IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150005759 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ____X____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150005759 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20150005759 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 to remove two Officer Evaluation Reports (OER) for the periods 16 August 2005 - 15 August 2006 and 16 August 2006 - 15 August 2007 (contested OERs) from her Army Military Human Resource Record (AMHRR), to be reconsidered for promotion to lieutenant colonel (LTC) by a special selection board (SSB), and to be reinstated in the U.S. Army Reserve (USAR) Active Guard Reserve (AGR) Program. 2. The applicant states: a. She wasn't rated on the actual duties she performed. The rating wasn't factual and presented erroneous perceptions. There was a conflict between her and her rater, she being an officer and her rater being enlisted. This was an issue from the beginning but the leadership did nothing to change the situation. b. She is providing statements from third parties who served in positions allowing them a good opportunity to observe firsthand her performance. These statements also relate to her allegations of factual errors, erroneous perceptions, and claims of bias. Her true performance was not depicted in the OERs which she knows were the mitigating factor in her non-selection for promotion. 3. The applicant provides three statements in support of her application. 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 AR20130010725 on 12 March 2014. 2. On 8 May 1992, the applicant was commissioned a Reserve officer in the grade of second lieutenant. On 2 September 1996, she was ordered to active duty in an AGR status in the grade of second lieutenant with an active duty commitment of 3 years. On 26 April 1999, as a first lieutenant, her active duty commitment was amended to indefinite. On 8 June 2005, she was promoted to major (MAJ). 3. On 1 November 2006, the applicant signed an OER for the period 16 August 2005 - 15 August 2006. The OER provides the following information: a. Her unit was the 100th Division (Institutional Training (IT)), Louisville, KY. b. Part IIa (Name of Rater) indicates her rater was Rene K____, GS 12, Human Resources Officer (HRO). c. Part IIc (Name of Senior Rater) indicates her senior rater was James R____, Colonel (COL), Deputy Chief of Staff (DCS), G-1, 100th Division (IT). d. In Part IId (This is a referred report, do you wish to make comments) the block is checked. In the blocks indicating whether comments are attached the applicant checked the "No" block. e. Part IIIa (Principle Duty Title) - Plans and Operations Officer f. Part Va (Performance and Potential Evaluation) the rater checked the block "Unsatisfactory Performance, Do Not Promote." g. Part Vb (Comment on Specific Aspects of the Performance and Potential for Promotion) - The rater stated the revocation of the applicant's security clearance had greatly hindered her ability to perform at the level expected of an O-4 Plans and Operations Officer. "The lack of a security clearance severely hinders this officer's current potential. This officer is not recommended for promotion at this time." h. Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade) - The senior rater checked the block "Do Not Promote." i. Part VIIc (Comment on Performance/Potential) - The senior rater stated "[The applicant's] lack of a security clearance greatly hinders her ability to fully contribute as part of the G-1 team. She has been assigned company grade officer-level duties while she continues to improve as an integral part of the G-1 staff, but is limited to functions not requiring network access." He recommended retention to continue her experience and education and allow time for adjudication of her clearance. 4. A memorandum from the DCS, G-1, 100th Division (IT), dated 20 November 2006, addressed to the applicant stated the above referred OER was enclosed with the memorandum. The specific reasons for referral were part Va., block checked "Unsatisfactory performance. Do not promote." and part VIIa., block checked "Do not promote." She was advised that she must acknowledge receipt of the referred OER and could provide comments. In response to the memorandum, she marked that she did not desire to submit comments to the OER for the period 16 August 2005 through 15 August 2006. 5. On 18 March 2008, the applicant signed an OER for the period from 16 August 2006 - 15 August 2007. The OER provides the following information: a. Her unit was the 100th Division (IT), Louisville, KY. b. Part IIa indicates her rater was Rene K____, GS 12, HRO. c. Part IIc indicates her senior rater was James R____, COL, DCS, G-1, 100th Division (IT). e. Part IIIa - Plans and Operations Officer f. Part Va - The rater checked the block "Satisfactory Performance, Promote." g. Part VIIa - The senior rater checked the block "Fully Qualified". 6. A Headquarters, 81st RSC, memorandum, subject: Notification of Non-Selection for Promotion (1st Time) Corrected Copy, dated 13 March 2012, stated she was considered but not among those selected for promotion by the board. It further stated selection boards do not record the reason for selection or non-selection of individual officers. 7. On 31 March 2013, she was voluntarily retired early from the USAR. She had completed 16 years, 6 months, and 29 days of active service. 8. The applicant provided a statement, dated 20 February 2015, from COL Elizabeth G____. COL G____ stated she worked with the applicant while she was assigned to the 100th Division in Louisville, KY. COL G____ was assigned to the unit as a troop program unit Soldier and worked as the Assistant DCS, G-1 from 2006 - 2008. She feels the two "Do Not Promote" OERs do not accurately reflect her performance or potential. She should be promoted to LTC without delay. COL G____ stated: a. The applicant brought positive energy, professionalism, collegiality, innovation, and competence to their team from the moment she stepped into the office. She excelled at finding a way to accomplish the mission regardless of any challenges that would come her way. She consistently displayed integrity, courage, and commitment to the section, unit, and mission and routinely went above and beyond for the betterment of her team, Soldiers, and unit. She demonstrated unparalleled sincerity, poise, and humility in caring for Soldiers. b. She had demonstrated the potential for positions of greater responsibility without question and COL G____ would proudly serve with her in any capacity. She is a visionary leader with unrelenting commitment, courage, and resilience. 9. The applicant provided a statement, dated 19 March 2015, from COL James R____, the senior rater for the contested OERs. COL R____ stated: a. He recommended the applicant for promotion to LTC immediately. b. The applicant was assigned to the 100th Division during his tenure as the Division G-1. c. The applicant's lack of a security clearance was a hindrance, but not a damaging factor. Unfortunately her OERs for that period did not reflect her true performance or accomplishments. d. He now realizes the OERs she received were unjust to her and should have been corrected. e. The fact that she was rated by a civilian who also served as an enlisted Soldier was definitely a conflict that wasn't rectified by leadership and clearly was a mitigating factor at the time. f. She was an outstanding AGR officer who was a pleasure to work with. She overcame many obstacles and constantly excelled. During this rating period she successfully completed intermediate-level education (ILE). She always conducted herself in a professional manner regardless of the unfair circumstances she faced. 10. The applicant provided a statement, dated 19 March 2015, from COL Cynthia N____. COL N____ stated she was a colleague of the applicant at the 100th Division (IT) from 2006 TO 2008. COL N____ stated: a. The applicant came to the 100th Division (IT) after being mobilized. b. While mobilized her husband, her designated care giver for her minor children, ran into financial trouble. This was discovered after her assignment to the Division and her security clearance was revoked, thereby making her assignment as the Plans and Operations officer difficult. The specific issue of the revocation of her security clearance was addressed in the OER from 2005 - 2006; however, no mention was made about her efforts at correcting this problem and her efforts to do her job through other avenues. As a key full-time individual for the processing of awards for an entire division, she kept in constant contact with the units to assist with any award processing issues, many times ignored by her civilian supervisors. c. The applicant successfully corrected the specific issues of the revocation of her security clearance and was able to have her secret clearance reinstated. During this period the 100th Division (IT) utilized a rating scheme that allowed civilians to rate field grade officers. Her day-to-day duties were assigned and reviewed by a civilian GS-12, but her other duties that supported their Reserve mission were assigned and reviewed by a LTC or COL. d. Her evaluations were reviewed by the Division G-1, but the duties assigned to her by the Awards Officer (a LTC) and the Assistant DCS, G-1 were not included or considered. The comments made by the GS-12 do not reflect the reparations made by the applicant and do not necessarily reflect her other job contributions to the G-1 Section. e. The applicant worked for COL N____ while she was assigned as the Recruiting and Retention Officer, operating under the direction of the DCS, G-1. She was a quick learner, energetic, and hardworking. She was also flexible and eager to take on new challenges. She had an optimistic energy that was contagious and she was an integral member of the G-1 team. REFERENCES: 1. Army Regulation (AR) 135-155 (Promotion of Commissioned Officers and Warrant Officers Other Than General Officers) prescribes policy and procedures used for selecting and promoting commission officers of the USAR. a. Paragraph 3-11c(3) states a board member shall not divulge details of the deliberative process (other than a generalized description of board procedures) before, during, or after the board to outside parties, whether senior, a peer of, or subordinate to the board member, except as specifically directed by the Secretary of the Army or their authorized representative. b. Paragraph 3-19 states officers who have failed selection for promotion through administrative error may be reconsidered for promotion by an SSB. c. SSBs are convened to correct/prevent an injustice to an officer or former officer who was eligible for promotion but whose records: (1) Through error, were not submitted to a mandatory promotion selection board for consideration. (2) Contained a material error when reviewed by the mandatory selection board. d. Records of officers or former officers will be referred for SSB action when the Office of Promotions (RC) determines, in pertinent part, the following: (1) A review of a mandatory selection board finds that an officer’s records contained a material error. (2) The Army Board for Correction of Military Records requests such a referral. e. Commander (CDR), HRC, Office of Promotions (RC) may find that a "material error" caused the non-selection of an officer by a promotion board. That agency must first determine that there is a fair risk that one or more of the following circumstances was responsible: (1) The record erroneously reflected that an officer was ineligible for selection for educational or other reasons. In fact, the officer was eligible for selection when the records were submitted to the original board for consideration. (2) One or more of the evaluation reports seen by the board were later deleted from an officer’s AMHRR. (3) One or more of the evaluation reports that should have been seen by a board (based on the announced cut-off date) were missing from an officer’s AMHRR. (4) One or more existing evaluation reports as seen by the board in an officer’s AMHRR were later modified. (5) Another person’s adverse document had been filed in an officer’s AMHRR and was seen by the board. (6) An adverse document, required to be removed from an officer’s AMHRR as of the convening date of the board, was seen by the board. (7) The Silver Star or higher award was missing from an officer’s AMHRR. (8) An officer’s military or civilian educational level as constituted in the officer’s record (as seen by the board) was incorrect. 2. AR 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. It states 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. a. Paragraph 1-9 states Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer. 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, and counseling forms. 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. Paragraph 2-5 (Rules for designating a rater) states: (1) In subparagraph 2-5a that the rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier’s performance. The rater will be the immediate supervisor that monitors/observes the day to day performance of the rated individual and directly guides the rated Soldier’s participation in the organization’s mission. (2) In subparagraph 2-5a(1) that for OERs a rater will be an officer of the United States or allied armed forces or an employee of a U.S. Government agency (including non-appropriated fund rating officials). The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days. (3) Paragraph 2-5b (OER rater eligibility) states in subparagraph (4) that for OERs, a civilian rater has no minimum grade requirement but will be the rated individual’s designated supervisor. c. Paragraph 2-15 states senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards. The senior rater will use all reasonable means to become familiar with a rated Soldier's performance. When practical, personal contact, records and reports, and the information provided on the rated Soldier on applicable support forms will be used. The senior rater will evaluate the rated Soldier's potential relative to their contemporaries. Their evaluation is the link between the day-to-day observation of the rated Soldier and the longer term evaluation of the rated Soldier’s potential by Headquarters, Department of the Army (HQDA) selection boards. Senior raters will assess the ability of the rated Soldier. This involves evaluating performance in perspective by considering the: * rated Soldier's experience * relative risk associated with the performance * difficulty of the organization's mission * adequacy of resources * overall efficiency of the organization d. Paragraph 3-34 states certain types of reports will be referred to the rated officer by the senior rater for acknowledgment and comment before they are sent to HQDA. These types of reports include: * any report with a performance and potential evaluation in Part Va of "Unsatisfactory performance. Do not promote" or narrative comments to that effect from any rating official * any report with a senior rater promotion potential evaluation of "Do Not Promote" in Part VIIa e. Paragraph 6-7a states an evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR is presumed to: * be administratively correct * have been prepared by the proper rating officials * represent the considered opinion and objective judgment of the rating officials at the time of preparation f. Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an OER through date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. g. Paragraph 6-11 states that 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 administrative error or factual inaccuracy. The burden of proof rests with the appellant. h. Paragraph 6-11 further states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. DISCUSSION: 1. The applicant contends the contested OERs were the mitigating factor to her non-selection for promotion. However, AR 135-155, paragraph 3-11c(3) states board members cannot divulge details of the deliberative process before, during, or after the board to outside parties except as specifically directed by the Secretary of the Army or their authorized representative. 2. The applicant did not provide comments on the referred OER for the period from 16 August 2005 through 15 August 2006. 3. The OER for the period from 16 August 2006 - 15 August 2007 contains no derogatory information. There is no evidence this OER was not a fair, objective, and valid appraisal of her demonstrated performance and potential during the period in question. 4. There is no evidence the applicant appealed the contested OERs within the 3-year period provided for in AR 623-3. 5. OER's 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. 6. To support removal or amendment of a report, there must be evidence that clearly and convincingly establishes that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. The burden of proof rests with the appellant. 7. COL R____, senior rater for the contested OERs, stated he now realizes the OERs the applicant received were unjust to her and should have been corrected. The senior rater is responsible for evaluating the rated Soldier's potential relative to their contemporaries. He marked her potential as "Do Not Promote" and stated she had been assigned company grade officer-level duties due to the loss of her security clearance on the OER for 16 August 2005 - 15 August 2006. In his statement, dated 19 March 2015, he did not indicate his evaluation was incorrect at the time. 8. The applicant and COL R____ contend that because she was rated by a civilian who also served as an enlisted Soldier there was a conflict of interest that was clearly a mitigating factor at the time. However, AR 623-3 states the rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier’s performance. For OERs a rater will be an officer of the United States or allied armed forces or an employee of a U.S. Government agency. For OERs, a civilian rater has no minimum grade requirement but will be the rated individual’s designated supervisor. The applicant's rater at the time was the HRO. 9. The statements from COL N____, who served with the applicant from 2006 - 2008, and COL G____, who served with the applicant from 2006 - 2008 were noted. However, it appears their service with the applicant was after the period of the referred OER (16 August 2005 - 15 August 2006). The OER for the period from 16 August 2006 - 15 August 2007 does not include any derogatory information. 10. The applicant has not shown, by clear and convincing evidence, that the contested OERs contain material error or injustice. They are properly filed and there is no basis for removing them from her AMHRR. 11. The applicant does not meet the criteria set forth in AR 135-155 for consideration by an SSB. 12. She voluntarily retired early from the USAR with 16 years, 6 months, and 29 days of active service. There is no basis upon which to reinstate her in the AGR Program. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150005759 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150005759 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2