IN THE CASE OF:	

		BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130021631 


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)) covering the rated period 19 December 2010 through 16 June 2011 (hereafter referred to as the contested OER) be removed from her records.

2.  The applicant states the contested OER was an act of reprisal as a result of a Sexual Harassment and Equal Opportunity (EO) complaint she filed against her senior rater and brigade commander.  She contends that the contested OER represents unfavorable action against her and is in violation of the Army's Sexual Harassment and Assault Response Program (SHARP) and the Military Whistle Blower Protection Act as outlined in Army Regulation 600-20 (Army Command Policy), paragraph 5-12.

3.  Her contested OER, although partially corrected, was still given to her as an act of reprisal for engaging in a protected activity.  The nature of her promotion potential comments, as it stands in her Official Military Personnel File (OMPF), differs greatly from the previous OER given by the same senior rater.  She contends that both parties in her complaint were in a clear position to take unfavorable action against her.  Furthermore, her higher chain of command had the opportunity to protect her by implementing an alternative rating scheme for her evaluation report and denied her request.

4.  The applicant provides:

* an extract from Army Regulation 600-20 
* Memorandum, Time Line of Events
* her contested OER with allied appeal documents
* DA Form 67-9, for the period 19 April 2009 through 18 December 2010
* email correspondence between the applicant and military officials
* Memorandum, Investigation regarding [applicant and third party]
* Memorandum, Appointment of Army Regulation 15-6 Investigating Officer
* DA Form 7279 (Equal Opportunity Complaint Form), dated 23 April 2011
* Memorandum, Request Removal of OER, dated 11 November 2013
* Memorandum, Formal EO Sexual Harassment Complaint Regarding [applicant]
* Officer Special Review Boards Record (OSRB) of Proceedings Docket Number AR20130005479

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving as a captain in the Regular Army.  The complete facts, circumstances, and final investigating officer's (IO) report related to the Army Regulation (AR) 15-6 investigation are not available for review.  All documents relating to the AR 15-6 investigation were provided by the applicant unless otherwise noted.

2.  The applicant provides:

   a.  Her extended annual OER which covered 11 months of rated time from 
19 April 2009 through 18 December 2010 for her duties as the Battalion Adjutant/S-1.  Her senior rater was a lieutenant colonel (LTC), the Battalion Commander, LTC EAL.  The OER shows in Part VII (Senior Rater) that he rated her as "Best Qualified" and further stated she had "absolutely unlimited potential.  Promote to Major at first opportunity and send to resident ILE."

	b.  A memorandum issued by the 4th Brigade, 1st Cavalry Division, U.S. Division, North (USD-N), dated 23 April 2011, which appointed an IO under the provisions of AR 15-6 to conduct an informal investigation pertaining to the applicant's alleged fraternization, disobedience of lawful orders or regulations, and an inappropriate relationship with an enlisted Soldier.  Specifically,

* the facts and circumstances surrounding these allegations
* possible violations of AR 600-20 (Army Command Policy), paragraph 4-14 or Article 134 (Fraternization) of the Uniform Code of Military Justice (UCMJ)
* current marital status of both individuals and whether or not the relationship was romantic
* were counseling or directives given to either individual in regard to this issue, specifically no contact orders
* impact, if any on the Soldiers' units
* other relevant information

   c.  A memorandum from her brigade commander, Colonel BEW, dated 
23 April 2011, the same date as the recommendation listed above, in which he states that he had reviewed and approved the IO's findings and recommended the applicant receive a General Officer Memorandum of Record (GOMOR) and face non-judicial punishment for her acts of fraternization and violation of a lawful order.

   d.  A DA Form 7279, dated 23 April 2011, wherein the applicant filed an EEO complaint directed against her battalion and brigade commanders.  The applicant did not provide the statement that she submitted in support of her complaint; therefore, the exact nature of her complaint is unknown.  The forms provided show that she feared reprisal and was reluctant to file a formal complaint, which is why she submitted the complaint directly to the USD-N.  She requested equal and fair treatment regardless of race, gender, etc and to cease any form of sexual harassment across the brigade.  In addition, she requested to be transferred out of the unit due to fear of reprisal and a conflict of interest.  Page 2 of this document is not completely legible.  The ABCMR analyst compared this document against a legible blank copy and determined that she acknowledged notification of the results of the investigation on 28 May 2011 and that the individuals named in her complaint acknowledged the results of the investigation on 16 June 2011.  The appeal portion of this document is blank.
   
   e.  On 29 May 2011, a general officer reviewed the findings of her Formal EEO complaint and in a memorandum he stated that based on a preponderance of the evidence in the AR 15-6 investigation the alleged discrimination or sexual harassment could not be supported or verified.  He stated he would take the following actions to resolve the complaint and to prevent any reprisal:

* transfer the applicant from her unit
* conduct additional Consideration of Other's training to reinforce aspects of positive communication
* conduct an Inspector General follow-up command climate survey to assess the overall command climate and ensure there are no additional negative impacts to the resolution of the issue
* continue to protect the applicant, any named witnesses, and the subjects of acts of reprisal or retaliation pursuant to his Commander's Plan to prevent reprisal resulting from EO Sexual Harassment complaints
   
   f.  An email correspondence between the applicant and the Brigade S1, Headquarters and Headquarters Company, 4th Brigade Combat Team, Iraq, Subject:  Attachment Orders/OER Rating Chain and communicated between 
6-7 July 2011.  This correspondence shows that the applicant's request for attachment orders based on her transfer of assignment was not supported thus her request to have her OER prepared by her new chain of command was denied.  In this communication the applicant indicated that the Chief of Staff had agreed that having her previous chain of command render her report would be a conflict of interest; however, the applicant provides no evidence to support this contention.
   
3.  On 10 July 2011, the applicant acknowledged receipt of the contested report which contained the following entries:

	a.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance – Promote" block and entered comments in Part Vb, which included the following statement:

Unfortunately, her strong performance was overshadowed by her inability to grasp how her behavior could lead to perceptions of an inappropriate relationship with an NCO

	b.  In Part VIIa (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified" block and entered the following comments:

Unfortunately, [the applicant's] behavior created a perception of having an improper relationship with an NCO resulting in a detrimental effect on the good order and discipline of the battalion staff.  She lacked the capacity to understand the seriousness of this perception, and her attempts to modify her behavior were inadequate.  This resulted in an administrative counseling from the Commanding General.

4.  The contested OER was signed by her rating officials on 5 and 7 July 2011, and subsequently referred to the applicant.  In her rebuttal, dated 10 July 2011, she stated the following:

* the change of rater OER was a result of removing her from a hostile working environment
* her battalion and brigade commanders gave her a perception of sexual harassment and unlawful discrimination based on gender and race, which created a hostile working environment
* the referred OER demonstrated a form of EO and Sexual Harassment reprisal and retaliation toward her for submitting a formal complaint

5.  On 10 March 2013, she submitted an appeal to the U.S. Army Human Resources Command, (HRC).  She contended that she did not have an inappropriate (homosexual based) relationship with a female senior NCO while serving in combat in April 2011 nor was there credible evidence that proves otherwise.  The investigation was not processed to completion and she was absolved from the case because the Commanding General considered the investigation invalid as homosexual fraternization between two females (investigation conducted in April 2011 prior to appeal of Don't Ask Don't Tell) and unauthorized based on violating the homosexual inquiry procedures and policies in AR 600-20.  She requested that the contested OER be removed from her OMPF.  As part of her appeal she submitted a statement from the NCO named in the AR 15-6 investigation which reiterates that there was no improper homosexual relationship between them.

6.  On May 2013, the OSRB granted partial relief of her appeal wherein all negative comments in Part V and Part VII of the contested OER were removed and the OER was marked as a "corrected copy."

7.  Department of the Army personnel are prohibited from taking acts of reprisal against any Soldier for filing a complaint of unlawful discrimination or sexual harassment (see DOD Directive 7050.6).

	a.  No person will restrict a member of the Armed Services from making a protected communication with a member of Congress; an Inspector General; a member of a DOD audit, inspection, investigation or law enforcement organization; or any other person or organization (including any person in the chain of command) designated under this regulation or other administrative procedures to receive such communication.

	b.  Soldiers will be free from reprisal for making or preparing a protected communication.

	c.  No employee or Soldier may take or threaten to take an unfavorable personnel action, or to withhold or threaten to withhold a favorable personnel action, in reprisal against any Soldier for making or preparing a protected communication.

	d.  The chain of command will ensure complainants are protected from reprisal or retaliation for filing equal opportunity complaints.  Should Soldiers be threatened with such an act, or should an act of reprisal occur, they must report these circumstances to the Department of Defense Inspector General (DOD IG).  If the allegation of reprisal is made known to any agency authorized in this regulation to receive complaints, the agency should refer the complaint to the DOD IG.  It is strongly encouraged to simultaneously report such threats or acts of reprisal to the appropriate chain of command.

8.  The applicant provides a timeline of events which shows the circumstances which led to her contested report and her subsequent failure to be selected for promotion.

9.  AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It 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 appellant 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 appellant.

	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 NCO 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, and counseling forms.  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 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring before or after the period covered.

	c.  Paragraph 3-34 states any report with negative comments in Parts Vb, Vc, VI, or VIIc will be referred to the rated officer by the senior rater for acknowledgment and comment before it is sent to Headquarters, Department of the Army. 

10.  Army Regulation 600-8-104 (Military Personnel Information Management/ Records) governs the composition of the OMPF and states that the performance section 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.  Table 2-1 states the DA Form 67-9 is filed in the performance section of the OMPF.

11.  Paragraph 2-5, Section II, AR 15-185, the regulation under which this Board operates, states that the Board will not consider any application if it determines that you have not exhausted all administrative remedies available to you.  

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant was the subject of an AR 15-6 focused on determining if an inappropriate relationship between her and another female Soldier was in violation of the Army fraternization policies.  The final report is not available.  The applicant subsequently filed an EO and Sexual Harassment complaint against her senior rater and brigade commander that was not substantiated but for which, she believes, she received retaliation in the form of a negative OER.

2.  She contends that the contested OER was an act of reprisal; however, Army regulations and statute require that should Soldiers be threatened with such an act, or should an act of reprisal occur, they must report these circumstances to the DOD IG.  There is no evidence to show that the applicant tried to reported this incident to the DOD IG; therefore the applicant has failed to exhaust her administrative remedies in regard to violations of the Whistle Blower Act as the result of her protected communication (filing a Sexual Harassment/EO complaint).

3.  The record shows that upon her appeal for removal of the contested OER, the OSRB granted her partial relief by removing all derogatory comments from the rater and senior rater portions of the contested OER.  This action by the OSRB essentially corrected any material errors contained in the contested OER.  Without evidence of a material or procedural error the applicant's OER must be presumed to be an accurate measure of her performance and potential during a period of time.  There is no evidence, and the applicant provided insufficient evidence, to show her rater and senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner as shown in the corrected evaluation.

4.  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.

5.  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, other than her dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested OER contains a material error, inaccuracy, or injustice.  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)                                         AR20130021631





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ABCMR Record of Proceedings (cont)                                         AR20130021631



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