PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:           18 December 2002  
	DOCKET NUMBER:   AR2002072561

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

	Mr. Carl W.S. Chun		Director	
	Mr. Jessie B. Strickland		Analyst	

The following members, a quorum, were present:

	Mr. Samuel A. Crumpler		Chairperson	
	Ms. Joann H. Langston 		Member	
	Mr. Raymond V. O’Connor Jr.		Member	
	Ms. Karol A. Kennedy 		Member	
	Mr. Donald P. Hupman Jr. 		Member	

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

	The applicant did appear before the Board and was not represented by counsel.

	The Board considered the following evidence:

Exhibit A - Application for correction of military records
Exhibit B - Military Personnel Records (including advisory opinion, if any)
Exhibit C - Case Summary
Exhibit D - Live testimony and any evidence introduced during the hearing

FINDINGS:

1.  The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

2.  The applicant requests the removal of an Officer Evaluation Report (OER) from her Official Military Personnel File (OMPF).

3.  The applicant states, in effect, that the OER covering the period from 17 June 1999 to 5 June 2000, does not accurately reflect her performance or potential during the period rated.  She further states that her rater overreacted to rumors and false allegations, treated her differently as a female officer, and penalized her for using proper channels to challenge his overreaction and unfairness.  She goes on to state that when she requested to see her senior rater (commanding general) in regards to being given a reprimand by her rater (battalion commander), her rater was essentially boxed into a corner at the time he himself was due an OER by the same SR.  She also states that she was given the adverse report in March 2001 for a period that ended in June 2000, which was based on derogatory information that was false and not verified.  She continues by stating that the officer investigating the rater’s actions also concluded that he found significant lapses in his (rater’s) exercise of judgment, yet despite all of her attempts to appeal the damaging actions of her rater, they have been to no avail.

4.  The applicant’s military records show that she was commissioned as a United States Army Reserve (USAR) aviation second lieutenant on 9 May 1987 and was ordered to active duty on 1 October 1987.  She was promoted to the rank of captain on 1 May 1992 and to the rank of major on 1 December 1998.

5.  On 24 March 2000, a Military Police Investigation (MPI) was conducted to determine the validity of allegations made that the applicant and a junior warrant officer were having an adulterous affair and engaged in conduct unbecoming an officer.  The investigation was concluded on 30 March 2000 and on 19 April 2000, the Trial Counsel of the Staff Judge Advocate opined that there was insufficient evidence to title the applicant with any offense, but that there was sufficient evidence to title the junior warrant officer with conduct unbecoming an officer and a gentleman.

6.  On 28 April 2000, the battalion commander issued a memorandum of reprimand (MOR) to the applicant for acting in a manner that created an appearance that she was having an improper relationship.  He also informed her that he was considering filing the MOR in her local personnel file.  The applicant acknowledged receipt and elected to submit a rebuttal. 

7.  On 22 May 2000, she submitted an extensive rebuttal to the MOR in which she denied the allegations against her and went on to explain her perspective of the events for which she was accused.

8.  On 24 May 2000, she requested to see the commanding general (CG), her senior rater (SR), under his Open Door Policy, regarding the MOR and the allegations made against her.

9.  On 12 September 2000, an investigation was initiated under the provisions of Army Regulation 15-6, to determine if the applicant’s commander (rater) had sufficient factual information to conclude that the applicant had used poor judgment and acted in a manner that gave her the appearance of impropriety in her relationship with the warrant officer and whether he was justified in giving her a MOR.  The investigating officer concluded that the applicant had received no counseling regarding the manner in which she interacted with peers and subordinates and that the commander had used poor judgment in accepting an MPI investigation that he knew was incomplete and poorly done and had he known of the information gathered in the course of the current investigation, would not have given the applicant the MOR (The investigating officer had found the credibility of the witness against the applicant to be suspect).  However, he did not abuse his discretion by giving her a MOR because it fell within the array of options available to him as a commander and was one of the least severe options available to him to deal with a breech of good order and discipline.  The investigating officer recommended that the CG give the warrant officer a MOR for his actions.  He also opined that the battalion commander unintentionally created the perception of command influence regarding the investigation and while it created some confusion, his actions did not prejudice the investigation.  During the course of the investigation, the battalion commander (rater) was interviewed and he indicated that had he known the information regarding the credibility of the witness against the applicant, it would have changed his mind in the matter; however, the MOR had already been issued.

10.  On 30 March 2001, the applicant received a change of rater OER covering the period of 17 June 1999 to 5 June 2000.  In part V, under performance and potential evaluation, the rater gave the applicant a rating of “Satisfactory Performance, Promote.”  In the supporting comments he indicated all of her accomplishments and closed the comments by stating that all her positive contributions had been overshadowed by her inexcusable poor judgment and careless actions which gave the appearance of impropriety with a junior warrant officer.  Her conduct seriously endangered the unit’s cohesion, morale, and adversely affected the good order and discipline in the battalion.  He further indicated that with corrective actions, the applicant could overcome the setbacks, that she had limited potential and should be retained on active duty. 

11.  The CG, her SR, rated her as best qualified and placed her in the second block of his profile (Center of mass).  He indicated that she performed her duties in an exceptional manner and made no mention of the incident in question.

12.  The applicant appealed her OER to the Officer Special Review Board (OSRB) on 30 March 2001 citing essentially the same reasons she has cited to this Board.  In the process of adjudicating her appeal, the OSRB contacted the rater, the SR and the investigating officer.

13.  The rater indicated that he disagreed with the investigating officer’s assessment and contended that his evaluation of the applicant was based on a wide range of written and verbal input received from inside and outside of the unit.  He also indicated that the SR supported his rating, despite the fact that he gave her a more favorable rating.

14.  The SR indicated that the rater was an outstanding battalion commander but he (the SR) faulted him for not mentoring the applicant in order to resolve the situation.  When the rater issued the OER, he (the SR) made him justify his ratings, which were justified by the rater in the form of an MPI report, statements and his strong belief as a commander that the applicant clearly lacked judgment in the relationship with coworkers.  Accordingly, he (the SR) decided to give her an average OER based on a lack of formal counseling and he supported the ratings given based on the facts presented to him at the time.

15.  The investigating officer opined that the investigation was done by the book and the findings and recommendations were accurate.  He also opined that the actions by the rater were fully justified.

16.  In the processing of this case a staff member of the Board reviewed the records of the warrant officer involved and contacted him telephonically as well.  The warrant officer’s OER, issued during the same month as the applicant’s contested OER, contains no mention of the incident in question.  He also received a center of mass OER and was subsequently promoted to the rank of chief warrant officer three (CW3).  He agreed to the information being included in the Board’s evaluation of the applicant’s contentions and gave formal testimony before the Board on the issues.

17.  A review of the applicant’s OER history shows that she has consistently been rated as a center of mass and above center of mass officer and there is no indication of any derogatory information (other than the contested OER) in her records.  She is presently attending the Marine Corps Command and General Staff Course at Quantico, Virginia.

18.  Army Regulation 623-105 establishes the policies and procedures for the OER system.  Paragraph 3-57 and 6-6 provide than an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer, is presumed to be administratively correct, and to have been prepared by the properly designated rating officials at the time of preparation.  Requests that an accepted OER be altered, withdrawn or replaced will not be honored.  An exception is granted only when information which was unknown or unverified when the OER was prepared is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared.  Paragraph 3-24 provides that each report will be an independent evaluation of the rated officer for a specific rating period and will not refer to prior or subsequent reports.  Each report must stand alone.

CONCLUSIONS:

1.  The Board has thoroughly reviewed the evidence in this case and finds that the contested report does not accurately represent her performance and potential during the rated period. 

2.  While the Board will not attempt to assign any degree of guilt on any party, it was incumbent on the chain of command to ensure that she was counseled on what was deemed acceptable conduct in her relationship with other members of the command.  In the applicant’s case, she was not counseled for alleged improper conduct that had occurred over a long period of time and during the tenure of two separate commanders (raters). 

3.  Although the commander was within his rights as a commander to give her a MOR and to make comments on her OER, he also had a responsibility to ensure that the information obtained and the method used in obtaining it was not suspect or unverified information.  However, despite the fact that the investigation revealed that the information was suspect and that there was insufficient evidence to title the applicant for any offense, the commander, her rater, gave her a MOR and made damaging comments on her OER.

4.  It is also noted that the SR in this case deemed her best qualified and made no mention of the allegations or alleged improper conduct.  This in itself would suggest that it was deemed unverified information.

5.  After reviewing the extensive evidence and formal testimony in this case, the Board is not convinced that the applicant’s conduct was improper or that she was treated fairly in this matter by the rater.    

6.  Accordingly, the Board finds that that fairness dictates that the contested OER and all supporting documents in this case should be removed from her OMPF and that the period be deemed non-rated time.

7.  The Board also concludes that the rater of the contested OER should be recused from making any future decisions/recommendations or using any influence that may affect the applicant’s career, if the occasion should arise.

8.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

RECOMMENDATION:

1.  That all of the Department of the Army records related to this case be corrected by expeditiously removing from the OMPF of the individual concerned, the OER ending on 5 June 2000, along with all supporting documents and appeals and that the period be deemed non-rated time. 

2.  Following completion of the administrative corrections directed herein, the proceedings of the Board and all documents related to this appeal be returned to this Board for permanent filing.

		___Samuel A. Crumpler____
		        CHAIRPERSON

INDEX

CASE ID	AR2002072561	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	2002/12/18	
TYPE OF DISCHARGE		
DATE OF DISCHARGE		
DISCHARGE AUTHORITY		
DISCHARGE REASON		
BOARD DECISION	GRANT	
REVIEW AUTHORITY		
ISSUES         1.  221	111.0005/VOID OER	
2.		
3.		
4.		
5.		
6.