BOARD DATE:	  6 March 2015

		DOCKET NUMBER:  AR20150002084 


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 correction of her DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 7 May 2010 through 6 May 2011 (hereafter called the contested OER)  to remove prohibited comments in the senior rater narrative portion.  She also requests consideration by a Special Selection Board (SSB) for promotion to major (MAJ)/O-4. 

2.  The applicant states:

     a.  Her appeal is based on both administrative and substantive error.  There are two administrative errors.  The first error is that there is prohibited language in the senior rater narrative portion.  Specifically, the fourth line down and the fifth word reads, "even after surgery and three months of convalescence leave."  The second error is that the U.S. Army Human Resources Command (HRC) erroneously failed to take action on this OER appeal that was timely submitted.

     b.  There is also a substantive error now that the Fiscal Year 2014 MAJ board has met.  Specifically, Department of the Army (DA) memorandum 600-2 (Policies and Procedures for Active Duty List Officer Selection Boards), paragraphs 7 and 8 directs the board to consider specific criteria for selection. The first criteria are Military Bearing and Physical Fitness, under this item the board will evaluate the officer’s fitness for duty considering the standards of Army Regulation 600-9 (The Body Composition Program) and the officer’s overall appearance.

     c.  The board is also directed to limit their review to the official photograph, height and weight data on the Officer’s Record Brief, and the officer’s overall appearance.  This statement directs the board to use OER’s to make their decisions about candidates.  The board should not have been privy to the fact that she was on convalescent leave for three months as they judged her as a candidate for selection to MAJ.

    d.  Regarding the first administrative error, in the glossary of Army Regulation  623-3 (Evaluation Reporting System) convalescent leave is listed as one of the times when Soldiers are allowed to have nonrated time.  Regarding the second administrative error, according to Army Regulation 623-3, paragraph 4-8(b) her appeal was timely submitted within three years of the through date of the contested OER.  A mailing slip shows that the appeal was mailed on 2 May 2014 and was signed for on 5 May 2014 by someone at HRC.  The 20 May 2014 letter suggested that the appeal was not received before the three years had elapsed.

     e.  In addition, the Army regulation is silent as to the date a submission is received and processed by HRC internally, a process which the appealing Soldier does not control nor is expected to control according to the HRC regulation.

     f.  Unfortunately, she was not able to respond to the 20 May 2014 letter before the promotion board met in September 2014.  She has attached a letter of support from her surgeon in Texas explaining her whereabouts during the time she would have responded to the HRC OER appeal rejection letter.  She was unavailable during the months prior to her Official Military Personnel File closing date.

     g.  She is extremely pleased that she is now healthy and able to continue serving her country.  She has always enjoyed serving her country as a U.S. Army officer, but her desire to serve has grown stronger since she has overcome health challenges of cancer and everything that went with the medical procedures.

     h.  She realizes that serving in the armed forces is a privilege that not everyone has a chance to do.  She is asking for a corrected OER and a review of her file with the corrected OER so that the taboo subject of sickness in the Army does not overshadow the otherwise extremely positive information in her file.

     i.  Regarding the substantive error, she submits that since the underlying documents upon which the board’s decision was made were flawed, the decision may have been flawed as well. 

3.  The applicant provides:

* DA Form 67-9
* a letter from a physician
* shipping slip
* a memorandum, subject:  [Evaluation Report Appeal] , dated 20 May 2014

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty on 22 October 2006 as a first lieutenant (1LT) to fulfill her active Army requirement.  She is currently serving on active duty as a captain (CPT).

2.  She provides and her records contain the contested OER, a change of rater OER, covering 12 months of rated time for the period 7 May 2010 through            6 May 2011 that she received for her duties as trial defense counsel.  This OER shows:

     a.  In Part Va the rater checked the "outstanding performance, must promote" box.

	b.  In Part VIIa her senior rater checked the "best qualified" box.  In Part VIIc (Comment on Performance/Potential) the senior rater stated, "[The Applicant] has performed admirably.  Her quiet confidence and always professional demeanor enable her to get and maintain the attention of any audience.  Dedicated, determined, and extremely physically fit; she maxed the pushup and situp portions of the APFT even after surgery and three months of convalescence.  Possessed of boundless enthusiasm, she continues to influence those around her with her positive attitude.  Clearly talented, she should be given additional seasoning opportunities to challenge her as a Soldier and attorney.  In her next assignment to XVII Airborne Corps, she will greatly benefit from the experience of working around other Soldiers.  Promote to Major and send to the Graduate Course.  Her desire to succeed is present in all she does." 

3.  On 2 August 2011, the contested OER was signed by the rating officials and the applicant, processed at the HRC, and is currently filed in the restricted folder of her OMPF.

4.  A shipping receipt shows she sent unknown documents to HRC on 2 May 2014 and the documents were received by HRC on 5 May 2014.

5.  A memorandum, subject:  Evaluation Report Appeal (20100507-20110506), HRC, Fort Knox, KY, dated 20 May 2014, stated that HRC returned her correspondence concerning an evaluation report appeal with action because it was not submitted within the three-year time limit.

6.  She provides a letter from a physician which stated:

     a.  He had performed two non-elective surgeries on her which required her to be away from her home in Virginia.  She was first admitted to the Institute of Surgical Research Burn Center, San Antonio Military Medical Center (SAMMC) at Fort Sam Houston, TX in 19 May 2014.  Her command was aware of the medical reasons which required her to stay in San Antonio.

     b.  She was referred to the SAMMC Burn Plastic department to evaluate a keloid on her left shoulder and a keloid on her chest that had previously had a mass that was determined to be fibrosarcoma.  She has undergone surgical excision twice as well as radiation to the sites, but the keloids had returned and continued to expand.  She was taken to the operating room on 19 May 2014 for as excision and was treated the subsequent three days with radiation.  She remained a patient and was discharged on 23 May 2014 to the Fisher House in San Antonio, TX.

     c.  Her wounds required multiple weeks after radiation had ceased to be ready to receive a skin graft.  It also required her to remain close to the burn unit in case the negative pressure wound vacuum developed a leak.  Her pathology report showed no evidence of malignancy.  She was discharged on 15 August 2014.

7.  Army Regulation 623-3 prescribed the policies for completing evaluation reports that supported the Officer Evaluation Reporting System.

     a.  Paragraph 3-16a states that each evaluation report will be an individual stand-alone evaluation of the rated Soldier for a specific rating period.  An evaluation report will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time.

	b.  Paragraph 3-57 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.

	c.  Paragraph 3-17c(3) states that the rated officer's signature verifies that the rated officer has seen the completed OER, Parts I-VII.  This action increases the administrative accuracy of the OER since the rated officer is most familiar with and interested in this information.  Confirmation of the administrative data also will normally preclude an appeal by the rated officer based on inaccurate administrative data, which by the exercise of due diligence by the rated officer would have been corrected.

	d.  Paragraph 6-6h(2) states correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will only be allowed when circumstances preclude correction of the errors, and then only when retention of the report would clearly result in an injustice to the officer.

   e.  Paragraph 6-10 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 of administrative error or factual inaccuracy.
   
   f.  In the glossary it states that convalescent leave is nonrated time and Soldiers cannot be evaluated by rating officials during this period. 

8.  Army Regulation 600-8-29 (Officer Promotions) states an SSB may be convened under Title 10, U.S. Code, section 628, to consider or reconsider commissioned or warrant officers for promotion when HQDA discovers one or more of the following:

	a.  an officer was not considered from in or above the promotion zone by a regularly scheduled board because of an administrative error (SSB required); 

	b.  the board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary); and/or

	c.  the board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary).

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that the contested OER should be altered to remove comments in reference to her having surgery and convalescent leave have been found to have merit. 

2.  While her senior rater comments regarding her surgery and convalescent leave were positive, governing regulation prohibits a rater from referring to performance or incidents occurring during periods of nonrated time.  

3.  In view of the circumstances and as a matter of equity, the applicant is also entitled to promotion consideration to MAJ by an SSB under the applicable criteria.

BOARD VOTE:

___X_____  ___X_____  ___X_  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

     a.  removing the following statement from the senior rater’s comments to the OER from the period 7 May 2010 through 6 May 2011:  "even after surgery and three months of convalescence leave;"

   b.  forwarding her records to an SSB for consideration for promotion to MAJ under the applicable criteria;
   
	c.  if selected for promotion, promoting her and assigning her an appropriate date of rank in accordance with the regulatory policies in effect at the time; and

	d.  if not selected for promotion, notifying her accordingly.



      __________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)                                         AR20150002084



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