MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:            21 July 1999                  
	DOCKET NUMBER:   AR1999016015

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Loren G. Harrell		Director	
	Mr. David E. Weightman		Analyst	

  The following members, a quorum, were present:

	Mr. Curtis W. Barbee		Chairperson	
	Mr. James M. Alward		Member	
	Mr. Robert G. Hinkle		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That the officer evaluation report (OER) covering the period 6 August 1995 through 2 July 1996 be expunged from her records, and reinstatement in the Active Guard/Reserve (AGR) program.

APPLICANT STATES:  This OER was written as a punitive action.  It was done in reprisal and punitive intent.  It is written with bias and prejudice.  It is unfair and unjust.  It is not with the intent of the law.  It is written and influenced by the rater who is protecting his illegal interest in the unit.

She submits comprehensive statements in support of her request.

She also submits third party statements, an OER support form, assignment order, response to an Inspector General (IG) investigation, response to the referred report, previous OER’s, a rebuttal of the OER submitted to her commander, a chronology of events leading to this OER, and her Officer Record Brief in support of her application.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant was appointed in the Reserve in the Army Nurse Corps on 
1 October 1986, at age 33.  She was promoted in the Reserve to first lieutenant on 30 September 1989 and to captain on 14 August 1991.

The applicant requested and was ordered to active duty in the AGR program.  Her assignment was at the 359th Combat Support Hospital in Phoenix, AZ.  After initial temporary duty, she arrived for duty at her unit on or about 2 September 1995.

The contested OER, covering the period 6 August 1995 through 2 July 1996, was completed on 28 July 1996.  It was a permanent change of station report for her performance as Head Nurse/Training Officer.  Her Rating Officer (RO) rated her with “1’s” in five areas, “2’s” in eight areas (including Military Bearing and Appearance), and a “3” in one area (Judgment) of Performance Evaluation – Professionalism.  He provided one positive comment and two negative comments concerning her professional competence.

Her RO also rated her in the third and second blocks for performance and promotion potential, i.e., Met Requirements and Promote with Contemporaries, respectively.  The RO’s comments concerning her performance and potential were in accordance with the block ratings.

The Intermediate rater (IR) rated her as weak in experience and leadership.

The senior rater (SR) rated the applicant in the fifth block, below the center of mass, i.e., 0/4/0/0/1*/0/0/0/0 (* indicates the applicant’s position).  The SR provided appropriate comments, including her potential to shine, excel and progress.  The SR indicated an OER Support Form was received and considered.

An OER Support Form submitted with the application shows the applicant had an initial face-to-face discussion of duties, responsibilities, and performance objectives for the current rating period, taking place on 23 September 1995.  It also showed the applicant’s rating chain as that shown on the contested OER.  The applicant listed her significant contributions for the period of the contested OER, and she signed and dated it on 31 May 1996.

The applicant acknowledged the report and submitted rebuttal on 8 August 1996.

The applicant did not request a Commander’s Inquiry or appeal the OER to Departmental officials.

The applicant requested and received a voluntarily transfer to Fort Gillem, GA.

The applicant’s next OER was for the period 3 July 1996 through 1 June 1997, a 10 month report based on change of rater for her duties as AMEDD (Army Medical Department) Recruiter.

In this report, the RO rated her with “1’s” in 11 areas, and with “2’s” in three areas (including Judgment and Military Bearing and Appearance) of Professionalism.  She provided some negative comments concerning the applicant’s professional competence.

The RO also rated her in the second blocks for performance and promotion potential, i.e., Usually Exceeded Requirements and Promote with Contemporaries, respectively.  Her comments concerning the applicant’s performance and potential were in accordance with the block ratings.

There was no IR for this report.

The SR rated the applicant in the second block, within the center of mass, i.e., 0/4*/0/0/0/0/0/0/0 (* indicates the applicant’s position).  She provided appropriate comments concerning the applicant, including, “[applicant] has been slow in assimilating into the recruiting environment.”

On 30 June 1997 the Army Office of The Inspector General reviewed an investigation conducted concerning allegations under the Military Whistleblower Protection provisions, and found that reprisal was not substantiated.
On 9 February 1998 the applicant was advised by letter from the Director, Special Inquiries, Department of Defense Inspector General, that it agreed with the Army’s investigation and concurred with their conclusion that the personnel actions taken against her, (i.e., some of the duties of her position were taken away from her and she received an unfavorable OER) were not in reprisal for her whistleblowing activities.

On 24 March 1998 the applicant was advised by memorandum from the director, Full Time Support Management Directorate, that in accordance with pertinent regulations, the referred OER she previously received disqualified her from further AGR duty, and that she would be separated in July 1998.

On 14 April 1998 the applicant was advised by letter from the Chief, Screening Team, Army Review Boards Agency, that based on the Office of The Inspector General of the Department of Defense, her case could not be processed under the Military Whistleblower Protection provisions of title 10, U.S. Code, section 1034.

The last AGR OER received and submitted by the applicant with her appeal covered the period 2 June 1997 through 1 May 1998, an 11 month report for her duties as USAR Health Care Recruiter.  The reason for submitting the report was Senior Rater Option.

The RO rated her with “1’s” in 12 areas, and with “2’s” in two areas (including Judgment and Military Bearing and Appearance) of Professionalism.  She provided some negative comments concerning the applicant’s professional competence.

The RO also rated her in the first and second blocks for performance and promotion potential, i.e., Always Exceeded Requirements and Promote with Contemporaries, respectively.  Her rating concerning the applicant’s performance and potential included negative comments.

There was no IR for this report.

The SR rated the applicant in the second block.  A SR profile was not provided for this OER.  She was the same SR as in the last OER and provided appropriate comments concerning the applicant, including, “With continued mentoring and emphasis on refining her leadership skills, she would be a successful officer and an asset to the U.S. Army Reserve.”

On 18 March 1999 the President of the DCSPER (Deputy Chief of Staff for Personnel) Special Review Board, returned the applicant’s appeal of the contested OER without action.  Her appeal was made on 18 February 1999.  He stated the appeal did not provide sufficient evidence of a clear and convincing manner for the OSRB to consider it at that time.  He also advised her that she may resubmit the appeal with additional evidence.

The applicant’s latest application, dated 11 May 1999, shows she was separated from the AGR program on 4 August 1998 and that she is residing in Waipahu, HI.

Army Regulation 623-105 establishes the policies and procedures for the OER system.  It provides the opportunity to request a Commander's Inquiry or to appeal disputed reports.   Paragraphs 5-32 and 9-2 provide that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 9-7 of that regulation states that the burden of proof in an appeal of an OER rests with the applicant.  Accordingly, to justify deletion or amendment of an OER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

The regulation provides for requesting a Commander’s Inquiry in cases when a report may be illegal, unjust, or otherwise in violation of the regulation.  Commanders are required to look into the matter and may then conduct an official inquiry into the matters.  The regulation provides that “The primary purpose of the commander’s inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated officer and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustice after the OER is accepted at HQDA.”  It also provides that “The results of the commander’s inquiry that are forwarded to HQDA will include findings, conclusions and recommendations in a format that could be filed with the OER in the officer’s Official Military Personnel File for clarification purposes.”

The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (title 10, U.S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is  DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization;  that members of the Armed Forces shall be free from reprisal for making or preparing to made lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided in Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and regulations, it is concluded:

1.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

2.  The applicant is not entitled to expunction of the OER covering the period 
6 August 1995 through 2 July 1996, or to reinstatement in the AGR program.  She has not shown error, injustice or inequity for the relief she is now requesting.

3.  It has been established to the satisfaction of the Board, that the contested OER was not submitted in reprisal to whistleblower activities.  It appears to the Board, based on the contested OER and subsequent OER’s, all issued for her full time AGR duties, the applicant was weak in experience, leadership and judgment and she was rated accordingly.

4.  The applicant has not shown that the contested report contains any serious administrative deficiencies or was not prepared in compliance with applicable regulations and policy.  It appears to represent a fair, objective and valid appraisal of her demonstrated performance and potential during the period in question.  Therefore, there is no basis for removing it from her records.

5.  The documentation submitted in support of her application has been noted, however, the applicant has submitted no evidence of substantive inaccuracy of the contested report from anyone in a vantage point equivalent to that of members of the rating chain.

6.  The applicant has not shown she was improperly separated from the AGR program and there is no reason for reinstatement.

7.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

cwb_____  jma_____  rgh_____  DENY APPLICATION

						Loren G. Harrell
						Director

INDEX

CASE ID	AR1999016015	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	21 July 1999	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	111.00	
2.	110.00	
3.		
4.		
5.		
6.