IN THE CASE OF:	  

		BOARD DATE:	    21 February 2012

		DOCKET NUMBER:  AR20120001289 


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 transfer of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 1 January through 10 November 2005 (hereafter referred to as the contested OER) from the performance section to the restricted section of her official military personnel file (OMPF).

2.  The applicant states:

	a.  she was reprimanded for shoplifting a DVD player from the Army and Air Force Exchange Service (AAFES) on 18 May 2005.  She received a referred OER which was filed in the performance section of her OMPF; 

	b.  as a result of this filing she was passed over for promotion to Major (MAJ) on the Fiscal Year (FY) 2011 MAJ promotion board, denied advanced civil schooling, and is now in jeopardy of being passed over for promotion a second time on the October FY12 MAJ promotion board; 

	c.  on 24 October 2011, the U.S. Army Human Resources Command initiated elimination proceedings against her as a result of the derogatory files in her OMPF and being passed over for promotion to MAJ; 

	d.  she has willingly served her country with honor, distinction and integrity and has adhered to the Army values every day since her mistake.  She has worked very hard to rebound from her mistake, and received top notch OERs.  She has also received the Bronze Star Medal, the Purple Heart, and the Combat Action Badge; and
	e.  she asked the board to consider all she has accomplished since her mistake and to grant her request to move her OER to the restricted section of her OMPF so that she can have the chance to be retained on active duty.

3.  The applicant provides:

* Contested OER 
* OER - 15 June 2007 - 14 June 2998
* OER - 30 May 2009 - 24 April 2010
* OER - 25 April 2010 - 24 April 2011
* Letter of recommendation/retention
* Deployment orders, dated 23 May 2007
* WIAS requirement record brief

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.  Having had prior enlisted service in the Regular Army, the applicant was appointed as a second lieutenant on 10 October 2001.  She served in a variety of overseas and stateside assignments.  She is currently assigned in the rank/grade of captain (CPT)/O-3 to the Support Battalion, 196th Infantry Brigade, Fort Shafter, HI.

3.  She was assigned to the 18th Engineer Brigade, Campbell Barracks, Heidelberg, Germany, from on or about 9 July 2004 to on or about 14 June 2007 and completed a deployment to Afghanistan during this time frame.

4.  Her records contain a DA Form 2823 (Sworn Statement), dated 24 April 2004, made by an AAFES employee.  The employee stated while monitoring the AAFES Electronic Video Surveillance System (EVSS) he observed the applicant walk up to the display shelf for the portable DVD players with a large black backpack over her left shoulder.  The employee stated:  
	a.  she picked up a Sony portable DVD player valued at $349.00 that was on an open display shelf, and after looking at it for several seconds, then she took the AC power adaptor from the shelf; 

	b.  she then grabbed a boxed Kenwood portable CD player from the adjacent shelf and placed this box over the top of these and proceeded to walk around the facility for a few minutes.  She appeared to be observing her immediate surroundings and other people; 

	c.  she proceeded to the front of the facility and placed the portable DVD player and adapter on the film development drop off counter.  She quickly placed her backpack directly over the top of the DVD player and power adaptor which blocked the merchandise from view; 

	d.  she left the merchandise and backpack on the film development drop off counter and went to the register with the boxed Kenwood CD player.  She removed her military identification (ID) card from her wallet, showed it to the cashier, and returned it to her wallet.  She paid for the boxed Kenwood CD player; 

	e.  she then proceeded to the film development drop off counter where her backpack and the DVD player and power adaptor were located.  She placed the boxed Kenwood CD player she purchased in her backpack and with the backpack open, and being careful to keep the portable DVD player and power adaptor coverer, she placed this merchandise into her backpack as well.  She quickly closed the backpack, placed it on her shoulder, and exited the facility.  She was stopped as she proceeded towards the parking lot and detained by an AAFES detective;

	f.  the detective escorted her to the loss prevention office and contacted the Military Police (MP).  Once inside the office, the AAFES employee explained that she was being detained for taking merchandise from the store without paying.  She stated that she paid for the merchandise.  The AAFES employee informed her he had observed her on the store's EVSS, taking merchandise, placing it in her backpack, and leaving the store without paying;

	g.  when the employee asked to see her ID card she said she did not have it with her.  He told her that he observed her taking it out of and return it to her wallet while she was at the register.  She then stated that she must have lost it or left it at the register; 


	h.  the employee informed her that the merchandise she had in her backpack was a Sony portable DVD player valued at $349.00 and a power adapter.  At this time she opened her backpack and took out the boxed Kenwood CD player and handed it to him stating she had paid for it.  He told her he was not referring to the CD player but to the DVD player; 

	i.  the employee informed her that once the MPs arrived they would conduct a search of her backpack.  She then removed the DVD player and adapter in her backpack and handed it to him telling him it was hers and was already in her backpack when she entered the store.  She then began fumbling around in her wallet.  The employee noticed her driver license and asked to see it but she refused.  Eventually she gave in and told him she had found her ID card and gave it to the detective; and

	j.  when the MPs arrived the employee went to the sales floor and retrieved the empty box from the Sony portable DVD player.  The serial number on the box matched the number on the Sony portable DVD player in her backpack.

5.  Her records contain a DA Form 3975 (MP Report), dated 24 April 2004.  This report shows AAFES reported the theft to the MPs.  The report shows the MPs substantiated the claim of theft by the AAFES employees and recovered the stolen DVD player and adapter.

6.  Her records contain a DA Form 3881, dated 24 April 2005.  She signed this form acknowledging that she had been advised of her rights.

7.  Her records contain a DD Form 2708 (Receipt for Inmate or Detained Person) which shows she was charged with larceny of government property and released from the MP station to MAJ SGB.

8.  Her records contain an MP investigation (MPI) report, dated 29 April 2005.  The MPI essentially states she was at AAFES and placed a DVD player and adaptor in her backpack and proceeded to leave the store without rendering payment.  The report stated that she had been advised of her legal rights, which she invoked, and requested not to be questioned.  The report further shows an investigator had coordinated with the senior judge advocate who opined there was sufficient probable cause to believe the applicant committed the offense of larceny of government property.

9.  On 18 May 2005, in a closed hearing, she accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating Article 121 of the UCMJ, by stealing a DVD and power cord valued at about $349.00 from AAFES on 24 April 2005.
10.  Her punishment consisted of a written letter or reprimand (LOR).  The imposing commander directed the original DA Form 2627 and LOR be filed in the performance section of her Official Military Personnel File (OMPF).  She elected not to appeal her punishment.  

11.  The LOR, dated 18 May 2005, reprimanded her for stealing a portable DVD and power cord from AAFES before her scheduled deployment to Afghanistan.  The LOR stated that she stole the merchandise either because she thought she could get away with it or because she wanted to get caught so she could avoid deploying.  The commander further stated she deserved immediate separation from the Army; however, he refused to initiate separation proceedings because he believed that would play into her personal agenda to shorten her deployment.  The LOR warns that the slightest future misconduct would result in her separation from the Army under circumstance that would seriously impact her immediate and future life.

12.  The contested OER is a referred report.  The contested OER shows:

	a.  a block marked "No" in Part IVa (Army Values), item 2: Integrity-posses high personal moral standards; honest in word and deed.  Checking no in this box indicated she did not demonstrate this attribute during the rating period covered by the contested OER; 

	b.  in Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance - Promote" block; 

	c.  her rater commented in Part Vb-(Rater Comment on Specific Aspects of Performance), "[Her] service was overshadowed by an error in judgment which had great impact on her integrity during this rating period";

	d.  in Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block;

	e.  her senior rater commented in Part VIIb-Senior Rater Comment on Performance/Potential), "[Applicant] did exhibit unprofessional behavior in an incident not expected of someone of her grade"; and 

	f.  she and her rating chain signed the contested OER on 15 December 2005.

13.  The contested OER was referred to her for acknowledgement and rebuttal but she did not submit a rebuttal.

14.  She provided three OERS and a recommendation/retention letter as follows:
	a.  three subsequent OERs that shows her rating of "Outstanding Performance - Must Promote" and "Best Qualified" 

	b.  a recommendation/retention letter which described her as a hard working, technically competent, and capable officer who delivered as directed.  The LTC who wrote the letter stated he never had an issue or a reason to question her ethics and values.  He stated he is aware of her past error in judgment and does not dispute that they occurred; however, he never witnessed this type of behavior.  He opines that she has learned from her mistake and grown as a result of it.  He noted that she was awarded the Purple Heart for injuries she sustained during a rocket attack and the Bronze Star Medal for superior job performance. 

15.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the appellant.

	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, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	c.  paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army. 

	d.  paragraph 3-39 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	e.  paragraph 6-11a states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 

16.  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.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant received NJP and an LOR for stealing a DVD and power cord.  Accordingly, this resulted in her receiving the contested OER.  The contested OER was referred to her for acknowledgement and rebuttal but she did not submit a rebuttal.

2.  The contested OER appears to be correct.  An OER is a measure an officer's performance and potential during a period of time.  There is no evidence, and the applicant provided insufficient evidence to show her rater and senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  

3.  By regulation, to support removal, transfer, or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.

4.  The quality of service of a Soldier is adversely affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  The Board is generally reluctant to remove or transfer adverse information from an OMPF when it places the applicant on a par with others with no blemishes for promotions, assignments, and other favorable actions.  

5.  Among the purposes of filing unfavorable information is protection not just for the Soldier’s interests but for the Army’s as well.  She demonstrated a lack of integrity.  The fact that she suffered or could suffer the consequences of her actions is a natural and reasonable consequence of her performance.  

6.  After a comprehensive review of the evidence in her OMPF, her arguments, and the evidence submitted in support of her application, it is determined she did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.  Therefore, she is not entitled to the 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)                                         AR20120001289





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120001289



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1