IN THE CASE OF:	  

		BOARD DATE:	  8 August 2013

		DOCKET NUMBER:  AR20130013100

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 a DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 3 February 2007 through 2 July 2007 (hereafter referred to as the contested OER) from the performance folder of her Army Military Human Resource Record (AMHRR).

2.  The applicant states:

* granting the requested relief is necessary to ensure she is afforded a fair and equitable opportunity to compete for promotion before the Fiscal Year 2014 (FY14) Army Major (MAJ) Promotion Selection Board
* she's fully accepted responsibility for her lapse in judgment while serving as a first lieutenant in 2007 and she's gone through many processes in an attempt to overcome her misgivings
* the general officer memorandum of reprimand (GOMOR) associated with the same incident referenced in the contested OER was recently removed from her performance folder
* this past October she was passed over for promotion to MAJ in the primary zone
* she subsequently appeared before a board of inquiry which retained her for further service in the Army

3.  The applicant provides:

* a self-authored memorandum for the President, Army Board for Correction of Military Records (ABCMR), dated 15 July 2012
* a memorandum of support from the Commanding General, Headquarters, Combined Joint Task Force-101, Regional Command-East, Afghanistan, dated 17 July 2013
* a memorandum of support from the Deputy Chief, Legislative Liaison, Office of the Chief of Legislative Liaison, Headquarters, Department of the Army, Washington, DC, undated
* a memorandum of support from the Chief of Staff, Headquarters, Combined Joint Task Force-101, Regional Command-East, Afghanistan, dated 17 July 2013
* a memorandum of support from the Deputy Commander (Support), Headquarters, 7th Infantry Division, Joint Base Lewis-McChord, WA, dated 12 July 2013
* a memorandum of support from the Commander, Headquarters and Headquarters Battalion, 101st Airborne Division (Air Assault), Combined Joint Task Force-101, Regional Command-East, Afghanistan, dated 12 July 2013
* a memorandum of support from the Combined J-1, Combined Joint Task Force-101, Regional Command-East, Afghanistan, dated 16 July 2013
* OER's and a DA Form 1059 (Service School Academic Evaluation Report (AER)) covering the following periods (in descending order) –

* 16 June 2012 through 1 March 2013
* 24 January 2011 through 15 June 2012
* 23 January 2011 through 14 June 2011 (AER)
* 2 May 2010 through 20 January 2011
* 2 May 2009 through 1 May 2010
* 2 May 2008 through 1 May 2009
* 3 July 2007 through 1 May 2008
* 3 February 2007 through 2 July 2007 (contested OER with rebuttal comments)

* a memorandum from the Deputy Director, Army Review Boards Agency, Arlington, VA, dated 23 January 2013
* a Findings and Recommendations Worksheet pertaining to her field board of inquiry
* a memorandum from the U.S. Army Human Resources Command, Fort Knox, KY, dated 10 July 2013
* a DA Form 4037 (Office Record Brief), dated 17 July 2013


CONSIDERATION OF EVIDENCE:

1.  On 29 May 2004, after completing her collegiate studies at the U.S. Military Academy at West Point, NY, the applicant was appointed as a Reserve commissioned officer of the Army in the rank/grade of second lieutenant/O-1 in the Adjutant General's Corps.  She accepted a Regular Army appointment on an unknown date.

2.  She served in numerous positions of increasing responsibility in the Regular Army and she was promoted to the rank/grade of captain/O-3 on 1 July 2007.

3.  On 16 December 2007, she received the contested OER – a change-of-duty report in which she was rated as the Key Leader Engagement Action and Coordination Officer for Headquarters, Combined Joint Task Force-82 in Afghanistan.  This report covered 5 months of rated time during the period 3 February 2007 through 2 July 2007.

	a.  In Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed a checkmark in the "No" block for item 7 (Duty) indicating a deficiency in that rated area on the part of the rated officer.

	b.  In Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the rater placed checkmarks in the "No" block for item b.3.2 (Actions – Decision-Making) indicating a deficiency in that rated area on the part of the rated officer.

	c.  In Part Vb (Performance and Potential Evaluation (Rater) – Comment on Specific Aspects of the Performance), the rater stated:

[Applicant's] on-the-job performance has been noteworthy.  She demonstrated a degree of expertise and flexibility generally rare for junior officers.  [Applicant] took the lead on some 40 projects and assisted on more than 150 – a monumental amount of work that demonstrated evidence of strong intellect:  an ability to comprehend and organize large amounts of material, identify key points and salient issues, and articulate those insights in clear, precise language.  Her oral and written communications are excellent; her organizational and managerial skills strong; she routinely interacted with the most senior officers in this command in an effective, candid, yet tactful manner that garnered trust and respect.  Thus, [Applicant’s] lapse in judgment – engaging in an inappropriate relationship with a married non-commissioned officer – that jeopardized so much is the more remarkable, distressing and disappointing.
	d.  In Part Vc (Performance and Potential Evaluation (Rater) – Comment on Potential for Promotion), the rater stated:

Given the opportunity to exercise and strengthen her judgment through professional, moral, and ethical challenges over the coming years, [Applicant] could grow to the degree necessary for promotion to the next higher grade.  She has potential; she must harness it toward a productive end.

	e.  In Part VIIc (Senior Rater – Comment on Performance/Potential), the senior rater stated:

[Applicant] was given a unique opportunity when assigned to the Key Leader Engagement Cell:  prepare the command to engage leadership from the highest ranks of the government of the Islamic Republic of Afghanistan and the Afghan National Security Forces.  She appeared diligent and industrious, seemed to take advantage of this opportunity, and developed a reputation of excellence appropriate and expected for an officer of her time in grade.  [Applicant] has potential, of that there is no doubt.  However, she needs to mature significantly and leverage that potential in the productive ways of which she is clearly capable.  Her indiscretion with a married Staff Sergeant undermined her successes and adversely affected the shop's productivity and quality of work.  We demand better.

4.  The contested OER was referred to the applicant for acknowledgement.  The OER indicates the applicant elected to make comments which were attached to the contested OER as an enclosure, dated 29 April 2008.  She stated:

The remarks used in my OER imply a physical relationship between a noncommissioned officer and myself; however, that was not the case.  In addition, the said circumstances took place during my tenure as a First Lieutenant and do not feel they should adversely affect my evaluation as a Captain.

5.  On 28 June 2013, the applicant appeared before a field board of inquiry which determined she would be retained on active duty without reassignment.  On 2 July 2013, the field board of inquiry results were approved.

6.  There is no documentation in her AMHRR that indicates she petitioned the Officer Special Review Board through the U.S. Army Human Resources Command for removal of the contested OER.

7.  She provides numerous memoranda of support from various senior Army officers, including her senior rater at the time she received the contested OER.  She also provides her subsequent OER's and an AER which detail her outstanding performance of duty since she received the contested OER.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that 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.

9.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) establishes the responsibilities, policies, and procedures for maintaining and controlling the AMHRR.  It 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 the proper authorities listed in the regulation.

10.  Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System – which includes the DA Form 67-9.  It also provides guidance regarding redress programs, including commander's inquiries and appeals.

	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 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.

	b.  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, Department of the Army selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 6-11 provides guidance for the burden of proof and type of evidence necessary to support the submission of an OER appeal.  It states the burden of proof rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her contested OER should be removed from her AMHRR so that she may be afforded a fair and equitable opportunity to compete for promotion before the FY14 Army MAJ Promotion Selection Board.

2.  The evidence shows she received the contested OER after it was revealed she engaged in an inappropriate relationship with a married enlisted Soldier.  There is no evidence she elected to appeal the contested OER and she has not denied that she engaged in the inappropriate relationship – only that the contested OER was the cause of her non-selection by last year's MAJ Promotion Selection Board.

3.  She further contends the GOMOR associated with the same incident referenced in the contested OER was recently removed from the performance folder of her AMHRR; therefore, the contested OER should be removed as well.  Her contentions are noted and rejected.  The contested OER complies with Army Regulation 623-3 and sufficiently addresses her performance and potential during the rated period.

4.  She failed to provide convincing evidence that the contested OER is unjust, in whole or in part, to support its removal from her AMHRR.  Furthermore, she failed to submit any evidence of a material error.

5.  The purpose of maintaining the AMHRR is to protect the interests of both the U.S. Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.

6.  The quality of service of a Soldier is affected by conduct that is of a nature to bring discredit on the Army or prejudicial to good order and discipline.  There is generally a reluctance to remove adverse information from an AMHRR when it places the applicant on par with others with no blemishes for promotions, assignments, and other favorable actions.  When it does remove unfavorable information, it only does so if the information is untrue or unjust.  In this case, there is no evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's AMHRR.

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)                                         AR20100015589



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ABCMR Record of Proceedings (cont)                                         AR20130013100



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