BOARD DATE:	  12 May 2015

		DOCKET NUMBER:  AR20150003549 


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 previous request for removal of:

	a.  The statements in Part Vb (Comment on Specific Aspects of the Performance) of her DA Form 67-9 (Officer Evaluation Report (OER)) for the rating period 7 May 2007 through 6 May 2008 (hereafter referred to as contested OER 1).

	b.  The DA Form 67-9 covering the rating period 7 May through 7 June 2008 from her official military personnel file (OMPF) (hereafter referred to as contested OER 2). 

2.  The applicant states she is providing new arguments that were not previously considered.

3.  The applicant provides a self-authored statement.

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 Army Board for Correction of Military Records (ABCMR) in Docket Number AR20140002947, on 20 August 2014.



2.  As a new argument for contested OER 1, the applicant states, in effect:

	a.  Her rater states she "mishandled her [Uniform Code of Military Justice (UCMJ)] authority in several cases, compelling a subsequent withholding of her UCMJ jurisdiction."  In her previous request she provided a DA Form 1574 (Report of Proceedings by Investigating Officer (IO)/Board of Officers) which showed the Army Regulation (AR) 15-6 (Procedures for IO/Board of Officers) investigation findings of the IO, although she disagrees with them, were that she permitted two Soldiers who were convicted at court-martial to undergo permanent changes of station (PCS) prior to the convening authority's approval of their sentence.  There was no evidence provided during the investigation to reach a conclusion that she "mishandled her UCMJ authority."

	b.  The language used in contested OER 1 misleads the reader into believing that she mishandled a court-martial proceeding to which she could exercise authority, or which she maintained jurisdiction.  The evidence from the investigation is clear.  She did not exercise any UCMJ authority over the case, and the proceedings for the court-martial were controlled at the general officer level, just as any other general court-martial or special court-martial.  

	c.  Nowhere in the investigation does the IO find or conclude that she mishandled any UCMJ authority.  Although disputed, he found only that she failed to follow the directives of the commander and that she was negligent in maintaining the proper status of Soldiers in her unit.  Her mistake of recommending approval of the PCS for the two Soldiers prior to final resolution of their post-trial procedures does not rise to and does not constitute "mishandling UCMJ authority."

	d.  The language used by her rater in Part Vb of contested OER 1 is factually inaccurate and warrants action to correct the material error.  The appropriate measure is for the quoted language to be removed or stricken from the OER.

3.  As a new argument for contested OER 2, the applicant states:

   a.  This OER reflects that it is a referred OER and contains derogatory information; a correction is necessary to address the injustice rising from material error. AR 623-3 (Officer Evaluation Reporting System) states an OER should contain information and evaluations for performance during the identified rating period.  Contested OER 2 refers to the very same performance deficiencies or misconduct alleged by the rater in contested OER 1, and it is undisputed that she engaged in no new misconduct, poor performance, or behavior during this second, extremely short rating period.  Therefore it is inaccurate and misleading.  
	b.  The comments in contested OER 2 arise from the same behaviors that were being investigated at the time contested OER 1 was drafted.  Her rater and senior rater were fully aware of the allegations that she was negligent in recommending approval for the two Soldiers to leave the theater prior to completion of a post-trial review by the commander.  The evaluations should have been delayed until the completion of the informal AR 15-6 investigation; therefore, there would be only one referred OER.  By relating their evaluations for this 1-month period to actions in the previous rating period, they induce readers of the reports to believe she committed multiple acts of poor performance or had a downturn in efficiency spanning two rating periods.  

	c.  Contested OER 2 fails to accurately evaluate her performance in an objective manner required by AR 623-3.  An OER that covers a 30-day time period has to be questioned for its validity.  Thirty days is not enough time to sufficiently evaluate an officer's performance.  Although contested OER 2 addresses poor behavior that allegedly occurred in a prior rating period, the evaluation obviously disregards all of the good performance that also occurred in the relevant time period.  Contested OER 1 contains remarks from the rater that she should be promoted, achieved amazing results, was fully qualified as an officer, and that she should be considered for positions of increased responsibility.  

	d.  The "Values" section of contested OER 1 contains an X in the "Yes" blocks, but that performance is disregarded on contested OER 2. This failure by the rater and senior rater to consider all of her performance, including the performance previously acknowledged as successes, and to instead single out one issue of poor performance demonstrates their lack of objectivity.  For these reasons, contested OER 2 should be removed from her OMPF.  

4.  The applicant was serving as a Regular Army Logistics Branch officer.  On 7 August 2007, she was assigned to and assumed command of Headquarters and Headquarters Company (HHC), U.S. Army Troop Command-Korea
(USATC-K).  On 1 November 2007, she was promoted to the rank/grade of major (MAJ)/O-4.  

5.  On 15 April 2008, an AR 15-6 IO was appointed to investigate issues related to the early departure of two Soldiers in HHC, USATC-K, despite their being flagged and prior to the General Court-Martial Convening Authority (GCMCA) taking action on their post-trial matters.  

6.  With her previous request, the applicant provided a memorandum, dated 19 May 2008, wherein it shows the IO completed the AR 15-6 investigation and his findings showed, in part:
	a.  On 25 October 2007, one of the Soldiers under the applicant's command was found guilty by a court-martial and sentenced to a reduction in grade, a forfeiture of pay, and restriction.  Soon afterwards, the battalion commander had a discussion with the applicant about paying close attention to the two Soldiers since the second Soldier's court-martial was not for another month or so.  On 16 November 2007, the second Soldier was found guilty and sentenced to a reduction in grade, forfeiture of pay, 60 days of restriction, and 90 days of confinement.  The legal advisor sent an email to the applicant, battalion commander, and battalion sergeant major (SGM) detailing the punishment and what could and could not be done pending the GCMCA's actions.  

	b.  On 30 November 2007, the applicant approved the Soldiers’ requests for curtailment of their assignments and forwarded the curtailment requests to the battalion for action.  On 3 December 2007, in the battalion commander's absence, the battalion executive officer approved the curtailment requests using the battalion commander's signature stamp and the SGM engaged the U.S. Army Human Resources Command (HRC) to expedite the paperwork.

	c.  Based on the documentation collected and the applicant's statement, the applicant failed to follow the directive from her battalion commander and guidance of legal counsel.  Despite meeting with her battalion commander specifically to discuss legal counsel's email regarding what had to be done and what could not be done regarding punishment, on 16 November 2007, the applicant stated she was not able to recall the legal counsel's guidance on not moving the Soldiers because the GCMCA had not approved the punishment yet. 

	d.  Most of her answers to the IO's questions were that she did not remember statements regarding the legal guidance and directives given by both legal counsel and the battalion commander.  She likewise answered in the same manner with regard to the issue of failing to inform either the battalion commander or trial counsel of the impending departure of the Soldiers.  

	e.  The IO recommended the applicant receive a General Officer Memorandum of Reprimand (GOMOR) for dereliction of duty as she failed to exercise any care with regard to the imposition and supervision of punishment in relation to the Soldiers, and she failed to adhere to the directives of the battalion commander, advice of legal counsel, and regulatory guidelines by allowing both Soldiers to PCS prior to being adjudged by the GCMCA following guilty verdicts at their respective courts-martial.  

7.  The approving authority subsequently approved the DA Form 1574 and that applicant was relieved from command by the battalion commander on 7 June 2008.
8.  In August 2008, she received contested OER 1, an annual OER covering 12 months of rated time for the period 7 May 2007 through 6 May 2008 for her duties as company commander, USATC-K.  Her rater was LTC KCC, the battalion commander, and her senior rater was Colonel (COL) JLC, Eighth Army Chief of Staff.  The OER shows in:

	a.  Part  IVa (Army Values) the rater placed an "X" in the "Yes" blocks for all of the Army Values.

	b.  Part V (Performance and Potential Evaluation) the rater placed an "X" in the "Satisfactory Performance, Promote" block, and entered the following comments in Part Vb:

[Applicant] did achieve some amazing results as the Commander of over 800 soldiers in Eighth US Army's Headquarters Company.  Whether it was preparing a semi-annual training brief or providing personnel services support, [Applicant] could always be counted on to produce superb results.  During the last two theater-level exercises Ulchi Focus Lens (2007) and Key Resolve (2008) [Applicant's] engaging personality and superior personal skills enabled her to accomplish the many diverse missions given to her company across three Major Headquarters Staffs.  In addition to leading an 800+ soldier company, she was decisively involved with Lean Six Sigma and the Toastmaster organization.  [Applicant] mishandled her UCMJ authority in several cases, compelling a subsequent withholding of her UCMJ jurisdiction.  [Applicant] would make a significant contribution to any staff.  Send to [Intermediate Level Education (ILE)].

	c.  Part Vc (Comment on Potential for Promotion), the rater entered the comment: "Mentor and train her for future positions of increased responsibility.  Send to ILE."

	d. Part VII (Senior Rater) the senior rater placed an "X" in the "Fully Qualified" block and entered the following comments in Part VIIc (Comment on Performance/Potential):

[Applicant] achieved outstanding results with a company of over 800 soldiers.  [Applicant's] blend of enthusiasm, people skills and common sense enabled her to effectively deal with junior Soldiers and senior officers alike in order to accomplish the mission.  Her flexibility and creativity enabled her to work across three major headquarter staffs to produce trained and ready Soldiers for the battalion. [Applicant] should be considered for positions of increased responsibility and promotion.  [Applicant] has potential for future service.  Send to ILE.

9.  On 13 August 2008, she acknowledged receipt of contested OER 1 and on 18 August 2008 submitted a response wherein she stated, in part, the derogatory statement in Part Vb was false and she requested the senior rater remove the statement by the rater that she mishandled her UCMJ authority in several cases leading to a subsequent withholding of her UCMJ authority. 

10.  Contested OER 1 was signed by the applicant's rating officials on 13 August 2008 and by the applicant on 18 August 2008.  It is currently filed in the performance folder of her OMPF.

11.  During the month of September 2007, she received contested OER 2, a Relief for Cause (RFC) OER, which covered 1 month of rated time for the period 7 May through 7 June 2008 for her duties as company commander, USATC-K.  Her rater was LTC KCC, the battalion commander and her senior rater was COL CYC, Eighth Army Chief of Staff.  The OER shows in:

	a.  Part IVa the rater placed an "X" in the "No" block for "Duty." 

	b.  Part Va, the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" block and entered the following comments:

I relieved [Applicant] from command based on substantiated dereliction of duty which led me to lose trust and confidence in her abilities.  She failed to follow clear guidance from me, her servicing judge advocate and Army regulations regarding the administration of court-martial punishment for two of her convicted Soldiers by ordering both Soldiers to begin serving punishment before the Commanding General [CG] took final action on their cases.  [Applicant] further undermined the CG's authority to act in these cases by substantially contributing to the early departure of these two Soldiers, despite both being flagged, which required them to remain in Korea until the CG took final action on their cases and ordered their punishment properly executed.  This misconduct calls into question [Applicant's] ability to fulfill her professional, legal and moral obligations.  Her lack of sound judgment, unacceptable level of planning and failure to meet mission standards in this case indicates that she is deficient in the planning, execution and logical decision-making skills required of Army leaders. 

	c.  Part VIIa, the senior rater placed an "X" in the "Do Not Promote" block.

	d.  Part VIIc the senior rater entered the following comments:

[Applicant] was relieved for dereliction of duty.  I have reviewed this report and found it clear, accurate, complete, and fully in accordance with the provisions of AR 623-3 and DA Pam 623-3 [Personnel Evaluations-Evaluation Reporting System].  [Applicant] need[s] further mentoring to make her ready for promotion and positions of increased responsibility. 

12.  Contested OER 2 was signed by the rater on 4 September 2008, senior rater on 5 September 2008, and by the applicant on 11 September 2008.  It is currently filed in the performance folder of her OMPF.

13.  AR 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  It states:

	a.  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.  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 (emphasis added).  

	c.  Reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status.  Upon completion of the trial or investigation, processing of evaluation reports will resume.  Evaluation reports will be completed when due and will contain what information is verified at the time of the “THRU” date of the report.

	d.  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. The exception is for RFC reports based on information pertaining to a previous reporting period.  For example, a rating official receives information from a completed investigation into a past incident and must relieve the officer to remove him or her from his or her present position. The rating official may refer to the prior rating period to explain the reasons for relief.  

	e.  A report is required when an officer is relieved for cause regardless of the rating period involved.  The RFC will be the final action after all investigations have been completed and a determination made.  The date of relief determines the through date of the report.  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 or her performance of duty.  In this regard, duty performance consists of the completion of assigned tasks in a competent manner and compliance at all times with the accepted professional officer standards and apply to conduct both on and off duty.  

	f.  The relief report will be rendered by the published rating chain at the time of the relief; no other report will be due during this nonrated period.  For a relief report 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.  The report will identify the rating official who directed the relief.  This official will clearly explain the reason for relief in the narrative portion of the DA Form 67–9.

	g.  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.  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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends comments on contested OER 1 should be removed from the OER and contested OER 2 should be removed from her OMPF. 

2.  With respect to the first contested OER:

	a.  The applicant received an annual OER that covered the period 7 May 2007 through 6 May 2008.  As authorized by governing regulations, her rating officials did not comment on the findings of the investigation in this OER and her rater merely stated she mishandled her UCMJ authority in several cases and that authority was withdrawn from her.  It is reasonable to presume her UCMJ authority was withdrawn from her when it was found two Soldiers under her command were allowed to PCS while pending final action on their court-martial convictions resulting in the initiation of an AR 15-6 investigation.  

	b.  Her dissatisfaction with this comment is noted; however, contrary to her contention, this comment does not state and in no way implies she mishandled a court-martial proceeding; it merely states her UCMJ authority was withdrawn from her during that rating period.  She has not provided sufficient compelling evidence that shows this statement was untrue, constitutes a material error or inaccuracy, or that it should be removed from contested OER 1.  In addition, it appears her raters made very honest, fair, and objective evaluations of her performance as this OER contains numerous laudatory comments on her many accomplishments during the rating period.  This OER is properly filed in the performance folder of her OMPF.

	c.  By regulation, the rating officials could not have waited for the conclusion of the AR 15-6 investigation and "lumped" the rating periods together as the applicant contended should have happened.  If they had done so, it would have greatly disadvantaged the applicant as a RFC OER requires a "Do Not Promote" block and would have reflected many additional negative comments based on the completed investigation.  

3.  With respect to the second contested OER:

	a.  An AR 15-6 investigation that was completed and approved confirmed the applicant was derelict in her duties and had undermined the CG's authority with respect to two Soldiers under her command.  Accordingly, she was removed from command and received a RFC OER covering the rating period 7 May 2008 through 7 June 2008, the date of her relief.  In accordance with governing regulations, this OER appropriately referenced incidents that occurred during the previous rating period and were the basis for this OER.  This RFC OER is properly filed in the performance folder of her OMPF.

	b.  Although the IO recommended she receive a GOMOR, the appointing officer was not bound by this recommendation.  The RFC OER was due at the conclusion of the AR 15-6 investigation when she was relieved of command based on the findings of the AR 15-6 investigation.  If or when any other adverse action recommended by the IO took place had no impact on the required through date for the RFC OER.  

	c.  There is no evidence and the applicant has not provided sufficiently compelling evidence which shows this OER contains a material error, inaccuracy or injustice;  that it does not accurately reflect her performance during the rating period; that her raters did not provide honest, fair, and objective evaluations of her performance during the rating period; or that contested OER 2 should be removed from her OMPF. 

4.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that the presumption of regularity should not be applied and that action is warranted to correct a material error or injustice.  Clear and convincing evidence must be of a strong and compelling nature.  This is not the case here.  In view of the foregoing, there is an insufficient 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 AR20140002947, dated 20 August 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)                                         AR20150003549



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ABCMR Record of Proceedings (cont)                                         AR20150003549



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