BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160002867 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 BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160002867 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. BOARD DATE: 28 June 2016 DOCKET NUMBER: AR20160002867 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 Officer Evaluation Report (OER) for the period 13 April 2007 through 1 September 2007 (hereafter referred to as contested OER) be removed from her official military personnel file (OMPF). 2. The applicant states, in effect, during her time as a platoon leader in C Battery, 5th Battalion, 52nd Air Defense Artillery (ADA), she felt her company commander was toxic, and he was treating her and other Soldiers unfairly. She maintains that on multiple occasions, she tried to discuss her issues and concerns with her company commander and she received negative feedback. Therefore, she went to her command's leadership on several occasions to discuss the command climate and issues she had with her company commander. After she had been in the unit around 9 months, the company commander physically and verbally threatened two of her Soldiers in the field. She reported this information to the Inspector General (IG) and shortly after that; her battalion commander pulled her out of the field with the intent of reassigning her to another company. She feels the contested OER mistakenly annotates her performance and harms her career based on retaliation for going to the IG. She states she was unaware of the referred report or the consequences of the report until she reviewed her records for the Major's Promotion Board. 3. The applicant provides the contested OER, email, and a supporting statement from the senior rater. 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. After having prior enlisted service in the Regular Army (RA), the applicant was appointed as a second lieutenant (2LT) in the RA on 13 April 2006. Her record shows she is currently serving in ADA as a captain (CPT). 3. The applicant's record shows she received an annual (code "02") 5-month OER while she served in the rank of 2LT for the period 13 April 2006 through 12 April 2007 as the Headquarters Platoon Leader, C Battery, 5th Battalion, 52nd ADA, Fort Bliss, TX. The Battery Commander, a CPT, was her rater and her senior rater was the Battalion Commander, a lieutenant colonel (LTC). The rating officials and the applicant signed the OER on 8 May 2007. The OER shows her rater and senior rater checked the blocks "Outstanding Performance, Must Promote" and "Best Qualified." She also received supporting comments from both the rater and senior rater, which state "Her 'Can do' attitude has established her as a 'Go getter' within the Battery" and "[Applicant's] positive demeanor and 'Can do' attitude are a credit to her leadership potential." 4. The contested OER is a 5-month change of rater (code "03") OER covering the rated period 13 April 2007 through 1 September 2007. During this period, she served in the rank of 2LT as the Headquarters Platoon Leader, C Battery, 5th Battalion, 52nd ADA, Fort Bliss, TX. The Battery Commander, a CPT, was her rater and her senior rater was the Battalion Commander, a lieutenant colonel (LTC). The rating officials and the applicant signed the OER on 21 September 2007. The contested OER shows the following: a. Part IId "(This is a referred report, do you want to make comments?)" shows an "X" in the box indicating the OER is referred and an "X" is in the "No" block indicating that no comments were attached. b. In Part V (Performance and Potential Evaluation) the rater assessed the applicant's performance and promotion potential as "Satisfactory Performance, Promote" and included the negative supporting comment, "[Applicant] has been in the battery for eight months and has failed to certify to Table VII standards on the PATRIOT." c. In Part VII (Senior Rater) the senior rated listed her promotion potential as "Fully Qualified" and included the supporting comments, "Satisfactory performance... She has not Table VIII certified and she has expressed concern that this is a function of opportunity vice ability... it appears clear that she requires, in fact demands, more guidance than the average lieutenant and is still finding her place in the Army. She is being transferred to a different battalion for a fresh start. Perhaps she will broaden her perspective and develop into a solid well rounded officer..." 5. In a memorandum, dated 27 January 2016, the applicant's senior rater states the contested report was errantly annotated "NA (Not Applicable)" and "No" in Part IId after all signatures were placed on the report. He adds that the contested OER should not have been a referred report and he supports any efforts to remove the OER from the applicant's OMPF. REFERENCES: 1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-34 (Referred reports) states that, in pertinent part, any report with negative remarks about the rated officer's Values or Leader Attributes/Skills/Action in rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment before being forwarded to Department of the Army. b. If referral is required, the senior rater will ensure an "X" is placed in the appropriate box in part IId of the completed report (for example, when the senior rater has signed and dated the report). The report will then be given to the rated Soldier for signature and placement of an "X" in the appropriate box in part IId. c. Paragraph 6-7 states that evaluation reports accepted for inclusion in the official record of a rated Soldier's OMPF is 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. Appeals based solely on statements from rating official claiming administrative oversight or typographical error of an OER will normally be returned without action unless accompanied by additional substantiating evidence. d. Paragraph 6-11 states the burden of proof rests with the applicant. To justify deletion or amendment of a report, the applicant 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. DISCUSSION: 1. The applicant states, in effect, the ABCMR should remove the contested OER because it was unjustly rendered in retaliation for her going to the IG. Additionally, she was unaware that the contested OER was a referred report. 2. The evidence of record shows prior to her contested OER, she was rendered an annual report in which she was rated "Outstanding Performance, Must Promote" with outstanding comments by the same rater she now claims was toxic and treated her and her Soldiers unfairly. There is no evidence of an IG report, to show that the contested report was rendered out of retaliation. Therefore, her claim that the report was unjustly rendered is not supported by the available evidence. 3. She also provides a statement from her senior rater indicating the contested OER was errantly annotated "NA" and "No" in Part IId and should not have been a referred report. However, the contested report contains numerous negative comments and in accordance with Army Regulation 623-3, as cited above, any report with negative remarks in the rating official's narrative evaluations will be referred to the rated officer by the senior rater for acknowledgment and comment. 4. Additionally, there is no evidence available and the applicant has not provided sufficient evidence to show the ratings and comments listed on the contested report are inaccurate, unjust, and/or not consistent with her demonstrated performance of duty during the rating period. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160002867 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160002867 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2