IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120019678 


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 the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 29 May 2006 through 15 January 2007 (hereafter referred to as the contested OER) from her official military personnel file, now known as the Army Military Human Resource Record (AMHRR).

2.  The applicant states:

* The derogatory remarks regarding the loss of equipment were unjustified as the rating period ended before the financial liability investigation of property loss (FLIPL) was initiated
* The case regarding the property was still open at the time this OER was written; reference should have been made only to actions or investigations that had been processed to completion
* She was not found financially liable upon final adjudication of her case or informed of the results of her case or advised of the right to appeal the OER
* The presence of this OER in her records is the single most significant contributing factor in her non-selection for promotion to lieutenant colonel
* She was never informed by senior leaders within 3 years after receiving this OER that it could affect future promotions
* She has attempted to obtain a copy of the FLIPL but no one has it; she has no proof that clearly absolves her of any financial liability
* The FLIPL itself lacked legal sufficiency and the investigation was deficient 

3.  The applicant provides:

* Contested OER with referral and rebuttal memoranda
* Extract of Army Regulation 623-3 (Evaluation Reporting System)
* Extract of Army Regulation 735-5 (Policies and Procedures for Property Accountability)
* Email to her former unit
* FLIPL rebuttal statement with slides
* Two statements of support

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show she was appointed as a Reserve commissioned officer of the Army with concurrent call to active duty and executed an oath of office on 11 May 1996.  

3.  She served as a chemical officer in a variety of stateside and/or overseas assignments and she was promoted to major (MAJ) on 2 April 2006.  She was assigned to Headquarters and Headquarters Company (HHC), 3rd Brigade Combat Team (BCT), 4th Infantry Division (ID), Fort Carson, CO.

4.  During January 2007, she received the contested report – a change of rater OER which covered 8 months of rated time from 29 May 2006 through 15 January 2007.  She was serving as Rear Detachment Commander of the 64th Brigade Support Battalion (BSB), while assigned to HHC, 3rd BCT, 4th ID, Fort Carson, CO.  Her rater was MAJ DGR, Rear Detachment Commander, and her senior rater was colonel (COL) BDG, Brigade Commander.  The OER shows in:

	a.  Part  IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.

	b.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Outstanding Performance – Must Promote" block, and entered the following comments:

A strong effort by [Applicant] during this rating period.  [Applicant’s] support to the 64th BSB as the Rear Detachment Commander during Operation Iraqi Freedom 05-07 greatly impacted the Battalion’s ability to focus forward during combat operations.  Her efforts also had a tremendous impact on the families and Soldiers upon their return from the deployment.  [Applicant] deployed 52 Soldiers forward and ensured they were trained and ready for combat.  [Applicant] also separated 30 non-deployable Soldiers for legal or medical reasons.  [Applicant] professionally and compassionately performed casualty notification duties for two families - tough duty under difficult and trying times.  In preparation for the return of the Battalion, [Applicant] re-established the Battalion footprint and had one motor pool, barracks, two administrative areas and four company headquarters available and ready to occupy.  [Applicant] also assisted in conducting re-deployment and reception operations for 478 re-deploying Soldiers.  Of concern was [Applicant’s] lack of equipment accountability, resulting in $116 thousand in reports of survey for equipment lost during this rating period.

	c.  Part Vc (Comment on Potential for Promotion), the rater entered the comment: "[Applicant] is a quality officer.  Continue to place in positions of increased responsibility send to ILE (Intermediate Level Education) and promote with peers.”

	d.  Part VIIa (Senior rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Best Qualified" block and a second "X" in the "Yes" block to indicate he senior rated 44 officers of this grade (at the time) and that a DA Form 67-9-1 (Officer Evaluation Report Support Form) was received with this report and considered in his evaluation and review.

	e.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater listed three future assignments for which the applicant was best suited and entered the following comments in Part VIIc (Comment on Performance/Potential):

As the Rear Detachment Commander for the 64th BSB during OIF 05-07, [Applicant] supported the Battalion and its families well.  [Applicant] provided compassion and professionalism in handling casualty notifications for two families in the Fort Carson area.  [Applicant’s] efforts in separating 30 non-deployable Soldiers and preparing another 52 Soldiers for deployment aided the Battalion in resolving personnel issues and supported the fight forward.  [Applicant] did an outstanding job preparing the battalion footprint and preparing for the re-deployment and reception of 478 Soldiers. Although the lack of equipment accountability has generated a concern, [Applicant] still has the ability to lead and take care of Soldiers.  Recommend ILE if available and promote with peers.

5.  On 4 April 2007, her senior rater referred the contested OER to her for comments.  She acknowledged receipt and submitted a response on 7 April 2007 wherein she stated:

	a.  She felt the inclusion of the statements regarding “lack of equipment accountability” in the Rater and Senior Rater blocks are unjustified as the case regarding this property is not yet closed.  She had submitted a rebuttal to the investigating officer’s findings and recommendations on 2 April 2007.  Her rebuttal was currently being considered in whether she would be found responsible for any property loss.

	b.  The rating period for this OER ends on 20070115; the FLIPLs regarding this property were initiated on 23 February 2007.  $180,938.75 worth of equipment has been found on the installation or in the possession of the DST since the FLIPLs for this equipment were submitted in February 2007, as itemized (she itemized the equipment and dollar value).  

	c.  She contended that her actions regarding LBE (Left Behind Equipment) while serving as the Rear Detachment Commander for 64th BSB were not negligent and were ones that a reasonably prudent person would have taken given similar circumstances.

	d.  She requested the statements regarding “lack of equipment accountability” be removed from the Rater and Senior Rater blocks of this OER as they portrayed her as not having properly performed her duty and implied a guilt that has not been proven.

6.  The contested OER was signed by her and her rating officials on 1 June 2007.  The referral memorandum together with her acknowledgement and rebuttal memoranda were attached to the contested OER and forwarded to Headquarters, Department of the Army (HQDA) for filing.  It was processed by the U.S. Army Human Resources Command (HRC) on 14 June 2007.

7.  The said DD Form 200 (FLIPL) is not available for review with this case.  It is not filed in her official records.  Additionally, she communicated with her former unit by email but she was told by an official of the 3rd BCT, 4th ID that a check of the unit storage sheds and military vans could not locate a hardcopy of the form. 

8.  She provides:

	a.  A memorandum, dated 30 March 2007, as a rebuttal statement to FLIPL Number 07-xxG, FLIPL Number 07-xxG, and FLIPL Number 07-xxG.  In this memorandum she disagreed with holding her financially liable in the amount of $5,244.60 for the loss of government property.  Her basis for the rebuttal was legal insufficiency, investigative deficiency, contractor accountability, the existence of additional items on the FLIPL, liability limits, and her own recommendation.  

	b.  A statement, dated 2 April 2007, from her former battalion commander wherein he states that the applicant's priority at the time was personnel issues.  As for equipment, some of the equipment was placed in sealed containers and the containers were opened and some equipment was taken out.  

	c.  A statement, dated 29 March 2007, from her former rear detachment first sergeant wherein he states the rear detachment did not have enough personnel to move equipment to the appropriate storage locations.  The priority for the rear detachment during the unit deployment was handling personnel, legal, and medical issues.  Although [Applicant] was not personally involved in every issue encountered by the rear detachment, she was responsible - within the limits of her ability/power - to maintain proper accountability of equipment.  There were too many hands and/or agencies and units involved in the equipment accountability.  

9.  There is no indication she has submitted an appeal of the contested OER to the Army Special Review Board.

10.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  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.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

11.  Army Regulation 623-3 prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers.  It includes policy statements, operating tasks, and rules in support of operating tasks.

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer 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 other pertinent regulations.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Paragraphs 3-19(a) (b) and (c) state any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  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 an evaluation report to HQDA.  For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself.  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s AMHRR such as charges that are later dropped or charges or incidents of which the rated Soldier may later be absolved.  

	c.  Paragraph 3-19d states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to 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.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 4.

	d.  Paragraph 3-19e states reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status. Upon completion of the trial or investigation, processing of evaluation reports will resume.  Evaluation reports will be completed when due and will contain what information is verified at the time of the “THRU” date of the report.

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

	f.  Paragraph 6-11a, states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

12.  Army Regulation 735-5 provides basic policies and procedures for accounting for U.S. Army property and accounting for lost, damaged, or destroyed U.S. Army property.  This regulation makes the following definitions: 

	a.  Accountability:  The obligation imposed by law, lawful order, or regulation on an officer or other person for keeping an accurate record of property, documents, or funds.  Includes identification data, gains, losses, dues-in, dues-out and balances on hand or in use.  The person having this obligation may or may not have actual possession of the property, documents, or funds.

	b.  Command responsibility:  The obligation of a commander to ensure all Government property within his or her command is properly used and cared for, and that proper custody and safekeeping of Government property are provided. Command responsibility is inherent in command and cannot be delegated.  It is evidenced by assignment to a command position at any level and includes ensuring the security of all property of the command, whether in used or in storage, observing subordinates to ensure their activities contribute to the proper custody, care, use, and safekeeping of all property within the command, enforcing all security, safety, and accounting requirements, and when necessary, taking administrative or disciplinary measures.

	c.  Financial liability is the statutory obligation of an individual to reimburse the Government for lost, damaged, or destroyed Government property as a result of negligence or abuse.

	d.  Liability is the state of being responsible or answerable for the loss, damage, or destruction of government property.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as a rear detachment commander responsible for personnel and equipment while the unit deployed.  Although the complete facts and circumstances of the loss of equipment and subsequent investigation and its finding are not available for review, based on the rebuttal she provides it appears multiple FLIPLS were initiated regarding the loss of equipment.  It also appears that although no financial liability was assigned to the applicant, a loss of equipment still occurred and the applicant was unable to locate some of the left behind equipment.  However, the issue here is not a determination of financial liability.  It is an OER issue. 

2.  The applicant received a change of rater OER that covered the period 29 May 2006 through 15 January 2007.  Her rater rated her performance and potential as "Outstanding Performance - Must Promote" and her senior rater rated her promotion potential as "Best Qualified."  The contested OER was a referred OER.  Despite the high rating she received by her rating officials, the OER was a referred OER because it contained derogatory information.  

3.  The rating officials did not comment on the findings of the investigation or assignment of financial liability.  The rater and senior rater merely stated that there was a concern about the lack of equipment accountability.  Neither rating official was prohibited by the governing regulation from addressing their concern about the lack of accountability.  In other words, the fact that she was not assigned a financial liability does not mean there was no concern about the loss of equipment during her watch.  

4.  With respect to her arguments:  

	a.  There is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect her performance or potential or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.

	b.  Her performance throughout her unit's deployment is noted.  The applicant's rating officials acknowledged her performance as a rear detachment commander.  The fact that the contested OER is inconsistent with the other reports she previously received has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, "stands alone."

	c.  Her belief that this OER is the most significant contributing factor in her non-selection for promotion is speculative.  There is insufficient evidence to show her promotion selection or non-selection is attributed to this particular OER since promotion boards are not authorized to divulge the reason for a member’s non-selection.

	d.  The ABCMR is not an investigative agency.  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.  The ABCMR will decide cases on the evidence of record.  The Board cannot guess if the FLIPL lacked legal sufficiency or the investigating officer was deficient.  She has not provided any evidence to support this contention. 

	e.  Implicit in the Army's personnel system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known the procedure to appeal an OER.  It is reasonable to presume she has rated or senior rated junior officers.  The general requirements and workings of the system are widely known and specific details, such as the redress program are widely published in the governing regulation as well as official, quasi-official, and unofficial publications, and in official communications.

5.  Therefore, after a comprehensive review of the evidence in the applicant’s official record, her contentions and arguments, and the evidence she submitted in support of her application, she did not show by clear and convincing evidence, that her OER contained a material error, inaccuracy, or injustice.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20120019678





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ABCMR Record of Proceedings (cont)                                         AR20120019678



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