IN THE CASE OF:	

		BOARD DATE:	  20 February 2014

		DOCKET NUMBER:  AR20130021430 


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, in effect, reconsideration of her earlier request for correction of her military records by removing her DA Form 67-9 (Officer Evaluation Report (OER)) for the report period ending on 31 July 2011.  In the alternative, she requests that:

* The rating of Unsatisfactory Performance, Do Not Promote, in Part V, block a, be changed to Satisfactory Performance, Promote
* The comment in Part V, block b, stating she also received a counseling statement from the battalion commander for government credit card delinquency and loss of a sensitive item, be removed from the report
* Her promotion to captain, pay grade O-3 be restored
* She be reinstated to the Active Guard Reserve (AGR) Program

2.  The applicant states this request is based on new evidence that was not in the record when the Army Board for Correction of Military Records (ABCMR) made its decision.  She is asking that the Board find the subject OER inaccurate based on the new evidence.

3.  The applicant provides copies of:

* Memorandum, Appointment of Investigating Officer, dated 3 December 2012
* Memorandum, Commander's Inquiry findings, dated 28 January 2013
* Memorandum , Evaluation Report Appeal, dated 19 March 2013
* Memorandum, Return without Action, dated 31 October 2013
* Memorandum, Evaluation Report Appeal, dated 1 November 2013
* DA Form 67-9 for period ending on 31 July 2011
* DA Form 4856 (Developmental Counseling Form) dated 23 August 2010
* DA Form 67-9 for period ending 14 March 2009
* Letter, Office of the Inspector General, dated 2 November 2012
* Memorandum, Commander's Inquiry findings, dated 15 February 2013
* Orders B-10-206169, U.S Army Human Resources Command (HRC), dated 10 October 2012
* Orders B-10-206169R, HRC, dated 15 October 2012
* Memorandum, Promotion Review Board Results, dated 4 October 2012
* Memorandum, Promotion Review Board, dated 25 July 2012

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120016042 on 18 December 2012.

2.  The original Record of Proceedings (ROP) shows the Board determined that the subject OER was processed in accordance with the applicable laws and regulations.  The applicant had not provided sufficient evidence or convincing argument that there were any fatal flaws that would warrant removal or alteration of the report.  Accordingly, the applicant's request was denied.

3.  The applicant has provided new evidence concerning the subject OER that requires Board consideration.

4.  On 3 December 2012, the applicant's brigade commander appointed an investigating officer (IO) and directed him to conduct an inquiry in accordance with Army Regulation 623-3 (Evaluations).  The subject of the inquiry included the applicant's OER for the period 1 August 2010 to 31 July 2011.  The concern was whether the OER reflected a fair assessment of the applicant's performance.

5.  On 28 January 2013, the IO rendered his 3-page report wherein he states his findings and recommendations.

	a.  This is the second Commander's Inquiry regarding the subject OER.  The first inquiry indicated no errors or administrative errors.  This inquiry is the result of the applicant's making a request for another review.

	b.  The subject OER is an adverse OER that was referred in accordance with Army Regulation 623-3 based on a performance and/or potential evaluation of "Unsatisfactory Performance/Do Not Promote" in part V, block a.
	c.  The applicant was interviewed and provided additional information.  A review of both the counseling statement and the reference to the counseling statement on the OER revealed that she was counseled for a delinquent travel voucher and not for a delinquent payment of her government credit card (GOVCC) as stated on the OER.

	d.  The OER also indicated that the applicant was also found partially liable for the loss of night vision goggles (NVG), a sensitive item.  She did not dispute this matter but correctly indicated that the loss had occurred during a different rating period and had been the primary driver of another referred OER for that rated period.  The IO confirmed with the maintenance noncommissioned officer that the NVG had been lost during a previous rating period.

	e.  The applicant provided supporting documents from various sources to indicate success on some non-tactical related engineer projects.  Her rating had not provided adequate counseling.  She questioned the authenticity of some of the counseling statements in her record.

6.  On 21 December 2012, the applicant's rater was interviewed by the IO.  The rater provided evidence of an initial, periodic, and incident-specific counseling.  The rater indicated the applicant's greatest asset was her knowledge of administrative functions but did not possess technical expertise in tactical engineer operations.  Furthermore, the applicant's personal distractions and medical issues had an adverse affect on her performance.  The applicant also had difficulty in her transition from the role of an administrative staff sergeant to the role of a commissioned officer and platoon leader in an engineer line company.

7.  On 8 January 2013, the IO interviewed the applicant's senior rater by telephone.  The senior rater had limited interaction with the applicant but did advise her on course of action to register legitimate and substantiated complaints regarding her situation.  The senior rater did not observe any negative bias by the applicant's rater.

8.  On 11 January 2013, the IO interviewed the former platoon leader, who was now a captain, and who stated the applicant's greatest strength was her administrative skills.  The applicant had been assigned to manage pay and medical readiness.  The applicant did not have a good understanding of tactical engineer operations or roles of the platoon leader.  The applicant had missed most of the field exercises and also missed many days due to medical and personal reasons.

9.  As a result of the inquiry, the IO determined that two significant errors exist in Part V block b of the subject OER.  A delinquent payment of the GOVCC is a more significant action than a delinquent travel voucher submission.  Furthermore, it seems unfair for an officer to receive a significant negative comment regarding supervisory liability for the lost NVG on more than one OER.  The IO submitted that this negative comment was correctly included in an earlier OER.  These errors may have influenced the "Unsatisfactory Performance, Do Not Promote" rating in Part V, block a of the subject OER.  However, based on information received from the interviews, the IO did not question the rater's assessment of marginal performance of the applicant.  There was no evidence of bias with regard to the applicant's lack of expertise in tactical engineer operations and effectiveness to serve as a platoon leader in an Engineer line company.

10.  The IO recommended changing the subject OER by changing the rating from "Unsatisfactory Performance, Do Not Promote" to "Satisfactory Performance, Promote.”  While not saying in so many words, the IO implied that the two entries containing factual error should also be removed.

11.  On 19 March 2013, the applicant submitted an appeal of the subject OER to HRC.  She states that she had been passed over for promotion once because of the subject OER.  Although she was subsequently selected for promotion to captain and was number twenty on the list with a promotion date of 1 April 2012, her promotion was delayed until October 2012.  On 2 October 2012 she was promoted, but then it was revoked on 10 October 2012.  All of these actions are the direct result of the subject OER.  At the time of this appeal, she says she was released from the AGR program and was assigned to 309th Training Company.  She requested that her OER be removed from her records, or in the alternative, changed in accordance with the IO's recommendation.

12.  On 31 October 2013, the Officer Special Review Board advised HRC that the applicant's appeal was administratively closed because the issue had been previously considered by this Board and denied.  The applicant was informed of that decision in a 1 November 2013 memorandum from HRC.

13.  A review of the subject OER revealed the rater also made these comments in Part V, block b:

* Failed two consecutive inspections during the rating period
* Performed marginally, with occasional significant lapses of judgment to include inputting Soldiers for orders and failing to inform them of their attendance
* Has shown a lack of ability to manage and synchronize the staff sections as necessary
* Has shown a propensity to abdicate responsibility and a failure to admit accountability for her actions, right and wrong, and casts doubt on her ability to serve in a position of leadership and to be responsible for the lives, health, and welfare of Soldiers
* Her performance during this rating period has not been commensurate with an officer of this grade

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that her OER for the rating period ending on 31 July 2011 should be removed from her military records. In the alternative, she contends that:

* The rating of Unsatisfactory Performance, Do Not Promote, in Part Va should be changed to Satisfactory Performance, Promote
* The comment in Part Vb stating she also received a counseling statement from the battalion commander for government credit card delinquency should be removed from the report
* Her promotion to captain, pay grade O-3 should be restored
* She should be reinstated to the AGR Program

2.  The evidence provided by the second commander's inquiry is sufficiently convincing to show that errors of fact exist in the subject OER.  Accordingly, these errors should be removed from the report.

3.  However, based on the IO's determination that the applicant's performance was marginal even with these errors removed, the evidence does not sufficiently support changing the rating from "Do Not Promote" to "Promote."

4.  Furthermore, the available evidence does not support the applicant's request to have her promotion restored or to be reinstated in the AGR program.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

___X___  ___X___  ____X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant partial amendment of the ABCMR’s decision in Docket Number AR20120016042, dated 18 December 2012.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing the following entries from Part V, block b of her OER ending on 31 July 2011:

* "[Applicant's name] has also received a counseling statement from the BN CDR for GOVCC delinquency"
* "Additionally, as Platoon Leader, [applicant's name] was notified by the BDE CDR of being found partially liable in the loss of a sensitive item (NVGs), and was assessed an approved charge of financial liability during this rating period."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing the subject OER from her military records, restoring her promotion, or reinstating her to the AGR Program.




      _______ _   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)                                         AR20130021430





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ABCMR Record of Proceedings (cont)                                         AR20130021430



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