IN THE CASE OF: BOARD DATE: 22 September 2011 DOCKET NUMBER: AR20110002964 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 military records by removing DA Form 67-9 (Officer Evaluation Report) for the period ending on 27 April 2006. 2. The applicant states the OER should be removed due to administrative [errors] and injustice. She further contends: a. The command did not process the OER in a timely manner resulting in her elimination for promotion to lieutenant colonel; her release from the Active Guard Reserve (AGR) program; and limited her ability to file a rebuttal within the 3-year period. b. The OER was placed in her Official Military Personnel file (OMPF) on 31 July 2008, which was more than 2 years after her departure from the unit and after several correspondences from the U.S. Army Reserve Command (USARC) Inspector General (IG) Office. c. The appeal she submitted was late (not within a 3-year period) because of the lateness of its submission to Headquarters, Department of the Army (HQDA) and her preparation for deployment in August 2008. d. The applicant forwarded several correspondences, phone calls and emails, to the command between April 2006 and July 2008 requesting a status of the OER. e. On 20 November 2006, the applicant submitted a rebuttal to the senior rater. No feedback was received. f. The applicant's request for a commander's inquiry dated 22 November 2006 was forwarded to the command. On 15 December 2006, the commander assigned an officer to conduct the inquiry. No findings, conclusions or recommendations were provided to the applicant. g. The DA Form 67-9-1 (Officer Evaluation Report Support Form) was not used by the rater or senior rater. The mandatory rater/rated officer initial face-to-face counseling about duties responsibilities, and performance objectives was never conducted. The support forms from the rater and senior rater were never provided for the development of her support form. On 26 April 2006, the support form was sent electronically to the rater and senior rater. 3. The applicant provides: * OER for period from 3 November 2005 to 27 April 2006 * Listing of documents filed in her OMPF * Email to and from the applicant and her rater/senior rater, dated * 28 April 2006 * DA Form 67-9-1, dated 28 April 2006 * Applicant's 2-page statement dated 20 November 2006, concerning her OER * Request for commander's inquiry, dated 22 November 2006 * Commander's directive to conduct an inquiry, dated 15 December 2006 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. At the time of the applicant's request, she was serving on active duty as a Reserve officer in the rank of major, pay grade O-4. 3. On 4 August 1996, the applicant entered active duty as a USAR officer, Transportation Corps. 4. On 19 June 2002, the applicant was promoted to the rank of major, pay grade O-4. 5. A Change of Rater OER was rendered for the applicant's duty performance for the period from 3 November 2005 to 27 April 2006 (5 rated months). It shows the following: a. She was assigned in the rank of major, pay grade O-4, as the logistics officer of a theater signal command located at Fort Meade, Maryland. b. Her rater indicated: * that the applicant did not possess high personal moral standards, selfless service, or fulfilled her professional, legal, and moral obligations * that the applicant did not possess the fundamental mental qualities of will, initiative, or discipline * that the applicant did not show an interpersonal skill with people for coaching, teaching, counseling, motivating or empowering * that the applicant did not show the leadership skill for influencing decision-making through sound judgment, logical reasoning or the wise use of resources * that the applicant did not show the leadership skill for executing short term mission accomplishment through tactical proficiency, meeting mission standards, or taking care of people and resources * that the applicant did not show the leadership skill for developing long-term improvement within the Army through investing adequate time and effort to develop individual subordinates as leaders c. Her rater evaluated her performance and potential as "unsatisfactory, do not promote." Specific comments included: * "failure to certify IMPAC card purchases resulted in suspension of the purchase card use for the command and its subordinate units" * "unit bills (i.e., cell phone, Grechian Firebolt Hotel) were not paid in a timely fashion resulting in major embarrassment to the command" * "failure to follow-up, provide updates and complete taskings…severely affected the operational readiness of the G4 and subordinate units" * "counseled on numerous occasions and continuously failed to perform her duties in a timely and satisfactory manner" * "was consistently not available (leave, sick, appointments) when major inspections were conducted or projects were due...resulting in many missed deadlines" * "did not work with other members of the staff resulting in late submissions of annexes, purchases, spending plans" * "untruthful many times when questioned by her chain-of-command" * "disruptive behavior impeded progress within both the G3 and G4" * "enhanced her own professional development by completing the Command and Staff General College" * "outstanding physical fitness…maintained a 300 on her APFT" d. Her rater further stated that the applicant, with much additional training and mentoring, had the potential to be a staff officer. e. Her senior rater indicated: * "that he had received a completed DA Form 67-9-1 and had considered it in his review" * "that the applicant's potential to the next higher grade was evaluated as do not promote" * "that the applicant ranked below center of mass - do not retain" * "that the applicant be removed from the AGR program" f. The OER indicates that the rater and senior rater signed the report on 15 October 2006 and referred it to the applicant who indicated a desire to make comments. g. The applicant's signature is missing from the report. 6. The applicant signed a 2-page statement dated 20 November 2006, wherein she stated: * This evaluation was a complete surprise to her * The lateness (6 months) of this report reflected negligence, insensitivity and lack of support from the rating chain * She was provided only 4 weeks to comment on the report * The support form was not used even though she submitted one at the end of the rating period * She had no reason to believe her rating would be anything other than outstanding performance, must promote, best qualified and above center of mass * The rater failed to provide copies of her support form or that of the senior rater * The rater failed to conduct face-to-face counseling during the first 30 days of the rating period * The rater did not perform any counseling during the rating period * The rater's ratings and comments on the evaluation have no basis and lack truthfulness * The rater told her that the senior rater was not her friend and had plans to hurt her * In a phone conversation in November [2006] she felt threatened and feared for the well being of her family and herself * The rater agreed in the phone conversation that she had not counseled her during the rating period and had been unaware of what she did on a day-to-day basis * The rater's distasteful comments displayed irrational and unprofessional behavior * The rater's failure to perform her duties as rater caused a breakdown in communication which should not reflect negatively on the rated officer * The evaluation does not reflect her successful contributions during the rated period * Her contributions included acquisition of the only GSA vehicle in the battalion, development of a letter of instruction for the use of the International Merchant Purchase Card Program, conduct of a train-the-trainer class for supply sergeants, acquired and forwarded data for the lodging contract, held weekly meetings with supply and maintenance staff, and coordinated the development of financial work stations for the entire command * There are no legal grounds that substantiate the evaluation * The evaluation is not acceptable and does not reflect her character or outstanding contributions made toward the command 7. The applicant has provided a memorandum dated 22 November 2006, wherein she requested a commander's inquiry concerning her change of rater OER for the period from 13 December 2005 through 27 April 2006. a. She contended that neither the rater nor the senior rater followed the governing regulation with regard to providing support forms. They did not provide mission or objectives. The rating chain did not properly determine or prioritize her responsibilities and performance objectives. b. She contended that the rater did not verify that the initial face-to-face counseling was conducted within the first 30 days of the rating period. Also, the rater did not conduct any counseling using her support form. c. She contends that in a telephonic conversation on 9 November the rater told her to submit her "little appeal" if she did not like what was written. The rater would not explain why she made her comments concerning her brother. d. She further contends that the evaluation was written out of personal vengeance and does not reflect her significant contributions listed on the support form she forwarded to the rating chain prior to her departure. 8. The applicant provided a memorandum dated 15 December 2006, wherein the commanding general directed a commander's inquiry into the allegations made by the applicant concerning her OER. a. The investigating officer was directed to summarize his investigation and include a list of witnesses who were interviewed and documents reviewed. b. He was to state his findings, conclusions, and recommendations in his report no later than 15 January 2007. c. A copy of the investigation is not available. Evidence of what action was subsequently taken by the commander, if any, is not available for review. 9. On 30 June 2010, the applicant was released from active duty and transferred to the USAR control Group (Reinforcement). She had completed approximately 14 years and 3 months of active duty service. 10. Orders A-07-019670, US Army Human Resources Command, dated 6 July 2010, ordered the applicant to active duty for operational support for a period of 1 year at Fort Myer, Virginia. Subsequent orders continued her active duty until 4 July 2012. 11. Army Regulation 623-105 (Officer Evaluations) as in effect at the time, established the policies and procedures for the OER system. a. Paragraph 3-11c required the rated officer to use the DA Form 67-9-1 as a working document to guide performance and development. The rated officer was to keep a record of progress on developmental tasks to aid in follow-up counseling. The rated officer was required to actively participate in the follow-up counseling sessions. b. Paragraph 3-33 provided a referral process that afforded the rated officer an opportunity to submit comments to the senior rater. c. Paragraph 4-2b(1) required completed reports to arrive at Headquarters, Department of the Army no later than 120 calendar days after the through date of the report. d. Paragraph 4-3 required the rater to advise the rated officer of the objectives expected to accomplish in their duty position. The rater will inform the rated officer on who comprises the rating chain. The DA Form 67-9-1 will be used for establishing the rated officer's duty description and performance objectives. It was to be given to the rated officer at the first discussion to be held within 30 days if possible, or as soon as possible after reporting. The rater was also required to conduct a face-to-face counseling at the earliest opportunity. e. Paragraph 6-6 provided that an OER accepted by Headquarters, Department of the Army, and included in the OMPF of an officer, was presumed to be administratively correct, 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. f. Paragraph 6-7 provided that appeals on reports prepared on and after 1 October 1997, must be submitted within 3 years of the report completion date. g. Paragraph 6-10 of that regulation stated 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 presumption of regularity and that action to correct an apparent error or inaccuracy is warranted. 12. DA Pamphlet 623-3 (Evaluations Reporting System Policy), provides at paragraph 6-1c(2) that appealing an evaluation report on the sole basis of a self-authored statement of disagreement will not be successful. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that her military records should be corrected by removing DA Form 67-9 for the period ending on 27 April 2006 because of administrative errors and injustice. She contends that the OER support form was not used by the rater or senior rater and that the late filing [an administrative error] of the subject OER resulted in her elimination for promotion to lieutenant colonel [an injustice] and subsequent removal from the AGR program [an injustice]. Furthermore, she contends that she did not receive a face-to-face counseling within the first 30 days of the rated period, and that the rater did not conduct any counseling using her support form. 2. The rating period for the subject OER ended on 27 April 2006. It was a referred report wherein the applicant indicated she would submit comments. The rater's and senior rater's signatures are dated 15 October 2006. The applicant did not sign or date the report. By regulation, the report was to be processed to HQDA within 120 days, which would have been no later than 25 August 2006. Accordingly, the applicant's allegation that the OER was late in arriving at HQDA is valid. However; late submission is not justification for removal of the report from her records. 3. The subject OER clearly indicates that the senior rater considered the OER support form in his evaluation and review. The applicant has not provided any documentary evidence showing that the support form was not submitted and utilized in the evaluation process. 4. The available evidence shows that the applicant was aware of the report contents as early as 20 November 2006, when she submitted a rebuttal to her rater. The applicant's OMPF indicates that the report was filed on 31 July 2008. The regulatory 3-year suspense for filing an appeal to this report ended on 27 April 2009. Accordingly, she had about 9 months from the time the report was filed in her OMPF in which to submit an appeal and still remain within the established suspense. The late filing of this report is unfortunate; however, that in itself does justify its removal from the records. Furthermore, it does not validate the applicant's argument that this lateness was the proximate cause for elimination for promotion to lieutenant colonel or for her release from the AGR program. 5. The evidence clearly shows the applicant requested and received a commander's inquiry concerning the subject OER. The results of this inquiry are not available. 6. The applicant's contention that the rater did not use her support form and did not counsel her during the rated period is noted. The regulatory guidance clearly provides that the rated officer is to take an active part in the rating process. As such, she should have been more proactive in the process by initiating discussion with her rater and/or senior rater early on and not simply relied on others to come to her. Furthermore, the regulatory guidance does not provide any provisions for invalidating an evaluation simply because required counseling may or may not have been properly accomplished. 7. A review of all the facts of this case failed to show any fatal errors or injustices rising to a level that would require modification of the subject OER, or its removal from the OMPF. 8. In view of the above, the applicant's request should be denied. 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 for correction of the records of the individual concerned. _______ _ 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) AR20110002964 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110002964 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1