IN THE CASE OF:	  

		BOARD DATE:	  10 January 2013

		DOCKET NUMBER:  AR20120008780

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 a DA Form 67-9 (Officer Evaluation Report (OER)) (Relief for Cause, covering the period 16 December 2007 through 24 June 2008, hereafter referred to as "the contested OER") from her Army Military Human Resource Record (AMHRR)
* removal of a General Officer Memorandum of Reprimand (GOMOR) from her AMHRR

2.  The applicant states:

* the accusation against her was never proven, just substantiated based on hearsay and rumors
* there was no physical evidence or any eyewitnesses who ever saw any inappropriate contact between herself and the other Soldier
* she was never counseled to cease her behavior; nor was she ever punished under the Uniform Code of Military Justice (UCMJ)
* the contested OER did not mention her performance; however, it does state the name of the other Soldier with whom she's accused of having an inappropriate relationship
* there are many errors in the contested OER, which should have resulted in its return for correction; however, it was processed and filed in her AMHRR
* she attempted to have the evaluation removed from her record in 2011 by proving the incident didn't occur; however, her request was denied
* she was subsequently advised by her personnel management officer of all the errors and injustices in the report, so she is now resubmitting her request due to the numerous errors contained within the report, as opposed to trying to prove she never had an inappropriate relationship  

3.  The applicant provides:

* a memorandum addressed to the U.S. Army Human Resources Command (HRC), Fort Knox, KY, dated 5 April 2012, subject: Evaluation Report Appeal, with supporting documentation
* Officer Special Review Board (OSRB) Record of Proceedings, Docket Number AR20110010511, with supporting documentation 

CONSIDERATION OF EVIDENCE:

1.  After previous enlisted service in the Nebraska Army National Guard (NEARNG), the applicant enlisted in the U.S. Army Reserve (USAR) Control Group (Reserve Officers’ Training Corps (ROTC)) on 12 June 1990.  

2.  On 15 August 1992, she was appointed as a Reserve Commissioned Officer of the Army, in the rank/grade of second lieutenant (2LT)/O-1, in the Adjutant General’s Corps.

3.  She served in numerous positions of increased responsibility, during periods of active duty and troop program unit (TPU) service, and on 30 June 2006, she was promoted to the rank/grade of major (MAJ)/O-4.

4.  Orders 07-217-00006, issued by Headquarters, 85th Division (Training Support), Arlington Heights, IL, dated 5 August 2007, ordered her to active duty in support of Operation Enduring Freedom (OEF), for a period not to exceed   365 days, effective 10 August 2007.

5.  On 28 May 2008, she was given a GOMOR by Major General (MG) Gxxxxx, the Commander, Division West (First Army) and Fort Carson, Fort Carson, CO, for fraternizing with, and having an adulterous affair with, an enlisted Soldier in violation of the UCMJ.  On 2 July 2008, MG Gxxxxx directed the GOMOR be filed in her Official Military Personnel File (OMPF), now referred to as the AMHRR.

* the GOMOR resulted from an investigation that concluded the applicant engaged in an inappropriate relationship with an enlisted Soldier during the years 2006 to 2008
* the GOMOR was imposed as an administrative measure and not as punishment under the UCMJ
6.  On 24 June 2008, she received the contested OER, which relieved her of her duties as the Brigade S-1.  This report covered 6 months of rated time during the period 16 December 2007 through 24 June 2008.

   a. In Part IV (Performance Evaluation – Professionalism), Part A (Army Values), the rater placed a checkmark in the “No” block of numbers 1 (Honor),    2 (Integrity), 3 (Courage), 4 (Loyalty), 5 (Respect), and 7 (Duty), indicating a deficiency in those rated areas on the part of the rated officer.

  b. In Part IV (Performance Evaluation – Professionalism), Part B (Leader Attributes/Skills/Actions), the rater placed checkmarks in the “No” blocks of item b.1. (Attributes) numbers 1 (Mental) and 3 (Emotional); item b.2. (Skills) number 1 (Conceptual); and item b.3. (Actions) number 2 (Decision-Making).  These checkmarks indicate a deficiency in those rated areas on the part of the rated officer.

   c. In Part V (Performance and Potential Evaluation (Rater)), Part A (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion), the rater placed a checkmark in the “Unsatisfactory Performance, Do Not Promote” block.

   d. In Part V (Performance and Potential Evaluation (Rater)), Part B (Comment on Specific Aspects of the Performance, Refer to Part III, DA Form 67-9 and Part IVa, b, and Part Vb, DA Form 67-9-1 (OER Support Form)), the rater stated:

[Applicant's] behavior has been unacceptable.  She violated Article 134 of the UCMJ and Army Regulation 600-20 (Army Command Policy), paragraph 4-14, by carrying on a relationship of fraternization and adultery with a married enlisted Soldier.  [Applicant] has received a GOMOR for her actions.  Her poor judgment in personal and professional conduct has greatly undermined the morale and discipline in this unit and cannot be tolerated.  Her actions have demonstrated that she does not live up to the Army values of honor, integrity, courage, loyalty, respect, and duty.  [Applicant's] behaviors are in direct contradiction to all Army values.  IV.b.2 – Mental – displayed a lack of self-discipline; Emotional – displayed lack of self-control; Conceptual – failed in sound judgment and moral reasoning; IV.b.3 – Decision-Making – failed to use sound judgment.

   e. In Part V (Performance and Potential Evaluation (Rater)), Part C (Comment on Potential for Promotion), the rater stated:

[Applicant's] disregard for the moral and legal obligations associated with military service have proven that she is unfit for advancement.  Do not promote to Lieutenant Colonel (LTC).  Do not send to further military education courses.

   f. In Part VII (Senior Rater), Part A (Evaluate the Rated Officer’s Promotion Potential to the Next Higher Grade), the senior rater placed a checkmark in the “Do Not Promote” block.

   g. In Part VII (Senior Rater), Part C (Comment on Performance/Potential), the senior rater stated:

[Applicant] is being relieved of her military duties in the 120th Infantry Brigade, released from active duty, and reassigned outside the Headquarters, 120th Infantry Brigade for adultery and fraternization.  [Applicant] violated Article 134, UCMJ, and Army Regulation 600-20, paragraph 4-14, by wrongfully having sexual intercourse with Sergeant Major (SGM) Txxxxxx Wxxx, a married man, not her husband and by fraternizing with SGM Wxxx throughout 2006 and 2007.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-589(g), states the minimum time requirements for rating officials do not apply.  Do not retain this officer.  Do not give this officer any additional schooling.

7.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates the applicant elected to make comments, which were attached to the contested OER as an enclosure.  In her submitted comments, dated 30 June 2008, she denied she was involved in an inappropriate relationship with SGM Wxxx, and requested the contested OER not be processed, as she did not violate regulation and did not require an evaluation at the time.

8.  On 20 July 2008, she was honorably released from active duty, after completing 5 years, 5 months, and 24 days of net active service.

9.  Orders 256-1074, issued by Headquarters, Texas Military Forces, Texas Army National Guard (TXARNG), appointed her a MAJ in the TXARNG, effective 2 September 2008.

10.  On 1 March 2010, she was honorably released from the TXARNG and transferred to the USAR.

11.  Her AMHRR contains an undated memorandum, issued by Headquarters, 63rd Regional Support Command, which notified her of her non-selection for promotion (1st time).

12.  Her AMHRR is void of any documentation detailing the results of an Army Regulation 15-6 investigation involving the applicant.

13.  On 6 October 2011, the OSRB denied her request for removal of the contested OER.

14.  She provides a memorandum addressed to HRC, Fort Knox, KY, dated        5 April 2012, subject: Evaluation Report Appeal, with supporting documentation, in which she states:

   a. Parts IV and V of the contested OER are in error because her performance was never mentioned, despite being "top-blocked" on a previous evaluation for the same duty position.  Despite her previous "top-block" rating, her performance and professionalism were noted as deficient in many areas in Part IV.

   b. Part V of the contested OER is in error because her performance and potential are not mentioned, but previous deficient areas of Part IV are reiterated. She is accused of violations of the UCMJ, but she did not receive a trial by court-martial.  There was no evidence against her, yet she received this unfair treatment.

   c. Allegations were brought against her; however, she was never counseled about her behavior or given the opportunity to correct it.  Higher ranking officers have been accused of the same behavior and afforded this courtesy.  She wonders why she wasn't afforded the same courtesy.

   d. Both she and the other Soldier have stated their innocence; yet, based on hearsay, she was investigated, relieved, and given the contested OER.

   e. Part VII of the contested OER is in error because it was inappropriate and a violation of her privacy, as well as SGM Wxxx's privacy, to put his name in the evaluation.

   f. Part VII is further in error because her performance was not mentioned.  Additionally, she takes issue with the allegation she had sexual intercourse with SGM Wxxx, despite the lack of proof.

   g. In her previous OER during the year she was accused of having the inappropriate relationship, she received outstanding ratings.  She wonders how her performance and potential could have suddenly changed, based on an accusation.

   h. Her previous OERs recommended her for promotion to LTC, which prove the contested OER was completely unfair and misrepresented her.

   i. While attending professional development schooling at Fort Gordon, GA in March 2008, she was informed that she was being investigated as part of an Army Regulation 15-6 investigation.  She states her command informed her that the investigation substantiated her inappropriate behavior, yet she states it was not proven.  

   j. She concludes by reiterating her position that she did nothing wrong, she did not violate Army policy or regulations, and she was treated unfairly by her command after she worked tirelessly to accomplish the mission.  She states she cannot prove she didn't do something, so she hopes the Board favorably considers her request based on material errors within the contested OER.

15.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records), in effect at the time, established the responsibilities, policies, and procedures for maintaining and controlling the OMPF.  It states that once a document is placed in the OMPF, it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.  It further states that the restricted portion of the OMPF is for historical data that may normally be improper for viewing by selection boards or career managers.  The restricted file ensures that an unbroken, historical record of a member's service, conduct, duty performance, evaluation periods, and corrections to other parts of the OMPF is maintained.  It is intended to protect the interests of the member and the Army.

17.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her Relief for Cause OER and GOMOR should be removed from her AMHRR due to material error.  

2.  The evidence shows the applicant received a GOMOR for engaging in an inappropriate relationship with a married enlisted Soldier.  The GOMOR was based on a command-ordered investigation and was directed to be filed in the performance section of her AMHRR.  The evidence further shows she was then relieved of her duties as the Brigade S-1, which resulted in the contested OER.  She appealed the OER; however, she failed to sufficiently show why the contested OER should be stricken from her records.

3.  Her relief for cause was based on the results of an Army Regulation 15-6 investigation that found she acted inappropriately by engaging in a relationship with a married enlisted Soldier.  Her actions warranted her relief.  She now contends the contested OER contains material error that should be considered in her favor, resulting in the removal of the contested OER and GOMOR from her AMHRR.  Her contentions are noted and rejected; the contested OER complies with Army Regulation 623-3 and sufficiently addresses her performance and potential throughout.  

4.  The applicant has not provided convincing evidence that either her GOMOR or Relief for Cause OER were unjust, in whole or in part, to support their removal from her AMHRR.  Furthermore, she failed to submit any evidence of a material error.

5.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

6.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  There is generally a reluctance to remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does remove unfavorable information, it only does so if it is untrue or unjust.  However, in this case, there is no evidence the GOMOR or contested OER were unjust or untrue or inappropriately filed in the applicant's AMHRR.

7.  By regulation, there must be compelling evidence to support the removal of a properly-completed, facially-valid document from a Soldier’s record.  Absent evidence meeting this regulatory standard, there is an insufficient evidentiary basis to grant relief in this case.

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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20120008780



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