BOARD DATE:	 21 July 2015 

		DOCKET NUMBER:  AR20140020952 


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 reconsideration of her request for:

	a.  removal of the Officer Evaluation Report (OER) for the rating period 14 January 2010 through 15 September 2010 (hereinafter referred to as the contested OER) from her Official Military Personnel File [the applicant no longer requests correction of the senior rater (SR) portion of the contested OER], and

	b.  consideration for promotion to colonel (COL), the Senior Service College (SSC), and Brigade Command by a special selection board (SSB). 

2.  The applicant states her appeal of the contested OER is based on both administrative and substantive errors.

	a.  She served as the Commander, 702nd Brigade Support Battalion (BSB), 4th Stryker Brigade Combat Team, 2nd Infantry Division
(4/2 SBCT), Joint Base Lewis-McChord (JBLM), from August 2008 to January 2010.  In August 2009, she deployed with her unit to Iraq in support of Operation Iraqi Freedom (OIF).  Approximately two months later, she returned to JBLM due to medical reasons.  Medical professionals recommended that she remain at JBLM for continuing medical care.

   b.  She interviewed with Brigadier General (BG) J__ W. M___, I Corps (Rear) Commander, and he recommended she serve as the 4/2 SBCT (Rear) Commander at JBLM.  She assumed command of the unit in January 2010.
   c.  Nine of the 14 brigades on JBLM, including 4/2 SBCT, did not have a division headquarters and I Corps (Rear) served as their higher headquarters. During this period, all battalion and brigade (rear) commanders were senior rated by the I Corps (Rear) Commander.

   d.  I Corps redeployed from Iraq to JBLM in April 2010 and 4/2 SBCT redeployed to JBLM in August 2010.

   e.  Her SR (BG J__ W. M___, I Corps (Rear) Commander) departed I Corps in July 2010.  He did not complete any "SR Option" OERs.  Major General (MG) J__ D. J___, I Corps (Interim) Commander, became her SR.

   f.  On 10 November 2010, the contested OER was completed by her rater (COL J__ G. N___, Brigade Commander, 4/2 SBCT, JBLM).  BG L__ M___, Deputy Commanding General (DCG), I Corps, JBLM, completed the SR portion of the OER by entering the statement, "I am unable to evaluate the rated officer because I have not been his or her senior rater for the required number of days."

   g.  Prior to signing the OER she questioned her rater about the change in SR (i.e., from MG J__ D. J___ to BG L__ M___) and was told to "just sign it."  She adds, "I was never counseled for this OER."

   h.  Prior to signing the OER she approached the former I Corps (Rear) Commander, (now) MG J__ W. M___, and asked him to reconsider serving as her SR.  She notes, "He stated that unfortunately too much time had passed since he had departed JBLM and he did not have room in his [SR] profile to support an ACOM [Above Center of Mass rating].  Furthermore, he thought the lack of a senior rater on the OER in question would just be viewed as a 'blank space in [her] file and should not affect [her] future upward movement' since [she] had successfully served as a CSL [Command Selection List] Battalion Commander."

   i.  In retrospect, (now) Lieutenant General (LTG) J__ D. J___ (the former I Corps (Interim) Commander) has stated, "I believe [the applicant's] OER was mishandled" and "due to the timing of her OER and the rotation of other general officers (GOs) at I Corps, I should have served as [applicant's] senior rater."

   j.  She obtained a copy of a 4/2 SBCT Rating Scheme, dated 14 October 2010, from a former I Corps, G-1 warrant officer.  The rating scheme was not prepared in accordance with the regulatory guidance (i.e., does not show the effective date for each rating official, she did not receive a copy of the rating scheme, and retroactive changes were made after she departed the unit).
   k.  In addition, an email message between the I Corps G-1 warrant officer and 4/2 SBCT Brigade S-1, dated 14 October 2010, confirms that her rater changed from the I Corps Commanding General (CG) to an unnamed I Corps DCG after she departed the unit.

   l.  The letters in her original application all offer support of her request.

   m.  When she reported to U.S. Army Pacific in the summer of 2013 (after receiving the latest COL's board results), the G-1 and two former brigade commanders reviewed her file, and all of them recommended she immediately pursue this appeal.

3.  The applicant provides the following new documentary evidence:

* I Corps Rating Scheme, 4/2 SBCT, dated 14 October 2010
* email message, subject:  4/2 SBCT Rating Scheme, dated 14 October 2010

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20140000781, on 20 February 2014.

2.  The matter of an SSB for SSC and Brigade Command was addressed in response to the original application.

3.  The applicant was appointed as a Reserve commissioned officer of the Army on 24 May 1989 and:

* entered active duty on 11 March 1991
* served in a variety of command and staff positions
* was appointed a Regular Army commissioned officer on 1 February 2001
* was promoted to lieutenant colonel (O-5) on 1 December 2006

4.  A review of the applicant's military personnel records revealed, in pertinent part, two DA Forms 67-9 (OERs) that show for the period from:

* 1 June 2008 through 31 May 2009, for duties performed as Commander, 202nd BSB, 4/2 SBCT, Fort Lewis, WA, an annual report was prepared by her:


* Rater:  COL J__ G. N___, Commander, 4/2 SBCT, Fort Lewis, WA
* SR:  BG J__ W. M___, Acting Commander, I Corps, Fort Lewis, WA

* 1 June 2009 through 13 January 2010, for duties performed as Commander, 702nd BSB, 4/2 SBCT, Camp Liberty, Iraq, a SR option report was prepared by her:

* Rater:  COL J__ G. N___, Commander, 4/2 SBCT, Camp Liberty, Iraq
* SR:  MG D__ P. B___, CG, Multi-National Division, Baghdad, Camp Liberty, Iraq

5.  The applicant received the contested OER (i.e., a change of duty report for the period from 14 January 2010 through 15 September 2010) for duties performed as Brigade (Rear) Commander, 4/2 SBCT, JBLM, WA.

   a.  It also shows:

* Rater:  COL J__ G. N___, Commander, 4/2 SBCT, JBLM, WA
* SR:  BG M__ L___, DCG, I Corps, JBLM, WA

   b.  Part IV (Performance Evaluation – Professionalism [Rater]), block d (Officer Development – "Were Developmental Tasks Recorded on 
DA Form 67-9-1a and Quarterly Follow-up Counseling Conducted?"), shows an "X" in the "YES" box.

   c.  Part VII (Senior Rater), block c (Comment on Performance/Potential), shows the SR entered the comment, "I am unable to evaluate the rated officer because I have not been his or her senior rater for the required number of days." 

   d.  Part II (Authentication – Rated officer's signature verifies officer has seen and completed OER Parts I (Administrative Data) through VII and the administrative data is correct), shows the OER was digitally signed by the rating officials on 10 November 2010 and by the applicant on 17 November 2010.

6.  In support of her original request the following memoranda were submitted and summarized in the Record of Proceedings.  In pertinent part the:

* memorandum from GEN C__ H. J___, dated 18 November 2013, shows during the period May 2007 through June 2010 he served as CG, I Corps and Senior Commander, JBLM, both in garrison and while deployed to OIF in Iraq; dual-hated as the Deputy Commander for Operations, U.S. Forces -Iraq.  He stated, "All Battalion Commanders and Brigade Rear Commanders on JBLM were senior rated by one of the I Corps' DCGs depending on the timing of the OER."
* memorandum from LTG J__ D. J___, dated 16 October 2013, shows during the period August 2008 through October 2010 he served as both the Deputy and Acting CG, I Corps and Senior Commander, Fort Lewis, WA.  He stated, "All Battalion Commanders and Brigade Rear Commanders on JBLM were collectively senior rated by one of the 
I Corps' DCGs, depending on the timing of the OER and rotation of the GOs."
* memorandum from BG J__ W. M___, dated 29 September 2013, shows during the period March 2009 through April 2010 he served as CG, 
I Corps (Rear) and Senior Commander, Fort Lewis, WA.  During the period 15 April 2010 through 15 July 2010 (emphasis added) he served as DCG - Operations (DCG-O).  He stated, "It is very unfortunate that I was not able to be her senior rater during this rating [i.e., due to the circumstances of the rater not changing]."
* memorandum from COL J__ G. N___, dated 5 December 2013, shows during the period from August 2008 through November 2010 he served as the Commander, 4/2 SBCT.  He noted that all six of 4/2 SBCT's Battalion Commanders, the Brigade (Rear Detachment) Commander, and the Brigade Executive Officer reported directly to and were rated by him.  He stated, "The [applicant's] OER in question dated 14 January 2010 –
15 September 2010 with an unrated senior rater portion occurred during a period of significant transition in GOs at Fort Lewis, WA."
* memorandum from COL B__ M. P___ (U.S. Army, Retired), dated 
30 November 2013, shows during the period from July of 2009 through September 2010 he served as the commander of an ad hoc unit set up by the I Corps and Fort Lewis senior leadership called Task Force Stryker.  All seven of the brigade Rear Detachment commanders reported directly to him; he was the Rater for each…all except the applicant.  He stated, "Then BG J__ W. M___, Acting CG for I Corps, served as the senior rater for all brigade and brigade Rear Detachment commanders on Fort Lewis."
* memorandum from COL M__ D. B___, dated 6 October 2013, shows during the period 28 August 2008 through 15 November 2010 he served as the Commander, 4th Battalion, 9th Infantry Regiment, 4/2 SBCT.  The brigade experienced a series of unique circumstances that he thinks impacted the applicant's situation.  First, the brigade, along with the six other brigades at Fort Lewis, did not have a division headquarters.  Their collective higher headquarters was I Corps.  He stated, "They were collectively senior rated by one of the Corps' DCGs, a MG and BG, depending on the timing of the OER."

* memorandum from COL J__ W. L___, dated 17 September 2013, shows during the period from August 2008 to November 2010 he served with the applicant in the 4/2 SBCT as one of her fellow battalion commanders.  He has firsthand knowledge of the events that transpired during the rating period in question of 14 January 2010 to 15 September 2010.  It was standard practice that the BG J__ W. M___, Acting I Corps Commander, who was responsible for Rear Detachment Operations on JBLM while the
I Corps Commander and his other DCGs were deployed to Iraq, served as the senior rater for all battalion commanders assigned to I Corps on the post.  He stated, "I was surprised to recently learn during her appeals process that BG J__ W. M___ did not complete a senior rating on her Brigade Rear Detachment OER."
* memorandum from Major W__ N. P___, dated 23 October 2013, shows during the period from November 2007 to November 2010 he served as the Brigade S-1, 4/2 SBCT.  To the best of his memory the applicant's rater was COL J__ G. N___, Commander, 4/2 SBCT, and SR was 
BG J__ W. M___, CG, I Corps (Rear) and the Senior Commander of Fort Lewis.  He stated, "She should have received a SR Option from BG J__ W. M___ prior to his departure in July 2010.  MG J__ D. J___, Deputy and Acting CG, I Corps, and Senior Commander of JBLM then picked her up as her Senior Rater."

7.  In support of her request for reconsideration, the applicant provides the following documents as new evidence:

   a.  Page 1 of 2 of an I Corps Rating Scheme, 4/2 SBCT, dated 14 October 2010, that shows:

    	(1)  the following information pertaining to the applicant's rating:

* Rater:  Commander, 4/2 SBCT
* Intermediate Rater:  Not Applicable (NA)
* Senior Rater:  DCG (emphasis added)
* Reviewer:  NA
* Service:  U.S. Army
* Evaluation Type:  Annual
* Thru Date:  15 September 2010
* Status:  Received
* Remarks:  Pending Unit Confirmation

    	(2)  It also shows all of the other (10) officers in grade O-5 had the same rating chain/scheme (i.e., rater and senior rater) as the applicant.

   b.  An email message string that shows, in pertinent part, on 14 October 2010, Chief Warrant Officer Three V__ C___, I Corps, G-1, notified First Lieutenant K__ R. A___, 4/2 SBCT Assistant S-1, "I am tracking the Change of Commands which will generate Change of Raters in the attached Rating Scheme.  Please confirm. Also, provide status on:  '[Applicant] sent email to Brigade Executive Officer stating CG cannot issue a ACOM, he has closed his evaluations and now it must be processed through DCG with no blocking/no rating' – please acknowledge so we can proceed."

8.  Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policies and tasks for the Army's Evaluation Reporting System and includes reporting systems for officers.  It includes policy statements, operating tasks, and rules in support of operating tasks.

	a.  Chapter 2 (The Rating Chain), paragraph 2-7 (Rules to designate the Senior Rater) shows the SR will normally be the immediate supervisor of the rater and a supervisor above all other rating officials in the rated officer's chain of command or chain of supervision.  To render a written evaluation report, the SR will have been designated as the rated officer's SR for a minimum period of 60 calendar days.

	b.  Chapter 3 (Army Evaluation Principles), paragraph 3-43, states that a change of duty OER is mandatory when the rated officer has a change of principal duty, even though the rater remains the same.  The change of duty OER is used for all reassignments, including permanent changes of station.

	c.  Chapter 3, paragraph 3-61, states that a SR option OER may be rendered when a change in SR occurs.  The SR may direct that a SR option evaluation report be made on any Soldier whom they senior rate when a change in SR occurs.  This will apply only if the SR has served in that position for at least 60 calendar days.  When an evaluation report is due within 60 calendar days of the change in SR, the SR will submit a SR option report to prevent that OER being submitted without a SR evaluation.

   d.  Chapter 6 (Evaluation Redress Program), paragraph 6-11, 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.

9.  Army Regulation 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system.  Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when the board that considered an officer from in or above the promotion zone did not have before it some material information.  A material error is defined as one or more errors of such a nature that in the judgment of the reviewing official (or body) may have caused an individual's nonselection by a promotion selection board.  Had such errors 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.  The applicant contends that her application for removal of the contested OER should be reconsidered because she has obtained new evidence to support her request.

2.  The evidence of record shows the applicant received a SR option OER with a "Thru" date of 13 January 2010.  Thus, at that time as a matter of recordkeeping, the next OER she would have been due would have been an annual OER with a "Thru" date of 13 January 2011.

3.  Records show the applicant then assumed the position of Brigade (Rear) Commander, 4/2 SBCT (Rear), JBLM, on (or about) 14 January 2010.

   a.  Her previous rater, COL J__ G. N___, Brigade Commander, 4/2 SBCT (Iraq), remained her rater.  (It is noted that COL J__ G. N___ had been serving continuously as her rater since 1 June 2008.)

   b.  The evidence of record shows her SR was BG J__ W. M___, I Corps (Rear) Commander, JBLM.

4.  The evidence of record also shows:

   a.  prior to I Corps' redeployment to JBLM, all battalion and brigade (rear) commanders on JBLM were senior rated by the I Corps (Rear) Commander;
   
   b.  I Corps redeployed from Iraq to JBLM in April 2010; and

   c.  the CG, I Corps, confirmed, "All Battalion Commanders and Brigade Rear Commanders on JBLM were [then] senior rated by one of the I Corps' DCGs depending on the timing of the OER."

5.  The evidence of record shows that the applicant's SR (BG J__ W. M___) departed I Corps on (or about) 15 July 2010 and he had served in the position as the applicant's SR for at least 60 calendar days.  Thus, he could have rendered a 
SR option OER.  However, the evidence of record shows he did not elect to do so.  Moreover, he was under no regulatory requirement to complete a SR option OER because the there is no evidence of record that shows an OER was due within 60 calendar days (emphasis added) of the change of rater.

6.  The applicant contends that MG J__ D. J___, I Corps (Interim) Commander, then became her SR.  However, there is no documentary evidence (i.e., official rating scheme) to confirm this assertion.

7.  The I Corps Rating Scheme for 4/2 SBCT and an email message (both dated 
14 October 2010) that the applicant provides in support of her request for reconsideration were carefully considered.

   a.  The rating scheme is incomplete (page 1 of 2), it does not contain effective dates, and it is not authenticated by the commander or his/her designated official.  In addition, the rating scheme is dated subsequent to the "Thru" date of the contested OER.  (It is noted that the document shows the SR for the applicant (and 10 other LTCs) was the DCG, I Corps (emphasis added).)

   b.  The email message shows, in pertinent part, that the applicant sent an email to the Brigade Executive Officer stating the CG, I Corps, cannot (emphasis added) issue an ACOM OER because he had closed his evaluations.  It also shows her OER must be (emphasis added) processed through the DCG, 
I Corps, with no blocking/no rating.
   
    	(1)  This email message offers insufficient evidence to establish that the CG, I Corps, was designated as her SR on a date subsequent to BG J__ W. M___'s departure on 15 July 2010.  In fact, the CG, I Corps states in his memorandum, dated 18 November 2013, the applicant's SR would have been one of the DCGs.
   
    	(2)  Thus, the email message actually offers evidence that the correct processing of the applicant's OER was through a DCG, I Corps, which is also consistent with the rating scheme showing "DCG" as the applicant's SR.

8.  The contested OER shows BG M__ L___, DCG, I Corps (emphasis added), completed his portion of the OER as the SR and he acknowledged, "I am unable to evaluate the rater officer because I have not been his or her senior rater for the required number of days."

   a.  Notwithstanding the applicant's contention that she was never counseled for this OER, Part IV, block d, of the contested OER shows otherwise.

   b.  In addition, the applicant verified that she had seen the completed OER and she acknowledged this with her signature on 17 November 2010.

9.  The memoranda that were previously submitted in support of the applicant's request essentially contend that she should have received a senior rating from a GO.  However, they provide inconsistent information as to exactly which GO should have been the SR.  
   
   a.  The evidence of record shows COL J__ G. N___ (the applicant's rater on the contested OER) had been her rater for more than two years and had rendered two previous OERs.  Thus, it is reasonable to conclude that he was very well aware of and acquainted with the applicant's SR.

   b.  The SR shown on the contested OER (to whom the rater forwarded the OER for completion of the SR portion) is a GO and (at the time) a DCG in I Corps.

10.  Thus, in view of all of the foregoing, it is concluded that the applicant has not produced evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.

11.  Therefore, there is an insufficient evidentiary basis for granting 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 to amend the decision of the ABCMR set forth in Docket Number AR20140000781, dated 20 February 2014.




      _______ _  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)                                         AR20140020952



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ABCMR Record of Proceedings (cont)                                         AR20140020952



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