IN THE CASE OF: BOARD DATE: 10 May 2016 DOCKET NUMBER: AR20150007974 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: 10 May 2016 DOCKET NUMBER: AR20150007974 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: 10 May 2016 DOCKET NUMBER: AR20150007974 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 her 4 June 2012 referred Officer Evaluation Report (OER) be removed or moved to the restricted portion of her Army Military Human Resource Record (AMHRR). 2. The applicant states: a. Her referred OER for the period ending 4 June 2012 should be removed from the performance file of her AMHRR and/or transferred to the restricted file of her AMHRR based on unjustified derogatory statements made during this rating period. The statements were unproven, unwarranted, and unfair and a violation of Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-19. This biased opinion of her character and integrity has caused undeserved, prejudicial information to be included in the performance file of her AMHRR, and ultimately affected her selection for promotion. Subsequently, this resulted in her discharge from the U.S. Army Reserve (USAR) for twice being non-selected for promotion to major (MAJ). It is her belief that upon removal of this OER and a request for a special selection board (SSB), she would be selected for promotion to MAJ. b. Statements that she was absent without leave (AWOL) or failed to place her unit above her personal desires are unfounded and untrue. None of these statements have been verified or substantiated. No charges were filed nor were documents filed to report her duty status as AWOL. She did not receive any disciplinary actions such as written reprimands or counseling regarding her performance. The undeserved prejudicial opinions of rating officials that she officially served under for less than 4 months were undocumented, unproven, and an unjustified assessment of her performance and potential as an Army officer and should not dictate the future of her military service. 3. The applicant provides: * a self-authored statement * three letters of Support * four Officer Evaluation Reports (OERs), including the contested report * May 2011 mobilization orders * 5 April 2012 DA Form 4187 (Personnel Action) * two DA Forms 31 (Leave Request and Authority for Leave) * four Leave and Earnings Statements (LESs) * Antiterrorism Level I Training and AOR Brief certificate * three predeployment training documents * 25 January 2015 discharge orders * 30 August 2012 DD Form 214 (Certificate of Release or Discharge from Active Duty) CONSIDERATION OF EVIDENCE: 1. The applicant, with prior enlisted service, was commissioned as a USAR Signal Corps officer and entered active duty on 25 May 2000. She was released from active duty on 24 May 2003 with transfer to the USAR Control Group (Reinforcement). 2. On 22 February 2007, the U.S. Army Human Resources Command (HRC) notified the applicant that she was considered for promotion to CPT by the mandatory Reserve Components Selection Board (RCSB) that convened on 7 November 2006 but she was not selected. Additionally, as a result of this second non-selection, by law and regulation, she was required to be discharged or transferred to the Retired Reserve, if eligible. The available record contains no evidence that this discharge notice was acted upon. 4. On 20 April 2007, she was reassigned to a Troop Program Unit (TPU), the 479th Engineer Battalion. 5. On 8 July 2007, she was ordered to active duty in support of Operation Iraqi Freedom and served in Iraq from 8 July 2007 through 16 June 2008. The applicant was issued a DD Form 214 that shows she was honorably released from active duty on 23 July 2009 and returned to her TPU. 6. The applicant was called to active duty on 5 December 2011 in support of Operation Enduring Freedom. 7. On 5 April 2012, the applicant submitted a DA Form 4187 requesting leave. She noted that the leave would be aboard a Carnival Cruise Line ship. The request was approved by the Battalion Executive Officer CPT Dun___. 8. The applicant's record shows completion of – * DA Form 31 for the period 9-16 April 2012, approved by CPT Dun____ on 5 April 2012 * Certificate of Completion for the Pre-OCONUS (outside continental U.S.) Travel File (PRO-File) on 5 April 2012 * an OCONUS Leave/ Emergency-Leave/TDY Checklist * Antiterrorism Level I Training and Area of Responsibility (AOR) Brief certificate dated 6 April 2012 9. The OCONUS checklist notes the Antiterrorism Level I Training certificate is to be completed 60 days prior to departure; Soldiers desiring to take leave or travel to or within U.S. possessions of Puerto Rico, Virgin Islands, Guam, American Samoa and Northern Marlana Islands, Alaska or-Hawaii – do not require travel clearance through this office. A pen and ink date indicates the Anti-Terrorism Force Protection briefing was attended on 28 March 2012. 10. The second copy of the DA Form 31 shows she was signed out on leave at 0800 hours on 9 April 2012. The leave address shown is a cruise line ship for a trip from Puerto Rico through the West Indies and the Virgin Islands. 11. The applicant received a referred OER for the period 18 November 2011 through 4 June 2012. The contested portions of the OER are: a. Part IVa (Army Values) the rater (Lieutenant Colonel Dun____) placed an "X" in the "NO" block for honor, integrity, selfless service, and duty. b. Part Va (Evaluate the Rated Officer's Performance During the Rating Period and Her Potential for Promotion), the rater placed an "X" in the "Unsatisfactory Performance, Do Not Promote" box. c. In Part Vb of the contested OER, the report reflects the following: [The applicant’s] leadership traits are not what the Army expects from its officers. [The applicant] strove to meet her chain of command reporting requirements, in support of critical information dissemination throughout the battalion. [The applicant] failed to place her unit above her personal desires by going AWOL to Puerto Rico, and demonstrated a lack of Army values in informing me that her departure destinations did not include locations that require attendance at a mandatory Anti-Terrorism OCONUS travel brief. The rated officer has initiated an Army Multi-Source Assessment and Feedback/360 within the last three years. d. In Part Vc (Comment on Potential For Promotion), the rater added the comment "Do not Promote." e. In Part VIIa (Evaluate the Rated Officer's Promotion Potential to the Next Higher Grade), the senior rater (SR) placed an "X" in the "Do Not Promote" box. f. In Part Vllb (Potential Compared with Officers Senior Rated in Same Grade), the SR marked the box "Below Center of Mass, Do Not Retain." g. In Part VIIc, the SR provided the following comments: [The applicant] led her company during the execution of its CONUS Replacement Center deployment mission. Her performance was adequate. [The applicant’s] decision to depart on leave early and without authorization, however, makes me question her leadership, judgment, decision-making, and commitment to our Army values. [The applicant] possesses limited potential. Do not promote. Do not retain. 11. The applicant disagreed with the OER and submitted statements in her own behalf on 28 August 2012. In her comments she set forth her accomplishments and the performance of her company during the rating period. She also provided the following statements: The statement, made by LTC Dun____ in Parts IV and V, that I failed to place my unit above my personal desires are incorrect. During the time in question, my company, Charlie Company, [CONUS Replacement Center], was scheduled off-duty time during the weekend of 6-7 April 2012. My leave packet, which included the trip itinerary, was approved by LTC Dun____ on 5 April 2012, with knowledge that the scheduled departure date was prior to the leave start date. At no time did I know I was considered in an absent without leave status. I did not fail to report for duty. I did not fail to be at an appointed place and/or time, scheduled or non-scheduled meeting, briefing, etc. Nor did I fail to report for any Soldier emergencies… This evaluation does not accurately reflect my duty performance during this entire rating period. The performance and accomplishments made during this time deserve to be included to mirror my performance and my potential for promotion and assignments to positions of greater responsibility. It is not my intention to imply that I am not responsible for my actions. I take responsibility for my lack of knowledge but I will not take responsibility for blatant misconduct or intentional disregard for Army regulations. Leaders make mistakes and some mistakes can be detrimental to the lives of our Soldiers. My mistake was not intentional nor was it known, by me, to [be] misconduct. I would never place the lives of my Soldiers nor myself into a detrimental situation. 12. She was released from active duty and returned to her TPU effective 30 August 2012. 13. In a statement of support dated 26 November 2013, Sergeant First Class (SFC) C____ R____ states: As the Company [First Sergeant], I have firsthand knowledge that [the applicant] was not absent without leave, as it states in her officer evaluation report for the rating period 20111118- 20120604. Prior to leaving for the airport, [the applicant] contacted me and she signed out on leave. At no time did she fail to place her unit's needs above her personal desires. She was available to our Soldiers and to our chain of command. At no time was [the applicant] reported AWOL by anyone in the chain of command. I have personal knowledge that [the applicant] completed all mandatory training prior to her leave being approved and the claim that she was AWOL is untrue and unfounded. 14. In a statement of support dated 27 November 2013, SFC M____ H____ states: I, SFC M____ J. H____, was the Training NCO for the 86th AG Replacement Company, during mobilization to the Continental Replacement Center (CRC), Ft. Benning, GA from 5 December 2011 – 30 August 2012. During that time, I was also the Leave and Passes custodian responsible for maintaining the unit's leaves and passes records. [The applicant] was required to attend mandatory overseas training prior to taking leave because she was traveling to several Caribbean areas. She gave me a copy of the mandatory training and her signed DA {Form] 31 prior to her departure on leave. As the Training NCO, I can confirm that [the applicant] was not absent without leave. [The applicant] signed out on leave with the unit administration clerk, in accordance with (IAW) the battalion's leave policy. She did not place her needs above those of the unit's. [The applicant] has demonstrated on many occasions that she cares for her Soldiers and places their needs above her own. Her selfless leadership and steady mentoring is seen by her Soldiers and peers every day. [The applicant] submitted her leave in a timely manner, conducted all the mandatory training and signed out IAW the policies set by the unit leadership. She was never reported AWOL nor was the unit informed of an unauthorized absence. The claim that she was AWOL is false and unsupported and [the applicant’s] OER should be corrected or removed from her performance file. I have attached a copy of the mandatory training and the DA 31 she provided me before she went on leave. 15. On 29 November 2013 the applicant applied to the Officer Special Review Board (OSRB) for removal of the contested OER. 16. On 20 March 2014, the OSRB denied the applicant's request to remove the OER covering the period 18 November 2011 to 4 June 2012 stating. The OSRB found there was insufficient evidence to support the contention that the contested OER is unjust or inaccurate. a. The OSRB noted that the applicant provided several documents in support of her contention that she was never AWOL during the contested rating period. Although the supporting evidence reflected that the appellant was never documented as being AWOL, the views of the rating officials could not be invalidated. b. None of the supporting documents pertaining to the appellant's leave were certified or approved by her rating officials, thus leaving room for the rating officials’ view that they were misinformed by the appellant's leave departure time, destination, and her overall leave process. c. Careful consideration was given to the third-party statements that were provided; however, these individuals were not privy to the rating officials’ view of the appellant's leave departure, destination, and return status. There was insufficient evidence that shows the comments and ratings of the contested OER were anything other than the considered opinion of the rating officials. d. The OSRB further noted that the appellant's contentions pertaining to her view of the ratings and comments pertaining to the contested OER would have been a basis to request a Commander's Inquiry (Cl) to address her issues. It does not appear that a Cl was requested, which would have presented a broader view of the appellant's contentions. e. The OSRB found that the applicant had not provided clear and convincing evidence which showed that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered. Additionally, there was no evidence in the available records and the appellant had not provided evidence showing that the contested report was inaccurate, unjust, or otherwise flawed. Therefore, removal of the contested OER was not recommended. 17. The OSRB decision was approved on 31 March 2014. 18. On 30 June 2014, the applicant requested reconsideration of the OSRB decision and, on 30 October 2014, her request was again denied. The evidence and arguments she presented for reconsideration and with her current request are the same as presented in her original OSRB review. 19. On 17 July 2014, the applicant signed a Reserve Status Statement and Election of Options advising her that she was not in an excepted category and that her discharge was therefore mandatory. 20. The applicant was discharged from the USAR on 25 January 2015 as a two-time nonselect for promotion to MAJ. 21. The appellant provided two third-party statements in support of her appeal. Both of the statements, in effect, state that the appellant submitted her leave documentation in a timely manner, and that she was never reported as being in an AWOL status. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing DA Form 67-9 (OER); associated DA Form 67-9-1 (OER Support Form), and DA Form 67-9-1a (OER Developmental Support Form), that are the basis for the Army's Evaluation Reporting System (ERS). Procedures, tasks, and steps pertaining to the completion of each evaluation report and support forms are contained in DA Pamphlet 623-3. a. Paragraph 1-9 states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for HQDA. b. Paragraph 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. The commander's or Commandant's Inquiry (Cl) will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. c. Paragraph 3-9 provides that the rater will assess the performance and potential of the rated officer using all reasonable means to prepare a fair, correct report that evaluates the officer's duty performance, values, officer responsibilities, and potential. d. Paragraph 3-11 provides that the senior rater's role is primarily to evaluate potential, over watch the performance evaluation, and mentor subordinates. The senior rater will use all reasonable means to become familiar with the rated officer's performance throughout the rating period and prepare a fair, correct report evaluating the officer's duty performance, professionalism, and potential. e. Paragraph 3-19 states that any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. No reference will be made to an incomplete investigation (formal or informal) concerning a Soldier. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to HQDA. For example, rating officials are not prohibited from commenting on a court-martial (judicial), if completed, but the comments should focus on the behavior that led to the court-martial rather than the court-martial itself. If the rated Soldier is absolved, comments about the incident will not be included in the evaluation. f. Paragraph 4-11b states clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. g. Paragraph 4-11d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources (see DA Pam 623-3). Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. 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 practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a CDR's or Commandant's Inquiry may provide support for an appeal request. h. Paragraph 6-1 states that the Evaluation Report Redress Program consists of several elements at various command levels. The program is both preventive and corrective, in that it is based upon principles structured to prevent, and provide a remedy for, alleged injustices or regulatory violations, as well as to correct them once they have occurred. i. Paragraph 6-2 states that an OER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties. The Redress Program protects the Army's interests and ensures fairness to the evaluated officer. At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A Cl and an evaluation report appeal are separate and distinct actions. Rated Soldiers may seek an initial means of redress through a Cl; however, a Cl is not a prerequisite for the submission of an appeal. j. Paragraph 6-7 places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an OER. An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF 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 (see para 3–39). k. Paragraph 6-7h stipulates that appeals based on administrative error only will be adjudicated by HQDA, Evaluation Appeals Branch (AHRC-PDV-EA), for active Army and USAR OERs. Appeals based on administrative error for ARNG OERs will be adjudicated by the National Guard Bureau (NGB-ARP). Such claims may include, but are not limited to, deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the APFT and/or height and weight entries. l. Paragraph 6-11 states that evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. To justify deletion or amendment of a report, the appellant must produce evidence establishing 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. m. Paragraph 6-11e states that evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. DISCUSSION: 1. The applicant appeals the contested evaluation report on the basis of administrative and/or substantive inaccuracy. In order to justify deletion or amendment of a report, an applicant must produce evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration; and that action is warranted to correct a material error, inaccuracy, or injustice. 2. The appellant's contentions pertaining to her view of the ratings and comments pertaining to the contested OER would have been a basis to request a CI to address her issues. It does not appear that the applicant elected to exercise this option. 3. The applicant's leave request was signed by the executive officer, not her rater or senior rater. The applicant stated in her initial appeal of the OER that she departed prior to her official departure date in effect because her company was not scheduled for any duty the weekend prior to her leave period. 4. Although she was never formally charged with AWOL, her admitting to the early departure supports the statement that she was AWOL for some period of time prior to the official date of the commencement of her leave. 5. Although the comments on the OER are harsh, the appellant has not provided sufficient evidence to show that the ratings on the contested report are in error or that they are anything but the considered opinions and objective judgments of the rating officials at the time the report was rendered. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) @#!CASENUMBER 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR200150007974 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2