PROCEEDINGS

	IN THE CASE OF:        

	BOARD DATE:             21 December 1999
	DOCKET NUMBER:    AR1999033905

	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. Loren G. Harrell		Director	
	Mr. Joseph A. Adriance		Analyst	

The following members, a quorum, were present:

	Mr. Hubert O. Fry, Jr.		Chairperson	
	Ms. Meta Waller		Member	
	Ms. Debra Williams		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A -  Application for correction of military 
                             records
	Exhibit B -  Military Personnel Records (including
	                  advisory opinion, if any)

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, in effect, that two officer evaluation reports (OERs), covering the periods 22 August 1995 to 21 August 1996 and 22 August 1996 to 
8 January 1997, be expunged from her records.  That she be placed before a special selection board (SSB) for promotion to lieutenant colonel (LTC) and if promoted that she be given an appropriate date of rank.  In addition, she requests that she be provided all back pay and allowances and service credit that would result from that action.  

3.  The applicant states, in effect, that her case be reviewed by addressing her issues as presented by her counsel.  The applicant’s counsel has provided the enclosed appeal packet.  Counsel states, in effect, that his appeal on behalf of the applicant is supported by the action of a Department of the Army Active Duty Board (DAADB), which after reviewing the applicant’s rebuttal to the relief for cause OER, recommended the applicant’s retention on active duty.  In the opinion of counsel, this was tantamount to declaring that the relief for cause OER was in error and not sustainable.  Counsel further contends that the relief for cause OER was the result of bias because the applicant was the only full time law enforcement officer working in a command primarily staffed by reservists.  He states that these reservists frequently have idiosyncrasies which are not common in the Regular Army and that these commands are in bred and often an outsider is viewed as a threat, even though they may just be following Army regulations.  The applicant, he claims, was the victim of this insular mentality.  Counsel submits statements from third party members of the command which support the premise that the applicant was simply enforcing regulations and fell victim to the “good old boy network” and that the command accused the applicant of being too aggressive because she enforced physical security standards and attempted to correct problems in this area that had existed for years.  Counsel claims that these statements make clear that the command and not the applicant was the problem.  He also calls attention to the fact that the contested OERs show that the applicant’s only problem was in trying to have this command obey regulations, and in this command environment this was perceived as a threat to their comfort and resulted in the applicant being summarily removed.  Counsel also claims that the first contested report, which was a precursor to the relief for cause OER, was also negative.  This report, although not a referred OER, is essentially a duplication of the relief for cause report and the reasons for its invalidity are identical. 

4.  The applicant’s military records show that show that on 21 December 1979, she was appointed a 2nd Lieutenant in the Military Police (MP) Corps of the USAR.  On 3 September 1985, she entered active duty as an AGR officer and is serving in that status at present.  On 20 December 1991, the applicant was promoted to the rank of major which is the rank she currently holds.

5.  The first contested OER is an annual report covering the period 22 August 1995 through 21 August 1996, which evaluated the applicant as a major while performing duties as the Deputy Provost Marshall for the 99th Regional Support Command (RSC) at Oakdale, Pennsylvania.  In Part IVa (professional competence) her rater assigned a score value of 1 in 12 of the 14 areas; however, in the following two areas he gave a 2 score value:  block 8 “displays sound judgement” and block 10 “is adaptable to changing situations”.  In Part Vb (performance during this rating period) the rater checked the second box “usually exceeded requirements”; in Part Vd (potential for promotion to the next higher grade) the rater also checked the second block which stated “promote with contemporaries”.  In Part Ve (comments on potential) the rater stated, in effect, that the applicant was technically competent but needed to work on her professional approach and demeanor with members of the command staff and with customers; in addition, he stated that the applicant needed to better follow directives and guidance put forth by members of the chain of command and better control the tone and content of her verbal and written communication.  

6.  The senior rater (SR) placed her in the three block of Part VIIa (potential evaluation) on the first contested OER.  This placed her in the center of mass (COM) of the SR’s profile since he had evaluated only the applicant.  Part VIIb (comments) of the contested OER, were mainly positive and indicated that the applicant was a hands on manager who devoted significant effort to accomplishing the mission and is very aggressive and willing to do what it takes to get the job done.  The SR also indicated that she launched a very aggressive Physical Security Program and her efforts at planning the Physical Security workshop resulted in a successful event.  The SR commented that her lack of diplomacy and inflexible attitude resulted in alienating those she should be supporting.  He concludes by stating that the applicant had the ability to be an outstanding staff officer, but development in her personal delivery style must improve and finally he states that she had been a contributor to enhancing the command Physical Security posture.  This OER was forwarded to the applicant on 16 September 1996.

7.  The second contested report is a relief for cause OER covering the period 
22 August 1996 through 8 January 1997, which also evaluated the applicant as a major while performing duties as the Deputy Provost Marshall for the 
99th Regional Support Command at Oakdale, Pennsylvania.  In Part IVa (professional competence) her rater assigned a score value of 1 in 11 of the 
14 areas; however, in the following three areas he gave a 3 score value:  block 
8 “displays sound judgement” ; block 9 “seeks self improvement” and block 
10 “is adaptable to changing situations”.  In Part Vb (performance during this rating period) the rater checked the second box “usually exceeded requirements”.  In Part Vd (potential for promotion to the next higher grade) the rater checked the third block which stated “do not promote”:  
In Part Ve (comments on potential) the rater stated, in effect, that he relieved the applicant for cause because she used poor judgement in her interactions with the chain of command and its subordinate units.  He also commented that the applicant had been counseled by several officers in the chain of command regarding her unprofessional demeanor and comments, and has failed to respond to the guidance provided in the counseling sessions, although she had been given several opportunities to do so.  

8.  On the second contested report the (SR) placed the applicant in the fourth block of Part VIIa (potential evaluation).  This made her below the COM of the SR’s profile (of 4 officers rated, 2 officers were in the top block, 0 officers were in the second block, 1 officer was in the third block, and 1 officer, the applicant, was in the fourth block.  In Part VIIb (comments) of this OER the SR stated that this action was a difficult decision because it could have grave consequences for the applicant, but in the best interest of the command and the USAR, he concurred with the findings of the rater and supported the relief for cause action.  He went on to comment that the applicant was very qualified and dedicated to the position she serves, however, her unprofessional manner had proved to be counter productive.  The misuse of the chain of command and her inability to accept advice and guidance had created an intolerable situation.  Hopefully this action will place this officer in a position more suitable than her present assignment.  The SR concluded his remarks by indicating that the DA Form 67-8-1 (OER Support Form) was not considered in his evaluation due to the nature of the report.

9.  On 8 January 1997, this OER was referred to the applicant.  The applicant provided comments in response to the referral action on 17 January 1997.  In these comments she basically indicated that the contested OER is grossly unsubstantiated and lacks credible evidence that she failed to perform her duties as the Deputy Provost Marshall.  The applicant rebuts specific blocks of the contested OER and indicates that the report is entirely personality driven and has no relationship to her performance of duty.  She also advances the argument that in her past assignments, covering 17 years of service, she had never been cited for failures in the areas of written and oral communications, which were the areas cited by rating officials on the contested report.  In addition, she contended that she had never received counseling for the areas used as a basis for the relief for cause report.  

10.  On 22 January 1997, the SR prepared a statement which indicated that he had reviewed the applicant’s rebuttal to the contested OER and found nothing that would change the facts and circumstances contained in the relief for cause report.  In addition, he commented that he continued to support the rater’s comments and thorough investigation of the matter, and found no reason to doubt the substance or intent of the contested OER.
11.  The applicant has provided statements from third parties that support her appeal.  A letter of support from a senior Physical Security Specialist, a retired lieutenant colonel of the USAR, indicated that during the rating period of the relief for cause report he had worked closely with the applicant.  He continued by saying that he traveled to numerous Reserve Centers with the applicant on assistance visits and planned and executed two physical security workshops with her.  He observed the applicant’s performance of duty and demeanor first hand, on a daily basis, and in his opinion she possessed impeccable dedication, loyalty, integrity, and moral courage in carrying out her duties as the Deputy Provost Marshall and there was no justification for her relief from those duties.  He also claims that the applicant’s rater, whom he also worked for, rarely discussed their duties or office business with either him or the applicant.  He concluded that the chain of command ignored physical security violations based on friendship and past relationships, and allowed certain people to be untouchable, which caused the significant problems experienced by the applicant in performing her duties.

12.  The applicant also submits a statement from the Chief of Physical Security of the Fort Myer, Virginia Provost Marshall Officer (PMO), the Major Army Command (MACOM) proponent responsible for the physical security policy and procedure for all Reserve Centers in the applicant’s area of responsibility.  This statement commends the applicant for the effort she put forth in the areas of force protection and physical security.  In addition, it indicates that for many years Reserve units, in her area of responsibility, were not in compliance with physical security standards.  Many of these commands simply filed the inspection reports and forgot major deficiencies which should have been resolved and there certainly was no command emphasis in this area.  However, when the applicant assumed these duties there was an obvious change in the visibility the Reserve Centers received from their higher headquarters.  The applicant and her staff provided guidance, training, and direction never before rendered to Reserve Center personnel.  The MACOM Physical Security Chief also states that while she welcomed these changes, she knew that there were complaints and a great deal of resistance from some of the Reserve Centers.  She spoke to many of her peers at several support installations about this situation, and the complaints seemed to center around the applicant’s attempts to resolve long-standing security problems which had been ignored.  It was apparent to her that some levels of the chain of command were reluctant to change the status quo.  The applicant had simply expected compliance with Army regulations and RSC policy, and had exhibited sound judgement in pursuing that compliance.  She comments that rarely had she encountered a Reserve officer with the applicant’s dedication and professionalism.  She concludes her comments by indicating that the applicant accomplished more in the area of physical security in her short tenure, than her predecessors achieved in years, and should have been praised for her accomplishments, instead of losing her job.  
13.  Army Regulation 623-105 (Officer Evaluation Reporting System) provides the policy and procedure for processing OER’s.  Paragraph 3-57 of the OER regulation states, in pertinent part, that an evaluation report accepted by Headquarters, Department of the Army and included in the official record of an officer is presumed to be administratively correct; to have been prepared by the properly designated rating officials; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  

14.  Paragraph 9-10 (Burden of Proof and Types of Evidence) states, in pertinent part, that the burden of proof on appeals rests with the appellant.  Accordingly, to justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-57 and 6-6 should not be applied to the report under consideration; that action is warranted to correct a material error, inaccuracy, or injustice; that clear and convincing evidence must 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 his/her assertions, the clear and convincing standard has been met with regard to those assertions. 

15.  Paragraph 6-10c provides examples of the types of evidence required to support an appeal based on a substantive error.  It states that for a claim of inaccuracy or injustice of a substantive type, evidence must include statements from third parties, rating officials or other documents from official sources.  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 affording them 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 should include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. 

16.  On 27 January 1997, the applicant, in a letter to the Department of Defense (DoD) hotline, alleged that she suffered reprisals for complaints made to members of her chain of command regarding mismanagement, abuse of authority, and regulatory violations in the 99th RSC.  The applicant specifically alleged that she was relieved as the Deputy Provost Marshall, received an unfavorable OER and an administrative letter of reprimand (LOR) in reprisal for her protected communications.  As a result of this complaint the Department of the Army Inspector General (DAIG) was directed to conduct an investigation into the matter.  
17.  On 3 September 1998, the DAIG completed the investigation and published  an investigative report in regard to the applicant’s allegations.  The applicant alleged that she had been reprised against as a result of her protected communications with the commanding general (CG) of the 99th RSC and with the Inspector General (IG) of the 99th RSC.  Her allegations revolved mainly around the first contested relief for cause OER; however, there was also an allegation in regard to a letter of reprimand (LOR) she had received, and the filing recommendation to the CG, by the official who had prepared the LOR, that it be filed in her official military personnel file (OMPF).

18.  Of the six allegations submitted by the applicant, only one was substantiated by the DAIG.  The only allegation that was substantiated by the DAIG was that the applicant was improperly reprised against by a member of the chain of command by being issued a LOR and that by the recommendation made that the LOR be filed in the OMPF.  The DAIG found that the applicant had made a protected communication to the CG on 16 September 1996, in which she presented problems with her chain of command and that the official who had issued the LOR was aware of this protected communication.  The DAIG substantiated this allegation and concluded that the LOR would not have been issued had the protective disclosure not been made.  There is no record of this LOR in the OMPF reviewed by this Board.

19.  In regard to the other allegations, which were related to the relief for cause OER, the DAIG determined that the preponderance of the evidence indicated that the adverse personnel actions were imminent, and that they found that all the parties justified their assessment/evaluation of the applicant by citing a flaw in her leadership ability, even though they indicated that they thought the applicant could excel as a staff officer.

20.  On 15 October 1998, the DoD IG issued a final response to the applicant’s letter to the DoD hotline.  In this response they reported the DAIG conducted an investigation into the allegations she made and had substantiated that she had received a LOR in reprisal for her protected communications; and the legal advisor had substantiated an additional act of reprisal in that she had received a counseling statement as a result of her protected communications.  However, they concurred with the DAIG by not substantiating her allegations, that responsible management officials relieved her from her duties as the Deputy Provost Marshall, issued her a relief for cause OER, or otherwise endorsed those adverse actions against her in reprisal for her protected communications.  The DoD IG indicated that they conducted a thorough review of the DAIG report of investigation and concurred with their findings. 

21.  On 24 June 1997, the applicant’s OMPF was referred to the DAADB by the Army’s Personnel Command (PERSCOM) based on her demonstrated substandard degree of efficiency and manner of performance as provided for in Army Regulation 600-8-24, Paragraph 2-31c.  This regulation allows the commander of PERSCOM to recommend that an Reserve Component officer be considered by a DAADB to determine if the officer's manner of performance, degree of efficiency, or misconduct constitutes consideration for involuntary separation. 

22.  On 26 February 1998, the DAADB convened and reviewed the file of the applicant to determine whether she demonstrated significant substandard performance of duty.  They found that the applicant’s performance of duty had been honorable.  After reviewing the applicant’s overall record, the DAADB recommended the applicant be retained on active duty and that she be reassigned.  On 27 February 1996, the Deputy Assistant Secretary 
(Army Review Boards) approved the findings and recommendations of the DAADB, that the applicant be retained on active duty with reassignment.

23.  The DOD Directive Number 7050.6, dated 20 November 1989, covered the Military Whistleblower Protection provisions (Title 10, U.S. Code, section 1034).  This directive was reissued on 3 September 1992.  The directive indicates that it is DOD policy that no person shall restrict a member of the Armed Forces from lawfully communicating with a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; that members of the Armed Forces shall be free from reprisal for making or preparing to make lawful communications to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization; and that no employee or member of the Armed Forces may take or threaten to take an unfavorable personnel action, or withhold or threaten to withhold a favorable personnel action, in reprisal against any member of the Armed Forces for making or preparing a lawful communication to a Member of Congress, an IG, or a member of a DOD audit, inspection, investigation, or law enforcement organization.  (Note:  This directive was reissued again on 12 August 1995 to include specific other complaints as protected communications and expand the scope of persons and activities to whom a protected communication could be made.)

24.  The foregoing directive also provides that a member or former member of the Armed Forces who has filed an application for the correction of military records alleging reprisal for making or preparing a protected disclosure may request review by the Secretary of Defense of the final decision on such application.  The request for review must be in writing and include the member’s name, address, telephone number, copies of the application to the Board and the final decision of such application, and a statement of the specific reasons that a member is not satisfied with the decision.  The request for review of the final decision must be filed within 90 days of receipt of the decision by a member or former member of the Armed Forces.  The decision of the Secretary of Defense is final.  Requests based on factual allegations or evidence not previously presented to this Board shall not be considered.  New allegations or evidence must be submitted directly to the Board for reconsideration under procedures established by the Board.

25.  Army Regulation 20-1 provides, in pertinent part, that anyone (military, DA civilian, family member, or private citizen) has the right to register complaints orally or in writing with an Army IG concerning matters of DA interest.  In exercising this right, the complainant will be free from restraint, coercion, discrimination, harassment, or reprimand.  Soldiers will be encouraged to discuss their problems or grievances first with their commanding officers, as provided by Army Regulation 600-20.  However, persons desiring to submit a complaint directly to an IG at any level, but who do not wish to discuss the matter with their commanding officer or other members of the chain of command, will be permitted to do so.  Any type of disciplinary or other adverse action taken against an individual for registering a complaint, except when fraudulently made, is prohibited.

CONCLUSIONS:

1.  After a thorough review of the evidence of record and the independent evidence submitted by the applicant and her counsel, the Board concluded that the evaluation rendered, in the first contested annual OER, was proper and equitable in all respects.  The contested report represented the considered opinions and objective judgment of the rating officials at the time of preparation.  In addition, the Board found there was not a sufficient evidentiary basis to meet the burden of proof required to overcome the presumption of regularity established by regulation.

2.  The Board concurs with the findings of the DoD IG, that the chain of command was fully justified in rendering the relief for cause OER.  However, the Board did conclude that the language used in this OER, in regard to the applicant’s interaction with the chain of command, did create at least a perception that the report may have been rendered, at least in part, as a result of the applicant’s protected communication with the RSC CG.  This conclusion was arrived at based on the language used by both the rater and SR in the contested report.  For example the rater commented, in effect, that his justification for rendering the relief for cause report was the applicant’s inappropriate interaction with the chain of command; and the SR stated, in effect, that the applicant’s misuse of the chain of command created an intolerable situation.  

3.  Given the perception created by the comments of rating officials on the relief for cause report; the applicant’s excellent performance of duty, as attested to in third party statements; the applicant’s overall record of honorable service, as evidenced by the findings of the DAADB, and in order to fully support and comply with the full sprit of the Military Whistleblower Protection Act, the Board determined relief was warranted.  Therefore, as an exception to policy and in the interest of equity, the Board concluded the contested relief for cause report should be removed from the applicant’s record at this time.  

4.  The Board concurs with findings of the DAIG that substantiated the allegation that the applicant was issued an LOR in reprisal for protected communication with the RSC CG.  Therefore, in the event any documents related to this action remain on file, the Board finds that the LOR and any related documents should be removed from the applicant’s records.  

5.  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:

	a.  by removing the relief for cause OER, with the ending date of 
8 January 1997, from the records of the individual concerned; 

b.  by declaring the period of service covered on the OER as a nonrated period of service and that a non prejudicial explanation be placed in her records explaining the gap created, in OER rating periods, as a result of this action; 

c.  by submitting the records of the individual concerned, as thus corrected, to a duly constituted special promotion selection board for promotion reconsideration under the criteria followed by all promotion selection boards that reviewed the contested OER and failed to select her for promotion; and 

d.  if promoted, by providing the individual concerned an appropriate date of rank with entitlement to all back pay and allowances.

2.  In the event any of these documents remain on file, that the LOR and any related documents issued to the individual concerned be removed from her records.

3.  That in accordance with paragraph 21e, AR 15-185, 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.

4.  That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:  

____dw__  ___mw__  __hof ___  GRANT AS STATED IN RECOMMENDATION

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

		____Hubert O. Fry, Jr._____
		        CHAIRPERSON

INDEX

CASE ID	AR1999033905	
SUFFIX		
RECON		
DATE BOARDED	1999/12/21	
TYPE OF DISCHARGE	N/A	
DATE OF DISCHARGE	N/A	
DISCHARGE AUTHORITY	N/A 	
DISCHARGE REASON	N/A	
BOARD DECISION	GRANT PARTIAL	
REVIEW AUTHORITY		
ISSUES         1.  193	111.0000	
2.		
3.		
4.		
5.		
6.