MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:   

	BOARD DATE:           19 September 2000                   
	DOCKET NUMBER:   AR2000044864

	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. Carl W. S. Chun		Director	
	Mrs. Nancy Amos		Analyst	

  The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Mr. John P. Infante		Member	
	Ms. Regan K. Smith		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 her Officer Evaluation Report (OER) for the period 1 July 1995 through 30 June 1996 be removed from her records.

APPLICANT STATES:  That the contested OER is unjust and inaccurate and the Officer Special Review Board (OSRB) did not fully consider her case when it determined the evidence did not justify the removal of the report.  The OER was a continued attempt to punish her for purported events the raters’ could not justify under Article 86 of the Uniform Code of Military Justice.  The OSRB indicated there was insufficient evidence to determine her superior demonstrated performance during the rating period.  She now provides four supporting memorandums from personnel who worked closely with her during the rating period and who describe an accurate evaluation of her superior demonstrated performance.  The OSRB did not consider the medical documentation which indicates her physical conditions were stress-induced and were due to a dramatically increased workload and increased number of hours on the job.  The OSRB did not fully consider the injustice surrounding the raters’ mention of a general officer letter of reprimand.  After her appeal of the letter of reprimand, the Commander, Military District of Washington (MDW) directed that “no action be taken regarding the filing of the reprimand and endorsements” after reprisal was identified.  No action means any action, either into an official Military Personnel Records Jacket or into an OER.  There was unlawful command influence when the colonel who gave her a letter of reprimand for bringing her pet into the building directed her raters to consider his reprimand when they prepared her OER.  Supporting evidence is as listed on the enclosure to the DD Form 149.

COUNSEL CONTENDS:  Counsel makes no further contention.

EVIDENCE OF RECORD:  The applicant's military records are not available.  The information contained herein was obtained from documents provided by the applicant.

On 5 April 1996, the applicant received a letter of reprimand from the National Guard Bureau, Director, Army Comptroller (apparently her senior rater’s supervisor) for violating standard operating procedures by bringing a pet into the building.  The Director directed that the letter be placed in her local personnel file for two years.  

The contested OER is an 12-month annual report for the period 1 July 1995 through 30 June 1996 during which period the applicant served as a program analyst with the Georgia Army National Guard attached to the Army National Guard Comptroller Directorate, Arlington, VA.  In Part IVa, she received a 2 rating in the category of “demonstrates appropriate knowledge and expertise in assigned tasks,” a 2 rating in the category of “performs under physical and mental stress,” a 3 rating in the category of “displays sound judgement,” and a    2 rating in the category of “is adaptable to changing situations.”  (Ratings range from 1, to the highest degree, to 5, to the lowest degree.)  Part IVb contained three related negative comments, including “…received disciplinary action on two occasions due to poor judgement."  In Part Vb, her rater rated her performance as “met requirements.”  Several positive comments were made.  Her rater recognized her exceptional analytical skills at the beginning of the POM and that those skills were put to good use in the analysis of programs in the personnel pay accounts but negative comments predominated.  One comment was “…judgement was called into question on two occasions during the rating period, in which she chose to ignore direct orders from competent authority, resulting in administrative actions.”  In Part Vd, the rater rated her potential for promotion as “do not promote” with related negative comments.  In Part VII, the senior rater rated her as below center of mass (10/17/2/1*/0/0/0/0/0, * indicating the applicant’s rating) with related negative comments.  The applicant and the rating officials signed the OER on 1 November 1996.

The OER was referred to the applicant for rebuttal.  She stated that the OER constituted an unlawful reprisal against her for making protected communications to the Department of the Army Inspector General (DAIG) about the discriminatory and unfair treatment she received from her command.  She stated that in addition the OER was factually incorrect.

On 10 July 1996, the applicant received a letter of reprimand from the Commander, MDW for knowingly and willfully disobeying an order to report to work on 5 May 1996 at 1200 hours.  The applicant, through counsel, responded to the letter.  Counsel noted that the applicant had made an official complaint about her chain of command to the DAIG on 25 June 1996.  Subsequently, her chain of command informed the Commander of her failure to repair and requested he issue her a memorandum of reprimand.  The applicant’s position was that the request for, and issuance of, the memorandum of reprimand was due to her protected communication with the DAIG.  On 6 August 1996, the Commander, MDW directed that no action be taken regarding the filing of the reprimand and endorsements.  

In December 1999, the applicant appealed the OER.  The OSRB denied her appeal (SEE ATTACHED).  The OSRB considered the DAIG Report of Inquiry, Executive Summary concerning the applicant’s allegations of unfair treatment by the rating officials of the contested report.  The OSRB noted that the DAIG inquiry did not substantiate any allegation of bias, harassment or unjust treatment against her rating officials.  The OSRB contacted her senior rater, who stated that the applicant had not done a good job, that she called in sick frequently during the Program Objective Memorandum (POM) preparation, failed to answer her phone or answer her door when he sent someone to check on her and requested that he put his requirement that she work overtime in writing.  He stated that these and several other incidents were the basis for his rating.  The OSRB did not contact any other rating officials since the DAIG’s Report of Inquiry did not substantiate any of her related allegations against the other rating officials.  The OSRB noted that the filing decision regarding her general officer letter of reprimand had no impact on the assessment made by the rating officials based on her demonstrated performance and potential.  It was noted that she provided information that she did arrive late at her place of duty, that the letter was issued, and that it did relate to her conduct during the rating period which validated the comments on the report. 

An undated Summary and Assessment of the applicant by a clinical social worker at Fort Belvoir, VA noted that she was treated on 15 April 1996 and seen on a weekly basis through 20 May 1996 with complaints related to stress.  The applicant related to the social worker that life stresses during the time in treatment included a dramatically increased workload and number of hours on the job and a corresponding decrease in staff support.  The applicant was assessed to be psychologically fit for duty during the time she was in treatment though under a great deal of stress.

The applicant provides four statements of support from individuals who worked with her during the rating period to show she “demonstrated superior performance” during the rating period.  Comments in these statements include “…relied upon her functional knowledge and representation of the Army National Guard to support the program.  She did so in a highly professional and competent manner throughout the lengthy cycle,” “…displayed a thorough grasp of the detailed data required…,”  and “…observed her to have sound judgment and dedication to performing the mission at hand…”  (The Board does note that two of the statements contain almost identical language in two paragraphs.)

Army Regulation 623-105 establishes the policies and procedures for preparing, processing and using the OER.  In pertinent part it states that (derogatory) references will be made only to actions that have been processed to completion and had final action taken before submitting the OER to Headquarters, Department of the Army (HQDA).  The regulation also provides that an OER accepted for inclusion in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper rating officials and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The burden of proof in appealing an OER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that clearly and convincingly nullifies the presumption of regularity.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

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 this requirement.

2.  The Board agrees with the OSRB’s findings in this case.  The statements of support the applicant provides which prove her “superior demonstrated performance” do not contradict any comments in the OER.  Although those individuals could not have been aware of all the duty requirements her raters placed upon her, her rater did recognize her exceptional analytical skills at the beginning of the POM and that those skills were put to good use in the analysis of programs in the personnel pay accounts.  

3.  Those statements, however, also do not contradict comments in the OER noting that the applicant could not handle the stress of her duties and exhibited poor judgment on two occasions.  Evidence she provides, the medical documentation, confirms that she could not handle stress well.  Stressful jobs are a fact of life for soldiers, especially officers and more so as the officer moves up in the ranks.  It was appropriate for the rating officials to comment on and rate her on her ability to function in a stressful environment.  

4.  The raters did not mention the general officer letter of reprimand in the OER.  Her rater commented on her receiving disciplinary action on two occasions and also that her judgment was called into question on two occasions which resulted in administrative actions.  Her senior rater made no comments concerning these administrative actions.  She did receive the general officer letter of reprimand and she received it prior to the OER being forwarded to HQDA.  As the OSRB correctly noted, the Commander, MDW’s final directive was that no action be taken regarding the filing of the reprimand.  It meant no more than that.  It was proven derogatory information and the regulation provided that it could be mentioned in the OER.

5.  The applicant provides no evidence that unlawful command influence led her rater to consider the first reprimand in preparing the report.  

6.  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

__hof___  __jpi___  __rks___  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR20000448864	
SUFFIX		
RECON		
DATE BOARDED	20000919	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	(DENY)	
REVIEW AUTHORITY		
ISSUES         1.	111.01	
2.		
3.		
4.		
5.		
6.