook provides the following on Rights Warnings:

	"All Soldiers suspected of criminal misconduct must be advised of their rights under Article 31 before questioning.  DA Form 3881 (Rights Warning Procedure/ Waiver Certificate) should be used to record the witness's understanding of his or her rights and election to waive those rights by making a statement.  It may be necessary to provide the rights warning at the onset of the interview.  In some cases, you will become aware of the witness's involvement in criminal activity only after the interview has started and incriminating evidence is uncovered.  In such case, rights warnings must be provided as soon as you suspect that a witness may have been involved in criminal activity.  If a witness elects to assert his/her right to remain silent or requests an attorney, all questioning must cease 


immediately.  If the suspect has requested an attorney, questioning may resume in the presence of the witness's attorney, if the witness consents to being interviewed.  Note that these rights apply only to information that might be used to incriminate the witness.  They cannot be invoked to avoid questioning on matters that do not involve violations of criminal law.  Finally, only the individual who would be accused of the crime may assert these rights.  They cannot be asserted to avoid incriminating other individuals."

25.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.

26.  Army Regulation 15-185 (ABCMR) states the ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

27.  Army Regulation 600-20 (Army Command Policy), effective 18 March 2008, defines the EO Program in chapter 6 as follows:  The U.S. Army will provide EO and fair treatment for military personnel and family members without regard to race, color, gender, religion, national origin, and provide an environment free of unlawful discrimination and offensive behavior.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's and counsel's contentions were duly noted and carefully considered.

2.  Although the applicant and counsel have requested to personally appear before the Board, the ABCMR will decide cases on the evidence of record.  There is sufficient evidence available for a fair and impartial consideration of her case without such an appearance.

3.  After a comprehensive review of the evidence presented and the evidence in the applicant's OMPF, both the applicant's and counsel's contentions and 


arguments, and the voluminous evidence submitted in support of her application, the applicant did not show, by clear and convincing evidence, that the GOMOR she was issued or the contested OER contains a material error, inaccuracy, or injustice.

4.  The allegations and arguments can be summarized as simply "rearguing" her case.  The applicant has previously stated the reasons she disagrees with the judgment and the decisions of the officers who wrote her OER and imposed the Article 15, UCMJ, and attendant GOMOR.  She and counsel are arguing that the ABCMR should give the various items of evidence a different weight and come up with different conclusions than those officers who were responsible for the actions that took place.  However, there is ample evidence to support the original findings.

5.  The applicant alleges the IO improperly conducted the 15-6 investigation; that an investigation should have been conducted in accordance with Army Regulation 600-20, Appendix D; and that she and the IO had a history.  Although an investigation could have been conducted in accordance with Army Regulation 600-20, Appendix D, no formal EO complaint was filed.  Further, the commander directed a 15-6 investigation clearly as a fact-finding investigation presumably based on the email from the Dental Clinic OIC and as a follow-up on the counseling he provided the applicant in July 2008.  Nevertheless, during the process of this fact-finding investigation, the IO was able to substantiate the allegation of a hostile work environment and use of comments that were offensive, unwanted, and unsolicited of an ethnic and/or otherwise inappropriate nature simultaneously.  Therefore, based on this substantiation of facts, the commander was authorized to proceed with administrative actions against the applicant.  Therefore, the 15-6 investigation was within Army policy.  Further, although there may have been a "history" with the IO, the allegations were substantiated. 

6.  Counsel and the applicant argue she was questioned in the course of the
15-6 investigation without being advised of her rights and the resulting statements were included in the evidence used in administering her NJP.  However, even if true, the applicant has only denied misconduct.  The evidence against her derives from the statements of others, not her own.

7.  Counsel and the applicant argue that the Article 92 charge of failing to obey a lawful general regulation was set aside on appeal.  In her appeal the appellate authority stated the Article 133 charge (conduct unbecoming an officer) still stood and the GOMOR remained appropriate punishment.  Essentially the appellate 


authority appears to have found the charges multiplicious because they both involved the same misconduct by the applicant.  Setting aside one offense is not equivalent to a finding that the underlying facts, which support both charges, did not occur.

8.  Based on the foregoing, the comments on the contested OER appropriately reflect the applicant's behavior.  The contentions that her rating officials failed to perform one or more of their duties are without merit.  The applicant was provided counseling which covered multiple topics, to include the chain of command, expectations, and shortfalls, by her rater in July 2008.  The reference to a formal rather than informal investigation on the contested OER is of no significance and does not render the OER factually and materially defective or otherwise invalidate the OER.

9.  The applicant violated the UCMJ and she was punished.  As a result of her punishment, she was removed from the FY08 Colonel, DC Standing Promotion List.  There is neither an error nor an injustice in her NJP proceedings.  Based on her contested OER and NJP, the PRB and the Secretary of the Army were within the confines of the law in their decision to remove the applicant from the promotion list.  Therefore, she is not entitled to restoration of her selection for promotion to the rank/grade of colonel (COL)/O-6.

10.  Counsel and the applicant contend due process was denied.  However, records show the applicant was afforded opportunities to consult with counsel, to appeal decisions, as well as to respond to each action.  All requirements of law and regulations were met and her rights were fully protected throughout each action.  There is insufficient evidence of a clear and convincing nature to show due process was denied.  Therefore, this issue is without merit.

11.  In viewing of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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
      
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)                                         AR20110018602



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ABCMR Record of Proceedings (cont)                                         AR20110018602



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