IN THE CASE OF:  	  

		BOARD DATE:  14 May 2015	  

		DOCKET NUMBER:  AR20140014837 


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:

	a.  The removal from her official military personnel file (OMPF) of DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 10 June 2010 through 4 March 2011, hereafter referred to as the contested OER.

	b.  The U.S. Army Human Resources Command (HRC) direct that an OER be completed for the rating period 10 June 2010 through 5 March 2011 by a different rater and senior rater, with the period 10 June through 29 September  2010 as nonrated time, and that OER be added to her OMPF. 

	c.  As an alternative, the contested OER be removed from her OMPF and replaced with two OERs; one for the rating period 10 June through 29 September 2010 with the same raters and one for the rating period 30 September 2010 through 5 March 2011 with different raters.

2.  The applicant states:

	a.  The contested OER, wherein she was rated by Lieutenant Colonel (LTC) JL and senior rated by Colonel (COL) MA, should be removed from her OMPF and HRC should direct an OER be completed for the rating period 10 June 2010 through 5 March 2011 with U.S. Navy Commander (CDR) DF as her rater and, then Brigadier General (BG) JS, Assistant Commanding General, Afghan Police Development (ACG-PD), as her senior rater.  In addition, the period 10 June through 29 September 2010 of this OER should be nonrated time.

	b.  She deserves the requested remedy because her rater and senior rater did not comply with requirements of Army Regulation (AR) 623-3 (Officer Evaluation Reporting System), in effect at the time.  It also did not comply with COL BP's, Chief of Staff, North Atlantic Treaty Organization (NATO) Training Mission - Afghanistan/Combined Security Transition Command - Afghanistan (NTM-A/CSTC-A), directive that she receive separate OERs for two different jobs.  LTC JL and COL AM wrote comments that unjustifiably portrayed her as an average Judge Advocate (JA) but they were disqualified from rating her due to the conflict of interest created by her equal opportunity (EO) complaint against them.  Her EO complaint exposed their toxic leadership which had a detrimental effect on the Office of the Staff JA (OSJA), the command, peers, and subordinates.

	c.  She asks the Army Board for Correction of Military Records (ABCMR) to request a copy of the unredacted investigation materials for consideration of her application.  Neither the U.S. Forces - Afghanistan nor the Central Command (CENTCOM) would provide her with unredacted copies.  If the Board cannot or will not request a copy, then she should be allowed to appear before the Board so she can testify about the redacted portions of the EO investigation that she submitted with her application. 

	d.  She had been a JA for almost 18 years and at the time of her deployment to Afghanistan in 2010 she had been a JA for about 14 and 1/2 years.  She was originally selected to deploy to Afghanistan as a legal mentor to the Afghan National Police (ANP) but her assignment changed to her becoming the first Chief of Military Justice, NTM-A/CSTC-A, Camp Eggers, Kabul, Afghanistan.  

	e.  On 4 March 2010, she arrived at Camp Eggers.  COL RR was the SJA and COL JC was the Deputy SJA (DSJA).  Both were excellent bosses, providing guidance when necessary, trusting their (the JAs) judgment, allowing them to perform their jobs, and not micromanaging them.  While the command set the hours for the duty day, they were allowed flexibility.  Sometimes they worked past duty hours and were allowed to go in late the next morning, leave early the next day, or take extra time eating a meal, exercising, or running personal errands.  They were allowed to go to the bazaar on Fridays during duty hours, particularly towards the end of the day when they got better deals on merchandise.  They encouraged physical fitness by allowing them to exercise during the duty day and office morale was high.  She shared an office with three other JAs, including U.S. Air Force (USAF) Major (MAJ) CB and "AFPAK H___."  

	f.  She worked hard as the Chief of Military Justice, created policies that applied to both American personnel and foreign nationals and administrative legal structures to enable senior officers of each service to discipline their own members, and taught a class on nonjudicial punishment to Afghan legal officers.  She advised the command on how to manage a recalcitrant LTC who refused to do his job, served as the legal advisor to the investigating officer (IO) when the same LTC and a MAJ were accused of misconduct.  She assumed Administrative Law duties that included legal reviews of temporary duty (TDY) requests for the command group and volunteered numerous times to go on missions with mentors for the Afghan National Army (ANA) and the ANP.

	g.  When COL RR and COL JC left in July 2010 and LTC JL and COL MA arrived, they continued the status quo for about 2 weeks and then things changed.  Personnel were expected to be at work at precisely 0800 and if they were late they had to stay late.  Occasionally, LTC JL was at the dining facility (DFAC) after 0800 hours and stayed at work late without consequences.  One morning the applicant was questioned about her whereabouts at 0800 hours when she was in line at the DFAC getting breakfast.  Due to the surge of personnel, the lines at the DFAC had grown so it took longer to get breakfast. She brought her food to the office and stayed past 2000 hours.  From that point on she arrived at work by 0800 hours as it was clear she would still get in trouble following the arrive late, work late rule.  They then made a rule that they could not wear their physical training (PT) uniforms during duty hours even though command policy permitted wearing the PT uniform after 1700 hours and all day on Fridays; this eliminated her afternoon runs.  Two of the JAs she shared the office with redeployed, MAJ CB moved to a different building, and she moved downstairs.  She was the only JA working on the first floor as the other JAs worked upstairs; the atmosphere became oppressive.

	h.  She continued to work hard but she felt COL MA was limiting her opportunity to go the extra mile.  COL MA refused to let her continue volunteering for missions with the ANA and ANP which frustrated CPT KB, Chief, ANP Legal.  The missions took them out of the Green Zone so they needed more people to travel.  One mission involved attending a conference at the Afghan Ministry of Interior (MOI) on women's rights and CPT KB thought it would be beneficial to have a female JA attend.  COL MA refused and said she was needed at the office to work; the perception was ANP Legal personnel did not do much beyond driving around Kabul, drinking tea, and chit-chatting with the Afghans.

	i.  Two Sailors from the command were ambushed the end of July 2010.  One was killed and the other was taken hostage; his body was found several days later.  A USAF COL was appointed to investigate the circumstances of their deaths and LTC JL was his legal advisor; she accompanied him everywhere he traveled.  A Summary Court-Martial Officer (SCMO) was appointed to gather their property at Camp Julien, Kabul, and ship it to the next of kin; she as the SCMO's legal advisor.  Given the high profile of the Sailors' deaths, she thought it prudent to travel to Camp Julien to assist the SCMO.  However, COL MA refused to allow her to go and stated the SCMO could call her if legal advice was needed.

	j.  She provided advice on military justice matters to a battalion training ANA soldiers at the Kabul Military Training Center (KMTC).  After receiving a report that a Soldier was bragging on social media about using spice in Afghanistan, his company commander ordered an inspection; two noncommissioned officers (NCOs) were caught with alcohol.  The battalion commander issued administrative reprimands because another JA, MAJ TJ, told him he could not offer Article 15s since the inspection came on the heels of the reported misconduct.  MAJ TJ was one of COL MA's favorites and her interpretation of the law was incorrect.  The applicant told the battalion commander that evidence discovered during an inspection after reported misconduct could still be used for Article15s.  MAJ TJ and her supervisor overheard the conversation and became upset that she gave contradictory advice and this got back to COL MA.  The battalion commander invited her to KMTC to watch his Soldiers training the Afghans but COL MA refused to let her go.

	k.  She also disagreed with LTC JL and one of her favorites, MAJ JR, on whether the command could hold service members past their redeployment dates to make up for time away during mid-tour leave.  Replacements were not arriving in a timely manner and the command wanted to keep personnel past their redeployment dates for overlap.  LTC JL and MAJ JR supported this on the theory that boots on the ground (BOG) days in orders did not include leave days since they did not have BOG during mid-tour leave.  She disagreed because the CSTC-A was not the orders issuing agency and could not involuntarily extend people past their redeployment date.  Also, many people in the command went multiple times on lengthy TDYs to Europe and the U.S.  If they involuntarily extended service members for not having BOG during their mid-tour leave they also had to involuntarily extend these other people.  LTC JL and MAJ JR disregarded her input and advised the command to implement the policy.  

	l.  LTC JL believed she was always right, felt inferior if someone else proved her wrong, and resented that person.  She resented the applicant for having a valid opinion different from hers.  She displayed a similar attitude to MAJ CB over a disagreement on the use of Afghan Security Forces Funds (ASFF) to build mosques for the Afghans.  The command wanted to do this and LTC JL supported it; however, MAJ CB opined ASFF could not be used because Congress prohibited it and showed LTC JL her research.  LTC JL seemed upset that MAJ CB proved her wrong.  She (the applicant) was scheduled to take mid-tour leave in August 2010 and before she left, COL MA told her she was not selected for promotion to LTC.  She was devastated, not just by getting passed over for promotion, but also by the knowledge that any chance of getting selected the next year hinged on her OER from LTC JL and COL MA.  She would not get the OER she needed if she continued as Chief of Military Justice; COL MA gave her the choice of staying in military justice or moving to ANP Legal.  They agreed she would move at the end of September 2010 after returning from leave and when CDR DF took over as Chief, ANP Legal.  ANP Legal was operational control to BG JS (now Major General), ACG-PD.  

	m.  She returned from leave on 11 September 2010 and began transitioning military justice matters to MAJ TV.  The atmosphere in the office seemed more oppressive; there was a new unwritten rule that COL MA and LTC JL frowned on personnel going to the Friday bazaars during work hours.  If they wanted to go during duty hours, they had to go to work early to make up the time.  Her NCOIC, asked her to go to the bazaar with her in the afternoon so they both went to work early on that Friday; she arrived at 1000 hours, 3 hours before the start of the duty day.  She emailed COL MA the night before to let her know and received no objection.  She called LTC JL's cell phone from her office phone about 1030 hours to get the combination to COL MA's office as they were both at the Embassy.  She and her NCOIC went to the bazaar about 1500 hours and she received a call about a half hour later that LTC JL was looking for her.  She returned to the office where LTC JL yelled at her for breaking the rule about going to the bazaar during duty hours.  She was shocked and explained that she complied with the rule by going to work early but LTC JL refused to believe her.  She told LTC JL that COL MA had not objected and forwarded LTC JL the email she had sent.  LTC JL responded that the email was not an approval to go to the bazaar.  She realized it was pointless to continue to defend herself as LTC JL refused to acknowledge she was wrong.

	n.  On 30 September 2010, she transitioned to ANP Legal eager to start a new job.  She started working on a proposal for the Afghan president to implement an active duty service obligation (ADSO) decree requiring NCOs to serve 5 years and officers to serve 10 years.  The ADSO was needed to reduce the attrition rate in the ANP.  She had to become familiar with Afghan laws affecting the ANP such as the Inherent Law, a compilation of rules [in part], regarding, accessions, retirements, promotions, and death gratuities.  She had to become familiar with Afghan laws affecting command operations such as labor laws and had to try and understand the Afghan legislative process and the hierarchy of laws and decrees.  She was working with five Afghan attorneys, three males and two females, and an interpreter.  She was going to mentor the male attorney for the MOI and serve as the primary mentor for an Afghan COL who was the legal advisor to the commander, Afghan Border Patrol (ABP).  She was unsure how they would react to a female JA so she doubled her efforts to learn the Afghan language and culture.  The ABP legal advisor blossomed quickly and became proactive in resolving legal issues and participating in negotiations.

	o.  The MOI had not had a lawyer for a long time so they were building a new legal office with Mr. R, a young Afghan attorney who was an ethnic minority, which created additional challenges in establishing respect for the rule of law within the MOI.  CDR DF gave her the flexibility she needed in the mornings to keep in touch with her 8-year old daughter living with her ex-husband who maintained a very rigid Skype schedule.  CDR DF did not require anyone to account for every minute away from the office like LTC JL and COL MA did.  Because Friday was the Afghans' day off and they went into work early on Sundays, he allowed them to shop at the bazaar in the afternoon.  He was very complimentary of her work and showed her emails he sent to COL MA praising her work and ideas.  He showed her emails from his predecessor stating she was one of the best people in her office for volunteering to go on missions with ANP.

	p.  She was also the ANP Legal representative for the command's ANP sync meetings wherein all the directorates met twice a week to coordinate efforts to develop the ANP and MOI.  BG JS attended every week and was briefed by each representative.  During one of her briefings, BG JS was so impressed with their work that he high-fived her and used ANP Legal's work as the standard for other directorates.  LTC JL and COL MA decided they were going to continue to be her rater and senior rater and to rate her for both of her jobs although AR 623-3 required a change of duty OER at the end of September 2010.  LTC JL told her CDR DF would be her intermediate rater in order to highlight her work in ANP Legal.  That way the next promotion board could focus on her excellent performance and potential working in an uncommon, highly-valued practice area. She felt uncomfortable with LTC JL continuing to rate her given the previous tension between them but she had no choice but to accept the decision.  Disagreeing was not an option as they both would have gotten angry and that would be reflected in the OER.

	q.  In early December 2010, COL MA put all the O-4s and O-3s in charge of the Christmas day festivities and they were told they had to include a PT event and a meal.  MAJ CB was the committee head and she asked for their opinions on whether they should schedule activities for Christmas day.  They all said no because they thought it would hurt morale.  They anticipated the command would give them time off on Christmas day and did not want to miss out on free time like they had on Thanksgiving.  No facilities were available on Christmas day for the PT event or meal.  MAJ CB briefed COL MA and LTC JL on their objections to activities on Christmas day but they didn't care.  COL MA insisted everyone attend one of the two events on Christmas day, each scheduled for about 2 hours.  MAJ CB asked if they had to stay the full 2 hours or if they could just check in and then leave.  COL MA said they didn't have to stay the full time but she didn't want that advertised to the whole office.

	r.  After the briefing, MAJ CB sent the committee members an email that disclosed they only had to check in to one of the events but that COL MA and LTC JL didn't want everyone in OSJA to know that because they wanted people to stay the full time.  While this made attendance more palatable, she was offended that two senior leaders resorted to deception to encourage participation. During that evening's staff meeting, neither mentioned that attendees didn't have to stay the full time at the events.  Subsequently, LTC JL reprimanded MAJ CB for telling the committee members and accused her of spreading false information.  

	s.  They lost free time on Christmas day due to attending a mandatory event.  They found out later that a male member of the office, LTC H, did not attend either event with no consequences.  Also in December, the command started planning for a symposium at NATO Headquarters, Netherlands, for January 2011 about the rule of law within the MOI and ANG.  CDR DF obtained an invitation for Mr. R and she and the interpreter were selected to attend.  CPT RH, an Army JA, also was selected to attend and CJ5 personnel were supposed to plan the travel but didn't know what to do.  She informed LTC JL of a meeting that evening; LTC JL attended, brought up funding, and said people could not travel unless it was necessary and relevant to the person's job.  At another meeting a week later, LTC JL argued against certain Afghans attending the meeting which frustrated other planners.  LTC JL told her that if each Afghan gave a speech, the command would have justification to pay for their travel; however, 30 days was needed to get them visas and visas couldn't be applied for until they had travel orders.  She knew the MOI wouldn't schedule Mr. R to go and that meant she wouldn't be able to attend.  CDR DF told her to continue helping the interpreter get his visa and he would explore other justifications for her to attend.  However, COL MA refused to support any option for her to attend and also denied CPT RH's travel so no lawyer attended the symposium about the rule of law.

	t.  Only a month earlier, COL MA approved TDY for an NCO to go to Paris, France, as an escort for Afghan females.  The mission was cancelled but COL MA allowed the NCO to go anyway which made the applicant believe the decision on her TDY was due to personal animosity towards her and she started to worry about her OER.  In January 2011, the command conducted a personnel asset inventory (PAI) and reviewed everyone's orders.  Although her replacement had been identified as MAJ RH, his arrival date was not known.  The leadership wanted to be sure there was an overlap and she was told if he didn't arrive before 20 February 2011, she would be involuntarily extended to mid-March.  Chief Warrant Officer Four (CW4) CB later found out MAJ RH would be arriving around 23 February 2011, so she (the applicant) volunteered to stay until 28 February 2011.  CW4 CB emailed her and LTC JL that 28 February 2011 would be fine so she arranged to have her family and friends to fly into Fort Hood, TX, to greet her upon arrival.  Later, CW4 CB sent her an email that she was instead being released on 20 February 2011 because CENTCOM issued a directive that involuntary extensions weren't allowed.  She was confused as she had thought CW4 CB's previous email meant her extension had been approved by COL MA.  She was told by COL MA that she had to get permission from her parent unit to be extended and later found this was not true.  She did get the necessary permission which ended the dispute.

	u.  COL MA required her to return to the office for the last 10 days of her tour to cover military justice and administrative law matters while two other MAJs were on leave.  The atmosphere seemed even more oppressive and COL MA told her she would give her time to prepare for redeployment but she didn't.  She was told she would now only have 45 minutes for meals which was unreasonable given the increased number of personnel eating at the DFAC.  She was told PT could only last 90 minutes and there was no time to do personal errands such as going to the post office.  She was criticized for being gone too long because it took an hour to mail her belongings home.  

	v.  LTC JL was to go on mid-tour leave on 21 February 2011.  She sent LTC JL her support form on 27 January 2011 but she didn't complete the draft portion of her OER until 19 February 2011.  Although LTC JL gave her positive block checks, her comments were vague and sounded more like a job description.  She asked LTC JL to quantify her as previous raters had but was told she couldn't do that.  She then realized LTC JL did not intend to give her the OER she deserved.  LTC JL asked her if she was angry with her and she felt uncomfortable providing feedback to LTC JL before she completed her evaluation.  The next day, LTC JL sent her the signed version of the contested OER on which COL MA had drafted comments.  It was only six lines, none of which included quantification, potential, schooling, advancing the command's mission, and recommended a job she had already performed.  COL MA rated her as center of mass and the draft was intended to get her passed over for promotion.  She met with COL MA after LTC JL left on leave and advocated for her OER; she was not confrontational or emotional.  Initially, COL MA seemed receptive but the more they talked the more she felt COL MA either didn't care or intended to get her passed over.  She refused to let CDR DF serve as her intermediate rater even though LTC JL had told her he would.  COL MA said she would think about her comments and get back to her.  
	w.  MAJ RH arrived on 24 February 2011 and they conducted their battle hand off of military justice matters.  On 27 February 2011, the night before she was due to leave, she was told an investigation was being conducted into allegations by two officers that a lieutenant general (LTG) had ordered them to perform psychological operations on visiting members of Congress and other dignitaries and they received reprimands in retaliation for protesting the LTG's order.  She and MAJ T were held past their departure dates until an investigating team could fly into Kabul and interview them.  She was going to turn her cell phone over to MAJ RH on 28 February 2011 but couldn't because she needed to be reached when the investigators arrived, needed to coordinate travel arrangements with MAJ T as they were redeploying together, and in case she was in her room during an attack as she and MAJ T lived outside the main camp. CW4 CB insisted she turn it over on 28 February 2011 and give it to MAJ RH as he was going to practice driving around Kabul but finally the NCO turned over her phone to MAJ RH and she thought the controversy ended.  

	x.  On 2 March 2011, the investigation team arrived.  In a 2 March 2011 email, COL MA ordered her to give MAJ RH the cell phone that day and to keep her weapon until 5 March 2011.  It was impossible to comply as she and MAJ T had already turned their weapons in as they would not be able to fly home on a commercial flight with weapons.  She went to MAJ RH's room to give him the phone but he didn't want to take it until the next morning and did so then.  CW4 CB reported this to COL MA without mentioning she tried to give it to him the night before.  

	y.  COL MA finalized her portion of the contested OER on 2 March 2011 and still refused to quantify her and recommended her for civilian schooling.  That would have been excellent earlier in her career as a major; however, given her status as a senior, above-zone MAJ, her recommendation implied it would be a waste of time to send her to military school because she had no potential for promotion.  She again asked her to change her comments and asked others for their opinion.  They reached the same conclusion that the contested OER was a lukewarm evaluation that would cause her to get passed over for promotion.  Her interview with the investigation team on 3 March 2011 lasted over 9 hours.  During that time, she received a response from COL MA that she refused to make any more changes to the OER and she was restricted to Camp Eggers.  This concerned her because it meant she would not be able to go pick up her plane ticket.  

	z.  On 4 March 2011, she met with the investigation team for 3 hours and still had to finish outprocessing and pack her belongings.  When COL MA signed the outprocessing form, she yelled at her about the cell phone and weapon loud enough for others to hear.  Getting yelled at was the last straw and she decided to file an inspector general (IG) complaint; however, as soon as she brought up the hostile work environment to female JAs, the IG told her it was an EO issue and referred her to the EO Advisor.  She told the EO Advisor she preferred to file an EO complaint on the day she redeployed. 

	aa.  On 5 March 2011, she and MAJ T got their plane tickets and she filed her EO complaint.  She also emailed CW4 CB that she refused to sign her OER as she disagreed with the rating chain, the reason for the OER, and the through date of the OER.  She departed that day and subsequently returned to her home station.  COL SS was appointed as the IO for the EO complaint.  As COL SS and COL MA were friends, she was concerned that would influence the outcome of the investigation and that COL MA would try to influence witnesses.  During an OSJA function, she told the attendees that an EO complaint had been filed against her and LTC JL and no one was to talk about it.  The contested OER was due in her OMPF before the EO investigation was completed; however, COL MA didn't submit the OER in a timely manner.  The investigation was completed in mid-June 2011 and her OER was not filed in her OMPF until 8 October 2011.

	bb.  The EO Advisor told her the allegations against COL MA and LTC JL were not substantiated as EO violations but were substantiated as toxic leadership matters that negatively impacted the morale in OSJA.  However, he failed to tell her the specific actions COL BP took on the findings and recommendations and he refused to provide her a copy of the report.  As it turns out, COL BP directed she receive a change of duty or change of rater OER when she transitioned from Chief of Military Justice to ANP Legal mentor which meant she was required to receive a permanent change of station (PCS) OER with CDR DF as her rater when she redeployed.  She found out the command removed COL MA from MAJ CB's rating chain and replaced her with the Canadian BG N.  BG N was the ACG for Afghan Army Development and was BG JS's counterpart.  In May 2012, she again asked for a copy of the EO investigation and final action and on 3 May 2013, she received a redacted copy of the entire investigation.  She noticed that she, MAJ CB, and CPT H, all fell into disfavor due to professional disagreements with LTC JL, COL MA, and/or a favorite of theirs and they held those conflicts against them.  MAJ CB received a reprimand and CPT H was denied a transfer resulting in an average OER that would cause her to get passed over for promotion.

	cc.  COL SS also discovered the published rating chain for some individuals were not followed.  CDR DF was supposed to be rated by COL MA but was rated by BG JS, COL MA allowed U.S. Marine Corps MAJ CA to be rated by a marine instead of COL MA, and MAJ AS should have been rated by CDR DF and was instead rated by LTC JL.  COL SS found several allegations had merit and that LTC JL and COL MA showed favoritism to Army personnel in the office and created an in crowd and out crowd, COL MA was inconsistent in approving TDY, that Thanksgiving and Christmas events should not have been mandatory, LTC JL and COL MA were not honest with regard to the amount of time they had to stay at the events, and MAJ CB's reprimand did not conform to USAF regulations.  COL SS criticized COL MA for the cell phone and weapon issues and found COL MA should have ensured both she and MAJ RH had cell phones. 

	dd.  She deserves an OER that complies with AR 623-3 and accurately reflects her performance and potential.  COL MA told COL SS that she did a good job as Chief of Military Justice but she did a great job as ANP Legal mentor.  Yet COL MA refused to write comments consistent with her doing a great job as mentor.  LTC JL and COL MA's comments are based on personal grudges instead of professional observations.  If they are allowed to rate her in an HRC directed OER, they will not rate her fairly and objectively.  Even with CDR DF as her rater for her work in ANP Legal, COL MA would not rate her fairly and objectively if she continued to be her senior rater. 

	ee.  Exceptions to the published rating chains were made for several lawyers and in MAJ JB's case COL MA was removed from her rating chain to protect MAJ JB from receiving an unfair rating.  Therefore, her time as Chief of Military Justice from 10 June through 29 September 2010 under LTC JL and COL MA should be nonrated time and HRC should direct a PCS OER from 30 September 2010 through 5 March 2011 with CDR DF as her rater and BG JS as her senior rater for her duties as MOI/ANP Legal mentor.

3.  The applicant provides:

* the contested OER
* three memoranda, dated between 8 April 2013 and 28 February 2014
* two statements of support addressed to HRC, dated 7 and 11 February 2014
* three letters, dated between 3 May and 23 August 2013
* redacted Memorandum for Record (MOR), dated 9 June 2011
* redacted memorandum, dated 10 April 2011
* redacted executive summary (EXSUM), undated
* redacted memorandum, undated
* eight pages of email, dated between 3 March and 8 October 2011
* DA Form 7279 (EO Complaint Form), dated 4 March 2011
* seventy-two pages of redacted statements, emails, and DA Forms 2823 (Sworn Statement), dated between 20 and 28 March 2011
* redacted 20-page memorandum, undated

* nineteen pages of email to and from MAJ CB, dated between 14 December 2010 and 7 July 2011
* Letter of Counseling to MAJ CB, dated 19 December 2010
* Response to Letter of Counseling from MAJ CB, dated 20 December 2010
* three pages of AR 623-3, dated 10 August 2007

CONSIDERATION OF EVIDENCE:

1.  The applicant was serving as a Regular Army JA officer and was promoted to the rank of MAJ on 1 March 2004.  On 27 February 2010, she was assigned to NTM-A/CSTC-A, Afghanistan.  

2.  In March 2011, she received the contested OER, a Change of Rater OER covering 8 months of rated time for the period 10 June 2010 through 4 March 2011 for her duties as Chief of Military Justice and Advisor, ANP.  Her rater was LTC JL, the DSJA, and her senior rater was COL MA, the SJA.  The OER shows in:

	a.  Part  IVa (Army Values) the rater placed an "X" in the "Yes" blocks for all the Army Values.

	b.  Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Outstanding Performance, Must Promote" block, and entered the following comments in Part Vb:

An excellent performance by a top-tier, hard-working officer in this difficult deployed environment.  The first Chief of Military Justice for CSTC-A, a joint three-star headquarters, newly standing up as a general court-martial convening authority (GCMCA).  [Applicant] professionally advised the command on development of a multi-service military justice structure, and on policy and procedure for a joint, deployed GCMCA.  [Applicant's] performance as a mentor to MOI and ANP was equally outstanding.  She rapidly developed very effective relationships with those she mentored, including the MOI Chief of Legal Affairs (Major General, non-lawyer), the legal advisor to the MOI (civilian lawyer), and the Chief, legal advisor for the Afghan Border Police (COL, non-lawyer).  Her efforts rapidly resulted in significant improvements in the Capability Milestones the command uses to measure ministerial development, and in substantial progress toward truly professional legal operations in the Afghan Border Police by enabling them to perform their respective missions in three key capability areas.  A truly outstanding performance by an officer who executed her challenging mission flawlessly.  Officer was unable to take the Army Physical Fitness Test (APFT) during this period due to deployment for combat operations.  

	c.  Part Vc (Comment on Potential for Promotion), the rater entered the comment "Unlimited potential.  Promote now to LTC."

	d.  Part VII (Senior Rater) the senior rater placed an "X" in the "Best Qualified" block and entered the following comments in Part VIIc (Comment on Performance/Potential):

[Applicant] is an outstanding attorney and masterful mentor.  Whether practicing in her military justice field of expertise or challenging herself by pursuing the opportunity to mentor MOI and ANP legal officers, [Applicant] met and exceeded every challenge.  Her efforts as the first Chief of Military Justice enabled this deployed 3-star command to fairly mete out military justice for all 5 services.  [Applicant] became an expert in Afghan laws and legislative process, and effectively helped ANP address problems and craft creative solutions to those problems. Unlimited potential; excellent candidate for civilian LLM program - promote to LTC.  When given the opportunity to sign the OER, [Applicant] refused.  

	e.  In Part VII the senior rater indicted she currently rated five MAJs and rated the applicant as "Center of Mass."

3.  The applicant provides a DA Form 7279, dated 4 March 2011, wherein it shows she filed an EO complaint against LTC JL and COL MA.

4.  She provides a redacted 20-page memorandum for the Commander, NTM-A/CSTC-A, Afghanistan, undated, subject:  Findings and Recommendations of AR 15-6 (Procedures for IO/Board of Officers) for EO Complaint, wherein it shows the applicant filled in ranks and names in the redacted portions of the memorandum.  She also provides a redacted EXSUM, undated, wherein it shows she filled in ranks and names in the redacted portions of the EXSUM.

5.  She provides a redacted memorandum for appointing authority, dated 10 April 2011, subject: EO Advisor's Review of AR 15-6 Investigation into Allegations of EO Violations, wherein the EO Advisor stated, he conducted a review of the investigation conducted by the IO and he concurred with the findings and recommendations of the IO.  The investigation revealed the claims of gender discrimination and hostile work environment to be unsubstantiated (emphasis added).
6.  She provides a redacted MOR, dated 9 June 2011, subject:  Action Memo AR 15-6 Investigation Concerning the Equal Opportunity Complaint Submitted by [The Applicant], wherein it shows she filled in ranks and names in the redacted portions of the memorandum.  The memorandum from COL BP, CofS, CSTC-A, stated in part:

	a.  He reviewed the AR 15-6 investigation into the facts and circumstances surrounding allegations raised by the applicant of gender discrimination and sexual harassment in the form of a hostile work environment at the OSJA.  He approved the IO's findings that there was no gender discrimination or sexual harassment of the applicant and other women in the OSJA.  In addition, he approved the IO's other findings except as noted below.  After careful consideration of all evidence contained in the investigation, he decided to disapprove the following IO's findings that:

		(1)  ______ were not truthful with their personnel concerning the OSJA's plans for Christmas was disapproved as there was no evidence that either officer made any false statements or misrepresentation of fact concerning the subject activity.  Likewise, with respect to the summary of findings, he approved the summary except the words "by being honest with their personnel."

		(2)  "There should have been no mandatory events on either Thanksgiving or Christmas without approval from the CofS" was disapproved, as the guidance provided by his office relating to holiday routine was not directive in nature, and no approval was required prior to holding mandatory events of the type the SJA conducted.

		(3)  That the organization of the OSJA did not adequately support the NTM-A/CSTC-A mission and should be changed was disapproved because it was not supported by evidence in the report of investigation.  

		(4)  That _____ failed to ensure that both her officers had a means to communicate by cell phone for safety and security reasons was disapproved because there was no requirement for _____ to ensure that the applicant and her replacement both had government furnished cell phones.

		(5)  With respect to the applicant's end of tour award, the IO's finding that ______ should have either been the recommender of the award, or at least had the recommendation staffed through him before it was signed and forwarded for approval was disapproved because there was no requirement for _______ to be in the recommendation chain.

		(6)  The IO's finding that the rating scheme for the OSJA did not comply with AR 623-3 concerning Army officers who work either in Anti-Corruption, ANA Legal, or ANP Legal was disapproved in part because the finding was overly broad, the evidence in record did not support it, and AR 623-3 allows for the type of rating scheme currently employed for Army JAs who physically work in other directorates.  In the case of the applicant; however, he found that she should have received a change of duty/change of rater OER when she moved from Chief of Military Justice to being an ANP Legal mentor.  He directed the CSTC-A CJ1 to determine if corrective action was required.  

	b.  Based on the evidence in the investigation, he made the additional finding that there was no evidence that _________ or any other member of the NTM-A/CSTC-A OSJA violated any laws, policies, directive, or standards of ethical conduct.  The IO's recommendations were approved, except as noted below.  The IO's recommendations:

		(1)  That ______ should be counseled for using poor judgment on having mandatory events on Thanksgiving and Christmas was disapproved as it stems directly from the erroneous finding that the _______ violated CofS guidance or the commander's intent.

		(2)  Concerning the rating chain for Army JAs who work in ANA Legal, ANP Legal, and Anti-Corruption was modified as follows:  legal advisors in ANA Legal, ANP Legal, and Anti-Corruption will be rated by their immediate supervisors unless there was an issue with date of rank.

		(3)  That the officers in charge of the ANA and ANP Legal sections be the recommenders on all awards for personnel assigned to their sections was disapproved because anyone may recommend a service member for an award.  

		(4)  The recommendation for a major reorganization of the OSJA as discussed in this action memorandum was disapproved.  

7.  There is no evidence in the applicant's record and she did not provide any evidence that shows based on the CofS's MOR that the CSTC-A CJ1 determined corrective action was required with respect to the applicant receiving a change of rater/change of duty report for her duties as the ANP Legal mentor.



8.  The applicant provides:

	a.  An email to herself, dated 20 August 2011, wherein COL MA stated she was attaching the contested OER, and asked her to sign the OER and return it to CW4 CB for forwarding to HRC.  COL MA further stated if it wasn't received by 27 August 2011, the OER would be changed to reflect she refused to sign the OER and the modified OER would be forwarded.  

	b.  An email to herself, dated 3 September 2011, wherein COL MA stated because she received an out of office message from the applicant, she did not forward the OER to HRC.  The out of office notice reflected she returned from leave on 1 September 2011, therefore she had until 8 September 2011 to sign the OER.

	c.  An email to herself, dated 8 October 2011, wherein COL MA stated when HRC printed out her job description they found it was too long.  CW4 CB corrected it and it was resubmitted to CJ1 and HRC.

9.  The contested OER was signed by the applicant's rater on 18 August 2011 and her senior rater on 2 October 2011.  The applicant did not sign the OER.  It is currently filed in the performance folder of her OMPF.

10.  It appears at some point the applicant requested a commander's inquiry be conducted into the contested OER; however, her OMPF is void of the commander's inquiry.

11.  By memorandum, dated 28 February 2014, HRC returned her appeal of the contested OER without action.  The HRC official stated, in part:

	a.  HRC did not replace a report posted to the OMPF with another report; however, an appellant could request to remove or modify a report.  In accordance with AR 623-3, to justify removal or modification of a contested report an appellant must provide clear, convincing, strong, and compelling evidence that the report was incorrect, inaccurate, or unjust.  Her enclosed EO results and commander's inquiry were inconclusive evidence to invalidate the evaluation.  The documents clearly did not support her remedy.  

	b.  Additionally, AR 623-3 placed a time restriction on the submission of substantive appeals and as the through date of the contested OER was 4 March 2011 she needed to make application to the ABCMR and would require supporting documentation.  The burden of proof was on her to establish through clear and convincing evidence that a contested report was incorrect.  Substantive appeals normally included statements from independent observers and should address specific aspects of the performance.  If she submitted third party statements, they must be original and any copies of documentation supplied in support of the appeal must be certified as true.  

	c.  Forwarding a response from the IG, the results of an EO investigation, or results of a Commander's Inquiry could result in an approval of her case.  However, her appeal, as currently constructed did not meet the criteria for appeals in AR 623-3. 

12.  AR 623-3, of the version in effect at the time, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states:

	a.  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 noncommissioned 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, and counseling forms.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

	b.  Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  

	c.  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 the presumption of regularity will not be applied to the report under consideration, and 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 of 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. 

13.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body. The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the OER for the rating period 10 June 2010 through 4 March 2011 be removed from her OMPF and replaced with an OER for the rating period 10 June 2010 through 5 March 2011 with different raters and with 10 June through 29 September 2010 as nonrated time.  In the alternative, she requests the contested OER be removed from her OMPF and replaced with two OERs; one for the rating period 10 June through 29 September 2010 with the same raters and a second one for the rating period 30 September 2010 through 5 March 2011 with different raters.

2.  The evidence of record confirms the applicant received a Change of Rater OER for the rating period 10 June 2010 through 4 March 2011 for her duties as Chief of Military Justice and ANP Legal mentor, wherein she received an "Outstanding Performance, Must Promote" block by her rater and a "Best Qualified" block by her senior rater.  Notwithstanding her contention that her raters were prejudiced against her because of the EO complaint she filed against them, the contested OER shows both her rater and senior rater commented on her excellent performance as the first Chief of Military Justice, stated she exceeded every challenge by becoming an ANP Legal mentor, she became an expert in Afghan laws and legislative processes, that she had unlimited potential, and she should be promoted to LTC.  This OER does not contain any negative comments and it is unclear which statements she contents did not adequately address her duty performance, were unfair, inaccurate, or unjust. 

3.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that the 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.

4.  Notwithstanding her contention that the CofS directed she receive a separate OER for her duties with ANP Legal, the MOR she provided clearly showed he found that while she should have received an OER when she started to work as the ANP Legal mentor, the rating chain in use at the time with LTC JL and COL MA as her raters was in accordance with AR 623-3.  He also directed his staff to determine if corrective action was required in regards to her OER.  There is no evidence that shows she was required to receive an OER when she moved to ANP Legal as it appears LTC JL and COL MA had oversight of ANP Legal and no action was subsequently taken to replace the OER she received with two reports.  

5.  Her contention the contested OER was not submitted to HRC in a timely manner is noted; however, she stated she received the draft OER in March 2011 prior to leaving Afghanistan and the email she provided shows the OER was signed by the rater in August 2011 and held by her senior rater until September 2011 to give the applicant sufficient time to sign the report.  As she refused to sign the OER, it was subsequently forwarded to HRC, returned by HRC at least once for an adjustment in her job description, and subsequently accepted by HRC in October 2011.  It is unknown if the OER, completed in a combat zone, was returned to the rating officials for corrections of administrative errors between the time she saw the draft report and the dates it was signed by her rater and senior rater; however, if this was the case this would not rise to the level of a material error.   

6.  The contested OER appears to be correct and appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance by her rater and senior rater during the period in question, and was completed by the proper rating officials.  The evidence of record does not show and the applicant did not provide compelling evidence that shows the contested OER was in error, inaccurate, unfair, or unjust.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

8.  With respect to the applicant's request for the ABCMR to obtain unredacted investigation materials, the applicant provided numerous documents to include her EO complaint, copies of redacted reports, and the AR 15-6 action MOR, which were sufficient for the Board to conduct a fair and impartial review of this case.  

9.  Her request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.


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)                                         AR20140014837





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ABCMR Record of Proceedings (cont)                                         AR20140014837



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