IN THE CASE OF:  

		BOARD DATE:  22 October 2014	  

		DOCKET NUMBER:  AR20140003946 


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, removal of the annual DA Form 67-9 (Officer Evaluation Report (OER)) for the period 26 July 2010 through 25 July 2011 (hereafter referred to as the contested OER) from her official military personnel file (OMPF).

2.  The applicant states: 

* an incorrect and unjust OER was filed in her OMPF on 13 October 2011
* the OER violated multiple sections of Army Regulation 623-3 (Officer Evaluation Reporting System) and Department of the Army (DA) Pamphlet 623-3 (Evaluation Reporting System)
* the OER was filed without her being afforded the opportunity to review and respond to the OER
* as a result of this OER, she has lost promotion opportunities and deployment opportunities

3.  The applicant defers her evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests removal of the applicant's OER for the period 26 July 2010 through 25 July 2011 (the contested OER) from her OMPF. 

2.  Counsel states:

* the referred OER was filed without a referral memorandum and without being referred to the applicant for notice and comments
* the referred OER was erroneously filed by the Senior Rater under the false pretense that she was presented with the OER but refused to sign it
* allowing the contested OER - with the material errors - to remain in her OMPF is contrary to law and perpetuates injustice

3.  Counsel provides:

* General Officer (GO) letter of recommendation, dated 16 September 2013
* Email exchange dated 27 February 2014 between the applicant and her assignment officer
* Contested OER
* Printout of evaluation reports available by individual look up
* Promotion Orders B-10-106986
* Delay of promotion and referral to a Promotion Review Board (PRB)
* Rebuttal to the delay of promotion and referral to the PRB
* Orders B-10-10698R (revocation of promotion)
* Appeal memorandum, dated 19 August 2012 to the U.S. Army Human Resources Command (HRC)
* Return without action memorandum from HRC
* Orders R-08-189146 (active duty), dated 2 August 2011
* DA Forms 31 (Request and Authority for Leave)
* Notice of Non-continuation for Subsequent Active Duty in the Active Guard Reserve (AGR) Program
* Approval of waiver request for continuation in the AGR

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service, the applicant was appointed as a U.S. Army Reserve (USAR) commissioned officer of the Army and she executed an oath of office on 22 April 2008.  She completed the Adjutant General Basic Officer Leader Course.

2.  She was initially assigned to the 1st Battle Command Training Program, 4th Brigade, 75th Battle Command Training Division, a troop program unit of the USAR in Birmingham, AL, and she was promoted to first lieutenant on 21 October 2009. 

3.  In or around July 2010, she was transferred to another TPU of the USAR, 310th Military Police Battalion, Uniondale, NY.  

4.  During July 2011, she received the contested OER – an annual report that covered 12 months of rated time from 26 July 2010 through 25 July 2011 for her duties as Battalion S-1.  Her Rater was Major MWB, the Battalion Executive Officer, and her Senior Rater was Lieutenant Colonel (LTC) JAG, the Battalion Commander.  The OER shows in:

	a.  in Part II(d) (Authentication-This is a referred report, do you wish to make comments?), one block is marked with an "X" indicating it was a referred report and another, the "No" block is marked with an "X" indicating comments were not attached. 

	b.  in Part IV(a) (Performance Evaluation – Professionalism - Army Values), the Rater placed an "X" in the "Yes" block for all Army values.  

	c.  in Part IV(b) (Performance Evaluation – Professionalism - Leader Attributes/Skills/Actions), the Rater placed an "X" in the "Yes" block for all attributes.  However, the Rater placed an "X" in the "No" block for the "Conceptual" competence skill and the "Decision-Making" leadership action. 

	d.  in 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 "Unsatisfactory Performance - Do Not Promote" block, and entered the following comments:

[Applicant's] performance during the rating period was adequate.  She 
worked well at addressing certain individual Soldier issues.  [Applicant] showed some improvement at tracking battalion S-1 metric items such as evaluations and Medpros updates.  [Applicant] needs to improve her knowledge of Army policies and regulations as well as battalion policies. 
For example, [Applicant] approved a pass for one [of] her Soldiers even though she is not the approval authority.  She needs to improve in the 
areas of decision making and time management.  [Applicant] received a request for information in November 2010.  After no action, the brigade requested action and issued suspense's in January, March and April with 
no response.  After a request came from the Joint Chiefs of Staff in May of 2001 [sic], [Applicant] took action, but took 7 days to respond.  On several occasions she failed to make proper and timely notifications.  [Applicant] completed Equal Opportunity Leader training.  She provided input to units 
and the commander in developing a positive EO program within the battalion. [Applicant] demonstrated some leadership ability as the acting Officer in Charge for 80 members of the battalion HHC [Headquarters and Headquarters Company] during annual training resulting in successful completion of training. 
	e.  in Part Vc (Comments on Potential for Promotion), the Rater entered the following comment, "[Applicant] has the potential for promotion if she can make improvements as noted above."

	f.  in Part VIIa (Senior Rater - Evaluate the rated officer's promotion potential to the next higher grade), the Senior Rater placed an "X" in the "Do Not Promote" block, indicated she senior rated (at the time) 18 officers of this grade, and that a completed DA Form 67-9-1 (OER Support Form) was received with this report and was considered in her evaluation and review.  

	g.  in Part VII(b) (Potential Compared with Officers Senior Rated in same Grade), the Senior Rater placed a "No Box Check" and in Part VII(c) (Comment on Performance/Potential), the  Senior Rater entered the following comments:

[Applicant] seemed to try her best during this rating period.  She hones in on some individual issues, however, [she] has a difficult time as the Battalion S-1 to address the broader responsibilities of her position.  Leading a staff section requires professionalism and integrity that [Applicant] does not possess at this time.  She has a difficult time taking constructive criticism, thereby continuing the same actions over and over again.  She also does not take responsibility for her poor choices.  She should develop her leadership skills through military education and personal growth.  [Applicant] should not be considered for promotion in order to give her the opportunity to embody the tenets of Army Leadership.  If [Applicant] is able to overcome these shortcomings, I see a fine Army career in her future.  The rated officer refused to sign. 

5.  Between 22 August 2011 and 4 October 2011, a series of emails were exchanged between the Rater, Senior Rater, and applicant.  

	a.  15 August 2011, from the Rater to the applicant:  "I received a message from the Commander this morning regarding your leave request and she wants to know your plan for meeting the suspense item you owe her on 22 August prior to approving your leave request.  I believe you owe her your reply to your OER by 22 August.  Please provide me with the plan so I can speak with her.

	b.  15 August 2011, from the applicant to the Rater: "I do not understand.  The BC (Battalion Commander) told me that I have 10 days to rebut the OER.  I stated "yes, ma'am."  I will meet the timeline.  Does she need to meet with me again or do you to receive the rebuttal?  There is no other plan.  I will submit what the BC asked of me on or before 22 August.

	c.  22 August 2011, from the applicant to the Rater:  "Per the BC on today, I was to make some corrections on the attached.  I did not feel comfortable deleting your signature to do so, so the BC asked me to send it to you after I expressed this to her."

	d.  31 August 2011, from the Rater to the applicant with a copy to the Senior Rater:  "I still have not received your response to my last request to please send me the corrections that you and the BC discussed.  As I said I found only 1 or 2 grammatical errors where commas were missing.  If there is more that you and the BC discussed I would please ask you to send to me.  I need this completed ASAP (as soon as possible).  I want to have this to the BC prior to 5 Sept[ember], so she can sign it and forward it to you before she goes TDY (temporary duty)."  

	e.  1 September 2011, from the applicant to the Rater:  "The BC and Brigade staff discussed, along with me, to delete the Letter of Reprimand from the OER.  I spoke to the BC about the type of attachment that may be included in a referred report OER as well as the process it goes through.  She stated that she placed a Relief document in the OER, but I feel it is not allowed as I am not being relieved, but moving on to an O-3 slot.  Relieved has not ever been mentioned to me throughout the entire process.  I do not feel comfortable fixing my OER that you and the BC put together, but I want to receive fairness and justice according to Army Regulation 623-3."

	f.  3 September 2011, from the Rater to the Senior Rater with a copy furnished to the applicant:  "Ma'am, please find [Applicant's] updated OER attached.  She stated that you and she agreed to remove certain attachments. The only attachment I found was the Letter of Reprimand.  I removed this attachment.  She also mentioned that there was a "Relief for Cause" statement attached and it should not be there because she is not being "Relieved."  It is correct that she is not being relieved, but incorrect that this is attached.  When you click on the attachments tab, it shows a blank form to be used if relieved. The [sic] is not actually attached.  It is standard on all OERs.  It only is used when someone is relieved.  The other form that is in the Enclosures tab, but also not currently is a blank form for her response.  I did attached [sic] the summary of the last counseling session that we had.  This is supposed to be included as back up to the referred OER.  This is according to the Brigade S-1."

	g.  4 September 2011, from the Senior Rater to the applicant:  "[Applicant], Attached is your completed and signed OER for your signature and processing. As discussed the only attachment is the Letter of Referral.  Regards.  [Senior Rater].

6.  The contested OER was digitally signed by her Rater on 3 September 2011 and her Senior Rater on 13 October 2011 respectively.  Her acknowledgement memorandum and comments are not available for review with this case.  The contested OER was posted by Headquarters, Department of the Army (HQDA) to her OMPF on 31 October 2011. 

7.  On 25 October 2011, HRC published Orders B-10-106986 promoting her to captain (CPT) effective 1 November 2011.  She had been selected by the Fiscal Year 2011 (FY11) CPT Reserve Component (RC) Army Promotion List (APL).

8.  On 2 August 2011, she was issued orders ordering her to active duty in the AGR program, effective 15 September 2011, with assignment to the U.S. Army Recruiting Battalion, Baltimore. 

9.  On 3 November 2011, after her records had been referred to a DA PRB, HRC published orders revoking her promotion to CPT. 

10.  On 23 April 2012, by memorandum, she was notified that her records were referred to a DA PRB for reconsideration of her promotion status.  As a result of this review, the Secretary of the Army decided to remove her name from the FY11 CPT RC APL promotion selection list. 

11.  On 19 August 2012, she appealed the contested OER through HRC.  However, on 29 August 2012, HRC returned her appeal without action due to insufficient evidence.  An official at the HRC Appeals and Corrections Section explained in detail the appeal process and alerted her to the appeal process contained in Army Regulation 623-3. 

12.  There is no indication she responded to HRC and/or appealed the OER through HRC to the Army Officer Special Review Board.  Likewise, there is no indication she requested a Commander's Inquiry.  

13.  On 24 July 2013, HRC published Orders B-07-304528 promoting her to CPT effective 1 July 2013.  She had been selected by a subsequent promotion selection board (CPT, 2013 APL promotion board). 

14.  On 25 July 2013, by memorandum, HRC provided her with a notice of non-continuation for subsequent duty in the AGR program.  She had been disqualified because she received a referred OER.  She was further informed she would be released from active duty within 90 days from the date of this notification.  

15.  She submitted a request for waiver to continue in the AGR program and provided a GO letter of recommendation from the Deputy Commanding General of the 200th MP Brigade.  The GO recommends reconsideration and waiver of proceedings form removal from the AGR program.  

16.  On 15 November 2013, by memorandum, HRC notified her that after careful consideration of her request for waiver to continue in the AGR program, her waiver request was approved.  

17.  Army Regulation 623-3 prescribes the policies and tasks for the Officer Evaluation Reporting System.

	a.  Chapter 1 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, counseling forms, and as explained in DA Pamphlet 623-3.  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.  Chapter 3 states referred reports are provided to the rated officer for acknowledgment or comment before being sent to HQDA.  If referral is required, the senior rater will place an "X" in the appropriate box in Part II(d) of the completed report (for example, when the Senior Rater has signed and dated the report).  The report will then be given to the rated officer for signature and placement of an "X" in the appropriate box in Part II(d).  The rated officer may comment if he or she believes that the rating or remarks are incorrect.  The comments must be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated officer's referral comments.  Any enclosures or attachments will be withdrawn and returned to the rated officer when the OER is forwarded to DA.  The rated officer's comments do not constitute an appeal.  Appeals are processed separately as outlined in chapter 6.  Likewise, the rated officer's comments do not constitute a request for a Commander's Inquiry.  Such a request must be submitted separately.  If the Senior Rater decides that the comments provide significant new facts about the rated officer's performance and that they could affect the rated officer's evaluation, he or she may refer them to the other rating officials.  They, in turn, may reconsider their evaluations.

	c.  Chapter 6 states the primary purpose of a Commander's Inquiry 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.

	d.  Chapter 6 also 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.

18.  DA Pamphlet 623-3 prescribes the procedures for completing Army evaluation reports for officers.  Table 2-2 states the rated individual will sign and date the report after its completion and signature by all rating officials in the rating chain.  The rated individual's signature verifies the accuracy of the administrative data in Part I, the rating officials in Part II, the Army Physical Fitness Test, and height and weight data in Part IVc, and that the rated individual has seen the completed report, Parts I through VII.  This action increases administrative accuracy of the report since the rated individual is most familiar with and interested in this information.  If the rated individual is unavailable, unable, or fails to sign the report for any reason, the senior rater will either resolve the problem or explain why in Part VIIc and the rated individual's signature is left blank.  The report will not be delayed because it lacks the rated individual's signature.

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant received an annual OER that was derogatory.  It is clear from the email exchange that the OER was referred to her as early as 4 September 2011 when her Senior Rater stated "Attached is your completed and signed OER for your signature and processing; as discussed the only attachment is the Letter of Referral."  It is equally clear that she elected not to submit a statement.  The absence of the actual referral memorandum does not equate or mean the OER was not referred to her. 
3.  Given the exchange of emails, it is reasonable to presume the Senior Rater was not only familiar with the rating process and referral process, but also provided her with an opportunity to submit comments.  

4.  The applicant appealed this OER to HRC but her appeal was deficient.  HRC officials explained to the applicant, by memorandum in August 2012, the appeal process and the required documents.  Generally, in order to support a successful appeal evidence should include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials.  She elected not to respond to the guidance provided.  

5.  There is insufficient compelling evidence that 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.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify its removal.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140003946





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ABCMR Record of Proceedings (cont)                                         AR20140003946



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