IN THE CASE OF:	  

		BOARD DATE:	  10 December 2014 

		DOCKET NUMBER:  AR20140008681 


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 or a change of the following statements in her referred Officer Evaluation Report (OER) (hereinafter referred to as the contested OER) for the rating period 18 March 2010 to 17 March 2011:

	a.  The statement "She failed to meet body fat standards in accordance with AR [Army Regulation] 600-9 [The Army Body Composition Program]" should be changed to "Officer is not medically cleared to participate in the Army Weight Control Program (AWCP)."

   b.  Any comments concerning the unauthorized wear of a combat patch and all comments concerning substandard performance should be removed and a successful rating should be given.

	c.  In the alternative the contested OER should be transferred to her restricted file or removed from her record entirely. 

2.  The applicant states the basis of her appeal is both administrative and substantive inaccuracy. 

	a.  Administrative inaccuracy: 

		(1)  Both counseling statements addressed in the contested OER took place on 10 April 2011, outside of the rating period.  Therefore, neither should be included on her evaluation. 

		(2)  During the rating period she was not medically cleared to participate in the weight control program.  Therefore, no negative comments referring to her weight should be made on her evaluation. 

	b.  Substantive inaccuracies: 

		(1)  The statements indicating she was unauthorized to wear a combat patch were untrue and included as a form of retaliation. 

		(2)  The comments concerning her inefficiency were untrue, contrary to the evidence provided in her support form, and were also retaliatory in nature. 

3.  The applicant further stated the evidence she is providing will prove the contested OER was given in retaliation.  She requested a Commander's Inquiry (CI) look into her contested OER and she filed for protection under the Whistle Blowers Act during the time of the incident, but both requests were ignored.  The command climate was hostile.  She tried to file an appeal to remove the negative performance comments, the comments concerning the unauthorized wear of a combat patch, and the negative comments regarding weight control.  All the counseling statements she received regarding her job performance during the period covered by the contested OER were positive or neutral.  There are no documents or statements to support any of the negative performance comments on this evaluation.  Based on a letter from the Officer in Charge (OIC), her contested OER, and a written review from the 100th Division Office of the Staff Judge Advocate, the duties she performed during the 143rd Expeditionary Sustainment Command (ESC), Kuwait mission from 20-29 June 2008 entitled her to wear a right shoulder patch.  Although she chooses not to wear it, she was and is authorized.  The weight control statement should be removed because she was not medically cleared to be enrolled in or participate in a weight control program.  The appropriate forms were completed by her health care provider during the period covered by the contested OER, but they were ignored by her rater and senior rater.  She has already faced a separation board because of the contested OER for a rating period of 4 months, and a General Officer Memorandum of Reprimand (GOMOR) was placed in her file that is presently being reviewed by a Department of the Army Suitability Evaluation Board (DASEB).  The GOMOR was placed in her file 3 years after it had been discarded.  It is not a coincidence that both her contested OER and the GOMOR were placed into her record during the same time period.





4.  The applicant provides:

* memorandum written to the DASEB, dated 12 March 2014
* letter from the Army Review Boards Agency (ARBA), dated 28 March 2014
* Memorandum for Record (MFR), dated 2 April 2014
* Memorandum written to the U.S. Army Human Resources Command (HRC), dated 2 April 2014
* memorandum from HRC, dated 23 April 2014
* memorandum written to the Army Board for Correction of Military Records (ABCMR), dated 7 May 2014
* table of contents (listing tabs A – E and the evidence contained therein)
* 30 letters of support

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 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 was appointed as a Reserve commissioned officer on 
14 December 2000.  She was promoted to captain (CPT) on 8 February 2007.

3.  Orders Number R-03-781139, issued by HRC, St. Louis, MO, dated 6 March 2007, ordered her to active duty in an Active Guard Reserve (AGR) status for a period of 3 years.  She was assigned to Headquarters and Headquarters Company, 143rd ESC, Orlando, FL, with a report date of 19 March 2007.

4.  Her record contains an OER for the rating period 19 March 2007 to 18 March 2008.  This OER shows her rater was listed as Mr. MJH and her senior rater was listed as Colonel (COL) RDK.  

* her rater checked the block "Outstanding Performance, Must Promote" 
* her senior rater checked the block "Best Qualified"
* her rater stated "she completed a comprehensive Pre-Deployment Sight Survey of Logistical Operations in Camp Arifjan, Kuwait" during the rated period
* her senior rater stated "Her analysis of the logistical requirements in Kuwait was extremely valuable to the Command"

5.  Orders Number 117244, issued by the 81st Regional Readiness Command (RRC), Birmingham, AL, dated 19 June 2008, ordered her to report to Camp Arifjan, Kuwait, on temporary duty (TDY).  Her proceed date was listed as 
20 June 2008.  Her orders state she was ordered on TDY in support of the Global War on Terrorism (GWOT) to conduct a leader's reconnaissance.  These orders were later amended by Order Number 123901, issued by the 81st RRC, Birmingham, AL, on 26 June 2008.  The amendment changed her TDY from a period of 8 days to a period of 9 days.

6.  The following evidence pertains to a sequence of events that occurred while the applicant was assigned to the 143rd ESC between on or around 6 February 2009 to January 2011, when she was reassigned.  The primary focus of the evidence pertains to a GOMOR issued to the applicant during this period.

	a.  Orders Number 035-367, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison, Fort Bragg, NC, on 4 February 2009 shows she was assigned to Fort Bragg, NC, for a temporary change of station (TCS) with a will proceed date of on or about 6 February 2009.

	b.  Her record contains a GOMOR, issued by the Commanding General, Brigadier General (BG) DIS, 143rd ESC, Orlando, FL, on 17 February 2009 showing she was reprimanded for committing the offense of failure to report, willfully disobeying a commissioned officer, and failure to obey an order.  The GOMOR states:

       (1)  She was ordered to report for duty at Fort Bragg, NC, on 12 January 2009 at 1600 hours.  On 11 January 2009, at 1715 hours, she asked LTC ARA, her commissioned officer, for an exception to policy memorandum prohibiting movement to a mobilization via a personally owned vehicle (POV).  She requested she be permitted to drive her POV with LTC DW from Orlando, FL, to Fort Bragg, NC.  In that conversation, LTC ARA granted her request and ordered her to report to Fort Bragg at 1600 hours.  However, she failed, without authority, to report to Fort Bragg, NC, on 12 January 2009 at 1600 hours.  She was contacted by LTC ARA at 1705 hours and ordered to report immediately; however, she did not report to LTC ARA until after 2159 hours.  Therefore, she absented herself from her place of duty without authority for approximately 
6 hours.
		(2)  On Sunday, 18 January 2009, Major (MAJ) CH informed the applicant that he was her new superior officer.  MAJ CH told her she was to inform him of all her medical appointments and report to him daily at 0800 hours.  She failed to report to him at 0800 hours on:

* 21 January 2009
* 22 January 2009
* 28 January 2009
* 29 January 2009

	c.  Her record contains an OER for the rating period 18 March 2008 to 
17 March 2009.  This OER shows her rater was listed as Mr. MJH and her senior rater was listed as COL RDK.  

* her rater signed this OER on 20 April 2010, her senior rater signed the OER on 10 December 2010, and she signed the OER on 10 January 2011 [all signatures occurred more than 90 days after the end date of the report]
* her rater checked the block "Satisfactory Performance, Promote" 
* her senior rater checked the block "Fully Qualified"
* both her rater and senior rater stated she was medically disqualified for deployment

	d.  She provided an MFR issued by First Sergeant (1SG) SV of the 143rd ESC, on 18 May 2009.  The MFR was addressed to BG DIS, who issued the applicant’s previous GOMOR.  He argued, in effect, that the applicant was accounted for and reported for duty at all prescribed times during the mobilization and met all requirements.  1SG SV further stated the unit attended medical appointments in mass formation. The unit was not divided into sections and did not report to their section leaders.  The applicant was identified as a "medical holdover" Saturday morning, 16 January 2009, and the company removed the applicant’s name from the rosters and she was told to no longer report to the 143rd ESC. 

	e.  Her record contains an OER for the rating period 18 March 2009 to 
17 March 2010.  This OER shows her rater was listed as Mr. MJH and her senior rater was listed as LTC DLE.  

* she did not sign the OER 
* her rater checked the block "Satisfactory Performance, Promote" 
* her senior rater checked the block "Fully Qualified"
* both her rater and senior rater stated she was medically disqualified for deployment
	f.  She provided an MFR, issued by Mr. EM, on 1 April 2013.  The MFR was titled "Unauthorized transfer of [GOMOR] from [the applicant’s restricted file to her performance file]."  

		(1)  Mr. EM stated the purpose of the MFR was to affirm the applicant’s claim that the GOMOR was removed from her Official Military Personnel File (OMPF) before she was reassigned from the 143rd ESC.  

		(2)  Mr. EM stated, as one of her direct supervisors in the rear detachment, he was kept informed of the situation before, during, and after she received the GOMOR, and he was privy to BG DIS’s decision to remove the GOMOR when he returned from Afghanistan.

		(3)  Mr. EM did not support the GOMOR.  The applicant was not under the command and control of the 143rd ESC when she received the GOMOR.  She received the GOMOR during the time she was assigned to another unit for medical processing.  LTC ARA was a recently-assigned cross-level Soldier and had only worked with the applicant for a little over 2 weeks.  The other Soldier involved with filing the GOMOR, MAJ CH, was relieved for an altercation that occurred later between himself and the applicant.  Approximately 10 people witnessed this altercation and the applicant was found innocent and in no way responsible for either of these situations.  

7.  The following evidence pertains to a sequence of events that occurred while the applicant was assigned to 1st Battalion, 411th (Logistical Support) Regiment, 4th Cavalry Brigade, Fort Knox, KY, from on or about January to June 2011 until she was reassigned.  The primary focus of the evidence pertains to the contested OER issued to the applicant during this period.

	a.  She provided a memorandum issued by the Ireland Army Community Hospital, Fort Knox, KY, on 6 January 2011.  In this memorandum to her commander, titled "Weight Control Program," her physician stated she was not medically cleared to participate in the weight control and exercise program because she had an underlying medical condition that required treatment.  Her physician further stated the estimated time before the applicant could participate in the AWCP and exercise program was 3 months [on or about 6 April 2011].

	b.  She provided a DA Form 4856 (Developmental Counseling Form), issued by Major (MAJ) RYB, the executive officer of 1st Battalion, 411th (Logistical Support) Regiment, 4th Cavalry Brigade, Fort Knox, KY, on 28 January 2011.  This counseling was issued as an initial 60-day counseling that outlined her duties and responsibilities.
	c.  Orders Number KX-045-0012, issued by the U.S. Army Installation Command, Fort Knox, KY, on 14 February 2011 shows she was deployed in a TCS status to 1st Battalion, 411th (Logistical Support) Regiment, 4th Cavalry Brigade, Fort Knox, KY.  She was attached to Headquarters, 205th Infantry Brigade, Camp Atterbury, IN.  Her will proceed date was listed as on or about 
11 February 2011.

	d.  Her contested OER for the rating period 18 March 2010 to 17 March 2011 was an annual report covering 4 months of rated time.  This OER shows her rater was listed as MAJ RYB, her intermediate rater as LTC TDC, and her senior rater as COL PJD.  Her rater and intermediate rater signed this OER on 13 May 2011, her senior rater signed the OER on 24 May 2011, and she did not sign the OER. Additionally, this was a referred report and shows in:

		(1)  Part IVa (Army Values) that her rater marked the "NO" block for the Army values listed in items 1 (Honor) and item 2 (Integrity).

		(2)  Part IVb.1. (Leader Attributes) that her rater marked the "NO" block for the attribute listed in block b.2. (Physical).

		(3)  Part IVc. (Weight) that her rater entered "NO" indicating she exceeded her authorized weight and body fat allowance on 8 January 2011; however, this form also indicates she passed her Army Physical Fitness Test (APFT).

		(4)  Part Va (Performance and Potential Evaluation) that her rater checked the "Other" block.

		(5)  Part Vb. (Comments on Specific Aspects of the Performance) that her rater stated, "[The applicant's] performance was marginally acceptable…she requires a lot of guidance, direction and close supervision.  [The applicant] was successful in completing specific tasks when given ample time and a great deal of guidance and direction on how to complete the assigned tasks…Under close supervision, [the applicant] was successful…During this rating period, [the applicant] was observed wearing an unauthorized 143rd ESC combat patch as a right Shoulder Insignia thereby violating her integrity and honor.  She also failed to maintain body fat standards in accordance with AR [Army Regulation] 600-9."

		(6)  Part Vc. (Comments on Potential for Promotion) that her rater stated, "Do not promote at this time."

		(7)  Part VI (Intermediate Rater) her intermediate rater stated the applicant's "performance was marginally acceptable…but she struggles at multi-tasking and completing tasks in a timely manner.  It is my opinion that she is not ready for promotion to major.  I have observed that [the applicant] required a lot of close supervision, guidance, and direction.  [The applicant] compromised her integrity, because it was observed that during the rating period, she was wearing an unauthorized combat patch from the 143rd ESC.  Additionally, [the applicant] exceeded body fat standards IAW AR 600-9; she has very limited… potential."

		(8)  Part VIIa. (Evaluate the Rated Officer's Promotion Potential to the next Highest Grade) that her senior rater marked the block "Do Not Promote."

		(9)  Part VIIc. (Comment on Potential/Potential) that her senior rater stated, "[the applicant] has performed in a marginal manner this rating period.  When given clear guidance, single tasks, and a stress free work environment she accomplishes most tasks.  Continue to provide direct supervision and developmental opportunities to further [the applicant's] skills to enable her to perform at the level expected of a Captain [CPT].  Not suitable for promotion at this time.  Officer refused to sign OER."

	e.  She provided a memorandum issued by the Ireland Army Community Hospital, Fort Knox, KY, on 4 April 2011.  In this memorandum to her commander, entitled "Weight Control Program," her physician stated she was not medically cleared to participate in the weight control and exercise program because she had an underlying medical condition that required treatment.  Her physician further stated, the estimated time before the applicant could participate in the AWCP and exercise program was 3 months [on or about 4 July 2011].

	f.  She provided two DA Forms 4856, issued by LTC TDC, her battalion commander, on 10 April 2011.

		(1)  The first counseling statement shows she was counseled for violating Article 134 of the Uniform Code of Military Justice (UCMJ) by wearing an unauthorized Shoulder Sleeve Insignia-Former Wartime Service (SSI-FWTS).  LTC TDC stated:

		     (a)  Since the applicant’s arrival in his unit in November 2011, he had observed her wearing an SSI-FWTS from the 143rd ESC.  It had come to LTC TDC’s attention that the applicant did not deploy to a combat zone with her previous unit and, therefore, she was not authorized to wear an SSI-FWTS.

		     (b)  She was informed that the unauthorized wearing of the SSI-FWTS was a violation of Article 134 of the UCMJ (Wearing of Unauthorized Insignia) and Article 133 of the UCMJ (Conduct Unbecoming an Officer).  She was directed to remove her SSI-FWTS until she could prove she was authorized to wear the insignia.  
		     (c)  LTC TCD stated she was hereby being formally notified of her deficiencies and that "any further acts of substandard performance of duty, moral or professional dereliction" could cause her to be involuntarily separated or eliminated.

		     (d)  LTC TCD further stated he had informed COL PJD, the brigade commander, of the situation.  He stated the applicant would be flagged for adverse action pending UCMJ action.  He also ordered her to move out of her apartment (no later than 13 April 2011) into a new location so she would be closer to the Headquarters and Headquarters Company where he and the brigade commander had decided to reassign her temporarily.  She was further ordered to report to her new supervisor no later than 0800 hours on 14 April 2011.  

		     (e)  She disagreed with the counseling and stated she had been informed by her previous chain of command that she was authorized to wear the SSI-FWTS.

		(2)  She was counseled for exceeding her maximum authorized weight during a weigh-in conducted on 9 April 2011 and was informed that as a result, she was being placed on the AWCP.  However, she disagreed with this counseling statement and stated she was medically unable to meet the standards.

	g.  She provided a memorandum entitled "[Applicant’s] Rebuttal to the Administrative Letter of Reprimand," dated 27 April 2011, wherein she indicated/stated her rater, MAJ RYB, and senior rater, LTC TCD, were out of control and treating the staff poorly by yelling at them and belittling them in public and in front of other Soldiers.  The applicant also stated:

		(1)  She had been suffering from stress and anxiety because she had been through a stressful ordeal involving a "stalker."  Additionally, LTC TDC and MAJ RYB forced her to inform them of everything that happened during her private therapy sessions even though it was protected and private information.

		(2)  She had a well-documented medical/thyroid condition and was being treated with medication.  Nevertheless, MAJ RYB and LTC TDC constantly counseled her about her weight and placed her on the AWCP even though, with medication, she was losing weight.  On one occasion she overheard MAJ RYB discussing and laughing about her weight with subordinate enlisted Soldiers.

		(3)  She was told by LTC TDC to wear her SSI and he even had the S-1 verify her authorization to wear the SSI.  When she informed him that she did not wish to wear the SSI he became very insistent that she wear the patch.  However, LTC TDC later punished her for wearing the SSI by insinuating she was not authorized.

		(4)  She was afraid of LTC TDC and MAJ RYB.  LTC TDC and MAJ RYB fed off each other's anger and would fly off the handle sometimes, driving the staff (junior officers and enlisted Soldiers) to tears.  She wanted to protect the Soldiers in her section who worked for LTC TDC and MAJ RYB but felt helpless and it felt like they were "under attack" all the time.  On one occasion she was scheduled for training and LTC TDC and MAJ RYB forced her to purchase her airfare with her own money.  Her work environment and that of her fellow Soldiers became very hostile and she requested to see the Equal Opportunity Representative or the Inspector General (IG).  LTC TDC told her he had IG experience and stated that he did not think she had a case and recommended she utilize the Brigade Commander, COL PJD’s, open door policy.  After she used the open door policy, on 24 March 2011, she began receiving negative counseling at least three times per day and:

		     (a)  her rating chain had been interfering with her doctor's appointments and attempting to influence her doctors to find her mentally or physically unfit for duty so they could get rid of her; 

		     (b)  she was removed from her duty position and reassigned – she was given days to clear her quarters and she received a negative OER; and 

		     (c)  she believed the comments and rating on her contested OER were a form of retribution and not indicative of her job performance.

	h.  She also provided documents and an email, dated 27 April 2011, showing she filed an IG complaint as a whistle blower and then later requested to retract her complaint.

	i.  Her record contains a memorandum, dated 16 May 2011, showing she acknowledged receipt of the contested OER and stated:

		(1)  She was enacting her right to refuse to sign the OER and to address it in other avenues afforded to her under Field Manual 27-1 (Legal Guide for Commanders), chapter 10 (Soldiers' Rights, Responsibilities, and Restrictions).

		(2)  She stated the contested OER was not based on her performance or her accomplishments as outlined in her DA Form 67-9-1 (OER Support Form); but rather as a form of retaliation for her seeking assistance on 26 March 2011 under the brigade commander's open door policy.  She also stated the comments in the contested OER were unwarranted, undeserved, and some had never been seen before.

		(3)  She stated the risks to her career and emotional well being that the additional statements concerning her OER would cause by placing her in deeper jeopardy within the brigade were more than she wished to subject herself to at that time.  Therefore, she was enacting her right to refuse to sign her OER until the issues concerning her OER had been addressed at a later date.  She further stated she was scheduled to be transferred on 16 June 2011 and requested a CI be conducted to look into her OER after her departure.

	j.  She provided a memorandum, issued by LTC RKM of the Office of the Chief, Army Reserve, Pentagon, Washington, DC, dated 27 February 2014.  LTC RKM stated/verified:

		(1)  The applicant deployed to Camp Arifjan, Kuwait from 20 June 2008 to 
29 June 2008 as a member of the 143rd ESC pre-deployment site survey (PDSS) team tasked with conducting an assessment of the 1st Theater Support Command (TSC) mission requirements associated with combat operations in the Central Command (CENTCOM) area of operations.  The 143rd ESC was identified to mobilize and deploy as a staff augmentation element for the 1st TSC based in Kuwait with a forward presence in Afghanistan.  

		(2)  The applicant represented the 143rd ESC G-4 on the PDSS, engaging her 1st TSC staff counterparts in every aspect of their duties.  As part of her PDSS checklist, the applicant began the process of determining inventory requirements and identified equipment shortfalls that served as a baseline for the 143rd Mission Essential Equipment List and an Operational Needs Statement.  The applicant's efforts on the PDSS supported the overall mission of the 1st TSC and enhanced the 143rd ESC deployment preparations.  

	k.  She provided a memorandum issued by the Deputy Staff Judge Advocate (SJA), MAJ PLC, for the Commander of the 100th Training Division (Operations Support), Fort Knox, KY, on 27 January 2014.  This memorandum was entitled "Legal Review – Eligibility for Wear of SSI-FTWS."  MAJ PLC stated:

		(1)  After a review of the current policies and guidelines, the applicant's activities while in Kuwait, and available analogous situations, it was MAJ PLC's opinion that the applicant was eligible to wear an SSI-FWTS.

		(2)  The applicant deployed to Camp Arifjan, Kuwait from 20 June 2008 to 
28 June 2008 for a PDSS.  In addition to her duties for the site survey, she assisted the 1st TSC in the performance of their operational duties.
		(3)  Army Regulation 670-1 (Wear and Appearance of Army Uniforms and Insignia), paragraph 21-17, All Army Activities (ALARACT) Message Number 055/2007, and ALARACT Message Number 199/2010 govern the award and wear of the SSI-FWTS.  A Solider is eligible to wear an SSI-FWTS if they deploy during a period of service designated for wear of the SSI-FWTS and during that deployment perform duties that support combat operations or engage in combat. There is no time-in-theater requirement.

		(4)  The applicant's original mission was to perform a PDSS for the 143rd ESC in support of the unit's upcoming deployment.  There is some debate (and no definitive answer) MAJ PLC could locate that pre-deployment surveys do not qualify as performing duties in support of combat operations.  The only exclusions MAJ PLC could find related to being in Kuwait exclusively to train on equipment or perform recruiting and retention duties.  However, the fact that the applicant assisted the 1st TSC with their daily operations takes her out of the grey area of whether or not a PDSS qualifies as support of combat operations.  With no time-in-theater requirement, the fact that the applicant assisted the 1st TSC with inventories and other logistical requirements took her mission from PDSS to performing duties that directly supported combat operations.

		(5)  Based on the current eligibility requirements and statements provided by the applicant and the Officer in Charge of the PDSS [LTC RKM], MAJ PLC's legal opinion was that the applicant was and is eligible to wear the SSI-FWTS.

8.  Her record contains three more OERs after her departure from 1st Battalion, 411th (Logistical Support) Regiment, 4th Cavalry Brigade, Fort Knox, KY.  The rated periods for these OERs were listed as 16 June 2011 to 15 June 2012, 
16 June 2012 to 1 December 2012, and 2 December 2012 to 1 December 2013. Her record contains an OER for the rating period 18 March 2009 to 17 March 2010.  All three OERs show her rater was listed as COL DMB and her senior rater was listed as COL JAB.  

* her rater checked the block "Outstanding Performance, Must Promote" on all three evaluations
* her senior rater checked the block "Best Qualified" on all three evaluations

9.  She provided a memorandum entitled, "Initiation of Elimination," issued by HRC on 18 March 2013.  This memorandum informed her:

	a.  She had been identified by the Force Sustainment Division to show cause for retention on active duty under the provisions of Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 4-2a (substandard performance of duty) and paragraph 4-2b (Misconduct).  This action is based on the following specific reasons for elimination:

		(1)  Substandard performance of duty resulting in a referred OER dated 
18 March 2010 – 17 March 2011 for marginal duty performance and failure to meet height/weight standards under Army Regulation 600-9 (The AWCP).  

		(2)  Substantiated derogatory information resulting in a GOMOR, dated 
17 February 2009, for failure to report and willfully disobeying an order.

	b.  In conjunction with this action, a DA Form 268 (Suspension of Favorable Personnel Actions (FLAG)) had been initiated according to Army Regulation
600-8-2 (FLAGS).  

10.  On 29 March 2013, she acknowledged receipt of the notification and elected a board in inquiry.

11.  Her record shows she applied to the Department of the Army Suitability Evaluation Board (DASEB) to have her GOMOR removed/transferred to her restricted file on two separate occasions.  The DASEB denied her first request on 7 November 2013.  However, her second request was approved on 8 May 2014 and the DASEB directed the GOMOR be moved to her restricted file.

12.  The applicant’s Interactive Web System record contains a series of entries from 25 July 2014 to 18 August 2014 which show the applicant had been identified as a two-time non-select for promotion to the next higher grade (MAJ).  Officials at HRC were processing her for separation.  Her retirement points had been recalculated and by the time she reached her separation date she would only have 17 years of total creditable service.  Additionally, because she was not selected for continued service and did not have 20 years of creditable service for a non-regular retirement, she would be discharged on 1 January 2015. 

13.  Orders Number C-08-410858 and D-08-490086, issued by HRC on 5 August 2014 show she is scheduled for discharge from the AGR program on 1 January 2015.

14.  Headquarters, U.S. Army Reserve Command, Office of the SJA, Fort Bragg, NC, issued a memorandum, dated 7 August 2014, in response to inquiries by her Member of Congress.  The SJA stated:

	a.  The applicant alleges the 4th Calvary Brigade, Fort Knox, KY, violated the Whistle Blower Protection Act, Title 10, U.S. Code (USC), section 1034, when they denied her the right to protected communications, harassed her, and took several personnel actions in reprisal against her after she reported several violations of the law, including incidents of discrimination, degradation, and inappropriate behavior.  The applicant alleges the reprisal was committed by the Commander and Executive Officer, 1st Battalion, 411st Logistics Support Regiment, 4th Calvary Brigade, 1st Army Division East.  The SJA contacted the office of the IG, Headquarters, 1st Army Division East, to determine the status of the Whistle Blower Protection Act/reprisal investigation and they provided the response below.

	b.  The IG conducted an investigation into the allegation made by the applicant and completed it in 2011.  The allegations were unsubstantiated.  The IG notified the applicant of the findings of the report in 2011.  However, when advised by the SJA on 30 July 2014 that the applicant never received the IG’s findings, the IG re-notified her of the results on 31 July 2014.  The notice also informed the applicant that she could request a redacted copy of the Report of Inquiry (ROI) under the Freedom of Information Act from the Department of the Army IG (DAIG).

	c.  The SJA also contacted the 4th Calvary Brigade, and they responded that the Commander and Executive Officer were no longer assigned to the 4th Calvary Brigade.  However, the current commander reviewed the 20 May 2011 Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) Investigation (AR 15-6 investigation) into the applicant’s complaints and found that all the allegations were unsubstantiated.  There was no evidence of any reprisal taken against the applicant by anyone in the command.  The claim of a hostile work environment was also unsubstantiated.  A command climate survey was also conducted on 14 May 2011, which revealed no evidence of a hostile or abusive environment.  Lastly, there were no findings of any violations of the Sexual Harassment/Assault Response and Prevention (SHARP) policy or sexual harassment.  

15.  During the processing of this case, a completed IG ROI was received, on 
24 September 2014.  The IG ROI shows:

	a.  On 27 April 2011, the Fort Meade, MD, IG office (IG-2) was notified by the Camp Atterbury, IN, Acting Command IG (IG-1), that the applicant, who was assigned to the 4th Calvary Brigade, had come to IG-1 with a complaint against her battalion commander.  The applicant made allegations against her commander concerning a hostile command climate.  The applicant stated bad things began happening to her after her complaint and alleged that this was reprisal for her having complained.  IG-1 made a referral of the applicant’s complaint to the Brigade Commander for inquiry.  As a second issue, IG-1 indicated that in working on the applicant’s complaint, the applicant became very upset with IG-1 and made statements to her commander that she felt IG-1 was incompetent.  Upon learning of this from the commander, IG-1 informed the applicant that if she was dissatisfied with the IG support she was receiving or felt the IG had done something wrong the applicant should file a complaint and/or take her issue to another IG.  Based on this secondary issue, IG-1 referred the applicant to IG-2.  

	b.  On 2 May 2011, IG-2 contacted the applicant and coordinated a meeting on 6 May 2011 to discuss her complaint.  IG-2 also asked her about her concerns with IG-1.  After discussing the issue with IG-2 the applicant stated she had realized she misunderstood IG-1’s actions and believed she was just as much at fault in their conflict as IG-1.  IG-1 apologized to the applicant and the applicant seemed satisfied with the outcome of the secondary issue and requested no further action with regard to that issue.

	c.  On 6 May 2011, IG-2 and the applicant discussed her complaint against her commanders in detail.  IG-2 had IG-1 collect all the supporting documents. IG-2 typed a Memorandum for Record (MFR) of the meeting and included the supporting documents.  The 1st Army Division East IG office reviewed the documentation and paperwork sent by IG-1 and the original Department of the Army IG Action Request.  IG-2 made contact with several personnel through the IG channel and it was determined the 1st Army Division East IG office was the correct office to work the applicant's case and her complaint was forwarded to that office.

	d.  On 25 May, IG-3 at the 1st Army Division East IG was assigned to the applicant’s case.  IG-3 called the applicant and asked her specifically what she wanted the IG to do for her.  She stated, first, she wanted the IG to change her OER to reflect her accomplishments; second, she wanted the IG to move her out of her unit; and third, she wanted the IG to protect her under the Whistle Blower Protection Act because LTC TDC stopped her from using COL PJD’s open door policy and a hostile work environment was created by LTC TDC and MAJ RYB.  IG-3 informed the applicant that the IG was not the correct forum to address her OER or personnel reassignments; however, IG-3 would investigate her third request.  

	e.  On 2 June 2011, IG-3 contacted DAIG and requested and received a copy of the whistle blower/reprisal questionnaire.  DAIG stated the applicant needed to fill out the questionnaire to determine if the case would be considered a whistle blower/reprisal case.  

	f.  On 13 July 2011, IG-3 received the completed whistle blower/reprisal questionnaire from the applicant.  
		(1)  IG-3 received CI paperwork showing COL PJD had investigated the allegations of a hostile work environment, an inappropriate relationship, and the overweight counseling.  None of the allegations listed in the CI were found substantiated by the investigating officer (IO).  

		(2)  IG-3 investigated the reprisal/whistle blower allegations and found the allegations were not substantiated.  The primary reason for this determination was that the applicant was getting into trouble prior to IG or higher assistance from her chain of command.  It appeared the applicant’s chain of command was attempting to help her by using professional criticism and counseling.  The preponderance of evidence shows the applicant requested an open door meeting with COL PJD and received it, though not the type of meeting she wanted.  IG-3 felt COL PJD attempted to diffuse the situation between the applicant, LTC TDC, and MAJ RYB by meeting with all of them at one time.  However, she was not refused a one-on-one meeting; she just had it after the initial meeting that included LTC TDC and MAJ RYB.  Various email transmissions also show her chain of command attempted to resolve her issues before she sought IG assistance; they never denied her communication with the IG.  IG-3 found:

		    (a)  The applicant made a protected communication with COL PJD using his open door policy.

		    (b)  The preponderance of evidence suggests unfavorable personnel action was not taken or threatened and that favorable personnel action was not withheld following the protected communication.  The applicant was already showing patterns of misconduct at the time the protected communication with COL PJD was made.

		    (c)  LTC TDC and MAJ RYB, the officials responsible for taking, withholding, or threatening personnel action, were aware of the protected communication.  She informed them she wanted to make the protected communication using COL PJD’s open door policy.  The protected communication was not denied, it occurred 2 days after her request.

		    (d)  The preponderance of evidence suggests the applicant was performing poorly prior to her protected communication and that personnel actions would have been taken, threatened, or withheld regardless of whether or not the protected communication had taken place.  IG-3 felt the applicant was attempting to utilize the Whistle Blower Protection Act in an effort to prevent the referred OER.

		(3)  The applicant informed IG-3 that the CI findings with regard to her weight control were untrue.  She stated that COL PJD told the IO to change certain things in the report to reflect poorly upon the applicant.  IG-3 contacted the IO to inquire about the applicant’s allegations.  The IO stated that he never told the applicant anything of that nature and that COL PJD had never attempted to influence the CI or change the completed report.

		(4)  The applicant also informed IG-3 that the IO investigating the allegations of a hostile work environment refused to see her in an email.  After a review of the email traffic, IG-3 stated there was no evidence showing the IO had refused to see her, the IO simply stated, "There’s really no reason to meet until you’ve provided a sworn statement."

		(5)  IG-3 reviewed all the evidence and made the decision, based upon regulations and the preponderance of evidence, that the applicant’s allegations of reprisal/whistle blower were not substantiated.  

	g.  18 July 2011, IG-3 contacted the applicant and requested her updated information because she moved to a new unit.  IG-3 also prepared the final response letter to inform the applicant that her allegations were looked into but not substantiated.  The applicant made a lot of allegations towards many higher ranking officers, all of which cannot be proven or substantiated by anyone, including the officers she identified as being able to substantiate her allegations.  

16.  ALARACT Message Number 055/2007 was published to serve as implementing instructions for changes to the wear policy outlined in Army Regulation 670-1, Appendix F, SSI-FWTS.  This guidance applies to Soldiers of all components (Active, Army National Guard (ARNG), and U.S. Army Reserve (USAR)) that deploy during periods of service designated for wear of the SSI-FWTS, in accordance with Army Regulation 670-1, paragraph 28-17.  There is no time-in-theater requirement to be authorized to wear the SSI-FWTS.  A deployed unit (company or higher) will wear their unit's SSI as the SSI-FWTS.  This is true regardless of whether the headquarters element deploys, and regardless of the number of changes to the unit’s alignment or operational control during the period of deployment.  When echelons below company level deploy, members of these units will wear the SSI of the lowest echelon deployed unit (company or higher) in their new deployed chain of command as their SSI-FWTS.

17.  ALARACT Message Number 199/2010 was published to reemphasize the wear policy for the SSI-FWTS.  Commanders and leaders at all levels will comply with Army Regulation 670-1, paragraph 28-17, and ALARACT message 
055-2007, which outlines changes to the wear policy for the SSI-FWTS.  Units and Soldiers that are deployed to combat areas of operations on training exercises or in support of operations other than combat operations are not authorized wear of the SSI-FWTS, unless those exercises or operations become combat or support missions in the area of operation.

18.  Army Regulation 670-1, paragraph 21-17 (SSI-FWTS) states the authorization to wear an SSI indicating FWTS applies only to Soldiers who are/were assigned to U.S. Army units, and the Secretary of the Army or higher must declare the theater or area of operation as a hostile environment to which the unit is assigned or Congress must pass a Declaration of War.  The units must have actively participated in or supported ground combat operations against hostile forces in which they were exposed to the threat of enemy action or fire, either directly or indirectly.  Soldiers of all Army components (Active, ARNG, and USAR) who deploy during periods of service designated for wear of the SSI-FWTS are authorized to wear an SSI-FWTS.  There are no time-in-theater requirements for authorization to wear the SSI-FWTS.  Soldiers may not earn more than one SSI-FWTS during the same deployment.  Authorization applies to members of the Army who were assigned to the designated location overseas with U.S. Army organizations during Operation Enduring Freedom (OEF) between 19 September 2001 and a date to be determined and to Operation Iraqi Freedom between 19 March 2003 to 31 August 2010.  Soldiers who were deployed in the area of operations on training exercises or in support of operations other than OEF are not authorized the SSI–FWTS, unless those exercises or operations became combat or support missions to OEF.

19.  Army Regulation 600-37 (Unfavorable Information), chapter 7 (Appeals and Petitions), states appeals and petitions for removal of unfavorable information are to be directed to the DASEB.  Paragraph 7-2a (Appeals for Removal of AMHRR Entries) states once an official document has been properly filed in the AMHRR, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the AMHRR.  

20.  DA Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports to Headquarters Department of the Army (HQDA). 

	a.  Paragraph 1-11 states that when it is brought to the attention of a commander that a report rendered by one of their subordinates or by a member of one of their subordinate commanders may be illegal, unjust, or otherwise in violation of this pamphlet or regulation (see Army Regulation 623–3), they will look into the matter by conducting a CI.  The commander will confine their inquiry to matters relating to the clarity of the evaluation report, the facts contained in the report, the compliance of this evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier.  The commander does not have the authority to direct that an evaluation be changed; they may not use command influence to alter the honest evaluation of a rated Soldier by a rating official.  However, they may provide results of a CI to the rating chain.  The policy and actions required by the commander to process an inquiry are described in Army Regulation 623–3, chapter 6.

	b.  Paragraph 2–7 states Part IV (performance evaluation – professionalism) of the DA Form 67–9 is completed by the rater, including the APFT performance entry and the height and weight entry in Part IVc.  Part IV contains a listing of the Army values and the dimensions of the Army’s leadership doctrine that define professionalism for the Army officer.  They apply across all grades, positions, branches, and specialties.  They are needed to maintain public trust and confidence and the qualities of leadership and management needed to maintain an effective officer corps.  These values and leader attributes/skills/actions are on the DA Form 67–9 to emphasize and reinforce professionalism.  They will be considered in the evaluation of the performance of all officers.  Additionally, table 2–4 (Performance evaluation - professional officer evaluation report Instructions) states:

		(1)  In part IVa (Army Values), the rater will check either a "Yes" or "No" in each of the values block.  Mandatory comments are required for all "No" entries. Comments will be made in Part Vb.  The rater will base each entry on whether or not the rated officer meets or does not meet the standard for each particular value.  Comments, when provided, will refer to a specific value and be included in the narrative in Part Vb.  The Army Value "Honor" is indicative of a Soldier's "Adherence to the Army’s publicly declared code of values.)  The Army Value "Integrity" indicates a Soldier "Possesses high personal moral standards; honest in word and deed."

		(2)  In part IVb (Leader attributes/skills/actions), the rater will first place an "X" in either the "Yes" or "No" box for each attribute/skill/action.  Rater comments in Part Vb are mandatory and will explain any "No" or "blank" entries on the front side of the form. The attribute "Physical" indicates a Soldier "Maintains appropriate level of physical fitness and military bearing."

		(3)  In part IVc (Height/Weight), in the space after Height and Weight the rater will enter (typed) the rated officer’s height and weight respectively as of the last unit weigh–in.  An entry of "Yes" or "No" will be placed in the space next to the weight to indicate compliance or noncompliance with Army Regulation 600–9. For an officer who exceeds the screening table weight and the body fat percentage a "No" entry will be entered.  The rater will comment on a "No" entry, indicating noncompliance with the standards of Army Regulation 600–9 in Part Vb.  These comments should indicate the reason for noncompliance; medical conditions may be cited for noncompliance, however, the "No" entry is still required because medical waivers to weight control standards are not permitted for evaluation report purposes.  

	c.  Paragraph 2-8 describes the mandatory narrative comments which must be entered by the rater in Part Vb of the DA Form 67-9.  It states the rater will comment on specific aspects of the rated officer's performance.  These comments are mandatory and at a minimum, they should address the key items mentioned in the duty description in part III and, as appropriate, the duty description, objectives, and contributions portions of the OER support form.  Comments may address the rated officer's demonstrated professionalism and/or ability to maintain required standards for credentialing or certification, foreign language skills, or high-level security clearances.

	d.  Chapter 6 describes the procedures for filing an appeal.  It states the appellant should begin the process by specifically identifying those entries or comments to be challenged, the perceived inaccuracy in each entry or comment, the evidence necessary to prove the alleged inaccuracy, and determine where and how to obtain such evidence. 

	e.  Paragraph 6-1 states an appellant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency.  However, before actually preparing an appeal, an objective analysis of the report in question should be made.  Review the evaluation report and version of Army Regulation 623–3 that were in effect on the "Thru" date of the report in question, along with this appendix and chapter 6 of the current regulation. Soldiers should call or visit their career management officials at HQDA to determine whether an appeal is advisable.  Local Staff Judge Advocate and Battalion or Brigade S–1, or appropriate administrative personnel are also available to advise and provide assistance in the preparation of an appeal.  Army Regulation 623–3, section II, paragraphs 6–3 through 6–5, and table 6–1, provide guidance for a rated individual to request a CI.

	f.  Paragraph 6-2 states third-party statements form the basis of most substantive appeals:  "Third parties" are persons who have official knowledge of the rated individual's duty performance during the period of the report being appealed.  Statements from individuals who establish they were on hand during the contested rating period and who served in positions from which they could observe the appellant's performance and their interactions with rating officials, are both useful and supportive.  

21.  Army Regulation 623-3 (ERS) prescribes the policies for completing evaluation reports which includes preparation of the DA Form 67–9.

	a.  Paragraph 1–11 states the commander/official conducting the CI does not have the authority to direct that an evaluation be changed; command influence 
may not be used to alter the honest evaluation of a rated Soldier by a rating official.  The results of the CI, however, may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. The procedures used by the commander or commandant to process such an inquiry are described in chapter 6.

	b.  Chapter 3 governs evaluation principles.  It states, rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  

		(1)  Rating officials will prepare evaluation reports that are forthright, accurate, and as complete as possible within the space limitations of the form.  This responsibility is vital to the long-range success of the Army's mission.  With due regard for the rated Soldier's current rank or grade, experience, and military schooling, evaluations will cover failures as well as achievements.  Evaluations normally will not be based on a few isolated minor incidents.

		(2)  The rating chain will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential and on the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

		(3)  Rating officials will convey a precise but detailed evaluation to convey a meaningful description of an officer's performance and potential.  Army selection boards and career managers use this information to base decisions.

		(4)  A thorough evaluation of the Soldier is required.  Therefore, comments which are too brief are prohibited.  Unqualified superlatives or phrases are also prohibited, particularly if they may be considered trite.

	c.  Paragraph 3–36 states that if a referred report is rendered the senior rater will place an "X" in the appropriate box in part IId of the completed report.  The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in part IId.  The rated Soldier may comment if they believe that the rating or remarks are incorrect.  The comments will be factual, concise, and limited to matters directly related to the evaluation on the OER; rating officials may not rebut rated Soldier’s referral comments.  The rated Soldier’s comments do not constitute an appeal or a request for a CI.  Such a request will be submitted separately.

	d.  Paragraph 6–4 states that alleged errors, injustices, and illegalities in a rated Soldier’s evaluation report may be brought to the commander’s attention by the rated individual or anyone authorized access to the report.  The primary purpose of a CI 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-fact 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.

	e.  Paragraph 6–5 states a CI will not be used to document differences of opinion among members of the rating chain about a rated Soldier’s performance and potential.  The evaluation system establishes rating chains and normally relies on the opinions of the rating officials.  Rating officials will evaluate a rated individual and their opinions constitute the organization’s view of that Soldier.  However, the commander may determine through inquiry that the report has serious irregularities or errors.  For example, rating officials who have been relieved due to substantiated findings against them from an official investigation, improperly designated or unqualified rating officials, inaccurate or untrue statements, and lack of objectivity or fairness by rating officials.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested OER for the rating period 18 March 2010 to 17 March 2011 should be transferred to her restricted file or removed from her record entirely.  In the alternative, the OER should be corrected to remove or change any statements referring to her weight and wear of the combat patch.  She argued that her request was based on substantive and administrative errors.

2.  She argued the statement "She failed to meet body fat standards in accordance with Army Regulation 600-9" should be changed to "Officer is not medically cleared to participate in the Army Weight Control Program."  She also stated the counseling statements addressed in the contested OER, which refers to her weight, took place on 10 April 2011, outside of the rating period; therefore they should not be included on her evaluation. 

	a.  The contested OER did not mention any counseling statements; it only states she exceeded the weight standard.  The memorandum she provided from her doctor stated she could not participate in the AWCP or physical training until on or about 6 April 2011.  Her 10 April 2011 counseling statement indicated she failed to meet the weight standards on 9 April 2011.  Therefore, this counseling statement does not have any bearing on the contested OER.

	b.  The contested OER does not contain any negative, false, or prohibited comments referring to her weight.  Her rater and intermediate rater simply stated that she failed to meet body fat standards in accordance with Army Regulation 600-9.  Furthermore, medical waivers to weight control standards are not permitted for evaluation report purposes.

	c.  The applicant’s rater properly entered "No" on the contested OER to indicate she exceeded her maximum authorized weight.  Department of the Army Pamphlet 623-3 specifically states that "comments should indicate the reason for noncompliance" and "medical conditions may be cited for noncompliance."  Emphasis is added to the fact that the reference uses the words "should" and "may."  The words "must," "required," "shall" or "will", are used in Army regulations to indicate an absolute requirement to execute a specific task or instruction whereas the words "should" and "may" indicate a recommendation to execute a specific task or instruction.  Her rater met the regulatory requirement to comment on the "No" entry by stating "She failed to meet body fat standards."  Additionally, there was no requirement to state her noncompliance was due to a medical condition.  

	d.  There is insufficient evidence to justify removing or transferring the contested OER, or changing or removing any of the comments or entries referring to her failure to meet body fat standards.

3.  She argued that any comments or statements indicating she was unauthorized to wear a combat patch were untrue and included as a form of retaliation, and should, therefore, be removed.  She also stated the counseling statements addressed in the contested OER, which refers to the combat patch, took place on 10 April 2011, outside of the rating period, and therefore should not be included on her evaluation. 

	a.  Her contested OER and the counseling statement both mention her unauthorized wear of the combat patch.  However, though she was counseled in writing after the evaluation, there is no evidence to show that she was not also counseled verbally or in writing for this infraction during the rating.  

	b.  Her OER for the rating period 19 March 2007 to 18 March 2008, stated "she completed a comprehensive Pre-Deployment Sight Survey of Logistical Operations in Camp Arifjan, Kuwait" and a memorandum issued by the officer in charge of the 9-day TDY to Kuwait stated she "engage[ed]…her counterparts in every aspect of their duties… [and]… began the process of determining inventory requirements and identified equipment shortfalls."  

	c.  Contrary to statements and recommendations in the legal opinion she provided, there is no evidence that she assisted the 1st TSC with their daily operations in Kuwait.  The evidence of record shows she completed a Pre-Deployment Site Survey and she learned about and reported the particulars of their daily duties.  Furthermore, her record does not contain and she has not provided sufficient evidence showing she was directly supporting combat operations in Kuwait or that she was entitled to wear a combat patch.  Therefore, there is no reason to believe the comments in the contested OER referring to the combat patch were entered in error, or untrue.

	d.  There is insufficient evidence to justify removing or transferring the contested OER, or changing or removing any of the comments or entries referring to her unauthorized wear of the combat patch.

4.  She argued that the comments concerning her inefficiency were untrue, contrary to the evidence provided in her support form, and that it was retaliatory in nature.  She also stated these comments should be removed and a successful rating should be given.  However, she has not provided sufficient evidence to show her duty performance was satisfactory.  Her rater, reviewer, and senior rater all felt she performed poorly during the rating period and indicated as much on her OER.  Additionally, the IG report ruled out retaliation and indicated she had been performing poorly.  As such, there is insufficient justification to change or remove any comments or entries referring to her poor performance.

5.  She argued that the contested OER was given in retaliation for her making a protected communication.  She stated she requested a CI be conducted to look into her contested OER and filed a request for protection under the Whistle Blowers Protection Act during the time of the incident but both requests were ignored.  However, the evidence of record shows her command did conduct a CI and the IG did pursue and follow-up on her request for protection under the Whistle Blowers Act as well as the various allegations of reprisal she made.  These allegations were investigated by the IG and were found to be not substantiated.  

6.  Based on the foregoing, there is insufficient evidence to grant 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.

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ABCMR Record of Proceedings (cont)                                         AR20140008681



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