ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 February 2019 DOCKET NUMBER: AR20160008350 APPLICANT REQUESTS removal from her Official Military Personnel File (OMPF) of a General Officer Memorandum of Reprimand (GOMOR), dated 8 April 2014, and removal of an Annual Officer Evaluation Report (OER), covering the period 1 August 2013 to 31 July 2014 (Contested OER) APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD * DD Form 149 (Application for Correction of Military Record) * 17 DA Forms 2823 (Sworn Statement) * 2 DA Forms 4856 (Developmental Counseling Form) * DA Form 689 (Individual Sick Slip) * 5 character references memorandums * appointment slip * counseling document * memorandum * Equal Opportunity (EO) Complaint Interview memorandum * DA Form 31 (Request and Authority for Leave) * 2 DA Forms 67-10-1(Company Grade Plate (O1-O3; WO1-CW2) OER) * Audit Format Document * Memorandum, subject: New FRG Treasurer * Memorandum, subject: Formal Complaint [Applicant] * Memorandum, subject: Appointment Order for Investigating Officer pursuant to Army Regulation 15-6 * Memorandum, subject: Administrative Reprimand * Memorandum, subject: Evaluation Report Appeal [Applicant] * Memorandum, subject: Reply to Promotion Review Board [Applicant] * Memorandum, subject: Promotion Review Board Rebuttal * DD Form 214 (Certificate of Release or Discharge from Active Duty) FACTS 1. The applicant states in a 16 page memorandum: a. She was prepared to defend herself against false allegations. She sought immediate resolution with her company commander prior to seeking equal opportunity (EO). An investigation was initiated against her the same day she file a formal EO complaint. The facts were not fully divulged in the investigation or her rebuttal. She was informed by legal assistance the best case scenario would be for the GOMOR to be filed locally. Her rebuttal to the GOMOR was a one to two page apologetic response. After considering her battalion commander's opinion, she decided to be apologetic in her response while subtly pleading her case. b. According to the administrative GOMOR, the alleged incidents occurred on 21January 2014, 7 February 2014 and 10 February 2014; however, she refutes the allegations within the counseling. The first date in question, she was on quarters major (MAJ) S was informed of her whereabouts by chief warrant officer two (CW2) H. She placed a copy of the quarters slip on MAJ S's desk the following morning. MAJ S questioned her on her whereabouts and sick call procedures. The second date in question, she was at formation as stated by CW2 S and first sergeant (1SG) J; however, MAJ S was not present, that same morning, MAJ S questioned her on her whereabouts and asked why she used a certain gym. She frequented that gym almost daily as stated by MSG J. The third date in question, captain (CPT) D called her into the conference room where others awaited. MAJ S then slid her a counseling statement for the incidents on 22 January 2014 and 7 February 2014. c. Mid-August 2013, she was assigned as the Operations Officer. She officially met MAJ S on 5 December 2013. She disclosed to him at that of time her hip injury and pending surgery, along with her current physical training plan. The morning of 5 December 2013, she met with an orthopedic surgeon in regards to a tear in her left hip. Surgery was scheduled early February, but during her pre-op appointment on 23 January 2014, she was informed by her surgeon he was overscheduled and she would be referred to Fort Gordon, GA for surgery. She was scheduled for surgery on 19 March 2014, with pre-op on 6 March 2014. d. She was given a counseling statement by MAJ S for insubordinate conduct towards an officer by failing to obey an order: however, she disagreed with the counseling. MAJ S did not allege any disrespectful actions during this encounter until almost three weeks later when he included the verbal counseling in the written counseling. In the meantime, the whole office received MAJ S's expectation on 22January 2014. She later received her initial counseling pertaining to her duties on dated 28 January 2014. The second paragraph in part Ill of the counseling statement, MAJ S stated, "on 7 February 2014 at on or about 0945 I talked to you on your whereabouts during PT "; however, she was accounted for at formation. MAJ S stated, "I asked you why you weren't at the gym in the morning." Major S did not inform her to be at a particular location that morning, so she was at the battalion. MAJ S accused her of yelling at him and alleged she told him to not be a "hot head." She never yelled at MAJ S nor did she used that verbiage. She only answered his questions and informed him he did not have to yell and she removed herself from the situation. She never heard MAJ S tell her to stand at attention; however, she was already standing at attention with her feet together and hands at her side while speaking to him. e. The third paragraph in part ll of the counseling statement, mentions MAJ S sent MSG S to calm her down. She never noticed MSG S approaching her while she was seated at her desk or as she stood up to leave. As she walked outside, MSG S yelled, "Hey, lieutenant." MSG S corroborates this in his sworn statement. f. During the counseling session, she was naturally put on the defensive after realizing she was called into a room full of people for a personal counseling without prior knowledge. As she read the false allegations within the counseling statement, she drew strength from within to remain calm under the circumstances. In her recollection of events during the encounters with Major S she did not raise her voice, interrupt, use profanity towards him, disobey orders to stand at attention, or walk away while being addressed; however, she did assert herself. Yelling and getting angry is not the proper way to communicate and does not address the underlying issues. She regrets not standing up for herself throughout the process, which would have gone against the recommendation of LTC D, Battalion Commander and that of the counsel at legal assistance after receiving the filing status, she sought legal advice outside of military channels. g. She had brigade staff duty twice during the Martin Luther King holiday weekend due to the lack of personnel in the battalion. Brigade staff duty officers were only required to be on call and perform required checks. She was on shift with SFC C and wasn't feeling well from the night before. After morning checks she informed SFC C she wasn’t well, but if she needed her, she'd check in by phone periodically throughout the day. The next day, due to being feeling sick, she went sick call instead of going to the unit. She called CW2 H and had him to inform MAJ S she was going to sick call. She dropped her sick call slip off on MAJ S's desk. h. When she returned to work she was called in the MAJ S's officer. He inquired about her whereabouts and she informed him she had left her sick all slip on his desk. He gave her his direct contact information so that she could call him directly. He informed her she would be counseled if the situation happen again. At this point she had not received an initial counseling nor had she had a one-on-one sit down with him. i. A statement obtained during the EO investigation seemed to show a lack of empathy in the questioning which left her confused as to why he was upset about her being sick. She was not disrespectful towards MAJ S this encounter, but was taken aback. She would have had more concern for one of her Soldiers returning from sick call. j. She had an encounter with MAJ S on 7 February 2014 wherein she relayed a message to him and he questioned her about where she had performed physical training. MAJ S began yelling at her and removed she removed herself when the opportunity presented itself. She casually walked back to her desk to continue working, there was no further interaction between her and MAJ S for the rest of the day. She left to get some information in order to do weekly updates. As she was heading out to her car she heard MSG S yell to her and she hastily muffled "I'm not dealing with this shit", to her knowledge, MAJ S was still in his office when she left her desk. The only other person in the vicinity was SFC C. She did not turn around as she waked to her car. The only other person in the vicinity was SFC C. k. After lunch that day she asked CW2 if MAJ S had questioned him about his whereabouts for PT, he responded in the affirmative. They went outside and SFC C informed her MAJ S was asking others if they heard what happened. She was shocked, but had nothing to hide. She told them what was going on. She expressed how she was trying to maintain her physical fitness during her injury. She was more upset than she was mad at this point. l. On 10 February 2014, she was informed MAJ S wanted to see her in the conference room. As she walked into the conference room, she was followed by CPT D. MAJ S and MSG S was sitting at the head of the table and 1LT H was sitting at the far side of the table. The investigation claims CW4 M was in the room, but she did not notice him being there. MAJS slid two pieces of paper towards her and informed her the papers were pertaining to what had occurred on Friday. When she realized she was looking at a counseling statement, she responded that she was on sick call. As she continued to read the statement, she commented "that's a lie." She did not direct her comments to anyone directly, she was referring the counseling statement. She refuted other items in the counseling statements and eventually told MAJ S she could not sign it. She left and proceeded to the commander's office. As she left, she ran into SFC C and explained to her what had occurred. m. She conferred with SSG H, the battalion equal opportunity leader (EO) and asked if he would accompany her to see the commander, CPT S, to see if she had a valid complaint or if she should seek an inspector general's (IG) complaint instead. Once the counseling statement was presented to CPT S, he asked why she had not signed it, she responded her name was misspelled. CPT S stated he would speak with MAJ S. She later spoke to the EO leader alone and he stated he would speak with his superiors about her case. n. When she went back to speak with the commander to ask if he know when she could speak with the battalion commander. He told her she could have talked to him at any time. That was not the impression she received the day prior. She had felt she could trust CPT S; however, something did not feel right. She believed her chain of command did not want to rectify the situation. She informed CPTSs she felts he needed to seek EO immediately. She spoke with SSG H again to inquire what his superiors thought of the situation. SSG H told her it was based on perception, so she sought out the brigade EO leader. o. She filed a formal EO complaint on 12 February 2014. She made the tough decision to possible deter further discriminatory behavior. False allegations were not her only premise for seeking the EO complaint. Of the five officer that fell under MAJ S, she was the only female. Four of them was on profile; however, she was treat differently. She was the highest ranking person in the SPO behind MAJ S, but he would go through MSG J or MSG S to inform her of an assignment or the need to go to a meeting in place of MAJ S. She was also informed of an assignment requiring a briefing at G4 without any guidance. MAJ S seemed to mentor CW4 M, but barely spoke to her. He inquired about her need to have surgery. She believed she was being treated differently and requested to be removed. The following morning she was moved to the S3 and the atmosphere was refreshing. p. Two years later, she is still wondering what really happened. She does not want to speculate on why she was being scrutinized, but there are missing pieces to the underlying issue. She never received a negative counseling previously for anything. She does not know where the hostility Major S exuded towards her stemmed from. She had tried to analyze the encounters and remove it being about physical training as it relates to the administrative GOMOR, but the premise of the encounters are in regard to accountability; however, she was accounted for. She tried to think of how she could have handled the situation differently in hindsight, but don't believe her actions were disrespectful at the time, especially considering the circumstances. q. She did not have recourse to examine the witnesses or properly defend herself against further false allegations. She can only point out discrepancies in the statements in order to refute the allegations. CW2 S was never questioned by the investigating officer even though they were in the same company. During her initial response, CPT A, CW2H, and SSGS were unavailable to provide statements due to training. In reference to the incident on 21 January 2014, she does not believe she was disrespectful nor was she led to believe it was perceived to be disrespectful until 19 days later when it resulted in a counseling statement. She states the following: (1) There are not any witness statements attesting to her alleged disrespectful actions on 21 January or 22 January when MAJ S questioned me in regard to sick call. (2) When she mentioned to MAJ S during the counseling session she went to sick call, he alleges in his sworn statement he responded, "this wasn't about sick hall but about the disrespect and so forth." She was never counseled previously on being disrespectful during this encounter. (3) A sworn statement, by unknown, as well as paragraph 2 of the findings, alleges, "I counseled her at this time because I started to see a pattern of not showing up for PT " MAJ S made the claim of "a pattern" as a reasoning for the verbal counseling only after she filed an EO complaint against him, while the written counseling confirms a one-time instance on 21 January 2014, this sworn statement also confirms she was questioned in regard to sick call only, no other mention of being absent from PT is documented by MAJ S. CW2 H attests to her consistent presence during PT. (4). A sworn statement dated 7 February 2014, prior to the investigation, CW4 M alleges, "on the second or third week of January, a Friday, during the afternoon [applicant] was called into the 626 BSB Support Operations Officers, MAJ S's office in regard to her failure to appear for a scheduled ruck march." CW4 M is very specific on the day of the week and timeframe in which she was called into MAJ S's office. However, she was only called into MAJ S's office Wednesday morning, 22 January 2014, in regard to sick call she had been at all scheduled ruck marches she was unable to ruck, so she was instructed by leadership to walk without gear alongside the other staff officers. CW4 M allegations are not corroborated in any other statement, MAJ S does not attest to questioning me in regard to a ruck march in either of his sworn statements or the written counseling. r. In regards to the 7 February 2014, encounter, she walked to MAJ S's office to update him on a meeting and answered his questions respectfully. She proceeded to reprimand her even though she was at morning formation and conducted PT within the limits of her profile. MAJ S became very upset which made her uncomfortable. As respectfully as possible she removed herself from the situation before it escalated. SSG S was the closest person to her and MAJS during this interaction. She states: (1) In a sworn statement by SSG S, she attests to the incident on 7 February 14, indicating she only heard her say something to the effect of "stop yelling at me." SSG Stoke elaborates on the situation and attests to MAJ S's yelling at and posturing himself towards her in an angry manner. SSG S was the closest person to MAJ S's office during this incident and only heard one phrase. During the encounter, SSG S walked over to where MSG S and SFC M were standing to inform them she was stepping out of the office for a moment. While speaking with them, she states she saw her walk back to my desk without saying anything. (2) In a sworn statement dated by MSG S, he alleges he heard MAJ S tell her to "step into his office and she replied with her voice raised 'no you are not going to talk to me like that' and just walked off to her desk." At no time did she hear MAJ S tell her to enter his office. MSG S states, "I was talking to SFC M at his desk when I heard someone yelling I turn around and saw 1LT V standing in MAJ S's doorway." MSG S does not specify who was yelling, just that he turned around when "someone" was yelling MSG S was also engaged in his own conversation at SFC M's desk, which is positioned at the opposite side of the room from MAJ S's office. SSG S was standing with MSG S and SFC M at this point, but could not hear anything being said after she walked away from her desk. (3) In a sworn statement by SFC M, he alleges he heard her say, "No you need to calm down." Afterwards, he states, "and then she just walked away." This allegation varies from MSG S's of what was said just prior to her walking back to her desk. SFC M also alleges he "never heard MAJ S say anything and it didn't make sense." SFC Moore was situated out of range, engaged in his own conversation, yet made assumptions in regard to her conversation. (4) In a sworn statement dated by CW4 Metcalf, he alleges she "was called into MAJ S's office in regards to her failure to be present for physical training." CW4 M alleges this prior to her being questioned, which does not align with MSG S's statement alleging she was asked into the office just prior to walking back to her desk. She never knew she was being accused of not being present for PT at the time. She was present and have never not been present except when physically ill and received quarters. CW4 M also alleges "leaving MAJ S's office she became more disruptive in verbiage, using curse words and inflection of tone in the work area." This allegation is not corroborated by SSG S's, MSG S's nor SFC M's statements. She simply walked back to her desk without saying anything. (5) In a sworn statement by MAJ S, he alleges, "I asked to come in and to talk to me about why I didn't see her at the gym for PT She insisted to stand in the door way, I then asked her where she was." She approached MAJ S and after she informed him of a meeting, he immediately asked, "What did you do for PT?" MSG S stated she was asked into the office at the end of the conversation; however, MAJ S alleges he asks me into his office at the beginning of the conversation and then questions me about which gym she went to. She had no prior knowledge of having to go to the gym, she could have walked. s. In reference to the encounter on 10 February 2014, she was called in to the conference room by CPT D. After realizing what was going on, she wondered why others were brought into a personal counseling session. She did not know what MAJ S had disclosed to the group and she was apprehensive of the situation. When she spoke to MAJ S she addressed him as "Sir." After reviewing the sworn statements of those present, only one commonality persists, the allegation she stated she would pursue EO, which she never proclaimed to the group. She never mentioned wanting to pursue EO during the counseling session. These allegation of seeking EO leads her to believe stories were collaborated after the fact. She does not know what Major S requested of individuals following the counseling. She states: (1) In a sworn statement by MAJ S, he alleges "her first response was I'm going to EO" after he "gave her the counseling statement and told her that she was being counseled about what happened on Friday." He then states he "said ok but please read the counseling statement" The only other statement MAJ S states she made was "was at sick call." According to Major S, he required her to read the counseling before she could seek EO. (2) In a sworn statement by CPT D, he alleges after she began reading the counseling statement "the first word out her mouth was, 'this is bullshit." She never said the word "bullshit" during the counseling session or in front of MAJ S. After returning the counseling to MAJ S, CPT D alleges she said, "I'm going to file an EO complaint." There are discrepancies in the timeline of events between CPT D and MAJ S's statements of her alleged first words and her alleged announcement of seeking EO. (3) In a sworn statement 1LT Hines, she alleges MAJ S asked, "Do you know why you are here?" and I allegedly replied, "If I do, then I need to go see EO." MAJ S allegedly responded, "Alright, you need to read this first." This confirms MAJ S's statement of instructing her to read the counseling statement before seeking EO. The sequence of events 1LT H alleges transpired is not the sequences of events she recalls nor it is corroborated by any of the other witnesses. (4) In a sworn statement by CW4 M, he alleges upon reading the counseling she stated, "these are all lies" and as she stood up to leave she stated she would pursue EO. According to CW4 M's testimony, those alleged statements were her only proclamations during this encounter. She does not recall CW4 M being involved in the counseling session. In a sworn statement by CW4 M, he alleges that CPT R was in my counseling session among the other named witnesses, thus increasing the alleged number of witnesses to five CW4 M makes other allegations which are corroborated by MAJ S. (5) In a sworn statement by MSG S, he alleges she "entered and sat down." "MAJ S handed her a copy of the counseling and said that he was about to counsel her." "[Applicant] immediately told MAJ S "well I'm going to EO" MAJ S told her "ok and to read the counseling." MSG S claims she stated, "I'm not taking this shit" as I walked outside, which disclaims the use of the "F" word. He also attests to her denial of the allegations in the counseling. t. The appointment orders for MAJ M were dated 12 February 2014, which indicates the allegations for disrespect were initiated after she sought EO. She did not have access to the investigation until 22 April 2014. On 19 February 2014, she met with MAJ M to go over the EO complaint. She was unaware of the AR 15-6 against me until 20 February 2014. When questioned the second day, she requested to have an attorney present, thus invoking her right to an attorney. At that time she did not know the full spectrum of the allegations. The brigade commander informed her the EO complaint was unsubstantiated and was only her perception she was being discriminated against. The brigade commander continued to tell her he felt her actions were unbecoming of an officer due to her throwing the counseling at MAJ S. She received a copy of the EO investigation and believed the investigation did not properly address her complaint. She was informed she could only appeal the process, not the findings. u. While on convalescent leave she learned by CPT D, MSG S filed an IG complaint against MAJ S. He later found CPT D was the individual who corroborated the allegation of throwing the counseling. After returning from convalescent leave, she was ordered to report to the battalion commander and was read the administrative GOMOR. She was told she was a good officer and could overcome the GOMOR. She was and her supervisor were under the impression the GOMOR would be filed locally or suspended. She believed she would be given the opportunity to continue her career. The GOMOR was eventually filed in her permanent record. She felt betrayed by her leadership. v. The officer conducting the AR 15-6 investigation, MAJ M, did not question the integrity of other being present when she was given a counseling statement. MAJ M included her alleged desire to go to EO. Seeking EO is a right, yet the counseling session was used as the main premise for disrespect while highlighting her alleged desire to go to EO. MAJ M clearly had in his position the discrepancies in the witness statements. MAJ M included MSG J as a witness even though he did not personally witness any disrespectful actions. MAJ M also included SFC C's concern against her. w. The findings questioned my leadership which was never in question at any time prior to the investigation. Of the 11 Soldiers interviewed, only 5 had a derogatory statement in regard to her leadership. The five statements included in the findings are from individuals who she had limited interaction with. SSG S had limited interaction with her and at the time perceived her as professional, as noted in her statement. Another member whom she had limited interaction with described her as respectful, which was included in the EO investigation, but not included in the findings of the AR 15-6 investigation. Her previous company commanders defended her leadership capabilities in her rebuttal. Others attested to her abilities during her promotion review board. Neither the personnel from her platoon nor the Soldiers in the S3 were questioned to gain knowledge on her leadership. x. She worked quietly at her desk, managing multiple sections. She was unaware of anyone perceiving her negatively. She was friendly to others and always smiled. She enjoyed her job and worked hard to be successful. She was open and honest with MAJ S regarding my injury, yet he seemed to question her integrity. She kept up morale while working in the S3 during this ordeal and her recovery. She was in constant, sedentary pain and is grateful to her surgeon for her hip no longer hurting. She has to live for the rest of my life knowing she lost the promotion she worked so hard for. She enjoyed leading soldiers, yet knew she could not continue my career, whether active or reserve, with derogatory information in my record. She will forever be proud of her service and will continue to stand up for what is right. y. She respectfully request the board to take into consideration the lack of evidence and discrepancies in the findings of the AR 15-6 investigation and other evidence provided in order to overturn the administrative GOMOR dated 8 April 2014. She request her promotion to CPT be reinstated effected 1 April 2014 and her DD Form 214 reflect this. 1. On 10 February 2014, the applicant was counseled for insubordinate conduct towards an office; however; she did not sign the counseling statement. The applicant filed an EO complaint on 11 February 2014. 3. On 12 February 2014, an investing officer (IO) was appointed to perform an investigation into allegations of disrespect to a commissioned officer and an EO complaint. 4. On 19 March 2014, an Army Regulation 15-6 investigation into allegations the applicant was disrespectful to a superior officer concluded, based on the documents and statement gathered, the applicant was disrespectful towards MAJ S. The evidence showed the conduct was to the prejudice of good order and discipline in the unit. All relevant matters had been addressed. The investigating officer recommended the applicant be issued a letter of reprimand. A legal review found sufficient evidence to make the findings. 3. On 8 April 2014, the applicant received a GOMOR for disrespecting a superior officer on numerous occasions. The memorandum was imposed as an administrative measure and not as punishment. The reprimand was referred to her for information and acknowledgement of her rebuttal opportunity. 4. On 2 May 2014, she replied to the GOMOR and stated, in part: a. She apologize for her disrespectful reactions towards MAJ S. The actions were not indicative of the type of officer she was. It was embarrassing to her both personally and professionally. The actions did not reflect the values she place great value in. She initially evoked her rights and this was the first time she had offered her side of the story and ask that it be considered along with other evidence in the investigation before final action is taken. b. She and MAJ S had a difficult professional relationship since she first started working for him. As a subordinate officer she fully acknowledges the need to be respectful to her seniors. On several occasions she felt her integrity was questioned by MAJ S and she felt she was being treated unfairly. She believes there was miscommunication between her and MAJ S and she reacted poorly. Compounding the issues were anxieties she had had been dealing with, specifically her husband undergoing a medical evaluation board (MEB) process and the prospect she would soon follow him, ending her dream to serve as an officer in the Army. These things led her to react the way she did; however, it is not indicative of who she is. She has taken steps to learn to cope with her anxiety so it does not interfere with her personal and professional behavior. After great reflection, she now understands her actions were not exemplary of the Army Values which all Solders must embody. c. She and MAJ S should have been able to work out their differences before getting to this point. She must take responsibility for her role in not doing so earlier. She had learned from this experience and with take the lesson with her in the future. She asked that the GOMOR be filed locally, or suspend filing the GOMOR permanently for twelve months so that she be able to continue to serve. She provided character references from her previous company commanders defending her leadership capabilities in her rebuttal. Others attested to her abilities during her promotion review board. Neither the personnel from her platoon nor the Soldiers in the S3 were questioned to gain knowledge on her leadership. 5. On 28 May 2014, after reviewing the administrative reprimand, the applicant's rebuttal, and the recommendations of the applicant's chain of command, the commanding general directed the GOMOR be filed in the applicant's Army Military Human Resource Record. Army Regulation 600-8-104 (Army Military Human Resource Records Management) It states appeals and petitions for removal of unfavorable information are to be directed to the Department of the Army Suitability Evaluation Board. It further states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. 6. The applicant received the contested OER, an annual, covering 6 months of rated time from 1 August 2013 through 31 July 2014, for her duties as the Operations Officer. Her rater was CPT A, and his senior rater was lieutenant colonel (LTC) D. The OER shows in: a. Part IId, an "X" is placed next to the question "This is a referred report, do you wish to make comments?" b. Part IVc (1) (Character), states "[Applicant] received an administrative letter of reprimand during this rated period for disrespect to a senior officer. Since this incident she has become a model of the Army Values. She is a staunch advocate of the Army EO and SHARP programs. [Applicant] is an upfront leader and builds trust among her subordinates. Her self-discipline in regards to prior planning ensures that no mission she has failed." c. Part VI (c) (Comments on Potential) states "[Applicant's] potential is limited due to a General Officer Letter of Reprimand she received for disrespect of a senior officer during this rating period. Pending results from show of cause board." 7. The OER was signed by her rater and senior rater on 22 October 2014 and by the applicant on 23 October 2014. It was posted to her records at Headquarters, Department of the Army (HQDA), on 31 July 2014. There is no evidence the applicant requested a commander's inquiry regarding the OER. Paragraph 3-39, of Army Regulation 600-8-104 (Army Military Human Resource Records Management) states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. BOARD DISCUSSION After reviewing the application and all supporting evidence, the Board determined no relief was warranted. The Board found the applicant didn’t provide any evidence of injustice or error, which would require mitigating or removing the General Officer of Reprimand and/or the applicant’s Officer Evaluation Report. Finaly, the Board determined by a preponderance of the evidence, the command handled the misconduct of the applicant appropriately and that no clemency was warranted at this time. BOARD VOTE Member 1 Member 2 Member 3 : : : Full Grant : : : Partial Grant : : : Formal Hearing Grant :X :X :X Deny 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. 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. REFERENCES 1. Army Regulation 600-8-104, prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the OMPF. It states the DA Forms 67-9 will be filed in the performance section of the OMPF. 2. Army Regulation 623-3, in effect at the time (August 2007), prescribed the policies for completing evaluation reports that support the Evaluation Reporting System. a. Paragraph 1-8 states an officer's performance of duty is an extremely important factor in determining a leader’s potential. Duty performance is judged by how well a Soldier performs assigned tasks and how well each meets Army professional values uniquely established for each respective corps. b. Paragraph 1-9 states evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer corps. Performance is evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms and counseling forms. c. Paragraph 1-11 (Commander’s Inquiry) states when it is brought to the attention of a commander that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commander’s inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policies and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. The results of the commander’s inquiry, however, may be provided to the rating chain and the rated Soldier at the appointing official’s discretion. d. Paragraph 3-39 states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. e. Paragraph 6-8 (Timelines) states because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an OER “THRU” date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. f. Paragraph 6-11 (Burden of proof and type of evidence) states the burden of proof rests with the applicant. Accordingly, 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 and action is warranted to correct a material error, inaccuracy, or injustice. For a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant’s performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant’s performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a commander’s inquiry may provide support for an appeal request. 3. Army Regulation 600-37, sets forth policies and procedures to authorize placement of unfavorable information about Army members in individual official personnel files; to ensure that unfavorable information that is unsubstantiated, irrelevant, untimely, or incomplete is not filed in individual official personnel files; and to ensure that the best interests of both the Army and the Soldiers are served by authorizing unfavorable information to be placed in and, when appropriate, removed from official personnel files. Chapter 7 contains guidance on removal of unfavorable information from official personnel files. It states appeals and petitions for removal of unfavorable information are to be directed to the Department of the Army Suitability Evaluation Board. It further states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. It also provides guidance for appeals for transfer of OMPF entries and states that these appeals may be based on proof that the documents in question have served their intended purpose and that their transfer would be in the best interest of the Army. The burden of proof rests with the recipient to provide substantial evidence that these conditions have been met. 4. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. ABCMR Record of Proceedings (cont) AR20160008350 0 13