SAMR-RB 19 August 2016 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, AR20160006965 1. Reference the attached Army Board for Correction of Military Records of Proceedings, dated 28 June 2016, in which the Board members unanimously recommended denial 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 dated 16 June 2011 - through 28 January 2012 and all associated documents from her Official Military Personnel File (OMPF). 3. Request necessary administrative action be taken to effect the correction of records as indicated no later than 21 December 2016. 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) CF: ( ) OMPF IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20160006965 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____X____ ___X_____ ___X_____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20160006965 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. _____________X____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. IN THE CASE OF: BOARD DATE: 23 June 2016 DOCKET NUMBER: AR20160006965 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: a. Removal of an officer evaluation report (OER) for the rated period 16 June 2011 through 28 January 2012 (hereinafter referred to as the contested OER) from her official military personnel file (OMPF). b. In the alternative: * delete the non-left justified block checks, and replace with left justified block checks [This refers to the entries of "Satisfactory Performance, Promote" being changed to "Outstanding Performance, Must Promote" in the rater's portion (Part V (Performance and Potential Evaluation), sub-item a (Evaluate the Rated Officer's Performance during the Rating Period and His/Her Potential for Promotion)), and "Fully Qualified" being changed to "Best Qualified" in the senior rater portion (Part VII (Senior Rater), sub-item a (Evaluate the Rated Officer's Promotion Potential).] * remove from Part VII, sub-item c (Comment on Performance/Potential) the following: "She should be placed in challenging assignments to further develop her leadership and technical skills. Promote with peers." c. Based upon the Board's removal or correction of the contested OER, permit her file to be submitted for consideration by a special selection board (SSB). d. To personally appear before the Board. 2. The applicant states, in effect: a. The contested report covers the rating period 16 June 2011 through 28 January 2012. She firmly believes the contested OER is not indicative of her total performance, and was given to her in retaliation for the circumstances surrounding her formal Sexual Harassment/Assault Response and Prevention (SHARP) complaint. b. She provides documentation that will show she was sexually harassed and worked in a hostile environment. In this situation, she felt severely mistreated, bullied, and experienced retaliation from her chain of command. c. She did not appeal the contested OER when she received it because she wanted to leave the unit as soon as possible. Also, as a junior captain (CPT), she was unaware of the long-term implications for her career by accepting the contested OER. (1) In 2014, she was counseled for being "at risk" for that year's officer separation board (OSB) because the contested OER contained "non-left justified block checks." (2) She submitted a similar packet and letter to the President of the OSB in which she addressed the same concerns she now raises with the Board. She made it through the OSB, and was told by her branch, since she was involved in a SHARP-related incident, the associated documents would remain on file so she would not have to re-live the events. (3) A few months ago, she was shocked to learn she was not selected for promotion to major (MAJ). After reviewing her file with her branch, she discovered her SHARP documents had not been saved, nor had they been provided to the promotion selection board. Her branch manager believed the contested OER was the primary reason for her non-selection. (4) She continues to have a strong desire to serve her country, and she requests the contested OER not be allowed to remain in her OMPF. d. She bases her request on her contention the contested OER is substantively inaccurate. (1) The narrative written by her rater does not support his non-left justified block check, in that it does not address a lack of performance or identify deficiencies. (2) All Army values and leader attributes are marked "Yes." The contested OER does not reveal a character issue. (3) In Part VII, sub-item c, the senior rater wrote "she should be placed in challenging assignments to further develop her leadership and technical skills." However, in her previous evaluation just 6 months before, the same senior rater wrote her organizational skills, leadership, and technical abilities had improved the efficiency of the battalion's S-1 (personnel section). The two OERs contradict each other, without merit. e. She provides a detailed timeline of events showing her tenure in the unit. She also provides supporting documentation that addresses: * the command climate * counselings * evaluations * SHARP * retaliation violations * investigations under Army Regulation (AR) 15-6 (Procedures for Administrative Investigations and Boards of Officers) * nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) * Article 138 (Complaint of Wrongs), UCMJ (A complaint process in which the Soldier attempts to remedy a wrong committed against that Soldier by his/her commanding officer. The Soldier first forwards the complaint to that commander; if no satisfactory result, the complaint can be formally sent to the officer exercising general court-martial authority (GCMCA). The GCMCA examines the complaint and forwards the results to the Secretary concerned.) * letters of safety concerns from her family to her battalion commander and the division commander 3. The applicant provides: * officer record brief * timeline of events * OER for the rating period 16 September 2009 through 15 June 2011 * contested OER for the rating period 16 June 2011 through 28 January 2012 * memorandum, dated 17 November 2011, Subject: Report of Investigation in accordance with AR 15-6 concerning Equal Opportunity (EO) SHARP complaint against Sergeant First Class (SFC) MJM * memorandum, dated 22 November 2011, Subject: Memorandum of Rebuttal for Reprimand [applicant] * email correspondence dated between 8 December 2011 and 24 January 2012 * DA Form 2627 (Record of Proceedings under Article 15, UCMJ) * memorandum, dated 20 January 2012, Subject: Request for Redress of Grievance under Article 138 * memorandum, dated 21 January 2012, Subject: Request for Redress * memorandum, dated 13 February 2014, Subject: [applicant] * memorandum, dated 14 February 2014, Subject: Letter of Recommendation for [applicant] 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 prior enlisted service in the Virginia Army National Guard and as a Reserve Officers' Training Corps (ROTC) cadet, she was appointed as a U.S. Army Reserve (USAR) commissioned officer. She executed her oath of office on 5 May 2006. 3. She was ordered to active duty and initially served as an Air Defense Artillery officer. She has served continuously in a variety of assignments both in the continental United States and overseas. She was promoted to the rank/grade of CPT/O-3 on 1 June 2009. 4. In 2010, she attended the Adjutant General (AG) Officer Advanced Course and branch-transferred to the AG Corps. She was assigned to Headquarters Service Company, Headquarters and Headquarters Battalion, 82nd Airborne Division as the Battalion Adjutant on or about 23 September 2010. 5. On or around 15 June 2011, she was given a change of rater OER for the rating period 16 September 2009 through 15 June 2011. Her rater was MAJ GMC, Battalion Executive Officer, and her senior rater was Lieutenant Colonel (LTC) DJL, Battalion Commander. Her position was shown as Battalion Adjutant. The report was very favorable, with the rater checking the block for "Outstanding Performance, Must Promote" in Part V, sub-item a. The senior rater checked the "Best Qualified" block in Part VII, sub-item a. 6. On or about 26 August 2011, she deployed with her unit to Afghanistan. a. During her deployment, based on documents provided by the applicant, she alleged being sexually harassed by SFC MJM. b. At this same time, the wife of the unit's first sergeant (1SG) accused the applicant and the 1SG of having an inappropriate relationship. The 1SG and his wife were going through a divorce at the time. c. The applicant filed an EO SHARP complaint against the SFC, which generated an AR 15-6 investigation. Her battalion commander also initiated an AR 15-6 investigation into the allegation of an inappropriate relationship between the applicant and the 1SG. 7. According to documents provided by the applicant, the following issues were associated with the EO SHARP complaint: * sexual harassment complaints concerning SFC MJM had been made in the past, but there was a perception he was permitted to act with impunity; Soldiers in the unit believed he was being protected by the battalion command sergeant major (CSM), the division CSM, and the division deputy commanding general * when she filed her complaint, the applicant bypassed her immediate chain of command because of concerns that previous complaints had not been appropriately addressed; this apparently upset her battalion commander * her battalion commander informed the EO representative about the other investigation being conducted into allegations of an inappropriate relationship between the applicant and the unit 1SG, stating it was his opinion the applicant's EO SHARP complaint was a case of "tit-for-tat" (implying her complaint was meant to be retaliation for the other AR 15-6 investigation); he also expressed concern about the fact she had by-passed him when she filed her complaint, and this made him look bad * the applicant confronted her battalion commander about his disclosure; he apologized * the AR 15-6 investigation into the applicant's EO SHARP complaint found the applicant had been sexually harassed, and she experienced an increasingly sexually offensive and hostile environment prior to filing her complaint * SFC MJM's unprofessional conduct toward female Soldiers created a hostile environment and unreasonably interfered with the applicant's performance * while not the focus of the investigation, SFC MJM's other unprofessional actions towards Soldiers of three different companies challenged the trust between the command and its Soldiers to enforce appropriate behaviors * SFC MJM demonstrated a deficiency in the Army values of respect, loyalty, and honor 8. As a result of the EO SHARP complaint, SFC MJM was administered NJP. 9. On the completion of the AR 15-6 investigation with regard to allegations of an inappropriate relationship, the battalion commander recommended the applicant receive a general officer memorandum of reprimand (GOMOR). 10. The division CG apparently issued a GOMOR to the applicant. She submitted a rebuttal, and it appears that based on this rebuttal, the CG directed placement of the GOMOR in her local personnel file. A copy of the GOMOR is not available for review. 11. On 10 January 2012, the applicant sent an email to her battalion commander in which she expressed concerns. She essentially stated: * she did not feel comfortable working in the unit anymore because of the sensitivity and circumstances surrounding the allegations of an inappropriate relationship with the 1SG, as well as her earlier EO SHARP complaint * she asked to be reassigned so she could make a fresh start in another unit * based on how the battalion commander had handled the EO SHARP complaint, she was also uncomfortable with her battalion commander * she had had safety concerns that he had failed to address, and no action was taken until the division CG intervened after her parent's email * as an additional concern, the EO SHARP investigation revealed the battalion CSM had apparently condoned the SFC's sexual harassment; the battalion commander only recommended a letter of concern be given to the CSM, while both she and the 1SG were recommended for GOMORs * she felt the battalion commander was not treating her fairly and was holding her to a different standard, compared to other leaders in the organization 12. On 20 January 2012, she filed a request for redress of grievance under the provisions of Article 138, UCMJ with her battalion commander. a. In her request, she cited her 10 January 2012 email, and a verbal conversation she had had with the battalion commander on 11 January 2012. In this conversation, they had addressed assignment opportunities elsewhere within the division, and the battalion commander had agreed to release her. The applicant informed him she had been speaking with the Division G-1, and the G-1 had indicated the applicant could be considered for positions within the 18th Airborne Corps and the U.S. Army Special Operations Command. b. On 18 January 2012, the battalion commander told her she would be leaving the unit within a week for a job in the 82nd Combat Aviation Brigade (CAB), thus denying her the opportunity to participate in choosing from the other possible positions mentioned earlier by the division G-1. c. She interpreted the battalion commander's actions as a personal attack, and retaliation for her submitting an EO SHARP complaint. 13. On 21 January 2012, the battalion commander responded in a memorandum. He wrote, in summary: a. In the 11 January 2012 discussion, the applicant expressed an interest in pursuing a Secretary of the General Staff (SGS) position with either the 18th Airborne Corps headquarters, or the U.S. Army Forces Command. The Division G-1 informed him of an SGS position within the 82nd CAB. Given her interest in an SGS position, he felt this was a good fit. Additionally, it would result in her reassignment outside of the battalion. b. Her allegations of mistreatment, unfair treatment, personal attacks, and reprisals were all unfounded. The investigation into allegations of an inappropriate relationship between the applicant and the 1SG, as well as her EO SHARP complaint, were reviewed by the Division Staff Judge Advocate's office, the Division Inspector General, and the Division EO office. The investigations were found to be legally sufficient. 14. On or around 28 January 2012, she received the contested OER for the rating period 16 June 2011 through 28 January 2012. The reason for the report was permanent change of station. Her rater was MAJ JWH, Battalion Executive Officer, and her senior rater was LTC DJL (same senior rater as her last OER). Her position was listed as Battalion S-1. It was not a referred report. a. Part IV (Performance Evaluation - Professionalism (Rater)) had all "Yes" blocks checked for Army values and for Leader Attributes/Skills/Actions. b. Part V: * sub-item a - "Satisfactory Performance, Promote" * sub-item b (Comment on Specific Aspects of the Performance) contained all favorable comments; included the statement "[applicant] worked diligently during this rating period to improve her technical competency as well as the competency of her section." * sub-item c (Comment on Potential for Promotion) - "Promote [applicant] with peers and continue to develop by carefully managing her future assignments" c. Part VII: * sub-item a - "Fully Qualified" * sub-item b (Potential Compared with Officers Senior Rated in Same Grade) shows the center of mass (COM) block was checked * sub-item c - contains favorable comments, and also included "She should be placed in challenging assignments to further develop her leadership and technical skills. Promote with peers." REFERENCES: 1. AR 623-3 (Evaluation Reporting System), in effect at the time, established the policies and procedures, and served as the authority for preparation of the OER. a. Army evaluation reports were assessments of how well the rated Soldier met duty requirements, and adhered to the professional standards of the Army officer. Performance was to be evaluated by observing action, demonstrated behavior, and results from the point of view of Army values and the leadership framework. Officers were needed to maintain public trust, confidence, and the qualities of leadership and management needed to sustain an effective officer corps. b. In outlining rater and senior rater responsibilities, the regulation stated the respective rater was to assess the performance of the rated Soldier using all reasonable means, to include personal contact, records, and reports as well as information provided by the rated officer. The report was to represent the considered opinion and objective judgment of the rating official at the time of preparation. c. The regulation further provided that an OER accepted by Headquarters, Department of the Army, and included in the official record of an officer was presumed to be administratively correct and to have been prepared by the properly-designated rating officials at the time of preparation. Requests to alter, withdraw, or replace an accepted OER would not be honored. An exception was to be granted only when information that was unknown or unverified when the OER was prepared was brought to light or verified, and the information is so significant that it would have resulted in a higher or lower evaluation, had it been known at the time the OER was prepared. d. The regulation also provided that the burden of proof in an appeal of an OER rested with the applicant. Accordingly, to justify deletion or amendment of an OER, the applicant was required to produce evidence that clearly and convincingly overcame the aforementioned presumptions, and that action to correct an apparent material error or inaccuracy was warranted. Clear and convincing evidence would be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. 2. AR 600-8-29 (Officer Promotions), currently in effect, prescribes policies and procedures governing promotion of Army commissioned and warrant officers on the active duty list. Chapter 7 provides for SSBs. SSBs are governed by the same instructions provided to the boards that considered or should have considered an officer for promotion. a. Paragraph 7-2 states SSBs may be convened under Title 10, U.S. Code, section 628 to consider or reconsider commissioned or warrant officers for promotion when Headquarters, Department of the Army discovers one or more of the following: (1) An officer was not considered from in or above the promotion zone by a regularly-scheduled board because of administrative error (SSB required). (2) The board that considered an officer from in or above the promotion zone acted contrary to law or made a material error (SSB discretionary). (3) The board that considered an officer from in or above the promotion zone did not have before it some material information (SSB discretionary). b. A material error is defined as being of such nature that in the judgment of the reviewing official (or body), had it been corrected at the time the officer was considered by the board that failed to recommend him/her for promotion, it would have resulted in a reasonable chance that the officer would have been recommended for promotion. Reconsideration may also be granted when material information was missing from the officer's file when seen by a promotion board. 3. AR 15-185 (ABCMR) prescribes policies and procedures for the ABCMR. It states, in pertinent part, the ABCMR considers individual applications that are properly brought before it. The ABCMR may, in its discretion, hold a hearing or request additional supporting documentation or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation an applicant is not entitled to a hearing before the Board. The Director of the ABCMR, or a panel of the Board, can authorize a personal appearance. In this case, the evidence of record is sufficient to render a fair and equitable decision at this time. 2. The applicant requests removal of the contested OER or, in the alternative, its modification. She bases these requests on a contention the non-left justified block checks of "Satisfactory Performance, Promote" (rater) and "Fully Qualified" (senior rater) are substantively inaccurate, and not supported by associated comments. She asserts the same senior rater gave her a better rating just 6 months prior, and implies bias on his part because of an EO SHARP complaint she filed against an NCO in the unit. She further asserts the contested OER was the reason she was not selected for promotion to MAJ. 3. The contested OER is not a referred report; both the rater and senior rater inserted favorable comments. A review of the report reveals those comments included in her report do not appear to be inconsistent with the blocks checked in rater and senior rater's sections. 4. Her contention that the contested report served as the basis for her non-selection for promotion to MAJ is speculative, and it does not invalidate the contested OER. There is insufficient evidence to show her non-selection for promotion can be attributed to this particular OER. In addition, promotion selection boards are not required to divulge the reason for a Soldier’s non-selection. 5. While it is clear SFC MJM's behavior was sexual harassment and that he created a hostile work environment for her, the record does not contain, nor has the applicant offered, sufficiently compelling proof that would overcome the "presumption of regularity" and justify either the removal or the modification of the contested OER. Additionally, the evidence she submits does not convincingly show the contested OER is substantively inaccurate, and does not appropriately reflect her performance or potential. Further, the documentation presented does not sufficiently support the assertion her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner for the specified period. Each evaluation must stand alone. The evidence thus appears insufficient to support granting the requested relief. 6. Considering the foregoing, there does not appear to be sufficient evidence to support placing her file before an SSB. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160006965 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160006965 11 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2