IN THE CASE OF:	   

		BOARD DATE:	  16 September 2014

		DOCKET NUMBER:  AR20140015396 


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:

The applicant defers her request, statement, and evidence to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests:

* removal of the Relief for Cause (RFC) officer evaluation report (OER) covering the rating period 20 April 2011 through 15 September 2011 from her records
* consideration for promotion to major (MAJ) by a special selection board (SSB) 

2.  Counsel provides a synopsis of the applicant's case together with background information, the investigation, and the resultant General Officer Memorandum of Reprimand (GOMOR) and RFC OER.  Counsels states/argues: 

	a.  The applicant was relieved from her position after a flawed Army Regulation (AR) 15-6 (Procedures for Investigating Officers and Board of Officers) investigation which resulted in a locally-filed GOMOR, issued on 
30 August 2011. The investigation began after complaints that the applicant sexually harassed female Soldiers by talking to them while in the shower room.  The complaints surfaced after she and her company had been at Bagram Airfield for three months. 

	b.  The complaints were made shortly after she was forced to change from three shifts a day to two shifts a day to accommodate workload and manning. The change required Soldiers in the company to work twelve-hour shifts.  Further, the main complainants and others who provided negative information had received negative counseling from her.  The investigating officer (IO) failed to consider any of this in reaching his findings that the allegations were substantiated.  The IO's report of investigation was tainted by the IO's failure to properly consider favorable information, facts directly counter to the complaints, and the biased motivations of several of the key witnesses.  These errors are documented in her rebuttal to the GOMOR and her request for redress regarding the OER and set out in more detail in this brief. 

	c.  The applicant's commander and rating officials failed to consider the evidence she provided showing that the investigation was flawed and that the applicant conducted herself appropriately.  The AR 15-6 investigation was flawed because it was biased and failed to consider information that showed witnesses were lying.  Because the investigation was flawed, the resultant GOMOR, removal from command, and OER were unjust.

3.  Counsel provides: 

* Contested OER
* Applicant's response to the referral memorandum
* GOMOR and filing instructions
* AR 15-6 and allied documents (appointment memorandum, findings and recommendations, sworn statements, chronology, and exhibits)

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service in the Army National Guard, U.S. Army Reserve (USAR), and Regular Army, the applicant was appointed as a Reserve commissioned officer of the Army and executed an oath of office on 10 June 2003.  She completed the Transportation Officer Basic Course. 

2.  On 20 August 2006, the U.S. Army Human Resources Command issued her a Notification of Eligibility for Retired Pay at Age 60 (Twenty Year Letter). 

3.  She served in a variety of stateside or overseas assignments, including service in Iraq from 5 July 2009 to 2 May 2010.  She was promoted to captain (CPT) on 8 February 2008. 

4.  She was ordered deployed in a temporary change of station status, in support of Operation Enduring Freedom, effective on or about 19 May 2011.  She was assigned to the 236th Inland Cargo Transfer Company (ICTC), 142nd Combat Support Sustainment Battalion, Bagram, Afghanistan. 

5.  On 28 July 2011, the Commander, 101st Sustainment Brigade, Bagram appointed an IO pursuant to AR 15-6 to conduct an investigation into allegations that the applicant sexually harassed subordinates or otherwise engaged in the maltreatment of service members. 

6.  On 12 August 2011, the IO rendered the findings and recommendations. 

	a.  The IO found the applicant had sexually harassed female Soldiers on numerous occasions from her company in the shower area before and after deployment.  She sexually harassed at least one Soldier from her company who did not deploy and remained in Decatur, IL on two occasions prior to deployment. Additionally, her routine manner of discounting advice of her company leadership, threatening and berating subordinates directly contributed to a hostile environment within the company of lowered morale and fostered a breakdown of military discipline among the ranks.  

	b.  The IO recommended the applicant's relief from command, for cause, due to sexual harassment conduct toward female Soldiers on multiple occasions and for directly contributing, failing to identify and correct, to a breakdown of good order and discipline within the unit, and the issuance of a letter of reprimand for breach of faith due to abdication of responsibilities as the Commander of the 236th ICTC. 

7.  On 30 August 2011, the applicant received a GOMOR from the Commanding General (CG), Combined Joint Task Force -1, Regional Command East, Bagram Airfield.  The GOMOR stated: 

	a.  She was reprimanded for sexually harassing subordinate Soldiers and creating a poor command climate while serving as Company Commander.  During her unit's pre-deployment training at Fort McCoy, WI, she made inappropriate and unwelcome sexual advances toward a subordinate Noncommissioned Officer (NCO) who was then experiencing marital difficulties.  She advised her to leave her husband and stay with her.  She also made sexual advances toward her in her hotel room and she repeatedly attempted to hold her hand in public against her wishes.  During deployment preparation and after her June 2011 deployment to Afghanistan, she continued her pattern of harassment against no less than six other subordinate female Soldiers.  While in the shower room, she would purposely open the shower curtain in a common bathroom to expose herself to others while bathing, stare at subordinates as they undressed to shower, initiate conversation in a calculated manner to engage others who were nude or partially nude, and on at least one occasion inappropriately touched another Soldier without consent.  

	b.  Soldiers subjected to this behavior were made extremely uncomfortable and they deliberately avoided using the showers while she was present. Investigation also revealed that she has commanded in a manner that has severely degraded morale in the unit.  She had marginalized and alienated her subordinate leaders by consistently berating them and undermining their authority.  She had also compromised her standing as a commander by engaging in actual or apparent favoritism and repeated threats of adverse action. It was clear that she had lost the trust, confidence, and respect of those under her charge, hampering her ability to lead. 

8.  She acknowledged receipt of the GOMOR and submitted a written statement on her own behalf.  

9.  On 13 September 2011, after careful consideration of the applicant's case, her rebuttal, and the chain of command recommendations, the imposing officer ordered filing of the GOMOR in the local personnel file for one year.  

10.  On 15 September 2011, she received the RFC OER for the rating period 20 April 2011 through 15 September 2011, for her duties as Company Commander, ICTC.  Her Rater was Lieutenant Colonel (LTC) JES, the Battalion Commander; and her Senior Rater was Colonel (COL) MPP, the Brigade Commander.  The OER shows:

	a.  in Part II(d) (Authentication-This is a referred report, do you wish to make comments?), two blocks are marked, indicating this was a referred report and the rated officer desired to submit comments. 

	b.  in Part IV(a) (Performance Evaluation - Professionalism), the Rater placed an "X" in the "No" block for the "Respect" Army Value; the "Interpersonal" Leader Skills (Competence), and the "Developing" and "Building" Actions (Leadership).   

	c.  in Part V (Performance and Potential Evaluation), the Rater placed an "X" in the "Other" block and entered the following comments in Part Vb (Comment on Specific Aspects of the Performance):

[Applicant] trained and deployed the 236th ICTC to combat in support of Operation Enduring Freedom.  [Applicant] managed split operations with 36 Soldiers located at eight separate outlying FOBs [Forward Operating Base] in support of Brigade Combat Teams throughout Regional Command-East and Capitol.  Her Inland Cargo Transfer Teams processed 2,450 containers, 1,100 463L pallets, and 800 kicker boxes.  She maximized the use of the Air Force Mobile Retrograde Team to turn-in over $3 million worth of frustrated cargo located in the CRSP and reduced detention cost[s] on containers by $32,000.  Her unit processed over 2,500 HNTs and facilitated 215 convoy missions in support of the Warfighter.  Despite the 236th ICTC's impressive accomplishments, I relieved [Applicant] of command because her leadership style and personal conduct had a severe negative impact on morale within the company.  [Applicant] failed to develop the company's officers and senior NCOs into a cohesive leadership team, which resulted in marginalized and disaffected leaders.  She also failed to conduct herself in a professional manner at all times, resulting in a hostile work environment for certain Soldiers in the 236th ICTC.  [Applicant] requires further development as a leader and officer, and at this point she has demonstrated that she is not suited to command Soldiers.

	d.  in Part Vc (Comment on Potential for Promotion), the Rater entered the following comment, "Keep grooming as she may possess the potential for future promotion."  

	e.  in Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the Senior Rater placed an "X" in the "Do Not Promote" block, indicated he senior rated (at the time) 27 officers of this grade, and that a completed DA Form 67-9-1 was received with this report and considered in his evaluation and review.  

	f.  in Part VII(b) (Potential Compared with Officers Senior Rated in same Grade), the Senior Rater placed a "Below Center of Mass" rating and in Part VII(c) (Comments on Performance and Potential), the  Senior Rater entered the following comments:

[Applicant's] company managed split base operations in a combat environment and her Inland Cargo Transfer Teams processed 2,450 containers, 1,100 463L pallets, and 800 kicker boxes.  Her company turned in frustrated cargo and reduced retention costs.  However, she failed to conduct herself like an officer creating a hostile work environment and I have lost confidence in her ability to lead America's sons and daughters.  With further grooming she may possess the potential for promotion. 

11.  The RFC OER was digitally signed by her Rater and Senior Rater on 24 and 25 September 2011, respectively.  The applicant signed it on 28 September 2011. The OER was then posted by Headquarters, Department of the Army (HQDA) to her official military personnel file (OMPF) on 14 October 2011. 
12.  On 26 September 2011, the applicant provided a rebuttal to the referred OER.  She essentially stated: 

	a.  The sworn statements provided were factually inaccurate and false.  Many Soldiers in their sworn statements reference other Soldiers as having knowledge of incidents that occurred.  These same Soldiers in their sworn statements stated that they have never seen her do anything inappropriate.  She gives examples of some of these statements and some of the situations that occurred at Fort McCoy and in Afghanistan.  

	b.  During this rating period, she afforded platoon leaders in the company leadership time to manage their sections without interference from her.  After the unit arrived at Bagram, she sat down with all officers and outlined expectations and requirements in their developmental counseling forms.  She also helped the officers improve on how to write their support forms.  All the officers and senior NCOs under her command were provided with mentorship.  

	c.  The statement that she did not care to provide for a cohesion team is not true.  She often visited Soldiers on Bagram at their different work locations to see how they were doing.  She also spent a significant amount of time visiting Soldiers at outlying FOBs.  The rest of her time was spent with her unit first sergeant and staff sections.  She did not have any time to interfere with the running of any sections as was stated in sworn statements.

	d.  After she departed the unit, a second lieutenant emailed her and thanked her for the mentoring and leadership she provided him. 

	e.  Sworn statements from two NCOs discussed the various issues that exist in the unit due to the significant amount of cross-leveled Soldiers and not all Soldiers were willing enough to support the unit's mission.  Her mission when she assumed command was to get the unit ready for deployment even after her higher command requested that the unit not deploy.  This unit has faced significant issues from the start and will continue to face issues because of the quickness putting the unit together.  The biggest problem her unit faced was the constant influx of changes in personnel and the assigning of senior leadership just prior to deployment which created a fragmented NCO support channel lacking clear foundation.  The major problem was rushing to deploy the unit quickly and without sufficient time for leadership to build cohesion.  

	f.  She has dedicated herself to the unit even after the loss of two Soldiers prior to arriving to Afghanistan and personal conflicts among her staff.  She would not deny that she is a strong-headed leader, but this is her second command and she never had these types of Soldiers' issues, which contributed to the fact that Soldiers are from seventeen states with different expectations.

	g.  As she reflects on the past four months here in theater, she did not want to be seen as not trying to help her NCOs at every opportunity, and too often she allowed herself to be brought into NCO issues to solve their problems.  The assumption that she wanted to involve herself in NCO business is totally incorrect; on a daily basis issues that were solvable within the NCO support chain were brought to her office.  The discipline that was supposed to be provided by the NCO support chain was not often enforced or her name was used to reference any wrongdoings of Soldiers because no one wanted to be seen as the "bad guy."  The problem was that no one wanted to reinforce the standard without saying that whatever was being done wrong should be corrected without using her name.  She felt at times that she was receiving little support from some of the leadership in the unit, and received pushback when implementing any new set of standards or changes.

13.  On 24 October 2013, the Officer Special Review Board (OSRB) unanimously determined the overall merits of her case did not warrant her requested relief (removal of the contested OER).  As such, the OSRB denied her petition. 

14.  Army Regulation 600-8-104 (Army Military Human Resource Record Management) governs the composition of the OMPF and states the performance folder is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF, the document becomes a permanent part of that file.  The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board.  Appendix B-1 states an OER is filed in the performance folder of the OMPF.

15.  Army Regulation 623-3 (Evaluation reporting System) establishes the policies and procedures for the Army's Evaluation Reporting System.  An OER accepted by HQDA and included in the official record of an officer was presumed to have been prepared by the properly-designated rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in an appeal of an OER rests with the applicant.  In order to justify deletion or amendment of an OER under this regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  

	a.  Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer corps.  Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and other pertinent regulations.  Potential evaluations will be performance-based assessments of the rated officers of the same grade to perform in positions of greater responsibility and/or higher grades.

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

	c.  Paragraph 3-19d states any verified derogatory information may be entered on an evaluation report.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain’s reference to verified derogatory information.  

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

	e.  Paragraph 6-7 states an appeal will be supported by substantiated evidence.  An appeal that alleges a report is incorrect or inaccurate or unjust without usable supporting evidence will not be considered.  The determination regarding adequacy of evidence may be made by HRC. 

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

16.  Army Regulation 135-155 (Promotion of Commissioned Officers and Warrant Officers Other than General Officers) prescribes policy and procedures used in the selection and promotion of commissioned officers of the ARNG and commissioned and warrant officers of the USAR.  Promotion reconsideration by an SSB may only be based on erroneous non-consideration or material error, which existed in the record at the time of consideration.  Material error in this context is one or more errors of such a nature that, in the judgment of the reviewing official (or body), it caused an individual’s non-selection by a promotion board and, that had such error(s) been corrected at the time the individual was considered, a reasonable chance would have resulted that the individual would have been recommended for promotion.  

DISCUSSION AND CONCLUSIONS:

1.  An AR 15-6 found by the preponderance of the evidence that the applicant had sexually harassed female Soldiers on numerous occasions from her company in the shower area before and after deployment.  She sexually harassed at least one Soldier from her company who did not deploy, on two occasions prior to deployment.  Additionally, her routine manner of discounting advice of her company leadership, threatening and berating subordinates directly contributed to a hostile environment within the company of lowered morale and fostered a breakdown of military discipline among the ranks. 

2.  The appointing official approved the findings and recommendations of the AR 15-6.  As a result, she was relieved from command. 

3.  An OER is an assessment of his performance and potential during a specified period of time.  During that particular period of time, her rating officials assessed her performance and potential as indicated in the contested OER.  There is no evidence and neither the applicant nor her counsel provided sufficiently compelling evidence which shows the contested OER is substantively inaccurate and does not accurately reflect her performance or potential or that her Rater and/or Senior Rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.

4.  By regulation, to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  This is not the case here.

5.  The applicant refers to the filing decision by the imposing officer (local file).  This does not mean the imposing officer did not believe the IO’s findings, as counsel contends.  It simply means the imposing officer decided that despite the overwhelming evidence, in his judgment a second chance may be warranted.  Thus he ordered the GOMOR filed locally.  This filing decision did not negate the reprimand nor did it mean the issues did not exist.  

6.  Counsel refers to a flawed AR 15-6.  The available evidence shows the IO fully established and considered all the relevant evidence on the issue at hand.  He appears to have been thorough and impartial; and he made findings and recommendations warranted by the facts and complied with the instructions of the appointing authority.  Finally, based on the preponderance of the evidence, the IO reported the findings and recommendations to the appointing authority, who approved those findings and recommendations.  This is what an investigation ought to be.  Counsel’s dissatisfaction of the outcome does not negative this investigation.  

7.  The applicant also refers to multiple sworn statements as false or "lies."  Nevertheless, she bypasses and fails to mention the command climate sessions that led to the investigation and she spent very little time in her rebuttal statement talking about the chronic sexual harassment issues she exhibited, issues which are the heart of her failed command.  

8.  The applicant mentions lack of support from her leaders and argues there was a lack of counseling on the part of her rating officials.  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.  The applicant fails to recognize that she, as an officer, is an equal partner in the counseling process.

9.  In order to support a successful appeal, evidence should include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials.  

10.  After a comprehensive review of the evidence in the applicant's OMPF, the applicant's contentions and arguments, and the evidence submitted in support of her application, the applicant failed to show by clear and convincing evidence that the contested OER contains a material error, inaccuracy, or injustice, or that this OER should be removed.  Therefore, she is not entitled to its removal, and as such, there is no material error or entitlement to an SSB.

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)                                         AR20140015396





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ABCMR Record of Proceedings (cont)                                         AR20140015396



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