IN THE CASE OF:	  

		BOARD DATE:	  21 April 2015

		DOCKET NUMBER:  AR20150000564 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of the DA Form 67-9 (Officer Evaluation Report) for the rating period 20101204 through 20110508 (hereafter referred to as the contested OER) from her official military personnel file (OMPF).

2.  The applicant states there is one error associated with this appeal that was substantially prejudicial to her material rights:  The satisfactory rating had no objective basis and was downgraded as a result of a personality conflict regarding the performance of the company first sergeant (1SG).  The rater intentionally chose to use feinted praise language and intentionally omitted favorable information.  To the contrary, multiple training exercises Operations Orders (OPORDERS) and letters of recommendation support an outstanding and above center of mass evaluation.  She adds: 

	a.  As a junior captain (CPT), she received a Non-Left-Justified (NLJ) evaluation for the rating period of five months (through 20110508).  Based on this report she was denied opportunity to teach Russian at West Point and ample opportunities for Volunteer Branch Transfer.  She has secured a legal representation and her attorney sent an appeal to the U.S. Army Human Resources Command (HRC) within a 3-year window.  The appeal was returned without action.

	b.  She requests the Board to find it in the interest of justice to consider this application based on the reasons outlined in the memorandum to HRC dated 13 January 2014.  Since she has a NLJ report on file, she is a candidate for separation through the Officer Separation Board (OSB) and potentially at risk for promotion.  Her senior rater during the contested period put her in the top 50 percent of the 14 CPTs he senior rated and he also recommends giving her an opportunity to continue service based on her stellar conduct.  Her other OERs are included to demonstrate that throughout her career, she has consistently received outstanding performance evaluations.  The rater additionally intentionally omitted favorable information.

	c.  As a company executive officer she was responsible for logistical and operational support for all training events.  During the rated 5-month period, Company B conducted two off-post training events and one range.  Her primary responsibilities for these training events are outlined in the OPORDERS PORDERs under Phase I, II, IV, Tasks to Subordinate Units.  She has completed all the requirements ensuring the success of the exercises which were recognized by battalion commander as very well coordinated and precisely executed training events.  Her witness statements are included.  One statement, signed by a colonel (COL), clearly notes the internal inconsistencies in the report that clearly reflect the feinted praise nature of this report.

3.  The applicant provides:

* Appeal packet to HRC
* HRC's returned without action memorandum
* Contested OER
* Other OERs during her military service
* Letters of recommendation for various officials
* Relevant OPORDERS related to her duty performance

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

The applicant listed the name of counsel; however, counsel did not make a statement or provide evidence. 

CONSIDERATION OF EVIDENCE:

1.  Having had prior enlisted service (1 June 2004 to 29 August 2007), the applicant was appointed as a commissioned officer on 30 August 2007.  She completed the Signal Basic Officer Leader Course from 3 December 2007 to 18 March 2008.  She served in Afghanistan from April 2008 to April 2009.

2.  She was promoted to first lieutenant on 28 February 2009 and to CPT on 1 September 2010.  In March 2009, she was assigned to Company B, 3rd Psychological Operations Battalion, Fort Bragg, NC, and on 4 December 2010, she was assigned as the Executive Officer, B Company, 3rd Military Information Support Operations Broadcast (MISB) Dissemination Company (Airborne). 

3.  During May 2011, she received the contested OER, a change of rater OER, which covered 5 months of rated time from 4 December 2010 through 8 May 2011 for her duties as Company Executive Officer, B Company, 3rd MISB (A) comprised of 202 Soldiers.  Her rater was Major (MAJ) TBM, the Company Commander, and her senior rater was lieutenant colonel (LTC) RABC, the Battalion Commander.  The OER shows the following entries:

	a.  In Part IVa (Performance Evaluation-Professionalism-Values), the rater placed an "X" in all the "Yes" blocks for all 7 values.

	b.  In Part IVb (Performance Evaluation-Professionalism-Leader Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for the appropriate attributes, skills, and actions. 

	c.  In Part IVc (Army Physical Fitness Test, Date, Height, and Weight), the rater entered corresponding entries. 

	d.  In Part Va (Performance Potential Evaluation), the rater placed an "X" in the "Satisfactory Performance-Promote" block and entered appropriate comments in Part Vb, as follows:

[Applicant] is a gifted officer.  During this rating period, she coordinated the turn-in of almost $14 million worth of obsolete broadcast equipment.  Her efforts included serving as liaison between the company, battalion, and the outgoing and incoming Life Cycle Sustainment Managers (LCSM) for the equipment.  Her efforts created a smooth transition between vendors and ultimately led to the United States Army Special Operations Command requesting immediate disposition instructions for the obsolete equipment.  Her performance throughout the rated period has been sufficient.  Send her to Signal Captains career Course followed by a key developmental position. 

	e.  In Part Vc (Comments on Potential for Promotion) the rater stated "possesses the potential to excel at positions of greater responsibility; promote to major." 

	f.  In Part Vd (Identify any unique professional skills or areas of expertise of value to the Army that this officer possesses; for Army Competitive Category CPT also indicate a potential career field for future service), the rater entered "fluent in Latvian and Russian" and "Would serve the Army best in Maneuver/Fires/Effects (MFE) 37."

	g.  In Part VII (Senior Rater), the Senior Rater placed an "X" in the "Fully Qualified," placed the entry "No Box Check" and indicated he senior rated 14 officers in that grade at the time.  He then entered the following comments: 

A solid performance from [Applicant].  [Applicant] remains in the top 50 percent of the 14 CPTs I senior rater.  She is a talented officer who displays great diligence in her work.  As a junior captain, she was able to navigate through the contracting process with no formal training and enabled B Company to eliminate excess broadcast equipment that did not meet the unit's requirements from the property book.  Her work on the company level SOPs [Standing Operating Procedures] set a great standard for the other companies to follows.  Send to the Captains Career Course and promote to major. 

4.  The contested OER was signed by her rater on 25 May 2011, by the senior rater on 29 May 2011, and by the applicant on 9 June 2011.  It was posted to her OMPF on 17 June 2011. 

5.  On 13 January 2014, she and her counsel submitted an appeal of the contested OER to HRC contending substantive and administrative inaccuracy.  Counsel attributed the satisfactory rating to a personality conflict regarding the unit first sergeant.  Counsel also argued that the rater intentionally omitted favorable information. 

6.  On 13 March 2014, HRC informed the applicant that her appeal was returned without action due to insufficient evidence and alerted her to the appeal process outlined in Army Regulation 623-3 (Evaluation Reporting System). 

7.  There is no indication she resubmitted her appeal to HRC as outlined above and in accordance with Army Regulation 623-3. 

8.  She provides:

	a.  Multiple OERs throughout her service, each showing the ratings assigned by the respective rater and senior rater for the rating period.

	b.  Company/Battalion OPORDERS.

	c.  Supporting statements from officers and/or noncommissioned officers who have either known her or worked with her.  The authors opine they reviewed the contested OER and recommend it be revised to reflect her true performance.

9.  Army Regulation 623-3 (Evaluation Reporting System (ERS)) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states 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.  To justify deletion or amendment of a report, the appellant must produce 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.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	a.  Paragraph 1-4 states OERs are prepared by the rating officials designated in the published rating scheme.  Rating chains correspond as nearly as practical to the chain of command or chain of supervision in a timely manner.  Pooling, or elevating the rating chain beyond the senior rater’s ability to have adequate knowledge of each Soldier’s performance and potential, in order to provide an elevated assessment protection for a specific group, runs counter to the intent of the ERS.

	b.  Paragraph 3-36 states an evaluation report accepted by Headquarters, Department of the Army (HQDA) and included in the official record of a rated Soldier is presumed to be administratively correct, to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  Requests for modifications to evaluation reports already posted to a Soldier’s OMPF require use of the Evaluation Report Redress Program.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) governs the composition of the OMPF and states that the performance section 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 states the DA Form 67-9 is filed in the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant received a change of rater OER that covered 5 months of rated time from 4 December 2010 through 8 May 2011 for her duties as Executive Officer of a signal company.  The rating reflects her performance during the rating period as seen and judged by her rating officials.  Her dissatisfaction with the rating does not negate the OER or make it an invalid OER.  Likewise, her belief that the contested OER does not reflect a true picture of her performance is insufficient to impeach the rating officials' assessment of her performance during the rating period.  

3.  She appealed this OER to HRC, albeit some 2 years and 8 months after the through date, but her appeal was deficient.  HRC officials explained to her the appeal process and the required documents.  Generally, in order to support a successful appeal evidence should include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the applicant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the applicant's performance as well as interactions with rating officials.  She elected not to respond to the guidance provided.  

4.  There is insufficient compelling evidence that shows the contested OER is substantively inaccurate and does not accurately reflect her performance or potential or that her Rater and/or Senior Rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  Based on the applicable regulations, the contested OER is correct as constituted and the applicant did not meet the burden of proof to justify its removal.  As such, there is insufficient evidence to remove the contested OER from her OMPF.







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)                                         AR20150000564



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150000564



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1