IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120013219 


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 that an Officer Evaluation Report (OER) covering the period 19 April 2009 through 18 April 2010 be removed from her Army Military Human Reserve Record (AMHRR), formerly known as the Official Military Personnel File (OMPF).  

2.  The applicant states the OER in question is in error in that she was issued a General Officer Memorandum of Reprimand (GOMOR) after the through date of the report.  She claims unverified derogatory information was used in the OER by referencing that she received a GOMOR that she in fact received subsequent to the ending date of the OER.  In addition, while the Officer Special Review Board (OSRB) partially agreed and removed the statement regarding the GOMOR, it supported leaving statements regarding the underlying actions that led to the GOMOR in the OER.  

3.  The applicant provides a self-authored statement outlining her view of the facts and circumstances surrounding the OER and specific objections to the OER; and the enclosures identified therein and in item 9 (In Support of this application, I submit as evidence the following attached documents) of her application in support of her request.  



CONSIDERATION OF EVIDENCE:

1.  The record shows after serving in an enlisted status in the U.S. Army Reserve (USAR) between 17 May 1983 and 16 May 1986, she was commissioned a second lieutenant in the USAR on 17 May 1986.  She was promoted to first lieutenant on 27 May 1989, captain on 26 May 1993, major on 19 July 2000, and lieutenant colonel (LTC) on 24 June 2007.   

2.  On 12 July 2011, the applicant was transferred to the USAR Control Group (Reinforcement) or Individual Ready Reserve (IRR) where she is currently serving.  

3.  A DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) in the record shows an investigating officer (IO) completed an investigation in which he found the applicant released procurement sensitive information to a contractor.  The IO finished gathering/hearing evidence on 2 May 2010 and completed his findings/recommendations on 20 May 2010.

4.  On 22 May 2010, the Commanding General, 1st Sustainment Command (Theater), Camp Arifjan, Kuwait, issued the applicant a GOMOR in which he reprimanded her for an organizational conflict of interest significant enough to be a violation of the Procurement Integrity Act.  He stated that with her full knowledge and acquiescence, a contractor working in the Contracts Coordination Cell (CCC) Branch had unrestricted access to all information that flowed through or was generated by CCC.  

5.  On 12 June 2010, the applicant received an annual OER for the period 
19 April 2009 through 18 April 2010, in which she was evaluated as the Theater Contract Coordination Officer for U.S. Army Central Command (CENTCOM) Area of Responsibility (AOR) in Kuwait.  The report was identified as a referred report in Part IId (Authentication).  The applicant was notified the OER was a referred report in Part IId.  

6.  In Part IV (Performance Evaluation) of the contested OER, the rater, who was the support operations officer, a colonel, gave "Yes" responses to all Army Values and Leadership Attributes questions with the exception of Question 7 (Duty), Part IVa (Army Values) in which he gave a “No” response.  

7.  In Part V (Performance and Potential) of the contested report, the rater placed the applicant in the "Satisfactory Performance-Promote” block.  He commented on the applicant’s responsibilities and added a statement indicating that unfortunately the applicant received a GOMOR for allowing a contractor working in the contract coordination branch to have unrestricted access to procurement sensitive information.  In Part Ve (Comment on Potential for Promotion) the rater added the comment “continue to assign to demanding developmental jobs.”

8.  In Part VII (Senior Rater), the senior rater, the commanding general, a major general, placed the applicant in block 2 “Fully Qualified” in Part VIIa (Promotion Potential).  The senior rater provided comments indicating he issued the applicant a GOMOR during the rating period.  He provided additional positive comments and concluded by stating the applicant should be assigned to demanding jobs that further refine her technical and leadership skills.

9.  On 7 April 2011, the OSRB evaluated the applicant’s OER appeal and determined there was sufficient evidence to warrant partial relief.  

10.  The OSRB directed the following modifications to the contested OER:

   a. Part Vb – modify by removing the sentence “Unfortunately, [the appellant] received a General Officer Memorandum of Reprimand for allowing a contractor working in the Contract Coordination Branch to have unrestricted, unauthorized access to procurement sensitive information” and replacing it with the sentence “Unfortunately, [the appellant], allowed a contractor working in the Contract Coordination Branch to have unrestricted, unauthorized access to procurement sensitive information”; 
   
   b.  Part VIIc – remove the comment “I issued [the appellant] a General Officer Memorandum of Reprimand during this rating period” and 
   
   c.  that the statement “corrected copy” be added to the OER. 
   
11.  The OSRB determined the comments regarding the GOMOR included in the OER was an administrative error that did not fatally flaw the report.  It further concluded there was no evidence that the ratings and comments in the contested OER were anything other than the considered opinions of the rating officials.  The OSRB commented that the fact the applicant felt the report did not accurately reflect her performance as an officer is not sufficient to impeach the rating officials’ assessment.  

12.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies and procedures for completing evaluation reports that support the ERS.  It also provides guidance regarding redress programs including commanders' inquiries and appeals.

   a.  Paragraph 3-20 provides evaluation parameters.  It states 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 be before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation; 

   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 HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  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; and 

   c.  Paragraph 6-11 of Army Regulation 623-3 outlines the burden of proof that must be met to support a successful evaluation report appeal.  It states the burden of proof rests with the appellant.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request to remove the contested report from her AMHRR has been carefully considered.  However, there is insufficient evidence to support this claim.  

2.  In effect, the applicant argues that the information left in the contested report by the OSRB renders the report in error because it was information from the GOMOR that was dated after the rating period and was removed from the report.  However, by regulation, the evaluation of a specific period will be based on the date of the actual incident or performance and not on the date of discovery or finding of guilt.  

3.  In this case, in order for the remarks the applicant objects to, to be in error, the incident or performance would have had to occur prior or subsequent to the dates covered by the OER.  In this case, it is clear that although the finding of guilt, or GOMOR, was dated after the report period, the incident and/or performance upon which it is based took place during the rating period.  As a result, it would not be appropriate to grant relief beyond that already provided by the OSRB.  

4.  Absent any evidence of record corroborating the applicant’s assertions that there remains administrative and substantive error in her evaluation, the clear and compelling evidentiary regulatory standard of material error, inaccuracy, or injustice has not been satisfied in this case.  Given it appears the evaluations were related directly to the applicant’s performance during the period covered by the contested OER, there is an insufficient evidentiary basis to support granting 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)                                         AR20120013219



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ABCMR Record of Proceedings (cont)                                         AR20120013219



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