ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 3 September 2019 DOCKET NUMBER: AR20170009464 APPLICANT REQUESTS: Correction of her record to change the reason and authority for separation listed on her DD Form 214 (Certificate of Release or Discharge from Active Duty). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: DD Form 149 (Application for Correction of Military Record) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states in pertinent part * she was deployed in support of Operation Iraqi Freedom from 2008-2009 and she had two raters, Captain (CPT) N- L- and CPT L- C- * during her deployment she received counseling statements from CPT L- C- and during her initial counseling she received on 30 January 2009, the assessment portion was added later, but was not given to her until she received her Officer Evaluation report (OER) * on 9 May 2009 she received quarterly counseling from CPT L- C- and she placed an “X” in the “I agree’ box, and the comments in block 4 were added later and were not on her copy she originally signed, the same thing was repeated on 24 September 2009 * she did not receive the counseling statement dated 18 October 2009 nor did she sign it, the signatures reflected are not her signatures, and when you look at CPT L- C-‘s signature and date it looks like hers * the OER she received from CPT L- C- was a do not promote, based on the counseling’s previously mentioned, counseling’s that had false signatures and information * in 2010 she was on the CPT promotion list with sequence number 4418, but when her unit discovered this, her brigade S-1 told her the U.S. Army Human Resources Command (HRC) would be contacted to have her name removed from the promotion list, she was told this verbally by the brigade S-1 and CPT L- C- * she made several complaints to her current rater and the brigade commander and nothing happened 3. A review of the applicant’s official records show the following on: * 18 May 2007 – the applicant was appointed as a commissioned officer * 21 January 2009 – Orders Number 021-073, issued by HRC promoted the applicant to the rank/grade of first lieutenant (1LT)/O-2 * the applicant records contain the following DA Forms 67-9 (Officer Evaluation Report (OER)) showing the following: * Rating period covered 1 February 2008 – 31 March 2009 * Part 2 (Authentication), item a (Name of Rater) * Part 5 (Performance and Potential Evaluation), item a “satisfactory performance, promote,” item c “promote with peers and groom for positions of increased responsibility” * Part 7 (Senior Rater), item a “fully qualified,” item b “no box check” * Rating period covered 1 April 2009 – 15 December 2009 * Part 2, item a, CPT L- C-, item d “this is a referred report, do you wish to make comments “no” * Part 5, item a, “unsatisfactory performance, do not promote,” item c, “the applicant lacks potential for continued service, do not promote” * Part 7, “do not promote,” item b “no box check” * 10 September 2012 – by memorandum, the applicant acknowledged receipt of her mandatory separation from active duty and requested an appointment in the U.S. Army Reserve by forwarding a twice non-select waiver to HRC * 31 January 2013 – the applicant was honorably discharged from active duty by reason of non-selection, permanent promotion, DD Form 214 shows in item 25 (Separation Authority) Army Regulation (AR) 600-8-24 (Officer Transfers and Discharges), paragraph 5-9 4. AR 600-8-24, paragraph 5-9 states commissioned officers on the active duty list twice non-selected for promotion to the grade of CPT will be involuntarily released or discharged unless they are selectively continued, within 2 years of retirement, retired or a health professions officer (retained to complete their active duty service obligation). 5. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. Item 25, obtain correct entry from regulatory or directives authorizing the separation. 6. AR 623-3 (Evaluation Reporting System) in effect at the time prescribes the policy for completing the DA Form 67-9, 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 1-9 states, in relevant part, Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or Noncommissioned officer corps (NCO) within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for Headquarters Department of the Army (HQDA). b. Paragraph 3-33k states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and SSN on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials in part 2; Army physical fitness test and height and weight entries. This procedure ensures that the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. c. 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. d. 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. e. Paragraph 4-11 states evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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. f. Paragraph 4-11 states evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. The applicant’s contentions were carefully considered. Based upon the documentary evidence provided by the applicant and found within the military service record, the Board concluded by a preponderance of the evidence that there was insufficient evidence of an error or injustice in this case which would warrant making a change to the narrative reason and authority for separation. The Board found that the current entries accurately depict the facts and circumstances surrounding the applicant’s military separation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X :X :X DENY APPLICATION 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. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 600-8-24 (Officer Transfers and Discharges), paragraph 5-9 states commissioned officers on the active duty list twice non-selected for promotion to the grade of CPT will be involuntarily released or discharged unless they are selectively continued, within 2 years of retirement, retired or a health professions officer (retained to complete their active duty service obligation). 3. AR 635-5 (Separation Documents) in effect at the time prescribes the separation documents that must be prepared for soldiers on retirement, discharge, release from active duty service, or control of the Active Army. Item 25, obtain correct entry from regulatory or directives authorizing the separation. 4. AR 623-3 (Evaluation Reporting System) in effect at the time prescribes the policy for completing the DA Form 67-9, 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 1-9 states, in relevant part, Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or Noncommissioned officer corps (NCO) within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army Values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for Headquarters Department of the Army (HQDA). b. Paragraph 3-33k states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and SSN on the evaluation report, rank and date of rank, branch or military occupational specialty data, period covered and nonrated time; the rating officials in part 2; Army physical fitness test and height and weight entries. This procedure ensures that the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. c. 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. d. 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. e. Paragraph 4-11 states evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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. f. Paragraph 4-11 states evidence will be material and relevant to the appellant's claim. In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation, or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170009464 4 1