IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120011928 


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 removal of four DA Forms 67-9 (Officer Evaluation Report (OER)) (hereafter referred to as the contested OERs) and allied documents for the periods 4 October 2005 to 13 June 2006, 7 July 2006 to 2 January 2007, 3 January 2007 to 2 January 2008, and 3 January 2008 to 30 September 2008; and two General Officer Memoranda of Reprimand (GOMOR), dated 18 March 2006 and 16 September 2006, from the applicant's Army Military Human Resource Record (AMHRR).

2.  Counsel also requests, in effect, correction of the applicant's records to show she meets the criteria for consideration by a Special Selection Board (SSB) for all applicable promotion boards.  

3.  Counsel states:

	a.  the applicant's records contained material errors when she was considered by Fiscal Years 2009 and 2011 Army Reserve Components Selection Boards.  The applicant was non-selected for promotion by these two boards.  The material errors resulted from a campaign (by her rating official) to ruin the applicant's career through retaliation and retribution after she filed a complaint alleging she was assigned to the wrong position and she filed a racial discrimination complaint against her supervisor.
	b.  the applicant entered the Army Reserve in May 1989, arrived at the 91st Brigade on 24 March 2003, and was assigned in a 1st Brigade, S-4 position.  After her S-4 position was eliminated, she received orders to report to the 91st Division G-4 on 3 October 2005.  

	c.  the applicant was retaliated against by her supervisor and other supervisors after she filed the discrimination complaint.  The retaliation included assigning the applicant to a smaller cubicle, denying her leave, failing to inform her of personnel actions in a timely manner, failing to inform her of meeting times, failing to inform her of her duties, and taking action against her for failing to perform her duties.

	d.  an Army Regulation 15-6 (Procedures for Investigation Officers and Boards of Officers) investigation conducted on the G-4 substantiated that the applicant's supervisor used a racial slur against another Soldier and lied about the incident.  However, COL L----, the Division G-1 and Ms. F-----'s supervisor, didn't take any action to ensure Ms. F----- acted in an appropriate manner.  The Division G-1 observed that Ms. F----- treated the applicant unfairly.  Ms. F------ was later removed from the G-4, but the damage to the applicant's career had already occurred.  The applicant continued to be treated harshly without justification.  

	e.  the applicant started having anxiety attacks and depression due to her mistreatment.  She began seeing a mental health provider to combat her symptoms, but she initially was unable to overcome these conditions.  

	f.  the applicant was placed in an absent without leave (AWOL) status despite recommendations from her doctor that she be placed on convalescent leave or be excused from duty.  The applicant was referred for a command directed mental health examination at the Defense Language Institute (DLI) even though Travis Air Force Base (AFB) was closer in location.  The applicant was not issued orders to travel to the examination so she arranged to have her examination at Travis AFB.  Although the applicant subjected herself to the examination, she was issued a GOMOR for failing to attend the examination.  

4.  Counsel cited errors noted in the OERs in question and the disciplinary actions that are noted in the five allegations in the applicant's separation board, such as:

	a.  the applicant failed to obey a lawful order (FOLO) on 13 September 2006 to report for a command directed mental health referral.  The finding was based on there was no evidence that a travel order existed or not existed that supported this directive.  
	b.  the applicant FOLO in November 2005 to attend conflict training.  The finding was based on the Commanding General's (CG) directive to attend the Combat Readiness Center (CRC) training.  The officer initially refused the commander's direct order.  

	c.  the applicant was AWOL from 1 March to 24 April 2007.  The finding was based on the applicant having civilian profiles requesting absence of duty during this period.  They were not validated, rendering the civilian profiles inadequate for the duration of this period.

	d.  the applicant was not AWOL from 7 to 14 May 2007.  The finding was based on there was no documentation of evidence that the applicant was informed that her leave was disapproved.  

	e.  the applicant failed to report to her appointed place of duty on 17 July 2007, 368th Military Intelligence Battalion.  The finding was based on the testimony of Major (MAJ) K------ P------- stating the applicant was present for duty on that day.  

5.  Counsel further cited errors contained in the applicant's OERs in question:

	a.  the applicant's OER from 4 October 2005 through 13 June 2006 cited she had not performed her duty in a satisfactory manner and she received a COL Letter of Reprimand (LOR) and a GOMOR.  The applicant didn’t receive her initial counseling explaining her duties and responsibilities until 13 February 2006, which is 134 days late.  Therefore, she didn't know her duties or role in the organization.  Ms. F----- lied to the investigating officer (IO) during the Army Regulation 15-6 investigation and she and her supervisor wrote the negative comments after the applicant filed a discrimination complaint.  This OER in question referenced the applicant's COL LOR.  

   b.  The OER for the period ending 13 June 2006 also referenced a GOMOR issued on 18 March 2006, for FOLO to attend a conflict resolution course.  The applicant initially refused the order, but she later complied and attended the course.  The general officer gave the order for the applicant and another Soldier to attend the training on 5 November 2005, but she wasn't notified of the order until 13 February 2006.  The applicant wasn't provided travel orders or funding to attend the training.  An Army Regulation 15-6 investigation conducted revealed Ms. F----- didn't treat subordinates with respect.  
   
   
   
	c.  the applicant received another GOMOR on 13 September 2006 when the commander of Headquarters and Headquarters Company (HHC) directed she undergo a mental health examination in Monterey, CA, which was over 150 miles away.  She didn't receive travel orders for the mental health examination and there was no reason given why she wasn't sent to Travis AFB, which was closer.  The applicant made her own travel arrangements to Travis AFB for the examination and was under the care of a mental health professional for several months.  Although her chain of command was aware of this fact, they chose to ignore it.  The panel of the separation board determined the applicant didn't FOLO to undergo the examination.  

	d.  the applicant received a referred OER for the period 7 July 2006 to 2 January 2007, which stated she failed to perform her duties and was AWOL from the G-3 session.  She provided a rebuttal to the OER noting the allegations that she was AWOL were incorrect, the G-3 was overmanned, they didn't have any meaningful tasks for her to perform, and she was tasked outside of her area of expertise.  The negative allegations in this OER weren't included in her separation board.  

	e.  the next allegation against the applicant was that she was AWOL from 1 March to 24 April 2007.  The applicant had submitted several civilian profiles to her unit.  The panel at the board of separation determined the applicant was AWOL during this period, but determined she did provide medical justification for the absence.  The applicant provided significant justification and mitigation for her absences.  The applicant also faced an allegation that she was AWOL from 
7 to 14 May 2007.  The applicant requested leave and asked if the leave was approved.  She wasn't informed that the leave was disapproved.  The separation board determined the applicant wasn't AWOL for this period.  Additionally, the applicant didn't fail to report on 17 July 2007.  A MAJ testified at the separation board hearing that the applicant was present for duty.  These absences were included in the applicant's referred OER for the period 3 January 2007 through 
2 January 2008.

   f.  the applicant received an additional OER for the period 3 January through 30 September 2008 in which her rater and senior rater (SR) stated her performance was marginally satisfactory.  However, all the blocks in Part IV (Performance Evaluation Professionalism (Rater)) were marked "Yes."  The comments from the rater were inappropriate and she was provided counseling 90 days late.  

6.  Counsel referenced Army Regulation 623-3 (Evaluation Reporting System (ERS)), paragraph 1-8(c), paragraph 3-22 and paragraph 3-23 and provided quotes from the G-4 attesting to the fact the applicant was treated unfairly by her supervisor.  Due to a combination of errors in her record, the applicant was passed over for promotion.  The errors are material as they pertain to her military bearing and professionalism.  The applicant should receive reconsideration for promotion with the inaccurate documents removed from her record.

7.  Counsel provides the following documents:

TAB
DOCUMENT(S)
DATE
1
Sixteen Memoranda
Subject:  Commander's Inquiry Report of Allegations by (applicant's name)
9 November 2005

Subject:  Racial Discrimination Against Blacks in the G-4 section by Mrs. J----- F-----and 
COL E--- L----
19 December 2005

Subject:  Letter of Reprimand (LOR)
18 March 2006

Subject:  Response to LOR
21 March 2006

Subject:  Extension Request
23 March 2006

Subject:  Response to LOR
30  March 2006

Subject:  Reprimand - (applicant's name), xxx-xx-xxxx
7 April 2006

Subject:  OER Referral (3 October 2005 - 13 June 2006) 
13 June 2006

Subject:  Processing OER of (applicant's name)
23 July 2006

Subject:  GOMOR 
16 and 18 September 2006

Subject:  Reprimand Filing Determination - (applicant's name), xxx-xx-xxxx
22 September 2006

Subject:  Reprimand Filing Determination
22 September 2006

Subject:  AWOL 
2 March

Subject:  OER Referral (7 July 2006-2 January 2007)
24 August 2007

Subject:  Rebuttal to Referred OER
4 September 2007

Subject:  Officer Evaluation [sic] Comments (3 January 2007 - 2 January 2008)
14 April 2008

Report of Army Regulation 15-6 Investigation
22 September 2008

Two Memoranda for Record (MFR): Conflict Resolution Course
15 February 2006

MFR:  Witness Statement
21 February 2008
2
Two reassignment orders to a Troop Program Unit 
13 February 2006

Assignment orders to Retired Reserve
3 May 2012
3
DA Form 4856 (Developmental Counseling Form)
13 February 2006
4
Two DA Forms 2823 (Sworn Statement) (applicant)
DA Form 2823 (Sergeant First Class (SFC) N.E.V.)
6 April 2006


7 April 2006
5
Four OERs

4 October 2005-13 June 2006


7 July 2006-2 January 2007


3 January 2007-2 January 2008


3 January 2008-30 September 2008


1 February 2008

One DA Form 67-9-1 (OER Support Form)
18 September 2006
6
Reservations for Responding to Conflict Seminar
17 May 2006

Five Letters from the Clinical and Consulting Psychology Doctor - Avalon Valley Clinic
6 December 2006


12 January 2007


6 March 2007


1 November 2007


18 June 2007

Two Letters from the Pleasanton Family Medical Center

9 October 2007


19 April 2012

Statements of support from a retired COL
February 2007-April 2007
7
Numerous Medical statements
5 March 2007
8
Two DD Forms 689 (Individual Sick Slip)
17 April 2007

Patient Health Questionnaire
1 May 2007
9
Three DA Forms 4187 (Personnel Action)

2 March 2007


April-May 2008
10
Email correspondence
April and May 2008
11
Department of the Army Suitability Evaluation Board (DASEB) Proceedings
17 October 2008`
12
DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
18 July 2008
13
Board of Separation for (applicant's name)
30 January-1 February 2009
CONSIDERATION OF EVIDENCE:

1.  After completing prior enlisted service in the U.S. Army Reserve, the applicant was appointed as a Reserve commissioned officer on 11 May 1989 in the rank of second lieutenant.  She completed training in area of concentration 92A (Quartermaster, General) on 23 September 1989.  

2.  She was promoted to first lieutenant on 23 May 1992.  

3.  On 1 June 1997, she was ordered to active duty in an Active Guard Reserve status.  
4.  She was promoted to captain on 12 June 1998 and to MAJ on 7 August 2003.

5.  In a 9 November 2005 memorandum, the CG of Headquarters, 91st Division, (Training Support (TS)), Dublin, CA, concurred with Lieutenant Colonel (LTC) 
W------ and the recommendations of the Commander's Inquiry Report (not in applicant's service record).  The CG found that LTC S----- didn't deliberately or maliciously undermine the credibility or defame the character of the applicant.  The CG directed that both officers involved attend Conflict Resolution training.  

6.  On 19 December 2005, the applicant submitted a complaint regarding racial discrimination against Blacks in the G-4 section by her supervisor, Mrs. J.F. and COL E.F.  She described several events in which Mrs. J.F. was unfair in her treatment of subordinates, such as changing work hours without warning, and misusing counseling statements and making derogatory statements against Blacks within the unit.  

7.  On 13 February 2006, she was counseled regarding the results of the Commander's Inquiry Report.  On the same date, she signed the counseling form and disagreed with the information contained on the form.  

8.  In a memorandum, dated 15 February 2006, the G-4 of the 91st Division (TS), Dublin, CA, informed the applicant that on 13 February 2006 she was counseled regarding the results of the Commander's Inquiry and that she was to attend Conflict Resolution training.  The G-4 stated the applicant verbally stated she would not attend the class during 22 to 24 March 2006.  The applicant was given 1 week to reconsider her decision and to respond in writing.  On the same date, the applicant submitted an MFR to refute training in the Conflict Resolution class.  

9.  On 18 March 2006, the applicant received a GOMOR for wrongfully FOLO directing her to schedule and attend Conflict Resolution training or Consideration of Others training.  The imposing authority (IA) stated he gave his order in the form of his 9 November 2005 memorandum.  On 21 March 2006, the applicant submitted a rebuttal to her GOMOR by posing 21 questions and alleging she was not afforded the opportunity to seek legal advice concerning this issue.  

10.  On 30 March 2006, the applicant submitted a second rebuttal to the GOMOR, dated 18 March 2006.  She stated she assumed the duty of S-4 in 2004 and was directed to take over the DA-6 roster.  She was informed by the 
G-4 that this was a conflict of interest and an Inspector General (IG) investigation was conducted.  The Commander's Inquiry Report was completed in October or November 2005, but she didn't receive the recommendation from her supervisor until 13 February 2006.  She received a counseling statement, but it didn't mention the consequences if she chose not to attend the conflict resolution training.  She had no intention of disobeying a lawful order. 

11.  On 7 April 2006, the IA directed that the GOMOR, dated 18 March 2006, be filed permanently in the applicant's AMHRR.  

12.  She provided a confirmation which shows she registered on 17 May 2006 to attend the Responding to Conflict:  Strategies for Improved Communication Seminar.  This course was sponsored by the American Management Association for the period 5 to 7 June 2006 in Las Vegas, NV.  

13.  The first contested report is a Relief for Cause OER covering the period 4 October 2005 through 13 June 2006.  This report indicates the applicant was rated as the Logistics Officer, HHC, 91st Division (TS).  This contested report shows:

	a.  the rater is listed as LTC J.L.F., Deputy Assistant Chief of Staff, G-4, and she digitally signed the report on 13 June 2006;

	b.  the SR is listed as COL E.B.L., Assistant Chief of Staff, G-4, and he digitally signed the report on 13 June 2006;

	c.  in Part IId, the OER was a referred report and the applicant didn't indicate if statements would be submitted;

	d.  the rater placed an "X" in the "No" boxes in Part IV, a.5 (Respect), a.6 (Selfless-Service), a.7 (Duty); b.1 (Attributes) for Mental; b.2 (Skills) for Conceptual; and b.3 (Actions (Leadership)) for Executing; 

	e.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	f.  in Part Vb (Performance Narrative), the rater entered negative comments such as:

During this rating period [the applicant] received a GOMOR, a COL LOR, and numerous counseling statements for disrespect, failing to follow lawful orders, frequent and unaccounted absenteeism, and not completing assignments.  There is a documented pattern of failure to adhere to established duty hours, and many periods of unauthorized absences.  In March, she was relieved of her primary duty,…She continuously refuses to accept responsibility for herself or her actions.  [The applicant] does not exemplify Army Values, most notably Duty, Selfless Service and Respect.  In view of the failures cited above, and the loss of confidence in her abilities, I direct this relief for cause.  [The applicant] should not be considered for promotion or future service.

	g.  in Part Vc (Potential for Promotion Narrative), the rater stated:  Would serve the Army best in OPCF [Operations Career Field]/92A; and 

	h.  in Part VIIa and c (SR – Comment on Performance/Potential), the SR assessed the applicant as "Do Not Promote" and made the following comments:

[The applicant] was given our most important logistical mission, had three months of hands-on training with her predecessor, and was provided with all resources to be successful.  Upon seeing errors in her reports and noticing a net loss in the Division's training equipment sets, I asked her to provide process documentation so we could take corrective action.  She refused to take action to correct her work.  She was relieved of this duty.  In other tasks she produced slow, substandard results.  I wrote a letter of reprimand for her failure to obey lawful orders and her frequent unauthorized absences, both showing her disregard for the Army Values of Duty and Selfless Service.  Despite repeated requests she declined to provide a completed DA Form 67-9-1.  [The applicant] has no potential for continued service.  Due to her habitual professional dereliction, I recommend her separation from the Army.  I have reviewed the rater's basis for relief and concur with this action.  Rated officer has refused to sign this OER or acknowledge the referral.

14.  On 16 September 2006, she received a GOMOR for FOLO by MAJ D.E.H. directing her to report to mental health evaluation at the DLI Wellness Center in Monterey, CA on 15 September 2006.  

15.  The IA stated that MAJ D.E.H. gave the applicant an order in person (orally and in writing) on 13 September 2006 and informed her of her rights with regard to a command directed mental health evaluation.  On 18 September 2006, she submitted a rebuttal to the GOMOR in question.  The applicant alleged she didn't disobey a direct order from the IA regarding a mental health evaluation.  She was contacted to report to MAJ D.E.H.'s office and was informed of his concern for her mental well-being.  She found his concern for her mental stability incredulous.  She was assigned to the unit for 1 year and had never been counseled or approached regarding her well-being.  They never discussed mode of travel, the location was 100 miles away from her home, and she had been seeing a mental health professional since April 2006.  She also alleged the GOMOR was unjustified due to MAJ D.E.H.'s lack of knowledge concerning her status as a Soldier assigned to HHC.  

16.  On 22 September 2006, the IA directed that the contested GOMOR,       dated 18 September 2006, be filed permanently in the applicant's AMHRR.  

17.  The second contested report is a Change of Rater OER covering the period 7 July 2006 through 2 January 2007.  This report indicates the applicant was rated as the Special Projects Officer, HHC, 91st Division (TS).  The contested report shows:

	a.  the rater is listed as LTC B.J.U., Deputy Assistant Chief of Staff, G-3, and he digitally signed the report on 2 February 2007;

	b.  the SR is listed as COL R.A.O., Assistant Chief of Staff, G-3, and he digitally signed the report on 2 February 2007;

	c.  in Part IId, the OER was a referred report and the applicant submitted  comments.  She attested LTC K.L. was her supervisor for only one day, was aware of her leave and appointments, and retrieved her leave slips from HHC.  Her leave slip for 14 days was approved on 5 May 2006 by her primary supervisor in the G-4.  All of her appointments and leave were scheduled and/or approved prior to her duty detail.  She was confronted by LTC K.L. and reported the incident to the Army IG.  She received her initial counseling by the G-3 who informed her that her rater was LTC U----.  She didn't agree with the information provided to her by the G-3.  She later met with LTC U---- and expressed her disagreement with the duty and location of the duty.  She discussed in detail her difficulty finding a place to work during Battle Assembly weekends in the G-3; 

	d.  the rater placed an "X" in the "No" boxes in Part IV, a.4 (Loyalty), a.5 (Respect), a.6 (Selfless-Service), a.7 (Duty); b.1 (Attributes) for Mental; b.2 (Skills) for Conceptual; and b.3 (Actions (Leadership)) for Decision-Making;

	e.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	f.  in Part Vb, the rater listed negative comments such as:

By her actions, [the applicant] has demonstrated poor character and complete disregard for the Army Values of Loyalty, Respect, Selfless-Service, and Duty as defined in Part IVa.  In addition, her actions have demonstrated unacceptable leadership attributes in the areas of Mental, Conceptual, Decision-Making, and Building as defined in Part IVb.

	g.  in Part Vc (Potential for Promotion Narrative), the rater stated: "Do not promote;" and 

	h.  in Part VIIa and c, the SR assessed the applicant as "Do Not Promote" and made the following comments:

[The applicant] was detailed to work in the G-3 section on 6 July 2006.  She reported to the Deputy G-3 for an initial counseling session but did not move her office to the G-3 area as directed by the Deputy G-3.  [The applicant] was assigned duties to support the G-3 section, but did not perform those duties.  [The applicant] did not submit a completed DA Form 67-9-1 as directed.  [The applicant] should not be considered for promotion.  [The applicant] refused to sign OER, stating it was based on insufficient and unjustified information.

18.  She provided letters, dated November 2006 through March 2007, from a clinical psychologist.  These letters show she had been undergoing mental health evaluations and treatment since November 2006 on a weekly basis.  On 6 November 2006, the psychologist recommended the applicant be allowed to have Reserve weekends off on 18 and 19 November 2006, 9 and 10 December 2006, and 6 and 7 January 2007.

19.  She also provided letters from a physician at the Pleasanton Family Medical Center, Pleasanton, CA.  The physician stated the applicant had been seen for stress reaction, job stressors, depression, sleep disturbance, and anxiety since February 2007.  

20.  The third contested report is an annual OER covering the period 3 January 2007 through 2 January 2008.  This report indicates the applicant was rated as the Logistics Officer, HHC, 91st Division (TS).  The contested report shows:

	a.  the rater is listed as LTC K.A.B., Deputy G-4, and he digitally signed the report on 28 April 2008;

	b.  the SR is listed as COL E.B.L., Assistant Chief of Staff, G-4 and he digitally signed the report on 2 May 2008;



	c.  in Part IId, the OER was a referred report and the applicant submitted comments.  She attested the referred report was inappropriate, unfair, unjust, and without merit.  She stated her rating officials' comments were incorrect regarding her duty performance, being AWOL for 2 months, refusing to attend 8 Battle Assembly weekends, and administrative data.

	d.  the rater placed an "X" in the "No" boxes in Part IV (Performance Evaluation – Professionalism (Rater)), a.6 (Selfless-Service); and b.3 (Actions (Leadership)) for Decision-Making; 

	e.  in Part Va, the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	f.  in Part Vb (Performance Narrative), the rater listed negative comments such as:
 [The applicant's] duty performance during this rating period has been inconsistent…Notwithstanding, her performance during this rating period was overshadowed by three separate AWOL periods totaling 66 days, demonstrating poor judgment and character in regard to the Army Value of "Self-less Service" as defined in Part IVa.  In addition, [the applicant] received a GOMOR for refusing to report for a temporary duty detail demonstrating unacceptable "Decision-Making" leadership actions as defined in Part IVb.  [The applicant] possesses the education and experience to render acceptable duty performance, however, she must rededicate herself to service as a professional Army Soldier if she wishes to continue a career in the U.S. Army.  

	g.  in Part Vc, the rater stated: [The applicant's] potential for promotion is limited due to her inconsistent duty performance.

   h.  in Part VIIa and c, the SR assessed the applicant as "Do Not Promote" and made the following comments:
   
[The applicant] fails to perform satisfactorily in the rank of MAJ.  She was AWOL for 2 months and additionally refused to attend eight Battle Assembly weekends…She had frequent unexcused absences and was completely disengaged from her military responsibilities.  Due [to] her habitual professional dereliction, I strongly recommend her separation from the Army.  The rated officer refused to sign.


21.  In an MFR, dated 21 February 2008, SFC I.S., attested he was assigned to the G-3 and witnessed the applicant working in the G-3 section periodically from August to October 2006.  

22.  On 10 April 2008, she was issued her Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter).  

23.  On 27 June 2008, the DASEB denied the applicant's request for removal of her GOMOR, dated 16 September 2006, from her AMHRR.  

24.  An Army Regulation 15-6 investigation was conducted on 18 July 2008.  The investigation revealed the applicant's supervisor, Ms. F------, directed profanity, sarcasm, or other inappropriate verbal or physical behavior towards her subordinates.  The report stated Ms. F------ routinely used sarcasm, profanity and curse words and had called one of her subordinates the "N" word.  The appointing authority approved the IO findings with several exceptions in the language and directed:

	a.  a copy of the approved Report of Investigation (ROI) be sent to the Commander, 110th Chemical Battalion (CHEM BN).  He further directed the Commander, CHEM BN, ensure that Ms. F----- receive additional supervisory counseling/training to correct her management deficiencies.  He finally directed the Commander, 110th CHEM BN, initiate disciplinary action against Ms. F----- for her use of a racial epithet toward a Soldier;

	b.  a copy of the approved ROI be sent to the CG, 91st Division (TS).  He further directed that the CG, 91st Division (TS), counsel COL L____ regarding his management deficiencies.  Finally, he directed the CG, 91st Division, address the new command climate issues raised in the ROI;

	c.  the respective commanders provide him with a report of the completed counseling/training for COL L--- and Ms. F----- and the disciplinary action taken against Ms. F------ no later than 60 days from receipt of this ROI;

	d.  a copy of the approved ROI be sent to the Deputy Chief of Staff, G-1, Headquarters, Department of the Army (HQDA).






25.  The fourth contested report is a Change of Rater OER covering the period 3 January 2008 through 30 September 2008.  This report indicates the applicant was rated as the Logistics Officer, HHC, 91st Division (TS).  The contested report shows:

	a.  the rater is listed as LTC J.D.Z., Deputy Assistant Chief of Staff, G-4, and he digitally signed the report on 18 March 2009;

	b.  the SR is listed as COL E.B.L., Assistant Chief of Staff, G-4 and he digitally signed the report on 19 March 2009;

	c.  in Part IId, the OER was a referred report and there's no indication the applicant submitted comments;

	d.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the "Unsatisfactory Performance, Do Not Promote" box; 

	e.  in Part Vb (Performance Narrative), the rater listed negative comments such as:
During this rating period [the applicant]'s duty performance has been marginally satisfactory.  Due to her lack of initiative and involvement in the majority of the Pacific Warrior 2008 exercise planning, [the applicant] was responsible for executing very limited tasks ISO [in support of] the G-4 Section's logistical sustainment plan …Unfortunately, her overall performance was tempered with counselings for duty and attendance issues.  

	f.  in Part Vc, the rater stated: "As a senior field grade officer [the applicant] needs to demonstrate increased initiative and competency in the execution of her duties.  She must take full ownership of all the leadership and duty responsibilities commensurate with her current rank before she is ready for further advancement." and 

	g.  in Part VIIa and c (SR – Comment on Performance/Potential), the SR assessed the applicant as "Do Not Promote" and made the following comments:

[The applicant] provided satisfactory performance during the last two weeks of Pacific Warrior 2008 at Fort Hunter Liggett.  She did not attend planning conferences leading up to the exercise.  Throughout the rating period she was counseled for absences from duty.  Her performance is not commensurate with her grade.  She has no potential to serve at higher levels of authority and should not be retained.  She was presented this report and given two weeks to respond to the attached letter of referral.  She stated that she will not sign this OER and did not specify any reason.  

26.  A review of the applicant's military record in the interactive Personnel Electronic Records Management System (iPERMS) revealed the applicant's two contested GOMORs with allied documents and the four contested OERs were filed in the performance section of her AMHRR.

27.  On 9 June 2008, she appealed to the DASEB for removal of a COL LOR, dated 8 January 2006, for FOLO on two occasions and for being AWOL.  On 17 October 2008, DASEB removed the LOR from her AMHRR.

28.  On 30 January 2009, a board of separation was convened and found:

	a.  the applicant FOLO on 13 September 2006 to report for a command directed mental health referral;

	b.  the applicant FOLO in November 2005 to attend conflict training;

	c.  the applicant was AWOL from 1 March to 24 April 2007; 

	d.  the applicant was not AWOL from 7 to 14 May 2007;

	e.  the applicant failed to report to her appointed place of duty on 17 July 2007.

29.  The board of separation recommended the applicant be retained with reassignment.  

30.  She was honorably released from active duty on 2 September 2010 in the rank of MAJ.  On the following day, she was transferred to the U.S. Army Reserve Control Group (Reinforcement).  

31.  In a memorandum, dated 1 May 2012, the Chief, Reserve Personnel Service Center, Headquarters, 63rd Regional Support Command, Mountain View, CA, informed the applicant of her options upon non-selection for promotion after second consideration.  The memorandum stated the applicant had been considered twice for promotion to the next higher grade by the Army Reserve Components Selection Board and was not selected.  Orders published on 3 May 2012, by Headquarters, 63rd Regional Support Command, Mountain View, CA, reassigned her to the Retired Reserve, effective 1 August 2012.

32.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the AMHRR 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, among other agencies, the ABCMR and DASEB.

33.  Table 2-1 of Army Regulation 600-8-104 states an OER will be filed in the performance section of the AMHRR and case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the AMHRR.

34.  Army Regulation 600-37 prescribes policies and procedures regarding unfavorable information considered for inclusion in official personnel files.  Chapter 3 covers unfavorable information in official personnel files.  

   a.  Paragraph 3-4 applies to filing of nonpunitive administrative letters of reprimand or censure in official personnel files.  
   
   b.  Paragraph 3-4(b) states that a letter, regardless of the issuing authority, 
may be filed in the AMHRR maintained by the U.S. Army Human Resources Command, the Army Reserve Personnel Command, or the proper State Adjutant General (for Army National Guard Personnel) only upon the order of a general officer (to include one frocked to the rank of brigadier general) senior to the recipient by direction of an officer having general court-martial jurisdiction over the individual.  Letters filed in the AMHRR will be filed on the performance portion.  The direction for filing in the AMHRR will be contained in an endorsement or addendum to the letter.  

   c.  Paragraph 7-2b(1) states that unfavorable documents may be appealed on the basis of proof that their intended purpose has been served and that their transfer would be in the best interest of the Army.  The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met.

35.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9.

   a.  Paragraph 1-8c states the primary function of the ERS is to provide information to HQDA for use in making personnel management decisions. Components of this information include, evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   b.  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 noncommissioned officer 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 other directives.  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.
   
   c.  Paragraph 2-18c states relief OERs will be reviewed by the first U.S. Army officer in the chain-of-command who is senior to the individual directing the relief.  If the relief is directed by the rater or intermediate rater, a SR, provided he/she is a U.S. Army officer, will perform the review.  This officer will perform the functions described in paragraph 2–18c(1) through (5).  The SR’s comments will be prepared as an enclosure to the OER.  
   
	d.  Paragraph 3-2 defines the role of the rating officials.  Rating officials have the responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest, fair evaluations of the Soldiers under their supervision.  On one hand, they must give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, DA selection boards, and career managers can make intelligent decisions.

	e.  Paragraph 3-34 states any report with negative comments in Part Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to HQDA.

   f.  Paragraph 3-36 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 Soldier 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 Soldier.

	g.  Paragraph 3-36 also states substantive evaluation report appeals must be submitted within 3 years of the through date of an OER.

	h.  Paragraph 3-54 states a Relief for Cause report is required when an officer or warrant officer is relieved for cause regardless of the rating period involved.  Relief for Cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.

36.  Army Regulation 623-3 also states that the rated individual has considerable responsibility in the evaluation process and will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments and a final evaluation and should discuss the duty description and performance objectives with the rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  It notes that rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

37.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Chapter 7 prescribes the rules for conducting an SSB.  It states an SSB may be convened under Title 10, U.S. Code, Section 628 to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following: 

   a. Mandatory when an officer was not considered from in or above the promotion zone by a regularly scheduled board because of administrative error; 

   b.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error; or
   
   c.  An SSB is discretionary when the board that considered an officer from in or above the promotion zone did not have before it some material information. 



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was considered twice for promotion to LTC by the Army Reserve Components Selection Board, but she was not selected.  

2.  Contrary to counsel's contentions that if the material errors were not contained in the applicant's AMHRR she would have been promoted, evidence of record indicates she was relieved and discharged due to her personal performance and behavior which led to her being a two-time non-select for promotion to LTC in addition to the presence of the four referred OERs.

3.  After a comprehensive review of the evidence in the applicant's official record, counsel’s contentions, arguments, and the evidence submitted in support of her application, counsel did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removal of the contested OERs.  Based on the applicable regulations, the contested OERs are correct as constituted and the applicant did not meet the burden of proof necessary to change or remove the contested OERs.  

4.  The evidence of record shows the applicant submitted a complaint against her supervisor (91st Division G-4) for racial discrimination.  Although the Army Regulation 15-6 investigation revealed the applicant's supervisor had used inappropriate language toward another Soldier, the applicant's service record is void of evidence which indicates she was personally a victim of racial discrimination.  

5.  Counsel contends the applicant received her initial counseling explaining her duties and responsibilities late.  It is noted the applicant was an Army MAJ with over 3 years time in grade at the time the first contested report was rendered.  Therefore, she should have been intimately familiar with the evaluation report process and the need for her to be actively involved in that process.  When the applicant's rater failed to complete face to face counseling in a timely manner, or provide feedback to her regarding her duty performance, she should have sought counseling and feedback.  One cannot argue after the fact that the rater failed in her responsibilities, when they themselves took no active role in their own evaluation process.

6.  Counsel also has not provided sufficient evidence to show the ratings on the contested OERs were in error or that they were not the opinions and objective judgments of the rating officials at the time the report was rendered.  Further, counsel has not provided any compelling evidence to refute the ratings and evaluations rendered by the rating officials.
7.  Counsel further contends the applicant should be referred to an SSB for promotion consideration to LTC.  The evidence of record does not support removal of the contested OERs for the rating periods ending 13 June 2006, 2 January 2007, 2 January 2008, and 30 September 2008.  There is no evidence in the applicant's file and the applicant has not provided sufficient proof that a material error existed in her file at the time she was non-selected for promotion.  Therefore, she is not entitled to consideration by an SSB.  

8.  Additionally, counsel has not provided sufficient evidence showing the contested OERs were inaccurate, unjust, or otherwise flawed.  Therefore, there is an insufficient evidentiary basis for removing the contested OERs from the applicant's AMHRR or that she should be reconsidered for promotion by a SSB.

9.  The evidence of record shows the applicant received a GOMOR on 18 March 2006 for wrongfully FOLO directing her to schedule and to attend Conflict Resolution training.  The Army Regualtion 15-6 investigation revealed she initially refused the commander's direct order.  The GOMOR in question and allied documents were properly filed in the performance portion of her AMHRR in accordance with the governing regulation.  Therefore, there is no basis for removal of this GOMOR from her AMHRR.  

10.  The evidence of record shows the applicant received a second GOMOR on 16 September 2006 for FOLO to report to mental health evaluation at the DLI Wellness Center in Monterey, CA on 15 September 2006.  The evidence of record shows the GOMOR and allied documents were filed in the performance portion of her AMHRR in accordance with the governing regulation.  However, the IG investigation determined the applicant did not FOLO.  Therefore, this evidence is sufficient as a basis to remove the GOMOR and allied documents from her AMHRR.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X_____  ____X____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION




BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the GOMOR, dated 16 September 2006, and all allied documents from the performance portion of the applicant's AMHRR.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the four contested 
OERS and allied documents for the periods 4 October 2005 to 13 June 2006, 7 July 2006 to 2 January 2007, 3 January 2007 to 2 January 2008, 3 January 2008 to 30 September 2008 and GOMOR, dated 18 March 2006 from the applicant's AMHRR, or showing she meets the criteria for consideration by an SSB.  




      _______ _   _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)                                         AR20120011928





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