IN THE CASE OF: 

		BOARD DATE:	    18 December 2012

		DOCKET NUMBER:  AR20120016042 


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 four of her five Officer Evaluation Reports (OERs) be removed from her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File), reinstatement in the Active Guard Reserve (AGR) Program, and promotion to captain.

2.  The applicant states she had four OERs that contain both administrative and substantive errors.  The errors in the OERs have caused her removal from the AGR program.  She was told if she paid off her government credit card it would not be mentioned on her OER.  A backdated Report to Suspend Favorable Personnel Actions (FLAG) was used to delay her promotion.  

3.  The applicant provides:

	a.  two 14-page documents related to her 15 September 2009 - 15 March 2010 OER and appeal;

	b.  a 47-page document related to her 1 August 2010 - 31 July 2011 OER and appeal; and

	c.  a 51-page document related to her 1 August 2011 - 31 July 2012 OER.



CONSIDERATION OF EVIDENCE:

1.  The applicant, a former staff sergeant, was commissioned in the U.S. Army Reserve (USAR), effective 15 September 2008, and promoted to first lieutenant (1LT) effective 14 March 2010.

2.  The record contains five Developmental Counseling Forms showing she was counseled as follows: 

	a.  14 August 2010, she was required to provide products to the counselor, she failed to meet suspense dates and was told to ensure adequate coordination to meet the suspense the following week.  The applicant disagreed with the counseling and refused to sign it.

	b.  18 August 2010, the applicant was counseled by her rater for failing to inform two Soldiers of their required attendance for training, resulting in two no-shows.  The applicant signed and dated the counseling form indicating that she concurred with the counseling.

	c.  18 August 2010, the applicant was counseled for being delinquent in payment of her government credit card to two different banks.  The counseling statement specifically stated, "It had been made clear to you that if the debts on both the Bank of America and Citibank cards are not paid off when your OER comes due, it will be reflected on your OER as a negative entry."  The applicant signed and dated the counseling form indicating that she concurred with the counseling.

	d.  2 September 2010, her rater counseled her for not making travel arrangements for six Troop Program Unit Soldiers for Yellow Ribbon Attendance, or inputting orders correctly to reflect they had locked in a travel price.  In the applicant’s signature area, the rater noted "Soldier refused to sign."

	e.  3 November 2010, during her quarterly counseling the rater indicated she had four areas in need of improvement:  attention to detail; accountability and responsibility; leadership; military bearing/customs and courtesies; and initiative.  The applicant signed and dated the counseling form indicating that she concurred with the counseling.



3.  The applicant had received five OERs.  A copy of the last OER is not included in her iPERMS file.  She disagreed with a portion or all of the entries on four of the OERs.  The contested portions of the OERs are shown below:

	a.  for the period 15 September 2008 through 14 September 2009:

		(1)  The form is marked as a referred OER in Part IId.  The applicant acknowledged the referred OER and marked that comments were attached;

		(2)  Her rater marked her in the Unsatisfactory Performance, Do Not Promote block.  He stated the applicant had some difficulty with her transition to her new role as a commissioned officer.  She had difficulty accepting answers she doesn’t like to hear, most notably, with requests for leave, reflecting an inability to accept the aggressive operational tempo of the unit.  She gets frustrated too easily when her job conflicts with her personal life, demonstrating a lack of discipline that is unacceptable for an officer.  Additionally, she failed to pay off her government credit card (GOVCC) and this required collections and wage garnishment actions to be taken against her. 

		(3)  Her senior rater marked her as “Do Not Promote” and stated the applicant struggled with her transition to a commissioned officer.  She also struggled with accrued debt from two GOVCC's, but did finally pay them off. 

		(4)  The applicant stated her overall OER was fair and impartial.  She was required to obtain the Bank of America GOVCC with her new position and did not understand the repayment requirements.  While she was in training the outstanding balance was reported as overdue.  The GOVCC representative never executed a salary off-set for Bank of America.  She arranged payment before she left for training.  In reference to the Citibank GOVCC her command did not notify her of the problem and had not filed the necessary critical mission documents.  The "Do Not Promote” statement is a very harsh assessment since the GOVCC was handled in a timely manner.  She was told by Captain B____ that if the GOVCC situation was resolved before the OER was due, then there would not be an annotation regarding this situation on her OER.  The GOVCC accounts were paid in full by August 2009.  In addition, one was overpaid and a refund was issued to her.  She requested that the reference to the GOVCC and the reference that this was a referred OER be removed.


	b.  for the period 15 September 2009 through 14 March 2010:

		(1)  The form is marked as a referred OER.  The applicant acknowledged the referred OER and marked the block indicating comments were attached;

		(2)  Her rater marked her in the “Unsatisfactory Performance, Do Not Promote” block.  He stated 2LT G____ continued to develop as a platoon leader and as the full time staff officer during the period.  She displayed significant care for her Soldiers, as evidenced by her spending significant time on recovering a Soldier who was potentially suicidal.  She continued to reduce the backlog of personnel actions and assisted in the reception and training of the new unit administrator.  She oversaw the full time staff in the functions of training, supply and maintenance.  She improved her platoon’s metrics to over 80% qualifying on their individual weapon and over 70% passing the Army Physical Fitness Test (APFT).  She maintained excellent physical fitness with a score of over 260 points on the APFT.  Her performance during this period was an improvement from the last period.  2LT G____ was recommended by an investigating officer to be held partially liable for the loss of a set of night vision goggles (NVG) that were assigned to her platoon, of which she had supervisory authority.

		(3)  Her senior rater marked her “Do Not Promote” and stated 2LT G____ had performed marginally.  She ably performed duties with which she was comfortable, in particular administrative duties and reducing backlogged personnel actions.  Eighty percent of her platoon qualified on their individual weapon and over 70% passed the APFT.  2LT G____ assisted in the reception and training of a new unit administrator, oversaw fulltime staff, and was instrumental in recovering Soldiers.  2LT G____ was found partially liable for the loss of a set of NGV and was cited as negligent by not personally verifying equipment accountability before signing for it, not conducting an inventory, and not ensuring proper custody, safekeeping and disposition of property.  2LT G____ requires additional development before promotion or being assigned to positions of greater responsibility;

		(4)  The applicant stated that overall the OER appeared to provide an accurate assessment of her performance but the boxes that were checked did not support the evaluation comments making the overall assessment inaccurate and are not reflective of her job performance, work, and dedication to the 338th Engineer Company and the mission.  She did not agree with the finding for liability of the NVG simply based on the fact of being the platoon leader for the platoon that lost the item.  She provided documents regarding the missing NVG to the investigating officer and included a copy of her rebuttal to the investigating authority which had resulted in a reduction in the amount of liability. 

	c.  The applicant had no negative contentions with the OER for the period 15 March 2010 through 31 July 2010.  Her rater marked her as “Satisfactory Performance, Promote” and her senior rater as “Fully Qualified.”

	d.  for the period 1 August 2010 to 31 July 2011:

		(1)  The form is marked as a referred OER.  The applicant acknowledged the referred OER and marked the block that comments were attached;

		(2)  Her rater marked her in the “Unsatisfactory Performance, Do Not Promote” block.  He stated as Physical Security Officer, 1LT G____ failed two consecutive inspections during the course of this rating period.  As the Full Time Staff Officer, she performed marginally, with occasional significant lapses including inputting Soldiers for orders for training and then failing to inform them of their attendance, causing the unit to receive no shows.  1LT G____ had also received a counseling statement from the Battalion Commander for [Government Credit Card] delinquency.  She had shown a lack of ability to manage and synchronize the staff sections as necessary for a full time staff officer, particularly in quarterly preparation and submission of the Unit Status Report.  1LT G____ had shown a propensity to abdicate responsibility and a failure to admit accountability for her actions, right and wrong, and casts doubt on her ability to serve in a position of leadership and to be responsible for the lives, health, and welfare of Soldiers.  Additionally, as Platoon Leader, 1LT G____ was notified by the Brigade Commander of being found partially liable in the loss of a sensitive item (NVG), and was assessed an approved charge of financial liability during this rating period.  Her performance during this rating period had not been commensurate with an officer of this grade.  “Do Not Promote, Do Not Retain.”

		(3)  The senior rater stated the interactions he had had with 1LT G____ over the rating period have been limited, and dominated by an on-going and disruptive series of disagreements between her and her company commander.  1LT G____ had achieved the military education requirements necessary for promotion, maintained her personal readiness, and met basic performance objectives related to platoon readiness.  However, the persistent dominance of personal disputes with her command had limited her ability to expand and mature as a junior officer.  Although qualified for promotion, her potential to perform as a captain is suspect based on incidents of irresponsibility documented by her commander, and her apparent inability to adapt to her command climate.  

	e.  for the period 1 August 2010 through 19 June 2012:

		(1)  The form is marked as a referred OER.  The copy provided by the applicant is not signed by her and though the comments item is not checked she provides copies of items that she reports were submitted in concert with a pending appeal of this OER.

		(2)  Her rater marked her in the “Unsatisfactory Performance, Do Not Promote” block.  He stated as Physical Security Officer, 1LT G____ prepared the unit for passing the annual inspection.  As the Full Time Staff Officer, she performed marginally, showing some improvement though continuing to show a lack of ability to manage and synchronize the staff sections as necessary for a full time staff officer.  During this rating period, the command received notification that her check cashing privileges had been revoked at all Navy Exchanges, showing an inability to pay debts and manage her personal affairs satisfactorily.  She continued to show a lack of diligence in terms of property accountability on her departure resulting in a Financial Liability Investigation of Property Loss being initiated for a Close Combat Optic, as well as failing to turn in her Organizational Clothing & Individual Equipment.  Also, her Multi-Source Assessment and Feedback/360 were not completed and her performance during this rating period had not been commensurate with an office of this grade.  

		(3)  Her senior rater stated she made an effort to improve her leadership skills, with some of those improvements being overshadowed by her inability to manage property accountability and her personal finances.

		(4)  The applicant stated this OER is one more example of CPT L___'s reprisal and attacks against her.  He failed to mention several of her accomplishments and the fact she worked while on leave to ensure the success of the physical security inspection.  

4.  The Officer Special Review Board (OSRB) reviewed her 2009, 2010, and 2011 OERs on 2 February 2012, 12 January 2012, and July 2012 respectively.  In all three cases they determined she had not presented clear and convincing evidence that a material error, inaccuracy, or injustice existed.  By unanimous vote, they determined that the overall merits of her cases did not warrant the relief requested.

5.  The following additional administrative actions are recorded in the applicant's record:

	a.  on 31 July 2011, a Report to Suspend Favorable Personnel Actions (FLAG) was imposed;

	b.  the applicant was selected for promotion to captain by the 2012 Captain Selection Board which recessed on 10 November 2011;

	c.  on 12 March 2012, the applicant's file was referred to a Promotion Review Board (PRB) to determine if she should be retained on the promotion list, removed from the promotion list, or show cause for retention.

	d.  on 11 June 2012, the OSRB administratively closed the applicant's request for reconsideration of her appeal of the 15 September 2008 - 14 September 2009 OER.  They determined that the applicant had not provided any evidence or arguments that were not addressed in her original request.  In their letter they explained why several of the applicant's requested actions and contentions were the result of her misunderstanding of what entries meant and what documents and/or information could be used in the preparation of an OER;

	e.  the applicant was released from active duty on 19 June 2012 with transfer to the USAR Control Group (Reinforcement); 

	f.  on 25 July 2012, the PRB recommended the applicant's name be removed from the promotion list;

	g.  on 2 October 2012, the Deputy Chief Of Staff, G-1, U.S. Army directed the applicant's name be removed from the 2012 promotion list;

	h.  HRC Orders B-10-20616, dated 10 October 2012, promoted the applicant to captain;

	i.  HRC Orders B-10-20616R, dated 15 October 2012, revoked HRC Orders B-10-20616 thereby revoking her promotion to captain; and

	j.  HRC Orders C-11-216092 transferred the applicant from the USAR Control Group (Reinforcement) to the 309th Regiment 2nd Battalion, Fort Dix, NJ.

6.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports.  The following paragraphs are pertinent and/or are referenced by the applicant, her raters, the OSRB, and/or PRB.  

	a.  Paragraph 2-15 states that for a referred report, senior raters will ensure that the rated officer is provided an opportunity to provide individual comments before authentication of the report.

	b.  Paragraph 3-4f states the DA Form 67-9-1 provides an opportunity for the rated individual, rater, intermediate rater (if applicable) and senior rater to communicate.  The rater will use the support form for input on the evaluation and forward the support form to the next person in the rating chain.  The senior rater will use the support form to complete an evaluation of the rated individual and forward the completed evaluation and support form to the reviewer, if applicable and then back to the rated individual. 

	c.  Paragraph 3-4g stipulates that although the support form is an official document covered by regulation, it will not be part of an official file used by selection boards or career managers.  Failure to comply with any or all support form requirements will not constitute the sole grounds for appeal of an evaluation report.

	d.  Paragraph 3-23 stipulates that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.


	e.  Paragraph 3-34 stipulates any report with negative comments in Parts Vb, Vc, VI, or Vllc 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.

	f.  Paragraph 3-36a states the senior rater will place an "X" in the appropriate box in Part lId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in Part lId. 

	g.  Paragraph 3-36e provides procedural guidance to follow if the rated Soldier is unavailable to sign the OER for any reason or cannot be contacted and a written referral is required in accordance with paragraph   3-34 or 3-35.

	h.  Paragraph 3-39 states that 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.  

	i.  Paragraph 6-1c(2) states appealing an evaluation report on the sole basis of a self-authored statement of disagreement will not be successful.  

	j.  Paragraph 6-11 provides for burden of proof and type of evidence, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:

		(1)  the presumption of regularity should not be applied to the report under consideration; or 

		(2)  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, and not based solely in a self-authored statement.  If the adjudication authority is convinced that an applicant is correct in some or all of the assertions, the clear and convincing standard had been met with regard to those assertions.  The burden of proof rests with the applicant. 

	k.  Paragraph 6-13c(1) provides that if an officer’s evaluation report is referred, there is the evaluation referral and acknowledgement process as 

stipulated in paragraph 3-36 and in Department of the Army Pamphlet 623-3 (Evaluation Reporting System).

	l.  Paragraph 6-13c(2) stated that correcting minor administrative errors or deleting one official’s rating does not invalidate the report.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received a total of five OERs, four of which she contends are flawed and should be removed from her official records.  

2.  The contentions set forth by the applicant at each step of the appeal process have not changed and the applicant had not provided any additional evidence that was not provided to her senior raters or the OSRB. 

3.  The OERs were processed in accordance with applicable laws and regulations and the applicant had not provided sufficient evidence to show that there were any fatal flaws that would warrant removal or alteration of any of the four OERs in question. 

4.  With the imposition of the FLAG and the referred OERs, her file was properly referred for review to determine if she should be retained on the promotion list.  She was properly removed from the promotion list and released from active duty.

5.  The applicant has not provided sufficient evidence to show that the contested reports are inaccurate, unjust, or otherwise flawed or that she was improperly removed from the promotion list or released from active duty.  Therefore, no relief is warranted.

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)                                         AR20120016042



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ABCMR Record of Proceedings (cont)                                 AR20120016042



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