IN THE CASE OF:	  

		BOARD DATE:	  29 April 2014

		DOCKET NUMBER:  AR20130017633 


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 her DA Form 67-9 (Officer Evaluation Report (OER)) (hereafter referred to as the contested OER) for the period covering 17 February through 22 September 2010 be removed from her Army Military Human Resource Record (AMHRR) or transferred to the restricted portion of her AMHRR.  

2.  She states:

	a.  She submitted an appeal to the Army Review Boards Agency (ARBA) through the U.S. Army Human Resources Command (HRC) pursuant Army Regulation 623-3 (Evaluation Reporting System (ERS)).  ARBA denied her appeal and cited "presumption of regularity" as one basis for denial, which should not be applied to the contested OER. 

	b.  A second basis cited by ARBA for the denial of her appeal is the findings of the Commander's Inquiry (CI) conducted by the unit to which she was assigned.  The CI's findings stated "found no evidence of lack of objectivity or fairness by the ratings officials."  The findings of the CI should not be considered in any further decisions regarding the disposition of her evaluation because the CI is incomplete and the findings are tainted.  The Investigating Officer's (IO) packet presents a one-sided version of what really occurred and the IO failed to include key information and documents she provided to him during the investigation process.  In addition, it appears the IO only questioned five personnel, plus her, during his investigation.  This would not provide for a complete investigation into something this complicated.  Finally, the IO's packet was void of evidence that indicated the IO investigated or further researched discrepancies between what she reported to him and the information he gathered from the interviews and statements from individuals.   

	c.  The contested OER was unjust and contains factual errors; therefore, permitting this report to remain in her AMHRR would constitute a grave injustice and inequity.  

	d.  On 1 June 2009, she arrived at Fort Knox, signed in to the unit, and served as the Brigade S1 until 22 July 2009 when she took a leave of absence to give birth.  When she returned, she assumed her position as the Battalion S1 in the Special Troops Battalion.  She was selected by her brigade commander to lead the Brigade S1 team in February 2010.  Her task was to assist the S1 to 
re-establish routine operations within the S1 arena and to personally improve the morale in the S1 shop.  Her team did not fail missions assigned to them and her rater and senior rater (SR) often praised her performance.  

	e.  She participated in a mission exercise at the National Training Center (NTC) during July and August 2010.  The most notable Brigade S1 team success was at the NTC with the assistance of the technical expertise of her Chief Warrant Officer (CWO).  Her team was lauded for its operations and for having one of the best operations their team had ever witnessed.  

	f.  She requested 2 days of leave at the end of the NTC rotation; however, her rater denied her request.  Her rater continued to deny her any leave or respite from 27 August through 21 September (2010).  The Executive Officer (XO) allowed her 1 day off after she returned to her home station.  Following return from NTC, the XO requested a full personnel lay-down with the brigade commander.  She requested an extension, but the XO denied the request.  She spoke with her brigade commander on two separate occasions following NTC regarding her requests for release from the unit and the issues she was having with her rater concerning requests for leave.  Her release from the unit and reassignment were later approved.  

	g.  She awaited word of her replacement and continued to execute the duties of her position.  Meanwhile, her relationship with her XO and the working environment worsened.  Her work environment became hostile.  She eventually chose to tape record conversations with her rating officials, the Brigade XO, and the brigade commander.  During these conversations, she inquired if there were any problems with her performance, but no problems were noted.  She also expressed her concerns about the change in the interaction between her and her rater, the drastic negative change in the operating environment, and the lack of time she was being permitted with her family.  
   h.  She asked advice from her CWO prior to taping conversations and she cited reasons for such an action which included her lack of trust of the command, receiving contradictory guidance from different leaders, and having knowledge of the way things had generally occurred in the past within the unit.  The CWO advised against tape recording, but acknowledged in the CI that she felt a need to "protect" herself.  On 21 September 2010, she shared with the CWO that she had actually recorded a conversation with the brigade commander.  The next day the brigade commander relieved her from her position for taping the conversations then discussing the situation with her subordinate.  

3.  She also states:

	a.  The "presumption of regularity" should not apply in this situation because it means that any action taken by the government, or its officials, is presumed to be legal.  It also holds that any action taken by the government is legal until evidence is provided that shows that it is not legal.  She witnessed many actions while assigned as the Senior Human Resource Manager (Brigade S1) for the 3rd Brigade Combat Team (BCT), 1st Infantry Division that appeared not to be in the best interest of the Soldiers.  In many meetings, she would be the only one who voiced concerns regarding ethics and staff decisions.  She ultimately decided to request release from the unit because she lost trust in her leadership and she no longer believed the decisions made were in the best interest of the Soldiers.  She subsequently decided to tape record conversations with her leadership in an effort to preserve "evidence" of her open and candid interaction with the rating officials.  Therefore, when there is a lack of trust between an officer and superiors and sometimes inappropriate presence of command influence, "presumption of regularity" cannot be applied.  

	b.  The contested OER is erroneous and in direct violation of Army Regulation 623-3, paragraph 3-58.  She was given a Relief for Cause OER based on Army Regulation 623-3, paragraph 3-58, which states a Relief for Cause is reserved for Soldiers "who failed in their performance of duty" or who failed to be in "compliance at all times with the accepted professional officer standards shown in DA Form 67-9 Part IV."  She didn't fail in the performance of her duty and she didn't fail to be in compliance at all times with the accepted professional officer standards shown in DA Form 67-9 Part IV.  She met the burden of proof in her OER appeal and ARBA's failure to grant her appeal also constitutes error and injustice.  

	c.  There were specific parts of the contested OER which were clearly erroneous.  In Part IV of the contested OER, she received a "No" entry for Army Values and attributes for Honor, Integrity, Loyalty, Selfless Service, Emotional, Interpersonal, Decision-Making, and Building.  
   (1)  Even though the brigade commander and the XO disagreed with her 
actions of tape recording them, the act itself is not dishonorable and it does not lack integrity.  First, she contends that tape recording is not illegal in Kentucky as long as the party consents to the recording.  Second, she had a good reason to believe that recording the conversation was necessary to protect herself and she had a good reason to believe she was being treated unfairly at that time.  Third, this action did not compromise her honor or integrity.  She told the truth and answered "Yes" when questioned whether she taped the conversations.  The brigade commander informed her that her actions indicated her lack of trust in the chain of command.  However, having a lack of trust in her chain of command does not mean she lacked Honor.  

		(2)  She adhered to high moral principles and professional standards in every endeavor.  On the contested OER, she received a "Yes" entry for Respect which clearly indicates her actions consistently promoted dignity, consideration, and fairness.  She never abandoned her duties, worked long duty hours, and she was continually available to both her superiors and subordinates during weekends, holidays, and at all hours of the night.  

		(3)  She is loyal to the U.S. Constitution, the Army, the unit, and Soldiers.  Even though her release was approved, she continued to work diligently to meet the demands of a unit preparing for deployment as she awaited the arrival of her replacement.  This is loyalty to the Army and the unit.  Based on the circumstances that existed at the time, she believed she had two options: (1) tape record conversations with her leadership or (2) go to outside agencies to preserve an accurate record of her performance.

		(4)  She has many examples of her Selfless Service by giving of her time, her resources, and her talents through volunteerism to the Army, her local communities, and various causes.  

		(5)  She maintained her bearing and composure leading troops, making decisions, and executing the mission and tasks assigned to her and her team.  The rater commented on the contested OER that she "broke down" and he explained to her that this meant she cried.  She admitted that she and her rater engaged in emotionally charged conversations and sometimes her frustration manifested itself in tears as she continued to discuss the issues with her rater.  These conversations were always behind closed doors and at no time did she lose control or fail to express herself coherently and respectfully.  

		(6)  The letters and statements included in this packet clearly illustrate her requisite skills to work with persons in all ranks, positions and capacities.  She consistently worked as a member of the team and her efforts created an atmosphere which promoted mission success for not only her section, but also the brigade staff and subordinate battalions.  During her tenure as the S1, she did not fail a single mission.  Any conflicts she had with other staff officers were resolved quickly and professionally and to the betterment of the team.  She completed assigned tasks to such a degree of success that she was able to establish a cohesive, functioning team focused and capable of executing the brigade commander's priorities.  All of her subordinates knew she was available to coach, teach, and assist in resolving any problems they encountered and she always made herself available to assist other staff members when needed.  One of her main priorities was improving the morale in the S1 shop.  She referenced her interpersonal skills and stated that 13 separate OERs in her file indicate this is one of her strongest attributes.  She cited several comments from military personnel who lauded her for her interpersonal skills.  

4.  She further states the comments in the rater and SR portions of the contested OER constitute unverified derogatory information, which is prohibited under Army Regulation 623-3, paragraph 3-23 and paragraph 3-19.

   a.  Her rater's derogatory comments, "struggled as a member of a team" and "alienating herself from multiple Brigade and Staff officers" are contradicted by the statements from unit members.  Additionally, she was never counseled by any member of her leadership or any rating chain regarding the issue of her teamwork and interpersonal skills as an alleged shortcoming.  She received consistent praise for a job well done from her rater and SR as well as from other staff members and subordinate unit command teams.  
   
   b.  Her rater's derogatory comments, "Based on her unwarranted attempt to abandon her duties, unprofessional behavior, and poor judgment MAJ [applicant] was relieved as the BCT S1" are factually incorrect.  She claimed she didn't abandon her duties nor did she attempt to do so.  She formally requested release from the unit, in writing and utilizing the chain of command.  The brigade commander informed her on 8 September (2010) that the rear division commander had approved her release from the unit.  She claimed she continued to work long hours, these issues were never raised as alleged shortcomings prior to receipt of the contested OER, and she was never counseled by the rater or SR regarding any unprofessional behavior or any attempt to abandon her duties.  
   
   c.  Her rater's derogatory comments, "MAJ [applicant] emotionally broke down twice and told me, 'I quit' presents a negatively-biased depiction of what actually happened.  She reiterated that she fully met the requirements of the Army's definition of the attribute "Emotional," she didn't "break down" at any time, and she did not abandon her duties; she continued to work long hours.  She admitted that she did use the words "I quit," but these words were used out of context in the contested OER.  

   d.  Her SR stated, "MAJ [applicant] has demonstrated poor decision making, an inability to remain professional in a stressful environment, and created a climate that was detrimental to good order and disciple of the unit."  She never failed to live up to the standard of "Duty First," she completed every assigned task, and she excelled at all missions assigned to her.  On numerous occasions, her SR expressed to her that he had no issues with her performance.  She also claimed her SR never counseled her or even mentioned her behavior "in a stressful environment" was unprofessional.  Her actions, mission success, and continued dedication to duty demonstrated her ability to do the opposite of this issue.  There were no issues or incidents during this rating period for which she was counseled regarding being unprofessional, making poor decisions, or creating a negative environment, with the exception of her decision to tape record the day prior to release from her position.  She alleged her rater and SR expressed positive feedback to her regarding her duty performance. 

5.  She alleges that permitting the contested OER to remain in her AMHRR would constitute a grave injustice and inequity.

	a.  She has honorably supported and defended the Constitution of the United States and faithfully discharged the duties required of a commissioned officer in the U.S. Army.  The contested OER represents only a small percentage of her Active Federal Service in the U.S. Army.  She has provided 18 evaluations she received during her career, including 16 OERs and 2 Academic Evaluation Reports.  Since completing basic training in 1998 through being promoted to MAJ in 2010, she has received consistent recognition as a top performer.  She was lauded as being in the top 5 percent (%) of captains, identified as number 1 out of 36 staff officers, received categorization as being in the top 5% of all MAJs, received positive comments for the manner she embodied Army values, and gained the implicit trust of her leaders.

	b.  She has received special recognition and several awards while in the service.  She has received four Military Outstanding Volunteer Service Medals for her volunteer work and fundraisers.  Also, she was honored this past year to serve as the Veteran's Day guest speaker at Flaherty Primary and Elementary Schools.  

	c.  She has a Master's Degree in Human Resource Management from Webster University in which she used tuition assistance to pursue this goal.  She also received a retention bonus, completed both the Officer Basic Course and Captains' Career Course for the Adjutant General's Corps.  This education along with her experiences and demonstrated performance make her an asset in today's Army.  The removal of the contested OER will permit her to continue putting her training to useful service in the Army.  

	d.  She has provided several letters of support from fellow Soldiers, peers, and leaders who attest she is a strong supporter of Soldiers and is not a person who would shirk any responsibilities.  Her record is unblemished, except for the contested OER.  If the contested OER is allowed to remain in her file, it would prevent her from being selected for future command or other assignments, it would place her at a grave disadvantage in competing for other assignments relative to her peers, and it would constitute an injustice and inequity.

6.  She provides numerous documents which are listed in the attached Table of Contents.  She also provides two discs describing her volunteer work, taped conversations, and her appeal to ARBA.  

CONSIDERATION OF EVIDENCE:

1.  At the time the applicant submitted her application, she was serving in the Regular Army in the rank of major (MAJ)/O-4.  

2.  After completing prior enlisted service, the applicant was appointed as a U.S. Army Reserve commissioned officer on 22 November 2000 in the rank of second lieutenant and entered extended active duty.

3.  She provided her OERs for the periods ending 8 February 2002, 31 October 2002, 31 October 2003, 2 June 2004, 31 December 2004, 16 June 2005, 31 March 2006, 31 December 2006, 31 March 2007, 31 March 2008, 31 March 2009, and 16 February 2010.  These evaluation reports indicate she was consistently rated as "Outstanding Performance, Must Promote" and "Best Qualified."  

4.  She was promoted to MAJ on 1 July 2010.  On the same date, she was given a congratulatory letter on her promotion from her commanding officer with personal handwritten notes stating "[Applicant] - you have made a tremendous difference in the BDE [Brigade] S1 - great effort and lots of hard work!  Thanks for all that you do!"

5.  On 27 August 2010, she received a DA Form 4855 (Developmental Counseling Form) which indicates she was counseled on her performance during the NTC Rotation 10-09.  In Part III (Summary of Counseling) of the form, the BCT XO indicated the applicant's ability to handle the stress/requirements of her job and that she cried on two occasions while expressing her concerns about ongoing operations as an area of concern.  

6.  In a memorandum, dated 27 August 2010, she requested reassignment from the 3rd BCT, 1st Infantry Division.  She stated the time required to execute the duties of her position was significant and had begun to impact her family.  As a result, she requested consideration of reassignment from the position of Brigade S1.  

7.  In an email, dated 29 August 2010, between the applicant and her rater, she requested, in part, 2 days leave.  Her rater granted her 1 day of leave and informed her that the next weekend was a 4-day weekend.  

8.  The contested OER is a Relief for Cause OER covering the period 17 February through 22 September 2010.  This report indicates the applicant was rated as the Brigade S1 of the 3rd BCT, 1st Infantry Division.  The contested OER shows:

	a.  the rater is listed as Lieutenant Colonel (LTC) M.D.M, Brigade XO, and he digitally signed the report on 30 September 2010;

	b.  the SR is listed as Colonel (COL) C.R.T., Brigade Commander, and he digitally signed the report on 2 October 2010;

	c.  the applicant digitally signed the report on 26 October 2010; 

	d.  in Part IId, the OER was a referred report and the applicant indicated she submitted statements.  She stated there are several derogatory comments in the contested OER which are incorrect.  She reiterated the contentions cited in her application regarding changing the Army Values entries to show "Yes" instead of "No" in Part IV and changing the derogatory comments made by her rater and SR in Parts V and VII. 

	e.  the rater placed an "X" in the "No" boxes in Part IV, a.1 (Honor), a.2 (Integrity), a.4 (Loyalty), a.6 (Selfless-Service); b.1 (Attributes) for Emotional; b.2 (Skills) for Interpersonal; and b.3 (Actions (Leadership)) for Decision-Making and Building; 

	f.  in Part Va (Performance and Potential Evaluation (Rater)), the rater marked the entry "Unsatisfactory Performance, Do Not Promote"; 


	g.  in Part Vb (Performance Narrative), the rater entered negative comments such as:

During the REGEN [regeneration] process at NTC, a process requiring significant but reasonable personnel analysis and oversight, MAJ [applicant] emotionally broke down twice and told me, "I quit."  This attempt to quit was followed the next day by a formal request from MAJ [applicant] for reassignment…On at least three occasions, MAJ [applicant] deceptively taped conversations with both me and the Brigade Commander.  Further, she discussed her recording efforts and frustrations about perceived unfair treatment with multiple unit members, to include subordinates, actions prejudicial to unit cohesion and proper use of the chain of command.  Based on her unwarranted attempt to abandon her duties, unprofessional behavior, and poor judgment MAJ [applicant] was relieved as the BCT S1.  

	h.  in Part Vc (Comment on Potential for Promotion), the rater stated "Recommend MAJ [applicant] be placed in non-command positions…Do not select for promotion to LTC or attendance at ILE [Intermediate-Level Education]; and 

	i.  in Part VIIa and c (SR – Comment on Performance/Potential), the SR assessed the applicant as "Do Not Promote" and made the following comments:

Concur with the rater.  MAJ [applicant] has demonstrated poor decision making, an inability to remain professional in a stressful environment, and created a climate that was detrimental to good order and discipline of the unit.  On at least one occasion she recorded a conversation between us without my knowledge and subsequently told subordinates she was recording conversations with me and the Brigade XO.  When placed into a stressful MRE [Mission Readiness Exercise] environment she failed to maintain her composure and professionalism.  Based on her actions, I have lost the required trust and confidence in MAJ [applicant] and relieved her of her duties.  Due to her relief for cause, a DA Form 67-9-1 (OER Support Form) was not used for this evaluation.  MAJ [applicant] could best serve the Army in an administrative assignment outside of the tactical unit level.  

9.  In a memorandum, dated 19 October 2010, she provided comments for clarification and requested reconsideration for her rating chain in evaluating her performance as the Brigade S1, 3rd Brigade, 1st Infantry Division from 17 February through 22 September 2010.  She stated she did not agree with the assessment because it did not accurately reflect her values or leadership attributes, failed to consider her contributions and impact to the brigade, and did not account for the antagonistic working environment following her request for release from the unit.  She understood her actions in taping conversations with her brigade commander and XO without their knowledge was deceptive and not in keeping with the traditions of Army officers.  She apologized for the actions that caused her command team to lose trust and confidence in her ability to faithfully serve them.  Her rating chain agreed that she acted with respect and courage and a sense of duty during the rating period.  She continued to work despite the difficult environment and even after she was notified her release from the unit was approved.  Her rater and SR concurred on multiple occasions that her performance was above average and she never failed to accomplish a single mission while serving them.  Her rating chain would agree that she placed the Army's needs above her own and did not have any negative issues with her performance prior to 27 August 2010.  

10.  In a memorandum, dated 21 January 2011, she requested a CI of the contested OER.  She later provided additional background information and comments on the Army Values.  

11.  In memorandum, dated a 24 January 2011, a commanding general (CG) stated he had provided an additional review of the contested OER based on Army Regulation 623-3, paragraph 2-18 and determined it was complete and correct as written.

12.  In a memorandum, dated 3 March 2011, the IO revealed facts, findings, and recommendation of the CI regarding the contested OER.  The IO found that:

	a.  There was no evidence indicating that the rating officials were improperly designated or unqualified; therefore, as required in Army Regulation 623-3, paragraph 6-5a(1), the rating officials were properly designated and qualified.  

	b.  The applicant was technically competent in garrison as a BCT S1.  However, her managerial skills, ability to build and develop a BCT staff section, stress management, delegation skills, teamwork, and ability to prepare for a training deployment to NTC were beyond her current capability to effectively lead and manage at the field grade level.

	c.  The applicant was technically competent; however, she struggled significantly in working with her peers.  She also failed to implement an adequate number of working systems (standing operating procedures (SOPs)), as required for a BCT S1 Officer-in-Charge.

	d.  The applicant was unable to handle stress, such as her request for leave before NTC when the rest of the BCT staff primaries were required to be at a Leadership Training Program (LTP) at NTC, difficulty getting along with her peers, crying in public and during counseling sessions on at least three occasions, attempting to make the problem go away by twice stating that she quit, and her later request for reassignment.  Further, she repeatedly made requests to leave NTC early before the unit had completed the movement and tracking of personnel.  

	e.  The applicant no longer trusted her chain of command at the end of the NTC deployment and knowingly attempted to record their conversations without their knowledge for apparent personal gain - to protect her from recrimination.  This information was relayed to a subordinate and one of her peers.  

	f.  The applicant was expected to serve as the BCT S1, to include preparation for deployment and combat deployment.  Despite the normal challenges associated with her position as the S1 and as a leader on the staff, she sought to be relieved from her position for no apparent legitimate reason.  

	g.  The applicant was not treated unfairly.  In contrast, she was treated the same as her peers by the BCT senior leadership.  She was given leave when her peers were conducting critical primary staff training at NTC that she was allowed to miss.  

	h.  The veracity of the statements made by the rater and SR in the contested OER are consistent with the actions observed of the applicant.  

13.  The IO stated that while the applicant appeared to have been technically competent as an Adjutant General officer her performance at NTC was found to be lacking as accurately and candidly described in her rater and SR comments in her Relief for Cause OER, dated 22 September 2010.  The IO recommended the contested OER be retained in its current form based upon interview of the concerned parties.

14.  In a memorandum, dated 16 March 2011, a CG responded to her request for a CI of the contested OER.  The CG determined this evaluation report did not contain any errors, injustices, or illegalities and his decision was based on the following facts and findings:

	a.  The applicant was technically competent in her duties as an Adjutant General officer; however she struggled as a team member and as BCT S1;

	b.  The applicant did not properly deal with grievances with leadership.  She recorded numerous telephone conversations with SRs and discussed this fact with subordinates and other team members.  She told leadership on more than one occasion that she wished to leave her S1 position and formally requested reassignment without providing an adequate justification for these actions;

	c.  The applicant did not maintain composure in stressful situations and her actions created a climate that was detrimental to the good order and discipline of the unit;

	d.  No inaccurate or untrue statements were made in the contested OER; and 

	e.  There was no evidence of a lack of objectivity or fairness by rating officials in this OER.

15.  She provided a copy of her annual OER for the period 23 September 2010 through 22 September 2011 which shows she was rated as the XO to the Garrison Commander, Fort Knox, KY.  Her performance was rated as "Outstanding Performance, Must Promote" and her promotion potential was rated as "Best Qualified."  

16.  On 5 July 2012, the Officer Special Review Board (OSRB) denied the applicant's appeal for removal of the contested OER from her AMHRR.

17.  She provided two OERs for the periods ending 22 September 2012 and
8 July 2013 which show she was rated as the XO to the Garrison Commander at Fort Knox, KY.  On both reports, her performance was rated as "Outstanding Performance, Must Promote" and her promotion potential as "Best Qualified."

18.  She provided numerous letters of support (enclosures 75 to 126) for a Show Cause Board.  These letters were submitted by active and retired military personnel who recommended the applicant be retained on active duty, recommended the contested OER be dismissed, and attested to her job performance and volunteer work within the military and community.  

19.  A review of the applicant's military record in the interactive Personnel Electronic Records Management System (iPERMS) revealed her contested OER was filed in the performance section of her AMHRR.

20.  Army Regulation 600-8-104 (AMHRR Management) prescribes the policies governing the AMHRR, the military personnel records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 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, among other agencies, the Army Board for Correction of Military Records and Department of the Army Suitability Evaluation Board.

21.  Table B-1 of AR 600-8-104 states an OER will be filed in the performance section of the AMHRR and case correspondence relating to a denied evaluation report appeal action will be filed on the restricted section of the AMHRR.

22.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the ERS.  This includes the DA Form 67-9.

   a.  Paragraph 1-8c states the primary function of the ERS is to provide information to Headquarters, Department of the Army (HQDA) for use in making personnel management decisions. Components of this information include, evaluation reports, which must be a thoughtful and fair appraisal of a Soldier's ability, based on observed performance and his or her potential.  Each report must be accurate and complete to ensure that sound personnel management decisions can be made and that a rated Soldier's potential can be fully developed.  Reports that are incomplete or fail to provide a realistic and objective evaluation make personnel management decisions increasingly difficult. 

   b.  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.
   
   c.  Paragraph 2-18c states relief OERs will be reviewed by the first U.S. Army officer in the chain-of-command who is senior to the individual directing the relief.  If the relief is directed by the rater or intermediate rater, a SR, provided he/she is a U.S. Army officer, will perform the review.  This officer will perform the functions described in paragraph 2–18c(1) through (5).  The SR's comments will be prepared as an enclosure to the OER.  

	d.  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, DA selection boards, and career managers can make intelligent decisions.

	e.  Paragraph 3-34 states any report with negative comments in Part Vb, Vc, VI, or VIIc will be referred to the rated officer by the SR for acknowledgment and comment before it is sent to HQDA.

   f.  Paragraph 3-36 states 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.  To justify deletion or amendment of a report, the Soldier must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the Soldier.

		(1)  Paragraph 3-36a states the SR will place an "X" in the appropriate box in Part IId 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 IId.

   (2)  Paragraph 3-36b states the rated Soldier may comment if he or she 
believes the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER/academic evaluation report; rating officials may not rebut rated Soldier's referral comments.  

	g.  Paragraph 3-58 states a Relief for Cause report is required when an officer is relieved for cause regardless of the rating period involved.  Relief for Cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in their performance of duty.  In this regard, duty performance will consist of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards shown in DA Form 67–9, Part IV.

   h.  Paragraphs 6-3 and 6-4 state that the primary purpose of a CI is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

23.  Army Regulation 623-3, paragraph 1–11 (Commander's or Commandant’s Inquiry) states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter.  The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.  The procedures used by the commander or commandant to process such an inquiry are described in chapter 4.

24.  Army Regulation 623-3 also states that the rated individual has considerable responsibility in the evaluation process and will periodically evaluate their own performances and, when in doubt, seek the advice of their superiors in the rating chain.  They should participate in counseling, assessments and a final evaluation and should discuss the duty description and performance objectives with the rater.  This will be done within 30 days after the beginning of each new rating period and at least quarterly thereafter.  It notes that rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

DISCUSSION AND CONCLUSIONS:

1.  After a comprehensive review of the evidence in the applicant's official record, her contentions, arguments, and the evidence submitted in support of her application, she did not provide clear and convincing evidence to overcome the "presumption of regularity" and justify changing or removal of the contested OER.  

2.  With regard to the applicant's contentions pertaining to the Officer Special Review Board's reasons for denying her appeal, her service record is void of evidence which indicates that all the documents she submitted were not fully considered by that board.



3.  The applicant contends presumption of regularity should not be applied to the contested OER.  However, administrative regularity is presumed in the referral process inasmuch as the contested OER shows it was referred and the applicant elected to submit a response.

4.  The applicant contends the CI is incomplete and the findings are tainted.  However, the evidence of record does not support her claims.  As noted in the governing regulation, a CI is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

5.  The applicant contends the contested OER was unjust and contains factual errors and would constitute a grave injustice and inequity if it remains in her AMHRR.  There is insufficient evidence to show that the contested OER was unfair or unjust; or that the comments and did not represent the considered judgment and opinion of the SR.  The contested OER shows:

	a.  In Part IV, the rater marked the "Unsatisfactory Performance, Do Not Promote" box and entered negative comments: "During the REGEN [regeneration] process at NTC, a process requiring significant but reasonable personnel analysis and oversight, MAJ [applicant] emotionally broke down twice and told me, "I quit."… "On at least three occasions, MAJ [applicant] deceptively taped conversations with both me and the brigade commander.  Further, she discussed her recording efforts and frustrations about perceived unfair treatment with multiple unit members, to include subordinates, actions prejudicial to unit cohesion and proper use of the chain of command…"

	b.  In Part VIIa, the SR assessed her as "Do Not Promote" and commented " Concur with the rater.  MAJ [applicant] has demonstrated poor decision making, an inability to remain professional in a stressful environment, and created a climate that was detrimental to good order and discipline of the unit."

6.  Although the applicant contends that tape recording is not illegal in Kentucky as long as the party consents to the recording, she admitted she tape recorded her brigade commander and XO without their consent (an illegal act) in order to "protect herself."  

7.  The applicant also admitted that she used the words "I quit," but claimed these words were used out of context in the contested OER.  However, the evidence of record does not support her claim.  


8.  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, DA selection boards, and career managers can make intelligent decisions.  The applicant does not provide compelling evidence to show that the contested OER shows other than the rating official’s honest evaluations of her.

9.  The applicant contends the contested OER is in direct violation of Army Regulation 623-3, paragraph 3-58 which states a Relief for Cause is reserved for Soldiers "who failed in their performance of duty" or who failed to be in "compliance at all times with the accepted professional officer standards shown in DA Form 67-9 Part IV."  There is no doubt that the applicant's duty performance prior to and during the period of the contested OER was outstanding as verified by rating officials in her reports and by the numerous supporting statements provided.  However, the relief for cause report was for one rated period which documents the “inappropriate” behavior that caused her relief.  Therefore, the supporting statements do not provide any evidence sufficiently compelling to overcome the presumption of regularity.

10.  In the absence of compelling evidence which clearly and convincingly shows the presumption of regularity should not be applied to this report, or that it contains material error, is inaccurate, or unjust, there is no basis to grant the relief requested.

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)                                         AR20130017633



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ABCMR Record of Proceedings (cont)                                         AR20130017633



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