BOARD DATE:	  27 November 2012

		DOCKET NUMBER:  AR20120000809 


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 an Officer Evaluation Report (OER) for the period 27 July 2009 through 22 April 2010 be removed from her Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.

2.  The applicant states:

   a.  from the moment of her assignment to her new unit, she was treated unfairly and unjustly;
   
   b.  as a field grade officer with two years' time in grade serving in the rank of major (MAJ), she was assigned to be supervised by a captain (CPT), which was both personally and professionally demeaning for her and contravened the most fundamental tenets of military discipline violating the very purpose of the military rank structure;
   
   c.  unit officials also attempted to have her rated by a Soldier serving in her same rank whom she outranked;
   
   d.  the counseling she received for the inability to maintain a case load necessary for accreditation, for insubordination, and for being disrespectful was unjust;
   
   e.  unit members, the rating chain, and the command viewed her as "insubordinate" and a non-team player from the very beginning because she refused to be supervised by a CPT;
   
   f.  the Officer Special Review Board (OSRB) denied her appeal indicating, among other reasons, she failed to include the Commander's Inquiry (CI) Report;
   
   g.  she did not provide the OSRB with a copy of the CI report because it lacked impartiality and constituted further continuation of the inequality she experienced;
   
   h.  the individual at the heart of credentialing was never interviewed during the CI;
   
   i.  she was denied due process when the CI investigating officer (IO) gratuitously recommended she be considered by an Officer Separation Board as unsuitable for further service, in violation of Army Regulation 623-3, 
paragraph 6-5d;

   j.  the CI IO went beyond the scope of his duties and responsibilities to remain impartial which shows his bias against her by violating his charge to duty;
   
   k.  the OER constituted an inequitable continuation of the treatment she received by unit members, in particular, the rating chain;
   
   l.  she was tracked like an animal or criminal suspect while assigned for temporary duty at Fort Polk, Louisiana;
   
   m.  the CPT's rush to grant her credentials in a matter of a few days while at Fort Polk, Louisiana was a prescription for failure and an ultimate set-up; and
   
   n.  the legal review of the CI lacked impartiality because it was conducted by the same officer who advised and served as the CI IO's legal advisor throughout the investigation process.
   
3.  The applicant provides:

* Self-Authored Statement
* Contested Report
* OSRB Appeal
* Commander's Inquiry
* General Officer Memorandum of Reprimand (GOMOR)

CONSIDERATION OF EVIDENCE:

1.  The applicant's military records show she initially enlisted in the U.S. Army Reserve on 18 June 1986, for a period of 8 years.  She served in the Army in the following components as indicated:

* USAR - (18 June 1986 - 26 January 1987)
* Regular Army - (27 January 1987 - 6 April 1994)
* USAR - (7 April 1994 - 5 August 1999)

2.  On 6 August 1999, the applicant was appointed a Reserve commissioned officer in the Medical Service (MS) Corps, in the rank of first lieutenant (1LT).  She was promoted to captain (CPT/O-3) on 1 May 2005 and to major (MAJ/O-4) on 1 August 2007.  

3.  On 19 October 2009, the applicant's battalion commander, a lieutenant colonel (LTC), prepared a DA Form 4856 (Developmental Counseling Form) and conducted formal counseling with her to:

* admonish her on her performance and behavior towards fellow officers since her arrival to the battalion
* clearly define her rating scheme
* provide his specific expectations for measuring her daily duty performance

4.  The DA Form 4856, dated 19 October 2009, also shows the battalion commander indicated that the chief complaint against the applicant was her failure to see the number of patients for someone of her credentials and capability.  He further identified himself as the applicant's rater, Colonel (COL) P______ as the senior rater, and informed the applicant she would take direction from the Brigade Surgeon (a MAJ), and the Division Psychiatrist (a CPT).

5.  On an unknown date, the applicant provided rebuttal comments to the formal counseling.  On 23 October 2009, the battalion commander met with the applicant, discussed her rebuttal comments, concurred with her rebuttal, and modified his expectations.

6.  On 19 January 2010, the battalion commander formally counseled the applicant to review her performance and correct her behavior.  He indicated her performance was poor and documenting her patient load impacted her ability to be credentialed.  Neither this counseling record nor any other document provided by the applicant or maintained in her AMHRR specifically quantifies the number of patients she was required to see on a daily basis to obtain her necessary accreditation.
7.  On 22 April 2010, while serving with Company C, 426th Brigade Support Battalion, 1st Brigade Combat Team (BCT), 101st Airborne Division, the applicant received a Relief for Cause (RFC) OER for the period 24 July 2009 through 22 April 2010.  This report evaluated the applicant as the Behavior Science Officer, responsible for operating and administering a mental health clinic while being available at all times to assist any Soldier in need of mental health services.  The contested report indicates she served as the only military credentialed Behavior Health Officer (BHO) for the 1st BCT, coordinating and providing all psychotherapeutic services and referrals for 3,000 plus Soldiers to include coverage for other BCTs when corresponding providers are unavailable for consultation and/or triage providing ongoing clinical supervision of mental health specialist.  She served as the mental health expert on the BCT Mental Health Toughness and Resiliency Team and as the liaison between 1 BCT, Adult Behavioral Health and all off-post in-patient mental health services to include Cumberland Hall and Lincoln Trail Hospitals.

8.  In Part IV (Performance Evaluation-Professionalism) of the OER, the rater, a lieutenant colonel (LTC), checked the "Yes" block in response to every question in Part IVa (Army Values) with the exception of block 5 (Respect: Promotes dignity, consideration, fairness, and equal opportunity) wherein he marked the "NO" block.

9.  In Part IVb (Leader Attributes/Skills/Actions) the Rater marked the "NO" in the following two blocks:

* Block 2 (Interpersonal) - shows skill with people, coaching, teaching, counseling, motivating, and empowering
* Block 3 (Emotional) - displays self-control and calm under pressure

10.  In Part V (Performance and Potential Evaluation-Rater), the rater placed the applicant in the third block (Unsatisfactory Performance, Do Not Promote).  In Part Vb (Comments) he noted the following as his bases for relieving the applicant of her position:

   a.  she was repeatedly counseled on her lack of performance, specifically her patient load;
   
   b.  after 9 months in the assignment she had yet to sustain a patient load that would support her credentialing as an independent mental health care provider;
   
   c.  although her work within the battalion was sometimes acceptable, she failed to meet the minimum criteria for award of her credentials;
   d.  she was reprimanded twice in a 4-month period regarding her behavior towards her fellow officers and insubordinate behavior towards her commanding officer; and
   
   e.  her continued pattern of recalcitrant behavior and poor duty performance.

11.  In Part IVc (Comments on Potential for Promotion) the rater indicated the applicant had already exceeded her potential and recommended she not be promoted.

12.  In Part VIIa (Promotion Potential) the SR, a COL, placed the applicant in the third block (DO NOT PROMOTE); in Part VIIb (Potential Compared with Officers) – he placed an "X" in the fourth block (BELOW CENTER OF MASS – DO NOT RETAIN); and in Part VIIc (Comments on Performance/Potential) – he provided: 

* the applicant's performance of duty was unsatisfactory 
* he lost confidence in her professional ability
* the applicant demonstrated an inability to appropriately engage with peers and subordinates
* the applicant insubordinately engaged with her chain of command and failed to achieve professional accreditation to execute her duties as the brigade BHO
* without significant personal and professional development he could not recommend the applicant's retention in the Army

13.  On 28 April 2010, through counsel, the applicant appealed the RFC report.  On 18 June 2010, the applicant's commanding general (CG), of the Combined Joint Task Force, Regional Command –East, Bagram Airfield, Afghanistan, initiated a CI to investigate the alleged errors, injustices, and illegalities in the contested OER.

14.  The applicant's AMHRR does not include a copy of the CI.

15.  The applicant provides a copy of the CI which includes a DA Form 2823 (Sworn Statement) prepared by the brigade surgeon serving in the rank of MAJ. He indicates CPT S_____ was initially assigned as the applicant's immediate supervisor until an incident occurred between them.  The brigade surgeon indicates he later attempted to clarify the applicant's rating scheme, but later learned he too could not rate the applicant given they were of the same rank.

16.  While the CI does not include the IO's specific determination and/or any resulting recommendations, it does include the CG's Memorandum for Record (MFR), dated 13 August 2010, which shows:
	a.  he reviewed the CI conducted pursuant to Army Regulation 623-3 (Evaluation Reporting System), paragraph 6-3;

	b.  he approved the IO's findings, which found no merit to the applicant's allegations of errors, injustices, and illegalities with regard to her OER;

	c.  he was informed by the local Inspector General (IG) that the Department of Defense IG determined there was no basis for a reprisal case; and

	d.  accordingly, he found no errors, injustices, illegalities, or other faults with the applicant's RFC OER and directed a copy of the CI be filed in the unit's local file and a copy be given to the applicant.

17.  On 28 July 2011, the Officer Special Review Board considered the applicant’s appeal to remove the contested OER from her AMHRR and determined the evidence she presented did not justify altering or withdrawing the evaluation report from her military record.

18.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies and procedures pertaining to the Officer Evaluation System and Officer Evaluation Reporting System.  It also provides guidance regarding redress programs including commander inquiries and appeals.  

	a.  Paragraph 2-5 provides the rules for designating a rater.  It states that the rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier's performance.  The rater will be the immediate supervisor that monitors/observes the day to day performance of the rated individual and directly guides the rated Soldier's participation in the organization's mission.  A military rater will be senior to the rated officer, by grade or date of rank except in certain situations (none of which are applicable in this case.)

   b.  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 an officer is presumed to be administratively correct, to have been prepared by the properly designated rating officials, 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.  
   
   c.  Chapter 6 provides, in pertinent part, the policies and procedures pertaining to managing the OER redress program.  Section III contains guidance on OER appeals and paragraph 6-11 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 3-39 and 6-7 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 applicant contends the contested OER should be removed from her AMHRR because she was treated unfairly and unjustly by her chain of command due to her refusal to be supervised and/or rated by Soldier(s) serving in a lower rank or date of rank than she.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant, a MAJ, was initially assigned to the unit issuing the RFC report, under the supervision of a CPT and a subsequent attempt was made to have her rated by a Soldier serving in the rank of MAJ.  However, this MAJ admits it was later determined he could not rate the applicant.  Accordingly, during a formal counseling between the applicant and her battalion commander (a LTC) on 19 October 2009, he established her rating scheme identifying himself as the rater and COL P____ as the SR.  The battalion commander further demonstrated his willingness to work with the applicant and his desire for her to achieve accreditation when he concurred with her rebuttal statement to the formal counseling and modified his expectations of her.  This is contrary to her allegations of unfair treatment.

3.  In addition, the evidence of record confirms the applicant's poor performance hindered her ability to obtain the necessary credentials to perform as the brigade's behavioral science officer.  As a result, the applicant was unable to provide the necessary mental healthcare to the Soldier's who desperately needed this type of treatment which jeopardized the effectiveness and quality of care that the brigade was required to provide.  Accordingly, the applicant was relieved from her duties and issued the contested report.

4.  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 to represent the considered opinions and objective judgment of the rating officials at the time of its 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.

5.  The evidence of record confirms the applicant requested a CI on the contested OER.  However, after reviewing all the evidence submitted on appeal, the commander conducting the inquiry found no fault with the OER, as evidenced in his 13 August 2010 MFR (Commander’s Inquiry).  She provides insufficient evidence to show the legal review of the CI lacked impartiality because it was conducted by the same officer who advised and served as the CI IO’s legal advisor.  She provides insufficient evidence to show the CG made an uninformed decision to accept the CI based upon an impartial review of it.

6.  In addition, the evidence of record did not contain and the applicant failed to provide any evidence to confirm her claim that the CI IO went beyond his scope of responsibility to conduct a fair and impartial investigation when he recommended she be considered by an officer separation board as unsuitable for further service, and thereby demonstrated bias.  Absent any evidence to corroborate this claim, this allegation is unsubstantiated.

7.  Given the CI conducted by the responsible commander on the ground found no fault with the contested OER after examining the facts and circumstances surrounding the evaluations and the matters submitted by the applicant on appeal 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 AMHRR 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.

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)                                         AR20120000809



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ABCMR Record of Proceedings (cont)                                         AR20120000809



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