BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20150001559 


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.  Applicant requests removal of the following documents from her official military personnel file (OMPF): DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 9 April through 17 June 2011, an involuntary separation memorandum, separation orders and amended separation orders.  With this request she seeks constructive service credit with back pay from 17 June 2011 until 31 July 2014, her mandatory removal date.  She also seeks placement on the Army of the United States Retired List in the grade of brigadier general (BG) upon reaching 60 years of age. 

2.  The applicant states:

     a.  She was proud to be the first female in the California Army National Guard (CAARNG) to be promoted as a general officer.  Her honorable 32-year career was not only tarnished but cut short by a minimum of 3 years and potentially 8 years if she had been promoted.  Army Regulation 135-175 (Separation of Officers) was not followed.

     b.  Because of her stellar career and dedication to Soldiers and service she was asked to put forth a nomination packet for promotion to major general (MG).  The political tide turned in April 2011 and her career was cut short in June 2011.  That would have been acceptable if she had been asked to retire early for the sake of the organization or asked to seek a tour outside of the CAARNG, but instead she was involuntarily separated for cause and not afforded due process.    If regulatory guidance had been followed, she would have been retained in the active Reserve.  Her rights were violated and she should not have been separated.

     c.  The Adjutant General (TAG) cited a four-year old policy memorandum and email she wrote to deploy the policy as the basis for cause and separation.  It seemed contrived to her for a few reasons to include:  a recent U.S. Army Criminal Investigation Command (CID) investigation that was conducted in reference to the Recruiting Command and its incentives found she was not a suspect; the policy memorandum in question was in effect for three months due to her change of command and no incentive payout occurred; when asked what the abuse of incentives were, she did not get an answer.

     d.  Because she was not afforded due process, she submitted a complaint requesting redress and it was denied.  

 3.  The applicant provides a chronology of events with several attachments. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  After having prior enlisted service, on 4 August 1983 the applicant was appointed as Reserve commissioned officer in the CAARNG in the rank of second lieutenant.  She was appointed to the rank of BG effective 31 July 2009.

3.  In an email, dated 5 January 2011, she was invited to submit her packet for consideration to the ARNG General Officer Federal Recognition Board.

4.  A DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG)), dated 3 June 2011, shows that favorable personnel actions for her were suspended due to adverse action.

5.  A DA Form 3881 (Rights Warning Procedure/Wavier Certificate), dated          8 June 2011, shows she was informed that she was suspected of conspiracy, fraud, dereliction of duty, and failure to obey an order or regulation.

6.  A memorandum, subject:  Involuntary Separation, dated 16 June 2011, issued to her by TAG, CAARNG stated that:

     a.  She was being involuntarily separated from the CAARNG for cause effective 17 June 2011.  The basis for the action was a loss of faith, trust, and confidence in her ability to serve as a general officer as was evident by her conduct as Commander, Recruiting and Retention Command, CAARNG.  While serving in that position she demonstrated poor judgment.  

     b.  Specifically, sufficient evidence substantiated that she was derelict in her duties as a commander when she failed to obtain proper ethical guidance prior to issuing a Recruiter Incentive Pay-Officer (RIP-O) Program Policy Memorandum, dated 12 January 2007, and an electronic message, dated 18 January 2007.  Both documents implemented the administration of the RIP-O program in a manner which was contrary to the existing policy.  The guidance concerning the RIP-O program prohibited the "sharing of all RIP-O payments equally," which was exactly what she recommended in her policy memorandum, dated 12 January 2007.  

     c.  Her email message transmitted on 18 January 2007 explained that the policy memorandum "should alleviate any ethical dilemmas some of the team members are having about individual production versus team production."  In that email she acknowledged a potential ethical issue and then she succinctly dismissed it by referring to her own policy memorandum.  As a senior leader she not only had a duty to follow current guidance on the RIP-O program, but to also ensure that her subordinates followed the applicable guidance.

     d.  On both accounts, the evidence showed that she failed.  Instead of attempting to dismiss the ethical issue with a policy memorandum, she should have sought ethics advice from a subject matter expert, to include the Military Department ethics advisor.  She did not seek such advice and counsel.   

7.  On 23 June 2011, she was notified that TAG was considering whether to file the Involuntary Separation Memorandum, dated 16 June 2011, in her OMPF.  She was provided the opportunity to submit a rebuttal.  

8.  A memorandum, subject:  Article 138 Complaint, dated 28 June 2011, shows she filed a complaint under the provisions of Article 138, Uniform Code of Military Justice.  In the complaint she stated:
     a.  She was filing an Article 138 complaint and requested that TAG immediately rescind his involuntary separation memorandum.  She further requested that he state the separation authority he was using, that he direct that those separation authority requirements be followed, and that he provide all documents relevant to his decision to commence the involuntary separation process.

     b.  His separation memorandum did not cite any authority for him to take the voluntary separation action.  Her review of possible applicable authorities showed that he was not following the requirements of those authorities and the separation action was improper.

9.  In a memorandum, subject:  Response to Article 138 Complaint, dated          30 June 2011, TAG responded to her Article 138 complaint.  He stated:

     a.  In accordance with (IAW) Army Regulation 27-10 (Military Justice), paragraph 20-2, Article 138 complaints from members of the ARNG are limited to matters concerning their Title 10 Federal Service and he was treating her complaint as a general request for redress rather than an actual Article 138 complaint.

     b.  He had lost faith, trust, and confidence in her ability to serve as a general officer in the CAARNG.  Therefore, she was removed from her general officer position in accordance with chapter 4-1 of Army Regulation 135-156 (Reserve Component General Officer Personnel Management).  That action was taken following her suspension by BG D___ J. C____ which was issued verbally on      7 June 2011 and then followed by a written notice on 15 June 2011.
 
     c.  His action to remove her from her general officer position was coordinated with the National Guard Bureau (NGB) and the General Officer Management Office prior to execution.

     d.  She would have an additional opportunity to respond to his removal action if she chose to respond to his proposed filing of her Involuntary Separation Memorandum in her OMPF.  He notified her of that right and provided her the relevant information that he considered when he proposed the action.

10.  On 1 July 2011, she responded to the Involuntary Separation Memorandum and submitted the following statements on her behalf:

     a.  She requested that the Involuntary Separation Memorandum not be filed until she was provided an investigation and documents relating to the matter as required by regulation.
     b.  The separation memorandum did not cite any specific reason or thoughts to confirm his conclusion of dereliction of duty.  When she was presented the memorandum he indicated that the CID investigation had not been completed.  Without a completed investigation to confirm his loss of trust in her abilities, she did not understand the unfavorable information presented against her.  She previously requested that he provide her all documents relating to his decision and he had not provided her the documents.

     c.  She requested that he reflect on whether to have the memorandum of involuntary separation officially filed, that he delay the consideration until such time as an investigation had been completed, and that all investigations and records be provided for her review. 

11.  A review of her OMPF did not reveal a copy of the Involuntary Separation Memorandum. 

12.  Orders 187-1266, issued by Joint Forces Headquarters, CAARNG, dated        6 July 2011, show that she was separated from the ARNG effective 16 July 2011 and transferred to U.S. Army Reserve (USAR).  The effective date was later amended to 17 July 2011.  

13.  On 26 October 2011, she received a relief-for-cause OER for the period          9 April 2011 through 17 June 2011 for duties as the assistant division commander.  Her rank during the rating period was BG.  The OER is currently filed in the performance portion of her OMPF.  The OER shows the following entries:

     a.  In Part IId (Authentication), the rater noted this was a referred OER and an "X" was placed in the "Yes" block to indicate the applicant wished to make comments.

     b.  In Part VIIa (Senior Rater), the TAG, CAARNG placed an "X" in the "Do Not Promote" block.  In Part VIIb, the box "Below Center of Mass, Do Not Retain" was checked.  In Part VIIc, the senior rater entered the following comments:

The [applicant] was derelict in her duties in January of 2007 as the commander of the Accessions Task Force when she failed to obtain proper ethical guidance prior to issuing a policy memorandum to subordinates in her command, directing them to implement the [RIP-O] program in such a manner that was contrary to Army guidance.  [Applicant] acknowledged a potential ethical issue and then succinctly dismissed it by referring to her own policy letter which completely contravened Army guidance.  This recent discovery of failure in judgment and leadership has caused me to lose faith, trust and confidence in her ability to serve as a general officer in her current position and therefore I relieved her from her general officer position.

14.  The contested OER was signed by the rater/senior rater on 31 August 2011 and by the applicant on 26 October 2011. 

15.  In comments regarding the contested OER addressed to TAG/her senior rater she stated:

     a.  The comments by the rater held her performance to be professional, above expectation and showed great initiative.  He further stated that she had demonstrated potential to perform in positions of greater responsibility.  He ranked her as "Outstanding Performance Must Promote."  He did not provide any comments to support his comments as the senior rater.

     b.  Although the OER was labeled as a Relief for Cause, in part I, block h, TAG never properly or formally relieved her for cause IAW Army regulations.  She brought this to his attention on several occasions prior to the OER, but she did not receive a response.  Without a valid separation and relief, there was no authority for the OER. 

     c.  His reference to an alleged incident over 4 years ago was not supported by an investigation or any findings of wrongdoing by her or any other commander.  His allegation that it was a recent discovery was not correct.  She wrote the memorandum he described as a "failure in judgment" and "contrary to Army guidance" within the specifications cited in NGB guidance and made distribution to normal channels.  Her chain of command was fully aware and supportive of her activities.  That is why there had been no modification to the OER written at that time.

     d.  The rater from 2007 was informally solicited to make a modification to her 2007 OER.  He was unwilling to consider the action without a completed investigation.  Her OER fell extremely short of the 120-day rating period for submission.  There were only 2 months in the period covered that were rated.

     e.  She repeatedly requested all investigation(s) regarding the alleged incident and she had not received anything.  He was setting out an unfounded and uninvestigated reason for the OER.  The relief for cause OER was not only administratively unsound, it had nothing to do with her performance during the rating period or during the period in which he claimed she was derelict in her official duties.  She concluded that he had a personal agenda. 

16.  A memorandum, subject:  Whistleblower Reprisal Complaint (10 USC 1034) by [Applicant], dated 2 August 2011, shows she filed a whistleblower reprisal complaint in which she alleged:

     a.  A lawful and protected communication was made to MG JSH____ regarding the existence of an Army Regulation 15-6 investigation that potentially implicated TAG and would show he may have violated a regulation.  At the time of the communication TAG was a colonel. 

     b.  An unfavorable personnel action was taken by TAG against her when he issued her an involuntary separation memorandum on 16 June 2011. 

     c.  TAG has reason to believe that she has knowledge of the investigation and that she discussed or communicated with other senior leaders about its implications.

     d.  The personnel action was not supported by an investigation nor was it IAW Army regulations; therefore, a prima facie case was set out that the personnel action would not have taken place had the protected communication not been made.

17.  On 31 January 2012, the Office of the Inspector General informed the applicant of the findings of her allegations.  The report stated:

     a.  The evidence indicated that BG B___ and BG C___ exercised their command authority to suspend and ultimately remove her from the CAARNG once they lost faith and confidence in her abilities as a senior leader.  The evidence was IAW applicable laws and State and Federal regulations.

     b.  The evidence indicated that fraudulent actions occurred in the Recruiting and Retention Command, and BG B____ and BG C___ exercised their command authority to suspend and ultimately remove responsible personnel once they lost faith and confidence in those individuals' abilities as commanders and senior leaders.  There was no credible evidence that BG B___'s and BG C___'s actions were discriminatory or based on gender.

     c.  There was no evidence that the unfavorable personnel actions taken against her were related to her discussion with the former commander, Army Division; but, instead were based in a determination by the CAARNG leadership that she was derelict in the performance of her duties. 

18.  Orders C-07-410609 issued by the U.S. Army Human Resources Command, dated 30 July 2014, shows she was released from the USAR Control Group (Reinforcement) and assigned to the Retired Reserve effective 31 July 2014.

19.  Army Regulation 623-3 (Evaluation Reporting System) states an evaluation report accepted by Headquarters, Department of the Army and included in the official record of a rated Soldier is presumed to be administratively correct; have been prepared by the properly designated rating officials; and represent the considered opinions and objective judgment of the rating officials at the time of 
preparation.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that clearly and convincingly establishes that:

	a.  the presumption of regularity referred to in paragraph 3-39 and 6-7 will not be applied to the report under consideration and

	b.  action is warranted to correct a material error, in accuracy, or injustice.

20.  Army Regulation 600-20 (Army Command Policy), paragraph 2-17 (Relief for cause) states that when a higher ranking commander loses confidence in a subordinate commander's ability to command due to misconduct, poor judgment, the subordinate's inability to complete assigned duties, or for other similar reasons, the higher ranking commander has the authority to relieve the subordinate commander.  Relief is preceded with formal counseling by the commander or supervisor unless such action is not deemed appropriate or practical under the circumstances.  Although any commander may temporarily suspend a subordinate from command, final action to relieve an officer from any command position will not be taken until after written approval by the first general officer in the chain of command of the officer being relieved is obtained.  Any action purporting to finally relieve an officer from any command position prior to the required written approval will be considered for all purposes as a temporary suspension from assigned duties rather than a final relief from command for cause.  If a general officer (to include one frocked to the grade of brigadier general) is the relieving official, no further approval of the relief action is required; however, Army Regulation 623-3 concerning administrative review of relief reports remain applicable.

21.  Army Regulation 623-3, paragraph 3-58, states an OER is required when an officer or warrant officer is relieved for cause regardless of the rating period involved.  Relief for cause is defined as an early release of an officer from a specific duty or assignment directed by superior authority and based on a decision that the officer has failed in his/her performance of duty.

22.  Department of the Army Pamphlet 623-3 (Evaluation Reporting System), paragraph 2-13 (Relief for Cause OER Instructions), states if a rated officer or warrant officer is officially relieved, the following specific instructions apply to completing a relief report:

	a.  The potential evaluation in Part Va of the DA Form 67-9 must reflect "Do not promote" or "Other."  A "Do not promote" recommendation is consistent with relief action and does not need further explanation.  However, raters who want to make some other recommendation will check "Other" and will explain their recommendation and reasons in view of the action to relieve.

	b.  The rating restriction in (a), above, does not apply to a rater who has not directed the relief and does not agree with the relief.  However, they must state their non-concurrence in the proper narrative portions of the OER.

	c.  The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in his or her narrative portion of the DA Form 67-9.

	d.  If the relief is directed by someone not in the designated rating chain, the official directing the relief will describe the reasons for the relief in an enclosure to the report.

     e.  No remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except for relief-for-cause reports based on information pertaining to a previous reporting period and most recent Army Physical Fitness Test. 

23.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel 
records jacket, the career management individual file, and Army personnel qualification records.  Paragraph 2-4 states that once a document is placed in the OMPF it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, Department of the Army Suitability Evaluation Board, Army Appeals Board, Chief of Appeals and Corrections Branch of the Total Army Personnel Command, OMPF custodian when documents have been improperly filed, Total Army Personnel Command as an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.
24.  Army Regulation 600-8-104, Table 2-1 states that an OER will be filed in the performance section of the OMPF.

25.  National Guard Regulation 635-100 (Personnel Separations - Termination of Appointment and Withdrawal of Federal Recognition), chapter 5 (a)24 provides for termination of a general officer when he or she ceases to occupy a position commensurate with his or her grade within 30 days of when he or she ceases to occupy such position.

26.  Army Regulation 135-156 (Reserve Component General Officer Personnel Management), paragraph 40-3a provides Reserve Component general officers (with the exception of Adjutants General) removed from a general officer position have 30 days to elect a transfer to the Retired Reserve, transfer to the Standby Reserve, or discharge from the officer's Reserve appointment and appointment in the Reserve grade held prior to the promotion to a general officer grade.

27.  Title 10 U.S. Code 1370 (Commissioned officers: general rule; exceptions) (a)(2)(a) states in order for voluntary retirement in a grade above major or lieutenant commander, a commissioned officer must have served on active duty in that grade for not less than 3 years. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for removal of the following documents from her OMPF was carefully considered.

* OER covering the period 9 April through 17 June 2011
* an involuntary separation memorandum
* separation orders and amended separation orders

2.  She contends the OER is unjust, she was not afforded due process and she was incorrectly involuntarily separated.  However, based on governing regulations her command exercised their authority to suspend and ultimately remove her from the CAARNG once they lost faith and confidence in her abilities as a senior leader.

3.  The applicant has not shown this OER contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, she filed an IG complaint citing issues concerning her OER and her involuntary separation.  The investigation found that her complaints were unsubstantiated.

4.  It appears the evaluation contained in the contested OER represents the considered opinions and objective judgment of the rating officials at the time of its preparation.  As a result, the contested OER was processed and accepted for filing in her OMPF and there is insufficient clear and compelling evidence to overcome the presumption of regularity and/or remove/delete the contested report.  Therefore, she is not entitled to the requested relief.

5.  The contested OER was prepared by the properly designated rating officials and is properly filed in the applicant's OMPF in accordance with the governing regulation.  There is no evidence it was improperly prepared or filed.

6.  With respect to the removal of the involuntary separation memorandum, a review of her OMPF did not reveal a copy of the memorandum; therefore, there is no basis for granting relief.

7.  With respect to the removal of her separation orders and her amended separation order, those orders were properly filed in the service section of her OMPF when she was separated from the ARNG.

8.  Her requests for constructive service credit, back pay and placement in the Retired Reserve in the grade of BG were carefully considered and found to lack merit.

9.  With respect to her request for constructive service credit and back pay, governing regulations provide little in the way of process for the officer.  That measure stems from the fact that National Guard general officers serve at the pleasure of the governor of the state.  She was properly separated by the CAARNG and the NGB.  Accordingly, she is not entitled to constructive service credit or back pay.

10.  With respect to her request to be place in the Retired Reserve in the grade of BG, she did not accrue enough time in an active status as a BG to be retired in the grade of BG. 

11.  In viewing of the foregoing, there is no 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 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)                                         AR20150001559



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ABCMR Record of Proceedings (cont)                                         AR20150001559



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