IN THE CASE OF:	  

		BOARD DATE:	  16 January 2014

		DOCKET NUMBER:  AR20130007720 


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 15 February 2010 through 14 February 2011 (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:

* she was accused of committing a security violation during annual training (AT) at the Fort Devens, MA, Sensitive Compartmented Information Facility (SCIF); she was tasked to submit daily message traffic via email 
* the Military Intelligence Readiness Command (MIRC) Inspector General (IG) conducted an investigation which was closed in her favor
* the MIRC IG requested she return to the 3200th Strategic Intelligence Group (SIG) but her chain of command decided to conduct an Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation
* she was accused of sending a classified document through the U.S. mail system
* the investigation resulted in a General Officer Memorandum of Reprimand (GOMOR) and the negative OER
* the investigation was fraudulent 

3.  The applicant provides:

* Contested OER with referral and rebuttal memoranda
* Page 6 of a 20-page document titled "Executive Summary" of a Report of Investigation (ROI)
* GOMOR
* Letter from the MIRC Freedom of Information Act/Privacy Act Officer

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.  Having had prior enlisted service, the applicant was appointed as a Reserve warrant officer of the Army and executed an oath of office on 23 August 1996.  She completed the All Source Intelligence Technician Warrant Officer (WO) Basic Course.  She served in a variety of assignments.

3.  On 3 October 2008, the U.S. Army Human Resources Command issued her a Notification of Eligibility for Retired Pay at Age 60 (20-year letter). 

4.  She was promoted to chief warrant officer four (CW4) on 22 August 2010.  She was assigned to Detachment 1, SIG, supporting the Defense Intelligence Agency Joint Intelligence Task Force for Combating Terrorism (JITC-CT). 

5.  During February 2011, she received the contested report – an annual OER which covered 12 months of rated time from 15 February 2010 through 14 February 2011.  She was serving as an All Source Intelligence Technician.  Her rater was Major CFJ, Team Leader, and her senior rater was Colonel MJB, the Detachment Commander.  The contested OER shows in:

	a.  Part  IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "No" block for the "Mental" attributes; "Conceptual," "Interpersonal," and "Technical" skills; and all skills with the exception of "Communicating." 

	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 "Unsatisfactory Performance, Do Not Promote," block and entered the following comments:

[Applicant's] duty performance during this rated period has fallen well below the standard expected of military intelligence analysts of her grade and experience.  In spite of extensive assistance from facility and unit personnel, [Applicant] consistently struggled to complete basic analytical tasks in weekend drills and annual training.  The low quality of materials she produced forced other unit members to repeat the specified tasks.  In addition [Applicant] showed a profound lack of attention to security regulations in handling highly classified materials; multiple security lapses have resulted in an ongoing investigation by security personnel.  [Applicant's] performance and security lapses raise serious doubts as to her ability to perform the duties of a senior, military intelligence warrant officer. 

	c.  Part Vc (Comment on Potential for Promotion), the rater entered the comment: "[Applicant's] performance and demonstrated potential are not consistent with promotion above her grade."

	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 "Do Not Promote" 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 rated the applicant "Below Center of Mass - Retain."

	f.  Part VIIc (Comments on Performance/Potential), the senior rater entered the following comments: 

[Applicant's] performance during this rating period has been less than stellar.  She has not demonstrated the skills and leadership abilities to accurately and successfully perform the duties as an All Source Intelligence Technician at the grade of CW4.  She has not developed quality products that could be used as actionable intelligence by the JITF-CT.  [Applicant] has been counseled in writing on her lack of attention to handling of classified material and her lack of adherence to basic security procedures.  [Applicant's] access to secure areas is currently suspended due to the seriousness of a security violation and she is awaiting adjudication of her security clearance.  Do not promote and do not send to further Army schooling.  

6.  In or around June 2011, her senior rater referred the contested OER to her for comments.  She acknowledged receipt and submitted a response on 6 June 2011 wherein she stated:

	a.  The contested OER is without evidence.  There was no letter from the client who is alleged to have been dissatisfied with her work, documenting the specific shortfalls of her work. 

	b.  There were no documents from anyone showing security was breached.  She had a problem with a fragmented email account but she was approved for a workaround and she relied on that approval. 

	c.  She was not informed of any deficiencies with her work. 

	d.  The unit recommended she take a security refresher course which she agreed to.  But, the unit failed to set up the course and instead referred her alleged violation to the Central Clearance Facility (CCF) for adjudication. 

	e.  She was not briefed or contacted during AT by her training manager. 

	f.  When she worked at the Los Alamitos SCIF, she set up her own security credentials with no assistance and performed her work with no feedback.  She succeeded and had no problems. 

7.  The contested OER was signed by her and her rating officials.  The rebuttal memorandum was 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 13 July 2011.  

8.  She provides a page, taken out of an ROI, dated 9 January 2012.  It is titled "Executive Summary."  

	a.  It details the findings and recommendations of an informal investigation initiated to primarily determine if the applicant sent a classified document through the U.S. Postal System in addition to determining if the unit (Detachment 1, 3200th Strategic Intelligence Group) was in compliance with security regulations in reporting and managing the security incident.

	b.  Although it is unclear who the investigating officer was, he or she found the applicant did violate the security regulation by sending a classified document on or about 3 September 2010 through the U.S. Postal System.  She did not correctly mark the document.  In addition, the unit was not in compliance with the security regulation because it did not have an effective security education program.  

9.  On 6 February 2012, she was reprimanded by the Commanding General, MIRC, Fort Belvoir, VA.  The GOMOR stated:  

	a.  An AR 15-6 investigation was conducted and established that she violated security protocols set in a security regulation in that on or about 3 September 2010 she improperly sent a classified document through the U.S. Postal System without the required proper classification markings and wrapping.  

	b.  This serious breach of protocol demonstrated a grave lack of basic information security competence and responsibility and brings discredit upon herself, the Army, and MIRC.  

10.  On 7 June 2012, Headquarters, 99th Regional Support Command, Fort Dix, NJ, published Orders 12-159-00028, ordering her release from current assignment and transfer to the Retired Reserve effective 8 June 2012. 

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

12.  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 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.

13.  Army Regulation 623-3 (Evaluation Reporting System) 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  Although the complete facts and circumstances of the security breach and subsequent investigation and its complete findings and recommendations are not available for review, the available evidence shows the applicant served as an All Source Intelligence Technician in a SCIF.  It appears that on or about 
3 September 2010 a security manager received a classified document through the U.S. Postal System that appears to have been traced back to the applicant.  The classified document contained no classification marking.  

2.  It also appears her security clearance was suspended until the CCF adjudicated her case in light of the security breach.  It further appears CCF re-granted her a security clearance based on lack of information on the security incident.  However, the issue here is not a determination of her security clearance.  It is an OER issue. 

3.  The applicant received an annual OER that covered the period 15 February 2010 through 14 February 2011.  Her rater rated her performance and potential as "Unsatisfactory Performance, Do Not Promote" and her senior rater rated her promotion potential as "Do Not Promote/Below Center of Mass."  The contested OER was a referred OER because it contained derogatory information.  

4.  The rating officials did not comment on this specific incident.  The rater and senior rater commented on her overall substandard performance during this rating period.  They agreed that her skills and leadership abilities were in question and that despite the counseling she continued to struggle with analytical tasks and produced low quality products.  Neither rating official was prohibited by the governing regulation from addressing their concern about the lack of adherence to security procedures.  In other words, the fact that CCF granted her clearance back - due to lack of information regarding one incident - does not mean there was no concern about the lack of adherence to basic security procedures.  

5.  It is noted that the contested OER refers to an ongoing investigation, and the governing regulation states that no reference will be made to an incomplete 

investigation.  However, redaction of that one phrase in the contested OER would not warrant removal of the entire OER.  As the applicant’s specific request is that the entire OER be removed from her records that phrase should not be redacted at this time.

6.  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.

7.  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 AR 15-6 was fraudulent or if it lacked legal sufficiency or the IO was deficient.  She has not provided any evidence to support this contention.  In fact, the evidence she provides clearly established a security breach that was traced back to her. 

8.  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 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)                                         AR20130007720



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ABCMR Record of Proceedings (cont)                                         AR20130007720



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