IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019839 


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 the Officer Evaluation Report (OER) for the rating period 20090716 through 20100715, that rated her as an Inspector General (IG), be removed from her Official Military Personnel File (OMPF) and be replaced with another OER rating her as an Operations Officer. 

2.  The applicant states: 

	a.  For the rating period of 20090716 - 20100715 she was incorrectly rated as an IG when she was actually performing duties as an Operations Officer (S-3) in the 338th Military Intelligence (MI) Battalion.  Upon discovery of the incorrect duty position, an Operations Officer OER was completed covering the same rating period; however, since the IG OER was already permanently filed in her OMPF the U.S. Army Human Resources Command (HRC) rejected the correct OER.  

	b.  Upon completion of her company command position in 2009, she began working as the Battalion S-3.  During that period, she was nominated to be the Battalion IG.  She submitted her packet for the IG program and was accepted by the Department of the Army IG (DAIG) on 20111103 (well after the through date of the submitted IG OER).  When her annual OER was due in 2010, she was rated as the Battalion IG even though she was still performing S-3 duties.  Since she had not yet been accepted into the IG program at the time of the OER, she could not legally perform IG duties nor be rated as an IG.  The unit eventually identified the discrepancy and an Operations Officer OER was completed for her; however, the IG OER had already been permanently filed in her OMPF so the Operations Officer OER covering the same rating period was rejected by HRC. 

	c.  She has previously attempted to get this corrected, but between misinformed Battalion S-1 personnel providing incorrect information to her, her two cross-country permanent change of station (PCS) moves, changes of command, battalion S-1 personnel retirements, and her interstate transfer with her civilian employer, the record correction never occurred.  During annual training (AT) this past summer, she brought up the issue to her new unit G-1 section.  That's when she found out she had to file an appeal directly with HRC rather than through her unit.  If she had known this from the beginning, she would have done so years ago.  So, after locating and gaining the supporting documentation from her previous rater and senior rater, she submitted her appeal packet to HRC along with a waiver request since she found out there was a 3-year limit for her requested action.  When she followed up with HRC two weeks after submitting her appeal packet, she received this response - "Since the thru date of the OER being appeal [sic] is over three years old, you'll need to address the issues you have w/the report by making an application w/the Army Board for Correction of Military Records.  A waiver of the limitation rule would only be waived if you can prove you were totally incapacitated for the last 3 years."  

	d.  It appears that her simultaneous commitment to being a responsible troop program unit (TPU) officer and a full-time federal law enforcement officer is being held against her with regard to what could be a simple swap of OERs in her OMPF.  No, she has not been completely incapacitated over the past three years.  On the contrary, she has been fully engaged in serving her country honorably while trying to manage both her military and her civilian professional development.  In her attempts to have this OER replacement occur, she has gone through the proper channels within the units to which she has been assigned only to find out that they either didn't know what to do and didn't tell her or they thought they knew what to do and found out later that it was incorrect.  She is not blaming anyone since she realizes people make mistakes.  She does not understand how an administrative error can be allowed to possibly ruin her chances of being promoted (her promotion board meets in January 2014), especially when she was trying to do the right thing to get the erroneous OER replaced with the correct OER.

3.  The applicant provides:

* Contested OER (IG)
* Replacement OER (Operations Officer)
* HRC response to her appeal


* DAIG memorandum
* Letter from Lieutenant Colonel (LTC) NI, her former Senior Rater
* Letter from Colonel (COL) SWA, her former Senior Rater

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 commissioned officer of the Army on 19 December 1998.  She entered active duty on 16 February 1999 and she completed the Adjutant General Officer Basic Course.  She served in a variety of stateside or overseas assignments and she attained the rank of captain (CPT).  

3.  She was honorably released from active duty on 15 February 2005 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement). 

4.  On 13 June 2006, she was reassigned from the USAR Control Group (Reinforcement) to a TPU.  She was assigned as an All Source Intelligence Officer to the USAR Element, Central Command, Tampa, FL. 

5.  In November 2007, she was assigned as a company commander to B Company, 338th MI Battalion, San Antonio, TX.  She received a Senior Rater Option OER for this principal duty that covered the rating period 14 November 2007 through 6 September 2008. 

6.  She entered active duty on 7 September 2008 and subsequently served in Iraq from 1 November 2008 to 27 August 2009.  She was honorably released from active duty on 24 September 2009. 

7.  In July 2009, she received a Senior Rater Option OER for her principal duty of company commander in area of concentration (AOC) 35D (MI Officer) that covered the rating period 7 September 2008 through 15 July 2009.  
8.  During July 2010, the applicant received an Annual OER (the contested OER) for the rating period 16 July 2009 through 15 July 2010 for her duties as IG, Headquarters and Headquarters Detachment (HHD), 338th MI Battalion, Camp Bulis, TX.  Her Rater was LTC NI, the Battalion Commander, and her Senior Rater was COL SWA, the Group Commander.  The OER shows:

	a.  in Part III (Duty Description):

		(1)  Part III(a), her Principal Duty Title as "IG";

		(2)  Part III(b) (Position AOC/Branch (BR)), her AOC as 01A005N (01A means specialty immaterial and 5N is the additional skill identifier for IG); and

		(3)  Part III(c) (Significant Duties and Responsibilities - Refer to Part IVa, DA Form 67-9-1 [OER Support Form], serves as IG for the only Joint Interrogation and Debriefing Center (JIDC) Battalion in the USAR. 

	b.  in Part IVa (Performance Evaluation – Professionalism – Army Values), the rater placed an "X" in the "Yes" block for all values;

	c.  in Part IVb (Performance Evaluation – Professionalism – Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributes and skills; 

	d.  in Part Va (Performance Potential Evaluation – 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 comments in Part Vb (Comment on Specific Aspects of the Performance) related to her performance (as an IG) during the rating period; and 

	e.  in Part VII(a) and (b) (Senior Rater – Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the Senior Rater placed an "X" in the "Best Qualified/Center of Mass" blocks and in Part VIIc (Senior Rater – Comment on Performance/Potential), the Senior Rater entered his comments on her performance (as an IG) and potential. 

9.  The contested OER was signed by the Rater on 27 August 2010, the Senior Rater on 12 September 2010, and by the applicant on 16 September 2010.  It was received/processed by HRC and filed in her OMPF on 24 September 2010.

10.  During June 2011, the applicant received a Change of Rater OER for the rating period 16 July 2010 through 4 June 2011 for her duties as Operations Officer, 338th MI Battalion.  

11.  She entered active duty on 22 June 2011.  She attended and successfully completed Intermediate Level Education at Fort Leavenworth, KS from 13 July 2011 to 16 May 2012.  She was honorably released from active duty on 20 May 2012.  While on active duty, on 1 March 2012, she was issued a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). 

12.  In July 2013, she received an Extended Annual OER for the rating period 5 June 2011 through 5 July 2013 for her duties as a Detailed IG while assigned to the MI Readiness Center, Fort Belvoir, VA. 

13.  She provides:  

	a.  A letter, dated 10 September 2013, from LTC NI, her former Rater.  He states that during the period 16 July 2009 through 15 July 2010 he served as Battalion Commander of the 338th MI Battalion at Camp Bullis, TX.  In that position, he rated [Applicant] during the aforementioned rating period.  The OER submitted for that period was done using an incorrect principal duty title (IG), position AOC/BR (01A005N), and significant duties and, responsibilities in Parts III(a), III(b), and III(c), respectively.  Immediately upon being informed that a mistake was made, he and the Senior Rater corrected the OER and submitted it with the proper duty title and description.  The correct OER indicates the principal duty as Operations Officer and position AOC/BR as 35D/MI.  He supports replacing the incorrect OER with the corrected one.

	b.  A letter, dated 25 September 2013, from COL SWI, her former Senior Rater.  He states that during the period from 2 May 2009 through 26 October 2011 he served as the Group Commander of the 648th Region Support Group of the MI Readiness Command.  In that position, he was the Senior Rater of the applicant and had periodic professional in-person observations of her performance; he had a cursory working knowledge of her performance and visited the unit a number of times while in her rating chain.  Her overall performance was outstanding.  He supports the applicant's efforts to replace the OER listing her principle duty position title of IG with the corrected OER with a Principle Duty Title of Operations Officer.  The applicant was in the IG slot but performed duty as an Operations Officer.  The original OER was corrected but had already been processed by HRC.  Removing the original OER with the IG duty title and replacing it with the corrected version will properly reflect her duty.

	c.  A letter of appeal, dated 11 October 2013, addressed to HRC; however, no response from HRC is provided. 

	d.  A letter, dated 3 November 2011, from the DAIG, informing her of her nomination for IG duty and requirement to attend the DAIG Certification Course. 

	e.  An Annual OER (the replacement OER) for the rating period 16 July 2009 through 15 July 2010 for her duties as Operations Officer.  Her Rater was LTC NI, the battalion commander, and her Senior Rater was COL SWA, the Group Command.  The OER shows:

		(1)  in Part III, the following: 

			a.  in Part III(a), her Principal Duty Title as "Operations Officer";

			b.  in Part III(b), her AOC as 35D/MI; and 

			c.  in Part III(c), her duty description as an Operations Officer for the only JIDC Battalion in the USAR. 

		(2)  in Part IVa, the rater placed an "X" in the "Yes" block for all values;

		(3)  in Part IVb, the rater placed an "X" in the "Yes" block for all attributes and skills; 

		(4)  in Part Va, the rater placed an "X" in the "Outstanding Performance-Must Promote" block and entered comments in Part related to her performance (as an Operations Officer) during the rating period; 

		(5)  in Part VII(a) and (b), the Senior Rater placed an "X" in the "Best Qualified/Center of Mass" blocks and in Part VIIc, the Senior Rater entered his comments on her performance (as an Operations Officer) and potential; and 

		(6)  the replacement OER was signed by the Rater on 7 January 2011, the Senior Rater on 8 January 2011, and by the applicant on 11 February 2011.  It was never received/processed by HRC or filed in her OMPF.

14.  According to the official and approved Table of Distribution and Allowances for Unit Identification Code WYGHAA (338th MI Battalion), this unit is authorized the following strength: 

* HHD, MI Battalion, Command Section, Paragraph/Line Number 101-02, Inspector General, MAJ/O-4, 01A005N 
* S2/S3 Section, Paragraph/Line Number 103-04, Operations Officer, Captain/O-3, 35F
* MI Company (Human Intelligence), Company Headquarters, Paragraph/Line Number 201-02, Operations Officer, Captain/O-3 35F

15.  Army Regulation 600-8-104 (AMHRR) governs the composition of the AMHRR and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states an OER is filed in the performance folder of the OMPF.

16.  Army Regulation 623-3 (Evaluation Reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.

	a.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.

	b.  In order to justify deletion or amendment of an OER under this regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Paragraph 1-10 specifies that no person could require changes be made to an individual's OER except to comply with the regulation.  Members of the rating chain, appropriate administrative personnel office, or HQDA would point out obvious inconsistencies or administrative errors to the appropriate rating officials.  This regulation also provides for the opportunity to request a Commander's Inquiry or to appeal referred/disputed reports.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant received an OER that covered the rating period 16 July 2009 through 15 July 2010 for her duties as an IG, HHD, 338th MI Battalion, Camp Bullis, TX.  She was rated by the battalion commander and senior rated by the group commander.  

2.  An OER is an assessment of an officer's performance and potential during a specified period of time.  During that particular period of time, her rating officials assessed her performance and potential for her duties as an IG as indicated in the contested OER.  At this point, it is reasonable to presume a Battalion Commander and a Group Commander know what specific job their subordinates hold.  Likewise, an officer should also know what position they hold and whether their OER reflects the position they hold. 

3.  Months after this OER was accepted by HQDA and filed in her records, her rating officials rendered a similar OER but for the principal duty title of Operations Officer in AOC 35D.  The performance rating was the same (Outstanding Performance - Must Promote) and the potential rating was also the same (Best Qualified - Center of Mass).  

4.  She contends that she appealed the OER to HRC but her appeal was beyond the 3-year time frame authorized by the governing regulation.  

5.  Since the applicant's rating officials did not know what position the applicant held, it is equally unclear to this Board what the applicant's position was.  A review of the authorization document for her unit revealed an authorization for IG/MAJ position within the unit command group, an Operations Officer/CPT position with the S2/S3 section, and an Operations Officer/CPT position within the MI Company.  

6.  The applicant does not provide a support form that would have shown her duties and expectations.  Likewise, she does not provide a unit manning roster confirming her assignment to the Operations Officer position.  Additionally, she does not provide a rating scheme for her unit.  In the absence of all these documents, it must be presumed that had she been slotted in the S2/S3 Operations Officer position, she would have been rated by her immediate supervisor, the S2/S3 or the Battalion Executive Officer and not the Battalion Commander. 

7.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied 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.  This is not the case here.

6.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant's contentions and arguments, and the evidence submitted in support of her application, the applicant did not show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that this OER should be removed.  Therefore, she is not entitled to the 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)                                         AR20130019839



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019839



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1