BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20140002947 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the derogatory statements in Part V (Performance and Potential Evaluation (Rater)) of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the rating period 7 May 2007 through 6 May 2008 (hereafter referred to as the contested OER 1) and the DA Form 67-9 covering the rating period 7 May 2008 through 7 June 2008 (hereafter referred to as the contested OER 2). 

2.  In her self-authored statement, the applicant requests the complete removal of the contested OERs.  She then concludes her statement by requesting a rewriting of the marks on her OER for the rating period 7 May 2007 through
6 May 2008 and the removal of the OER for the rating period 7 May 2008 through 7 June 2008. 

3.  The applicant states:

* the derogatory statements in Part V of contested OER 1 are based on unsubstantiated evidence from an incomplete investigation
* contested OER 2 should be removed because each evaluation report should be an individual standalone evaluation for a specific rating period
* the investigation that was conducted showed multiple mistakes at the battalion level including by her battalion commander (rater)
* the investigation centered around two Soldiers, not several Soldiers, who were convicted of crimes they committed together
* one of the Soldiers, on two occasions, failed to show up for hard labor (part of his punishment) and there was no feasible way for her to prove he complied with the punishment
* she commanded a large company consisting of 800 Soldiers with a very diverse mission 
* the investigation into allegations that she mishandled her Uniform Code of Military Justice (UCMJ) authority was not completed until 15 May 2008
* she believes the rater took action on her to detract from his own mistakes; the allegations that she mishandled her UCMJ authority was unsubstantiated 
* in addition to the derogatory OER her chain of command relieved her for cause; she received OER 2 for the same incident
* she was relieved because she allegedly punished two Soldiers prematurely and then aided them in transferring out of Korea before they finished their punishment
* this OER is a result of an erroneous Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigation initiated by her rater
* although all other OERs in her file are exceptional, these two OERs continue to show an inaccurate reflection of her potential, character, and professionalism
* the negative OERs also affect her promotion opportunities to lieutenant colonel (LTC) and other boards
* after the Department of Defense Inspector General (IG) referred her case to Eighth Army and an investigation by a major general who did not find the errors, she was unsure what to do
* she does not have any derogatory records in her restricted or permanent file and to date she does not have the investigation conducted referencing her OER

4.  The applicant provides:

* Two contested OERs 
* DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers)
* Findings and Recommendations Related to the Early Departure of Soldiers from Headquarters and Headquarters Company (HHC), U.S. Army Troop Command-Korea (USATC-K), Prior to Final Action by the Convening Authority on Their Respective Court-Martial Proceedings 
* DD Form 458 (Charge Sheet)
* DA Form 5428-R (Report of Unfavorable Information for Security Determination)
* DA Form 4430 (Department of the Army Report of Result of Trial)
* UCMJ Roster
* DA Form 1594 (Daily Staff Journal or Duty Officer's Log)
* EA Form 641-E (Request for Change of Foreign Service Tour)
* DA Form 31 (Request and Authority for Leave)
* DA Form 137-1 (Installation Clearance Record)
* EA Form 137-1 (U.S. Army Garrison Yongsan Out-Processing Record)
* Email exchange
* Character reference letters

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.  The applicant's records show she was appointed as a Regular Army commissioned officer and executed an oath of office on 20 December 1998.  She completed the Quartermaster Basic Officer Leader Course. 

3.  She served in a variety of stateside and/or overseas assignments and she was promoted to major (MAJ) on 1 November 2007.  She was assigned to and assumed command of HHC, USATC-K on 7 August 2007.

4.  During May 2008, she received the contested OER 1 – an annual OER which covered 12 months of rated time from 7 May 2007 through 6 May 2008 for her duties as company commander, USATC-K.  Her rater was LTC KCC, the battalion commander, and her senior rater was Colonel (COL) JLC, Eighth Army Chief of Staff.  The OER shows in:

	a.  Part II(d), an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed next to the answer "Yes, comments are attached." 

	b.  Part  IVa (Army Values) and Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all areas.
	c.  Part IV(b) (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block in the areas that he saw appropriate to the applicant.    

	d.  Part IV(d) (Officer Development-Were Developmental Tasks Recorded on DA Form 67-9-1a (Developmental Support Form) and Quarterly Follow-Up Counseling Conducted?" the rater placed an "X" in the "Yes" block.  

	e.  Part Va (Performance and Potential Evaluation (Rater) - Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), the rater placed an "X" in the "Satisfactory Performance – Promote" block, and entered the following comments:

[Applicant] did achieve some amazing results as the Commander of over 800 soldiers in Eighth US Army's Headquarters Company.  Whether it was preparing a semi-annual training brief or providing personnel services support, [Applicant] should always be counted on to produce superb results.  During the last two theater-level exercises Ulchi Focus Lens (2007) and Key Resolve (2008), [Applicant's] engaging personality and superior personal skills enabled her to accomplish the many diverse missions given to her company across three major Headquarters Staffs.  In addition to leading an 800+soldier company, she was decisively involved with Lean Six Sigma and the Toastmaster organization.  [Applicant] mishandled her UCMJ authority in several cases, compelling a subsequent withholding of her UCMJ jurisdiction.  [Applicant] would make a significant contribution to any staff.  Send to ILE [Intermediate Level Education]. 

	f.  Part Vc (Comment on Potential for Promotion), the rater entered the comment: "Mentor and train her for future positions of increased responsibility.  Send to ILE."

	g.  Part VIIa (Senior Rater - Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater placed an "X" in the "Fully Qualified" block and a second "X" in the "Yes" block to indicate he senior rated 16 officers of this grade (at the time) and that a DA Form 67-9-1 (OER Support Form) was received with this report and considered in his evaluation and review.

	h.  Part VIIb (Potential Compared with Officers Senior Rated in the Same Grade), the senior rater listed three future assignments for which the applicant was best suited, rated the applicant as Center of Mass (COM), and entered the following comments in Part VIIc (Comment on Performance/Potential):
[Applicant] achieved outstanding results with a company of over 800 soldiers.  [Applicant's] blend of enthusiasm, people skills and common sense enabled her to effectively deal with junior Soldiers and senior officers alike in order to accomplish the mission.  Her flexibility and creativity enabled her to work across three major headquarter staffs to produce trained and ready Soldiers for the battalion. [Applicant] should be considered for positions of increased responsibility and promotion.  [Applicant] has potential for future service.  Send to ILE.

5.  On 13 August 2008, her senior rater referred the contested OER to her for comments.  She acknowledged receipt and submitted a response on 18 August 2008 wherein she stated:

	a.  Her performance as the company commander during the rating period (20070507 through 2008050[6]) was done in the absence of counseling.  She was not provided an initial or intermediate counseling during her time in command.  In the absence of counseling, she performed her duties to the best of her abilities.  Contested OER 1 lacks objectivity and does not reflect her true ability and performance.  The derogatory statement is false and the incident of this matter did not occur during the rating period.  She was not counseled on any incident that the statement is insinuating.

	b.  She requested her senior rater remove the statement by the rater that "she mishandled her UCMJ authority in several cases leading to a subsequent withholding of her UCMJ authority."  She also requested the block indicating the recording of officer developmental tasks on the DA Form 67-9-1a (and the conduct of quarterly follow-up counseling be changed from "Yes" to either "No" or "Not Applicable." 

6.  The contested OER was signed by the applicant's rating officials on 13 August 2008 and by the applicant on 18 August 2008.  The referral memorandum together with her acknowledgement and rebuttal memoranda were attached to the contested OER and forwarded to Headquarters, Department of the Army (HQDA) for filing.  It was processed by the U.S. Army Human Resources Command (HRC) on 10 October 2008.

7.  None of the documents related to the referenced investigation is filed in her official records.  However, she provides: 

   a.  A DA Form 1574 which shows, on 15 April 2008, an investigating officer (IO) was appointed to investigate the issues related to the early departure of Private First Class (PFC) A. G---- and PFC N. G---- despite being flagged and prior to the General Court-Martial Convening Authority (GCMCA) taking action on their post-trial matters. 

	b.  A memorandum, subject: Findings and Recommendations Related to the Early Departure of Soldiers from HHC, USATC-K, Prior to Final Action by the Convening Authority on Their Respective Court-Martial Proceedings, dated 
19 May 2008, which shows: 

		(1)  On 25 October 2007, PFC N. G----, a member of USATC-K, was found guilty at her court-martial and sentenced to a reduction in grade, a forfeiture of pay, a fine, and restriction.  Soon thereafter, the battalion commander had a discussion with [Applicant] about paying close attention to the two PFCs since PFC A. G-----'s court-martial was not for another month or so.  On 16 November 2007, PFC A. G---- was found guilty and sentenced to a reduction in grade, a forfeiture of pay, 60 days of restriction, and 90 days of hard labor.  The legal advisor sent an email to [Applicant] and her battalion commander and battalion sergeant major detailing the punishment and what could and could not be done pending the GCMCA's actions immediately afterwards.  

		(2)  On 20 and 21 November 2007, PFCs N. and A. G----- submitted their respective curtailment requests to the Troop Command.  On 30 November 2007, two weeks following the court-martial of PFC A. G-----, [Applicant] approved and forwarded the curtailment request to the battalion for action.  On 3 December 2007, in the battalion commander's absence, the battalion executive officer approved the curtailment request using the battalion commander's signature stamp and the sergeant major engaged HRC to expedite the PFC's paperwork. 

		(3)  Based on the interviews of key leaders, staff, and confirmation of Standing Operating Procedures (SOP), the following findings apply, limited control measures were in place to address the procedures to request curtailment and the Permanent Change of Station (PCS) clearing process at the Troop Command, battalion S-1, and Military Personnel Division (MPD).  The Troop Command failed to make any conscious efforts to provide leadership or oversight of the two PFCs following their respective court-martial proceedings, due to the Troop Command's negligence to oversee and ensure PFC A. G----- was serving out his punishment (i.e., 60 days of restriction and 90 days of hard labor).  PFC A. G-----, at the most, signed in for extra duty 5 days.  Troop Command knew or should have known that PFC A. G------ was still serving out his punishment at the time of his curtailment and the clearing process was underway (12 December 2007 duty roster where the first sergeant (1SG) was notified that PFC G---- had failed to show only to be told that PFC G----- was with the 1SG).

		(4)  The battalion S-1 failed to properly separate the flagged Soldiers’ files and check the electronic Military Personnel System (eMILPO) or Enlisted Record Briefs (ERB) before processing the two PFCs’ curtailment and clearing documents in violation of the Army regulation requirements.  Additionally, the battalion S-1 Noncommissioned Officer in Charge knew or should have known about checking eMILPO or the PFCs' ERB prior to processing their curtailment and PCS orders given prior instances with various commands about moving Soldiers while flagged.  

		(5)  The MPD processed personnel actions for Troop Command Soldiers with the battalion commander (O-5) in direct contrast to Army Regulation 614-30 (Foreign Service) which requires an O-6 Commander's signature and approval; and the two PFCs exploited the weaknesses and inattention on the part of the Troop Command, battalion S-1, and the MPD to depart Korea prior to the GCMA taking final action on their post-trial matters.

		(6)  Based on the documentation collected and the applicant's statement, the applicant failed to follow the directive from her battalion commander and guidance of legal counsel.  Despite meeting with her battalion commander specifically to discuss legal counsel's email regarding what had to be done and what could not be done regarding punishment on 16 November 2008, [Applicant] stated she was not able to recall the legal counsel's guidance on not moving the Soldiers because the GCMCA had not approved the punishment yet.  Likewise, most of her answers to the IO's questions involved "I do not recall" and "I do not remember" statements regarding the legal guidance and directives given by both legal counsel and the battalion commander.  She likewise answered in the same manner with regard to the issue of failing to inform either the battalion commander or trial counsel of the impending departure of the Soldiers.  Based on the documentation collected during this investigation, the timeline of events and her responses, [applicant's] actions in processing the curtailment actions were not in accordance with Army Regulation 614-30.

		(7)  The IO recommended the applicant receive a General Officer Letter of Reprimand (GOMOR) for dereliction of duty.  She failed to exercise any care with regard to the imposition and supervision of punishment in relation to the PFCs and she failed to adhere to the directives of the battalion commander, advice of legal counsel, and regulatory guidelines, and by allowing both PFCs to PCS prior to them being adjudged by the GCMA following guilty verdicts at their respective courts-martial. 

8.  On 7 June 2008, she was relieved from command.  As a result, she received contested OER 2, a Relief for Cause OER, which covered 1 month of rated time from 7 May 2008 through 7 June 2008 for her duties as company commander, USATC-K.  Her rater was LTC KCC, the battalion commander and her senior rater was COL CYC, Eighth Army Chief of Staff.  The OER shows in:

	a.  Part II(d), an "X" is placed next to the question "This is a referred report, do you wish to make comments?" and another "X" is placed next to the answer "Yes, comments are attached." 

	b.  Part  IVa (Army Values), the rater placed an "X" in the "No" block for the "Duty" value. 

	c.  Part IVb (Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for all attributed and skills.  However, the rater placed an "X" in the "No" block for the "Decision Making," Planning," and "Executing" actions.  

	d.  Part IV(d) (Officer Development-Were Developmental Tasks Recorded on DA Form 67-9-1a (Developmental Support Form) and Quarterly Follow-Up Counseling Conducted?" the rater placed an "X" in the "Yes" block.  

	e.  Part Va, the rater placed an "X" in the "Unsatisfactory Performance – Do Not Promote" block, and entered the following comments:

I relieved [Applicant] from command based on substantiated dereliction of duty which led me to lose trust and confidence in her abilities.  She failed to follow clear guidance from me, her servicing judge advocate and Army regulations regarding the administration of court-martial punishment for two of her convicted Soldiers by ordering both Soldiers to begin serving punishment before the Commanding General [CG] took final action on their cases.  [Applicant] further undermined the CG's authority to act in these cases by substantially contributing to the early departure of these two Soldiers, despite both being flagged, which required them to remain in Korea until the CG took final action on their cases and ordered their punishment properly executed.  This misconduct calls into question [Applicant's] ability to fulfill her professional, legal and moral obligations.  Her lack of sound judgment, unacceptable level of planning and failure to meet mission standards in this case indicates that she is deficient in the planning, execution and logical decision-making skills required of Army leaders. 

	f.  Part Vc, the rater entered the comment: "Requires intense mentoring and training before she is ready for positions of increased responsibility." 

	g.  Part VIIa, the senior rater placed an "X" in the "Do Not Promote" block and a second "X" in the "Yes" block to indicate she senior rated 16 officers of this grade (at the time) and that a DA Form 67-9-1 was received with this report and considered in her evaluation and review (of the applicant). 

	h.  Part VIIb, the senior rater listed three future assignments for which the applicant was best suited, rated the applicant as Below Center of Mass, and entered the following comments in Part VIIc (Comment on Performance/ Potential):

[Applicant] was relieved for dereliction of duty.  I have reviewed this report and found it clear, accurate, complete, and fully in accordance with the provisions of AR 624-3 [Officer Evaluation Reporting System] and DA Pam 623-3 [Personnel Evaluations-Evaluation Reporting System].  [Applicant] needs further mentoring to make her ready for promotion and positions of increased responsibility. 

9.  On 14 August 2008, the applicant's senior rater referred the contested OER to her for comments.  She acknowledged receipt and submitted a response on 11 September 2008 wherein she stated:

	a.  This OER is a result of an erroneous Army Regulation 15-6 initiated by her rater.  It included evidence implicating her rater's actions as substantially impacting on the early departure of Soldiers.  This fact renders his comments as not being impartial.   

	b.  The OER contains derogatory information on actions and an investigation that has not been adjudicated as of 8 September 2008.  The findings and recommendations of the Army Regulation 15-6 drawn on 23 May 2008 suggest a GOMOR.  The filing of this GOMOR is still pending as of the date of this letter.  

	c.  She asked her senior rater to consider the following: 

		(1)  She requested the block indicating the recording of officer developmental tasks on the DA Form 67-9-1a (and the conduct of quarterly follow-up counseling be changed from "Yes" to either "No" or "Not Applicable." 

		(2)  Her error was not implementing proper checks and balances to monitor if punishments were performed or not performed.  She believed her first sergeant (1SG) was telling the truth when he said the punishment of one Soldier was performed early; however, the Army Regulation 15-6 findings pointed out the full punishment was never completed.  With the additional email traffic submitted, it shows that the Soldier who supposedly pulled the punishment had a friendly relationship with the 1SG.   

		(3)  Her action of recommending approval of a curtailment based on a family expecting a child does not play a major role in any Soldier departing Korea.  Any curtailment had to be approved by the battalion commander and by a COL (O-6).  The curtailments bear the signature of her rater and were subsequently processed by the S-1 without an O-6 approval.  All pertinent documents associated with a PCS, including a request for a flag (suspension of favorable personnel actions) removal which lacked a signature but was still processed by the S-1.  The DA Form 31 was initiated by the command sergeant major and signed by the battalion commander, her rater.  All battalion clearing documents were signed by the 1SG.  

		(4)  In the absence of guidance and counseling, she performed her duties professionally, especially when she brought the issue to the chain of command, and, legally, because her actions were not illegal, immoral, or criminal in nature.  Her actions were not deliberate and did not disrupt good order and discipline in the unit.    

		(5)  The block that asks of a support form was completed/received should be marked "No."  A DA Form 67-9-1 was not submitted to her senior rater and she did not have counseling sessions with him when he assumed the duties of chief of staff.  

	d.  By reading Army Regulation 15-6 with enclosed evidence, and matters presented in its entirety will show that her actions were not the cause of two Soldiers departing early.  This impacts the senior rater's decision to rate her as "Below Center of Mass, Retain."  

10.  The contested OER was signed by her rating officials on 4 and 5 September 2008 and by her on 11 September 2008.  The referral memorandum together with her acknowledgement and rebuttal memoranda were attached to the contested OER and forwarded to HQDA for filing.  It was processed by HRC on 22 September 2008. 

11.  She provides:

	a.  Multiple sign-in rosters, daily staff journals, and court-martial convictions of both Soldiers.

	b.  Multiple character reference letters from senior Army officers favorably recommending her for a position in the U.S. Military Academy.  The authors comment on her demonstrated performance, education, and potential. 

12.  There is no indication she has submitted an appeal of either contested OER through HRC to the Army Special Review Board.

13.  Army Regulation 15-185 (ABCMR) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record.  The ABCMR considers individual applications that are properly brought before it.  In appropriate cases, it directs or recommends correction of military records to remove an error or injustice.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  It is not an investigative body.

14.  Army Regulation 623-3 prescribes the policies and tasks for the Army’s Evaluation Reporting System and includes reporting systems for officers.  It includes policy statements, operating tasks, and rules in support of operating tasks.

	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 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 other pertinent regulations.  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 3-19(a) (b) and (c) state any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded.  No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA.  For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself.  If the rated Soldier is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluation reports.  It will also prevent unjustly prejudicial information from being permanently included in a Soldier’s Official Military Personnel File (OMPF) such as charges that are later dropped or charges or incidents of which the rated Soldier may later be absolved. 

	c.  Paragraph 3-19d states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an OER.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the report in accordance with chapter 4.

	d.  Paragraph 3-19e states reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status.  Upon completion of the trial or investigation, processing of evaluation reports will resume.  Evaluation reports will be completed when due and will contain what information is verified at the time of the “THRU” date of the report.

	e.  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.  

	f.  Paragraph 6-11a, states the burden of proof rests with the appellant to justify deletion or amendment of a report.  The appellant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity will not be applied to the report under consideration, and (2) action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility or administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served as a company commander of a headquarters company in Korea, responsible for a large number of personnel and equipment.  

2.  With respect to the first contested OER:
	a.  The applicant received an annual OER that covered the period 7 May 2007 through 6 May 2008.  The rater rated her performance and potential as "Satisfactory Performance - Promote" and her senior rater rated her promotion potential as "Fully Qualified."  The contested OER was a referred OER.  Despite the high rating she received by her rating officials, the OER was a referred OER because it contained derogatory information.  The senior rater referred the OER to her and she provided her comments to the senior rater.  Both the OER and her response are properly filed in her OMPF.  

	b.  The rating officials did not comment on the findings of the investigation.  The rater and senior rater merely stated she mishandled her UCMJ authority, in several cases, and that authority was withdrawn from her.  Neither rating official was prohibited by the governing regulation from addressing their concern about her shortcomings.  She took command in August 2007 and the two PFCs were court-martialed in October and November 2007, respectively.  This happened during the rating period.  Additionally, the language used by the rating officials clearly indicates there were other cases where she handled her UCMJ authority. 

	c.  The fact that the formal investigation into the two PFCs’ actions were not concluded until 15 May 2008 (after the through date of contested OER 1 - 6 May 2008) did not prevent the rating officials from commenting on what occurred.

	d.  An OER is an assessment of her performance and potential during a specified period of time.  During that particular period of time, her rating officials assessed his performance and potential as indicated in the contested OER.  Her dissatisfaction with her "Satisfactory Performance - Promote" and "Fully Qualified" rating, some 6 years after the through date are not grounds to change the rating or remove contested OER 1 from her Official Military Personnel File (OMPF). 

	e.  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.  

	f.  After a comprehensive review of her 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 OER 1 should be changed or removed.  Therefore, she is not entitled to the requested relief.

3.  With respect to the second contested OER:
	a.  An investigation confirmed that the applicant did in fact mishandle her UCMJ authority with respect to the two PFCs.  Accordingly, she was removed from command and received a Relief for Cause OER covering the rating period 7 May 2008 through 7 June 2008.

	b.  Although the IO recommended a GOMOR, the appointing officer was not bound by this recommendation.  But regardless of what the IO recommended, there is no evidence and the applicant has not provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect her performance or potential or that her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.

	c.  The fact that the contested OER is inconsistent with the other reports she previously received has no bearing on the contested OER.  By regulation, each report is an independent evaluation of a rated Soldier for a specific rating period and, essentially, "stands alone."  

	d.  The ABCMR is not an investigative agency.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The ABCMR will decide cases on the evidence of record.  She has not provided any evidence to support this contention. 

	e.  Implicit in the Army's personnel system is the universally accepted and frequently discussed principle that officers have a responsibility for their own careers.  The applicant knew or should have known the procedure to appeal an OER.  It is reasonable to presume she has rated or senior rated junior officers.  The general requirements and workings of the system are widely known and specific details, such as the redress program are widely published in the governing regulation as well as official, quasi-official, and unofficial publications, and in official communications.

	f.  Therefore, also after a comprehensive review of the evidence in the applicant’s official record, her contentions and arguments, and the evidence she submitted in support of her application, she did not show by clear and convincing evidence, that her OER contained a material error, inaccuracy, or injustice.  In view of the foregoing, there is no basis to remove contested OER 2 from her OMPF. 




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)                                         AR20140002947



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ABCMR Record of Proceedings (cont)                                         AR20140002947



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