SAMR-RB 6 September 2017 MEMORANDUM FOR Commander, US Army Human Resources Command, 1600 Spearhead Division Avenue, Department 100, Fort Knox, KY 40122-5100 SUBJECT: Army Board for Correction of Military Records Record of Proceedings for, AR20160004712 1 . Reference the attached Army Board for Correction of Military Records of Proceedings, dated 28 June 2016, in which the Board members unanimously recommended partial relief of the applicant's request. 2. I have reviewed the findings, conclusions, and Board member recommendations. I find there is sufficient evidence to grant relief. Therefore, under the authority of Title 10, United States Code, section 1552, I direct that all Department of the Army Records of the individual concerned be corrected by removing the OER for the period 21 October 2009 through 2 August 2013 from her Army Military Human Resources Record(currently the Official Military Personnel File (OMPF)) and replace it with a letter documenting the period as non-rated time. 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 8 January 2018. Further, request that the individual concerned and counsel, if any, as well as any Members of Congress who have shown interest be advised of the correction and that the Army Board for Correction of Military Records be furnished a copy of the correspondence. BY ORDER OF THE SECRETARY OF THE ARMY: Encl Deputy Assistant Secretary of the Army (Review Boards) BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160004712 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ____x____ __x______ ___x_____ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 10 August 2017 DOCKET NUMBER: AR20160004712 BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by referring her Officer Evaluation Report for the period ending 2 August 2013 to the Officer Special Review Board to determine if the evaluation contains substantive errors or demonstrates procedural errors that have caused or may cause the applicant harm. These proceedings serve as the authority for the Officer Special Review Board to take any appropriate action based on its findings. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removal of the Officer Evaluation Report for the period ending 2 August 2013 without benefit of the review recommended above. ____________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: 10 August 2017 DOCKET NUMBER: AR20160004712 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 removal of the Officer Evaluation Report (OER) for the period 21 October 2009 through 2 August 2013 from her Army Military Human Resource Record (currently the Official Military Personnel File (OMPF)). 2. The applicant states the above OER violates Army Regulation (AR) 623-3 and defers further comments to counsel. 3. The applicant defers to her attorney to provide documentation. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel reiterates the applicant’s request for removal of the OER for the period 21 October 2009 through 2 August 2013 from her OMPF. 2. Counsel states the above OER is rife with administrative and substantive errors, and there is persuasive evidence to suggest the applicant's unit deliberately violated Army Regulation (AR) 623-3 (Evaluation Reporting System), dated 5 June 2012. Additionally, counsel states: a. The applicant's rating period is incorrect. (1) A mandatory "Extended Annual" report will be prepared when a Soldier arrives at a unit with any nonrated time since the “THRU” date of the last evaluation report before a new rating relationship is established between the rated Soldier and this or her rater in a new unit, as indicated in AR 623-3, paragraph 3-42a. (For example, "Extended Annual" reports are appropriate for Soldiers who arrive at a unit after completing schooling, as indicated in AR 623-3, paragraph 3-42a(1)). (2) When an "Extended Annual" report is required, the "period covered on the report will be longer than 12 months, but the rating period or number of rated months (period covered minus nonrated time) will be no more than 12 months," as indicated in AR 623-3, paragraph 3-42a. Specifically, the "FROM" date of the period covered on the evaluation report will be the day after the "THRU" date of the last evaluation report. The rating period will begin on the Soldier's arrival date. The "THRU" date will be one calendar year after the arrival date, as indicated in AR 623-3, paragraph 3-42a. (3) Before reporting to Fort Stewart in 2012, the applicant was enrolled in the Interservice Military Physician Assistant Course. After completing this course, the applicant reported to Fort Stewart on 7 June 2012, and was assigned to Headquarters and Headquarters Company, 4th Regiment, 3rd Brigade Special Troops Battalion (4/3 BSTB). (See DA Form 4187.) (4) The subject OER was correctly denoted as an '"Extended Annual" report and the "FROM" date was accurate. However, the applicant's rating period should have ended no later than 12 months after her arrival, or on 6 June 2013. But the applicant's rating period was not closed on 6 June 2013. In fact, it was not closed until approximately 2 months later on 2 August 2013, not to mention it was not signed until 23 October 2013. (5) Not only did the applicant's rating period violate AR 623-3, but there is also persuasive evidence to suggest this error was deliberate and not a mere oversight. At this time, the applicant was under investigation, but the investigation was not closed by 6 June 2013. It is reasonable to conclude the applicant's unit held the OER in the event that potentially derogatory information would arise from the investigation, because on 8 July 2013, the applicant received a General Officer Memorandum of Reprimand (GOMOR) and as soon as the applicant's opportunity to review and comment on the GOMOR was completed and the GOMOR was filed in her OMPF, the command ended the rating period and commented on both the investigation and GOMOR in the subject OER. b. The OER refers to events outside the rating period. (1) Pursuant to paragraph 3-16a, an OER "will not refer to performance or incidents occurring before or after the period covered or during periods of nonrated time." Rating officials may not comment "about nonrated periods of time or performance or incidents that occurred before or after the rating period," as indicated in AR 623-3, paragraph 3-20d. In addition, evaluation reports "will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status... Evaluation reports will be completed when due and will contain what information is verified at the time of the 'THRU,' date of the report,” as indicated in AR 623-3, paragraph 3-19e. (2) As demonstrated above, the applicant's rating period should have ended on 6 June 2013. Yet, the rating period was improperly extended and the subject OER specifically mentioned both the investigation and the GOMOR. At the proper end of the rating period, the investigation was still open and no GOMOR had been issued and both would have been off-limits for the evaluation report. c. Incorrect Rating Chain. (1) The applicant is a Military Physician’s Assistant (PA). Pursuant to AR 623-3, Appendix E, paragraph E-3, since Military PA’s "work directly under the control of a supervising physician performing their patient care duties, this supervising physician will be included as either the rater or the senior rater of the physician assistant in all cases." Upon the applicant's arrival at Fort Stewart, MAJ (Dr.) N____ D____ served as the applicant's supervisor and should have been in her rating chain in some capacity. Instead, not only was MAJ D____ not designated as the applicant's rater or senior rater for the subject OER, her unit did not assign any other physician or medical officer to serve in her rating chain. Rather, the brigade rear-executive officer and brigade rear-commander assumed these roles. (2) The applicant was never told LTC W____ D. P____ or LTC Lee T. O____were in her rating chain instead of MAJ D____. As indicated by the subject OER, the applicant never received any counseling or support form with this information. (See OER, Part IV, block d (Rater checked N/A for developmental tasks despite it being a mandatory entry for captains.) This failure violated AR 623-3, paragraph 1-8e, which states "counseling will be conducted within 30 days after the beginning of the rating period and quarterly thereafter for captains:" The applicant never met LTC P____ in person. She only met LTC O____ once, in July 2013, after the rating period should have already ended, when she was notified she would receive a GOMOR. (3) As noted by the Army Human Resources Command (AHRC) in its decision, the Soldier did sign the subject OER; AR 623-3, paragraph 2-10b(5), provides that the rated Soldier's signature “verifies that administrative data is correct.” Admittedly, this includes the “rating officials,” as indicated in AR 623-3, paragraph 4-7h(4). However, her signature does not foreclose an appeal, which is permitted under "unusual and compelling circumstances.” As indicated in AR 623-3, paragraph 4h(4), it should not foreclose this petition to the ABCMR. The subject OER was the first evaluation report the Soldier received while serving as a Military PA. To her credit, the Soldier was unaware of the requirement for a medical supervisor [to be] in the rating chain. (4) In addition, the applicant never received an actual, designated rating chain during the rating period. It was entirely reasonable for her to assume that MAJ D____, her direct supervisor, and the supervising physician would be in her rating chain until she actually received the subject OER and realized MAJ D____ had been excluded. Finally, the applicant was pressured by her rater to sign and complete the subject OER; she was only given 2 days, which was not sufficient to research this issue. (5) AR 623-3 imposes very few specific limitations on who must comprise a Soldier's rating chain. Appendix E is one of these limitations, and it is clearly designed to ensure that a physician is able to monitor and evaluate a rated medical provider in light of specific technical and medical expertise. As this was important enough to include in AR 623-3, the requirement should not merely be waived simply because a Soldier unknowingly signs the OER. d. For the reasons set forth in this memorandum, the applicant respectfully petitions the ABCMR to remove the subject OER from her OMPF. In order to allow sufficient time for the investigation to be complete and for the command to take action, the applicant's rating period was improperly extended. Once it was extended, the investigation and GOMOR (which were completed and issued after her rating period should have ended) were mentioned in the OER. e. Lastly, her unit changed her rating officials to exclude her direct supervisor and supervising physician, likely because MAJ D____ would not have necessarily chosen to comment on these issues if given the chance. There is sufficient evidence to warrant ABCMR action in light of these multiple improprieties. The applicant's unit was free to use the subsequent rating period, i.e., beginning on 7 June 2013, to comment on the investigation and GOMOR, but the approach the unit took was impermissible. As written, the subject OER is not reflective of the applicant's performance during the rating period and it is unjust for the OER to remain in her OMPF, where it will influence and affect her military career in the future. Despite being under investigation, the applicant remained one of only two providers responsible for medical care for over half of the brigade's population; her medical privileges were never limited, she was never transferred to another unit or away from patients, and her subordinates were never reassigned/removed from her. The applicant's unit is bound by the constraints and guidance of AR 623-3, and the unit’s failure to adhere to the regulation should not simply be excused at the expense of the applicant. 3. Counsel provides copies of: * power of attorney * the contested OER for the period 21 October 2009 through 2 August 2013 CONSIDERATION OF EVIDENCE: 1. The applicant, with prior enlisted service, was initially commissioned in the Ordnance Branch with conversion to the Medical Branch upon completion of training as a PA. 2. The applicant's OER prior to the subject OER ended on 20 October 2009 as an ordnance officer. 3. She attended the Interservice PA Course (Phase I) from 11 April 2010 through 22 April 2011 at Fort Sam Houston, TX and received an Academic Evaluation Report (AER). The AER for Phase II is not available for review with this case. 4. The DA Form 4187 (Personnel Action) shows the applicant received an intra- battalion assignment from the 4/3 BSTB to Headquarters and Headquarters Company 4/3 BSTB with an effective date of 7 June 2012. 5. On 7 March 2013, an AR 15-6 (Investigation Guide for Informal Investigations) investigation was initiated to determine if the applicant committed adultery and conduct unbecoming an officer, or had sexual relations with another PA, both of whom were married at the time. a. The investigating officer (IO) interviewed several members of the troop medical clinic (TMC) including Major (MAJ) D____, who stated that Captain (CPT) ____, the TMC-North Officer In Charge, reported the applicant’s inappropriate relationship on 28 February 2013. MAJ D____ stated she conferred with both parties and informed them of the impression that the medics and other providers in the clinic had and told them this relationship was creating a hostile work environment. She instructed them to discontinue all signs of their relationship at work and to travel to work in separate vehicles. Thereafter, she contacted CPT Ixxxx, the Division Surgeon's representative, informed him of the situation, and requested they explore potential intra-brigade transfers of one of the providers. She also spoke with LTC P____ (the Brigade Executive Officer (BDE XO) about this issue on 5 March 2013. b. The IO concluded that, due to the relationship between the applicant and 1LT B____ S____, good order and discipline had been disrupted in the TMC. The medics who worked with the officers had witnessed an inappropriate relationship between the two, which was detrimental to the discipline, authority, and morale of the unit. c. The IO recommended punishment under the Uniform Code of Military Justice (UCMJ) for violation of AR 600-20 (Army Command Policy), paragraph 4-14b(5) and paragraph 4-16 and any other punishment that the commander deemed appropriate. d. The investigation was completed on 27 March 2013. 6. On 8 April 2013, the legal review found the investigation sufficient to support the IO's findings and recommendations. 7. The applicant received a GOMOR, dated 8 July 2013, from Brigadier General J____ H. H____, for carrying on an extra-marital romance with a fellow married PA (colleague) openly and in full view of her Soldiers. On 10 July 2013, the applicant acknowledged receipt of the GOMOR and indicated she would respond by submitting written matters in 7 days. Her response is not available for review with this case. On 1 August 2013, the General directed the GOMOR be placed in the permanent section of her OMPF. 8. The contested OER is from 21 October 2009 through 2 August 2013. a. The above OER shows: * rated months – 12 * nonrated codes – "S, I" * duties as the Battalion PA assigned to 4/3 BSTB, * Rater – LTC W____ P____, BDE XO – Rear * Senior rater – LTC L____ O____, BDE CDR [Brigade Commander] – Rear * the OER is marked as a referred report with no comments attached b. The rater indicated in: (1) Part IV – "No" for Honor and Integrity; (2) Part Va – "Satisfactory Performance, Promote"; and (3) Part Vb – Comments: [The applicant] is both an enthusiastic staff officer and a solid, dependable clinician. At nearly 80 encounters weekly, [the applicant’s] efficiency in clinical encounters enabled her to assist in caring for a much larger patient panel than what a newly assigned PA would handle. Her clinical skill and strong work ethic have proven invaluable while she managed care for half of a Brigade's rear detachment population, almost twice the number of Soldiers she would typically be expected to care for in a garrison environment. While deployed to Joint Readiness Training Center, [the applicant's] performance was commended by a senior physician assistant in the unit. She also voluntarily pursued additional training by completing the Tactical Combat Medical Course. [The applicant] demonstrated the ability to both adeptly train and lead a team of medics and the maturity to self-reflect and solicit guidance and constructive criticism from her mentors. However [the applicant] demonstrated a lack of Army Values (specifically honor and integrity) when she was found guilty through an AR 15-6 investigation of having an improper relationship with another married PA in the Brigade Troop Medical Clinic. Her actions created an uncomfortable work environment for her Soldiers as she and the other PA openly flaunted their indiscretion. c. The senior rater indicated in: (1) Part VIIa – "Do Not Promote" (2) Part VIIc – Comments: [The applicant's] performance as a Physician Assistant has been satisfactory, however her inappropriate actions with another married PA undermined the work environment of the Brigade's Troop Medical Clinic. While she possesses all the right attributes that make her an excellent addition to the Brigade's medical team, she clearly lacks an understanding of the Army Values. Due to her actions, she received a General Officer Memorandum of Reprimand which was filed in her OMPF. Continue to teach, coach, and mentor this young officer in order for her to reach her true potential. Not ready for promotion at this time. 9. The applicant's subsequent OERs show her rater as the Brigade Surgeon and her senior rater as the Brigade Commander. 10. The applicant appealed the contested OER for the period 21 October 2009 through 2 August 2013 to the AHRC, on 15 March 2015. 11. On 12 May 2015, AHRC returned the applicant’s appeal without action due to insufficient evidence. There is no evidence the applicant refiled her appeal to AHRC. REFERENCES: 1. AR 623-3 prescribes the policy for completing the 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. a. Paragraph 2-2 states established rating chains will correspond as nearly as practicable to the chain of command or supervision within a unit or organization, regardless of component or geographical location. b. Paragraph 2-3 states a rating chain is established by the CDR, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential. A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship. This allows for proper counseling to develop the rated Soldier and accomplish the mission. These functions are normally best achieved within an organization’s chain of command or supervision. Special rules governing the rating officials for officers under dual supervision, those serving in the Chaplain’s Corps, the Judge Advocate General’s Corps, or the Army Medical Department, and professors of military science are addressed in paragraph 2–22 and Appendix E. c. Appendix E-3 states military physician assistants work directly under the control of a supervising physician in performing their patient care duties. This supervising physician will be included as either the rater or the senior rater of the physician assistant in all cases. If serving as the rater, the supervising physician may be equal in rank but not necessarily senior by date of rank to the physician assistant. When the supervising physician is not assigned to the same organizational element, a case of dual supervision may exist. In this case, the CDR will designate the other rating official (rater, intermediate rater, or senior rater), as indicated in AR 623-3, paragraph 2–22. d. Paragraph 3-19 states 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 Headquarters Department of the Army. e. Paragraph 3-19c states the restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in a Soldier's OMPF, such as charges that are later dropped, and charges or incidents of which the rated Soldier may later be absolved. f. Paragraph 3-20 states each report will be an independent evaluation of the rated Soldier for a specific rating period. It will not refer to prior or subsequent reports. It will not remark on performance or incidents occurring before or after the period covered. The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation. g. Paragraph 3-42 (Extended Annual Report) states the "FROM" date of the report will be the day after the "THRU" date of the last evaluation report, any nonrated time will be covered by the appropriate nonrated codes, and the rating period will begin the day of a Soldier’s arrival at a unit under a valid rating chain. The period covered on the report will be longer than 12 months, but the rating period or number of rated months (period covered minus nonrated time) will be no more than 12 months. h. Paragraph 4-1 states 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 4-2 states 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 Commander's Inquiry (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 4-11 states 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. 2. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides that a nonrated period code of "I" is used for personnel in transit between duty stations, including leave, permissive temporary duty (TDY), and TDY. A nonrated period code of "S" is used for personnel who are students at military or civilian schools. 3. AR 600-20 (Army Command Policy), paragraph 4-14b(5) (Relationships Between Soldiers of Different Grades) states all relationships between Soldiers of different grades are prohibited if they create an actual or clearly predictable adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. DISCUSSION: 1. Counsel contends the 2013 OER is fatally flawed; the OER should be totally removed from the applicant's records due to the errors in the reporting period, inclusion of the GOMOR references, and an improper rating chain. 2. The applicant was issued an OER for the period 21 October 2009 through 2 August 2013, which references a 15-6 investigation and a GOMOR she received. This OER shows she has 12 months of rated time, a nonrated period with a code of "I" (due to being in transit between duty stations, including leave, permissive TDY, and TDY and a nonrated period with a code of "S" (for being a student at military or civilian school). 3. On 7 March 2013, an AR 15-6 investigation was initiated to determine if the applicant committed adultery and conduct unbecoming an officer. On 27 March 2013, the investigation was completed. The IO concluded an inappropriate relationship occurred between the applicant and a colleague, which was disruptive and interfered with good order and discipline. The inappropriate relationship was also determined to have been detrimental to the discipline, authority, and morale of the unit. 4. The available record does not contain any actual transfer or assignment orders. However, it appears the applicant was officially assigned to the 4/3 BSTB on 7 June 2012, which would have establish her “THRU” date for the contested OER as 6 June 2013. 5. The AR 15-6 investigation was completed in March 2013, which would have been prior to the “THRU” date of the 2013 OER. However, the GOMOR was not received until 8 July 2013, which would have been after the “THRU” date of the applicant’s 2013 OER. 6. While it appears the applicant’s 2013 OER may have been completed well after what should have been the established “THRU” date there is no evidence available to support the contention this was deliberate. The OER “THRU” date was based on the best information available at the time and does not appear to be sufficient to warrant removal of the OER from the OMPF. 7. The applicant contends she worked directly for physicians who were located in the building. There is no evidence that her rater or senior rater were physicians. It is unclear why two potential physicians working in supervisory positions in close proximity with the applicant were not in her rating chain. 8. While the applicant’s rater should have been a physician when possible her senior rater still would have been the BDE CDR. The applicant's senior rater on subsequent OER's is the BDE CDR. 9. Counsel has not provided and the record does not contain any evidence to support the contention that had a physician been the applicant's rater the investigation or the GOMOR would not have been referenced in the OER. AR 600-20 states all relationships between Soldiers are prohibited if they create an adverse impact on discipline, authority, morale, or the ability of the command to accomplish its mission. The applicant’s inappropriate relationship demonstrated poor judgement, a lack of integrity, and created a hostile work environment. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160004712 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160004712 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2