BOARD DATE: 31 July 2018 DOCKET NUMBER: AR20170018885 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 31 July 2018 DOCKET NUMBER: AR20170018885 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 reversal of the Officer Special Review Board (OSRB) officer evaluation report (OER) appeal denial and consideration of promotion to colonel (COL) by a special selection board (SSB). She also requests a personal hearing before the Board. 2. The applicant states: a. On 19 January 2016, she submitted an evaluation report appeal with the U.S. Army Human Resources Command (HRC). On 8 November 2016, she received a denial from the OSRB. Several reasons for the denial were offered, including the assertion that she did not prove her rater was under two investigations. She offered all information in her possession, including sworn statements that talked about the investigations and emails with the investigating officer. Additionally, the decision indicated her OERs were all positive. b. She is a three-time non-select for promotion. The personnel office had indicated the two OERs in question are why she was not promoted. In her appeal she referenced multiple concerns to include her rater was not present for duty and she had to assume his duties. Her rater retaliated against her for reporting his misconduct, which led to the first investigation, and the first investigating officer and rater were friends. The OSRB did not conduct a full and fair review of her appeal. 3. The applicant provides * OSRB Docket Number AR20160002134, dated 8 November 2016 * Memorandum, subject: Evaluation Reports Appeal, 20140604-20150603 and 20120710-20130709, dated 19 January 2016 * Applicant’s affidavit * DA Forms 2823 (Sworn Statement), dated 15 December 2015 and 30 November 2015 * Support statement, dated 12 January 2016 * Memorandum, subject: OER Appeal, dated 11 January 2015 * Email, dated 5 November 2015 * DA Form 67-10-2 (Field Grade Plate (04-05; CW3-CW5) OER)), dated 3 June 2014 * DA Form 67-10-2, dated 9 July 2013 * Letter from Lieutenant General (LTG) B_ C_, dated 1 March 2018 * Email to Office of The Judge Advocate General (OTJAG), dated 30 May 2014 * Letter authored by Lieutenant Colonel (LTC) C_ B_, dated 16 February 2018 CONSIDERATION OF EVIDENCE: 1. On 8 December 1996, the applicant was appointed as a Regular Army (RA) commissioned officer and executed an oath of office. She served in various assignments and attained the rank of LTC. She is currently on active duty. 2. Her OER for the period 10 July 2012 to 9 July 2013 shows: a. Part II(a) (Name of Rater) – COL M_ S_, Staff Judge Advocate. b. Part V(a) (Evaluate the Rated Officer’s Performance During the Rating Period and His/Her Potential for Promotion) – “Outstanding Performance - Must Promote.” c. Part V(b) – “Rock-solid performance by a talented officer-attorney! Knowledgeable and energetic, [Applicant] excelled as the [Fort] Sill Deputy Staff Judge Advocate, using her tremendous work ethic and keen intellect in support of one of the Army's busiest and most relevant [Training and Doctrine Command (TRADOC)] installations. She is the consummate teacher, mentor, and staff officer. She built and sustained a team of professionals who serviced the needs of our Soldiers, civilians, and family members with a standard of excellence and a passion of caring and concern seldom seen. All legal actions, including the most sensitive and high profile courts-martial cases, have been processed quickly and efficiently, always doing the right thing for our Soldiers and our Army. Perhaps more importantly, [Applicant] developed and cultivated a model senior/ subordinate relationship to ensure [Office of the Staff Judge Advocate (OSJA)] personnel are continually being challenged and developed as lawyers, legal technicians, and as officers. Every aspect of our office operation runs with exceptional effectiveness and efficiency due to her skills as a Judge Advocate. Her abilities, competence and genuine concern for always taking care of Soldiers set the standard in everything that she does.” d. Part V(c) – “[Applicant] is a superb officer with unlimited potential. Officers like her are the future of our Corps. Promote and send to senior service school immediately.” e. Part VII (Senior Rater) – “Best Qualified.” f. Part VII(b) (Potential Compared with Officer’s Senior Rated in Same Grade) – “Center of Mass.” g. Part VII(c) (Comment on Performance/Potential) – “[Applicant] is the best Deputy Staff Judge Advocate I have served with in my career and in the top 10% of officers I senior rate. She was instrumental in organizing, leading and mentoring young Judge Advocates and Paralegal Specialists into a cohesive team that provides superb legal support and achieved notable success and significant accomplishments in all aspects of the command's legal work. Extremely well organized, she can assess complex situations, identify workable solutions, and flat-out produce results like no other officer in this command. Her hallmarks are her discretion, temperament, and knowledge of her profession. Her guidance and counsel have been right on the mark. Absolutely unlimited potential. Promote to below the zone colonel and select for senior service college ahead of peers.” 3. Her OER for the period 4 June 2014 to 3 June 2015 shows: a. Part II(a)(1) (Rater) – Major General (MG) J_ W_, Commanding General (CG) Research, Development, and Engineering Development Command (RDECOM). b. Part IV(d)(2) (Comments) – “Spectacular performance by an enormously talented leader. [Applicant’s] ability to solve complex problems and create positive change was vital to mission success. Not only do I rely on her wise advice and counsel, but all of the command group seeks out her guidance to solve some seemingly intractable legal problems. [Applicant] functions at the strategic level. She was instrumental in advising on a highly complex classified investigation and issues that involved navigating the interagency process. She is the epitome of loyalty and selfless service. [Applicant] established a positive and unprecedented reputation with her team of senior attorneys.” c. Her rater served as both rater and senior rater in accordance with Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 2-20. d. Part VI (Senior Rater) – “Must promote now! Absolutely outstanding performance of duty. [Applicant] is number 1 of the 28 lieutenant colonels in my command. [Applicant] is also the best Judge Advocate I have served with in my 34 years to include my colonel Staff Judge Advocates. She has my absolute trust and confidence and operates at the COL level now. Promote now and select for [senior service college].” e. Part VI(a) (Potential Compared with Officer’s Senior Rated in Same Grade) – “Most Qualified.” 4. On 19 January 2016, the applicant petitioned the OSRB, appealing the OERs covering the periods 10 July 2012 – 9 July 2013 and 4 June 2014 – 3 June 2015. 5. On 8 November 2016, the OSRB, after careful consideration of the available records and evidence, determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the reports under consideration or that action is warranted to correct a material error, inaccuracy, or injustice. 6. The applicant provides: a. Memorandum, subject: Evaluation Reports Appeal for the applicant 20140604-20150603 and 20120710-20130709, dated 19 January 2016. She appealed her evaluations for the aforementioned periods citing substantive inaccuracy, the absence of her rater during the two year period which would make him unqualified and his evaluations inaccurate, a toxic environment for herself and subordinates, and her rater being the subject of two investigations in which he blamed her for the investigations. Additionally, she cited not having the same senior rater as her predecessors, which she attributed to her detriment because it was not settled until 90 days beyond the thru date. Her senior rater signed her evaluation on the eve of his retirement and stated he did not know he was her senior rater and did not have any more above center of mass ratings left to give. b. Affidavit authored by the applicant that states in effect and in pertinent part: (1) Her rater during the two year period she worked for him was often not present for duty and not in a pass or leave status. She covered meetings, tasks, and events that would typically be covered by COL S_ in addition to her own meetings. His leadership was toxic in handling subordinate Soldier issues and concerns. She felt as though her rater discriminated against her because she was a female. Additionally, he expected her to work during her maternity leave. She raised the issues to the TRADOC SJA who visited Fort Sill, OK, and interviewed many of the Soldiers in the office. While he was there, she walked in on COL S_ and the TRADOC SJA making dinner plans, which made her feel very uncomfortable and which led to a perception of impropriety. It was her understanding that a civilian employee had made a sexual harassment complaint along with a toxic leadership charge against COL S_. She [applicant] was interviewed and disclosed all the information she had to the investigating officer. COL S_ signed her first OER late and she believed this was because he was under investigation. She believed she suffered prejudice on her first OER due to the fact it was a center of mass from a COL and most deputies in her year group would have had the opportunity to compete above center of mass and also would have had a commanding general (CG) as a senior rater. (2) Her second OER increased the frequency and duration of her questioning of her rating chain with COL S_; TRADOC SJA; and the personnel, plans, and training office. All agreed it would be in her best interest to be senior rated by the CG and the change was made. COL S_ would keep his military- justice-centric meetings with the CG. She asked to accompany him to brief a case or two as part of her grooming and mentoring and provide face time and the opportunity to excel in front of her senior rater. She was denied. She had to know particulars of every case in case COL S_ was absent and one of the senior commanders called to talk with him. Her draft second OER indicated she was in the top 40% and had other career killing language with the proficient block checked. She met with COL S_ and tried to convince him to change the language in the evaluation. She also saw the remarks he drafted for the CG and they disagreed over whether top 25% was career-enhancing language. COL S_ berated her for two hours as they discussed the evaluation and pointed out his perception of her failings, which boiled down to lack of loyalty. The failings were not addressed previously nor did she receive initial counseling. (3) Additionally, COL S_ referenced Captain (CPT) M_ as being an example of loyalty. CPT M_ received a general officer memorandum of reprimand during the rating period for an inappropriate relationship and COL S_, against many recommendations, gave CPT M_ an above center of mass on his evaluation. It was later reported to her that if COL S_ needed a legal opinion signed and no one was willing to do it, he would go to CPT M_ for his signature and CPT M_ would sign without question. COL S_ never articulated specifically how she was disloyal to him or how that tied in to her OER position description and duties. He instead repeated over and over that he rewards loyalty. (4) There was an assumption by many in her office that COL S_ was told to retire as a product of one or both of the investigations. She does know the retirement was against his will. Therefore, she maintains COL S_ retaliated against her based on her involvement with both of the investigations during each of the rating periods. This was further evidenced by the loyalty lecture from COL S_ to her and the even more open hostility she experienced at the end of her time at Fort Sill. COL S_ blamed her for the loss of his ability to continue on active duty and therefore made sure to do what he could to curtail her service, or at least her potential to serve as a COL, on active duty. c. DA Forms 2823, dated 15 December 2015 and 30 November 2015, that describe the absence of the SJA and the applicant’s having to cover meetings and myriad of other events typically attended by the SJA. They also describe internal conflict between the SJA and the applicant. They also attest to the leadership and professionalism of the applicant. d. Support statement, dated 12 January 2016, that states, in pertinent part, in the author's position while on active duty at Fort Sill he had to interact with the applicant and COL S_. During meetings he represented the criminal law division that were organized by the applicant and sparsely attended by COL S_. Due to COL S_’s preference, the applicant was often excluded from meetings involving ongoing military justice actions, and he found this counterproductive because he would have to conduct two separate briefings. Additionally, COL S_ would be regularly absent from the office. e. Memorandum, subject: OER Appeal for the applicant, dated 11 January 2015, that states, in pertinent part, the author attended a worldwide continuing legal education conference to meet with SJAs. She met with COL S_ during the conference. The author recalled working with the applicant during the weeks leading up to the event in order to identify office needs and slate outbound personnel to new locations. The work was done to make the meeting with COL S_ productive, allowing deeper conversation about the developmental positions that were the next best fit. Despite the preparation, the meeting was unfruitful. COL S_ was visibly hung over from activities the night before, reeked of alcohol, and could not articulate his personnel needs or the developmental needs of the captains in his office. After the conference, the author continued to coordinate directly with the applicant in order to successfully execute assignments to and from Fort Sill. f. Email, dated 5 November 2015, wherein the applicant was inquiring with the TRADOC SJA about the status of the investigation against COL S_. g. Letter authored by LTG B_ C_, dated 1 March 2018, that states, in pertinent part, he was writing the letter to draw attention to the applicant’s performance after the evaluations in question. She served as his SJA from June 2015-June 2017. During her assignment she was the best of 30 LTCs he senior rated and the best SJA he had observed in 30 years. She filled a COL position at Aberdeen Proving Grounds and provided legal support for over 24,000 people covering five military installations in four states. h. Email, dated 30 May 2014, wherein the applicant emails COL B_ C_ at OTJAG about her conversation with COL S_ and his berating her and not changing her evaluation. Additionally, she contacted COL J_ J_, inquiring whether it was too late to submit matters for consideration for the investigation against COL S_. i. Email, dated 13 June 2104, wherein the applicant was inquiring with the TRADOC SJA to determine if the retirement award for COL S_ should be processed. j. Letter, authored by LTC A_ B_, dated 16 February 2018, in which the author provides clarity in regards to a sworn statement provided by her on 30 November 2015, which describes the absence of the SJA and the investigations conducted by the TRADOC SJA and COL J_ J_. 7. On 30 April 2018, in the processing of this case, an advisory opinion was obtained from HRC. An HRC official stated: a. Based on a review of their records and the information provided, they found that the applicant’s request for an SSB did not have merit. The applicant was requesting that a SSB convene and reconsider her records for promotion to COL based on concerns about her OERs. b. An OSRB (Docket Number AR20160002134) convened on 8 November 2016 and denied her request to have the OER's removed or corrected in her records. 8. On 12 June 2018, the applicant provided a rebuttal to the advisory opinion. It states in pertinent part. a. Essentially, the OSRB, in their findings dated 8 November 2016, determined she did not prove her rater, COL S_, was under two investigations and also her OERs were not damaging. She maintains she did, in fact, prove her rater was the subject of two investigations and his evaluations, in fact, led to her non-selection. The OERs were the product of retaliation as she reported her rater for misconduct that led to the first investigation and she was a witness in the second investigation. Her rater blamed her for both investigations along with the eventual outcome that he faced – forced retirement. Her rater then orchestrated irregularities in her first evaluation (which led to her not being able to compete for an above center of mass rating) and tainted her senior rater in her second OER. b. In terms of proof provided, she offered a sworn statement to the OSRB detailing being interviewed in person by COL (Retired) J_ R_ and telephonically by Mr. J_ J_ (COL J_, U.S. Army Reserve), both Army Judge Advocates. She also provided sworn statements from individuals who referenced these investigations, to include Major (MAJ) B_, Mr. F_, and Mr. R_. She included email exchanges with both investigating officers referencing the investigations. In March 2018, she provided a supplementary packet of information, including a more detailed statement from MAJ B_ regarding both investigations. She has attached MAJ B_'s supplemental statement again with this letter. c. It was her understanding the first investigation was a preliminary screening inquiry (PSI) per Army Regulation (AR) 27-1 (Judge Advocate Legal Services). In email correspondence, she asked the investigating officer, COL R_ (TRADOC SJA), if he could provide a status on the investigation, and his response was that he needed to "confer with [professional responsibility (PR)]." Please see tab g of her underlying appeal. The PR Branch is, by regulation, in charge of the PSI as outlined in AR 27-1, paragraph 11-1(h). Due to Privacy Act implications, it is impossible for her to obtain information from a PSI through the PR branch and she will detail additional information in the next paragraph. Regarding the second investigation, her understanding was this was also potentially a PSI or perhaps in the equal opportunity realm, and also Privacy Act protected. d. In the past and as recent as 4 May 2018, she reached out to the PR Branch of the U.S. Army Judge Advocate General’s (JAG) Corps and specifically the Chief, COL K_, to ask for additional assistance in proving these investigations. She was told during the telephonic conversation by COL K_ the JAG Corps could not confirm or deny to her if these investigations even occurred pursuant to internal JAG Corps regulations. She explained to COL K_ she was not looking for outcomes or anything that would violate a privacy interest; she was merely looking to prove what the OSRB insisted she had not, that there were two investigations into COL S_. COL K_ reaffirmed that TJAG was the proponent of the internal regulation and even to confirm or deny to her if there were investigations would violate the regulation. She then asked COL K_ if the response would be different if an outside agency such as the ABCMR reached out and asked for confirmation of investigations. COL K_ advised that in that hypothetical, TJAG as proponent of the regulation would review if the outside agency had a need to know and would make a decision on what, if anything, would be released. She raises this in case the ABCMR also shares the view of the OSRB and is looking for additional proof of investigations. e. The OSRB read the evaluations merely on their face and concluded they were not career harming. However, the first step in the analysis should be that these evaluations, which were products of retaliation, should not be allowed to remain in her file. Additionally, and turning to a plain reading of the evaluations, she maintained they were the reason she was not promoted. They are indeed career ending, both from the perspective of how they were written and because they are not accurate. f. The OSRB does not appear to have taken into account a comparative approach to her prior OERs, nor assessed that the role of deputy SJA in a larger office was a significant career experience that a board would be looking at closely. The OSRB also did not seem to apply the language only Judge Advocates would use (or not use) in evaluation writing. When she contacted the personnel, plans, and training office for a file review after her non-selections, representatives of that office every time pointed to her two evaluations from her time at Fort Sill as most likely the reason she was not promoted. They discussed with her those two evaluations showed a significant "dip" in her performance. However, this could not be farther from the truth. She managed and led the Fort Sill office during a tumultuous two-year period with a toxic and often absent leader at the helm. REFERENCES: 1. AR 623-3, dated 5 June 2012, 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. Additionally, the same regulation was updated on 4 November 2015. It prescribes the policy and tasks for the Army’s Evaluation Reporting System, including the new DA Form 67-10 series. a. Paragraph 1-9 of the version dated 4 November 2015 states 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 NCO Corps 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 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. The Commander's or Commandant's Inquiry (Cl) 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 policy 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 report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official. c. Paragraph 3-7a(3)(c) states, in pertinent part, for LTCs and below ( DA Form 67-10-1 and DA Form 67-10-2), Part IV will be an assessment of the rated officer's performance during the rating period. This performance is evaluated in terms of the majority of officers in the population. If the performance assessment is consistent with the majority of officers in that grade the rater will place an "X" in the "PROFICIENT" box. If the rated officer's performance exceeds that of the majority of officers in the rater's population, the rater will place an "X" in the "EXCELS" box. (The intent is for the rater to use this box to identify the upper third of officers for each rank). (1) Part IV, block b (DA Form 67-10-1), will be an assessment of the rated officer's overall performance when compared with all other officers of the same rank the rater has previously rated or currently has in their population. (2) In order to maintain a credible profile, the rater must have less than 50% of the ratings of a rank in the "EXCELS" box. 50% or more in the "EXCELS" box will result in a "PROFICIENT" label. If the rated officer's performance is below the majority of officers in the rater's population for that grade, and the rater believes the rated officer should be further developed, the rater will place an "X" in the "CAPABLE" box. If the rated officer's performance is below the majority of officers in the rater's population for that grade, and the rater does not believe the rated officer's performance has met standards required of an Army officer, the rater will place an "X" in the "UNSATISFACTORY" box. To ensure maximum rating flexibility when rating populations change, or to preclude an "EXCELS" box check from inadvertently profiling as a "PROFICIENT" rating, raters need to maintain a "cushion" in the number of "EXCELS" ratings given, rather than impending to the line at less than 50 percent. This is best accomplished by limiting the "EXCELS" box to no more than one-third of all ratings given for officers of a given rank. Comments are mandatory and should compare the performance of the rated officer with his or her contemporaries during the evaluation period. The focus is on the results achieved and the manner by which they were achieved. d. 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 social security number 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 II; and 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. In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments. If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the changed evaluation report. e. 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. f. 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 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. g. 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. h. 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. 2. AR 600-8-29 (Officer Promotions) prescribes the officer promotion function of the military personnel system. It provides principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support officer promotions. Chapter 7 provides for SSBs. 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 HQDA 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. This would include officers who missed a regularly scheduled board while on the temporary disability retired list and who have since been placed on the active duty list (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. Paragraph 7-3 (Cases not considered) states an officer will not be considered or reconsidered for promotion by an SSB when the following occurs. (1) The officer is pending removal from a promotion or recommended list, and the removal action was not finalized by the Secretary of the Army 30 days before the next selection board convened to consider officers of his or her grade. The officer will be considered by the next regularly scheduled selection board. (2) An administrative error was immaterial, or the officer, in exercising reasonable diligence, could have discovered and corrected the error in the Officer Record Brier (ORB) or OMPF. It is the officer’s responsibility to review his or her ORB and OMPF before the board convenes and to notify the board, in writing, of possible administrative deficiencies in them. c. Paragraph 7-11 states officers who discover that material error existed in their file at the time they were non-selected for promotion may request reconsideration. 3. AR 15-6 (Procedures for Investigating Officers and Boards of Officers) establishes procedures for investigations and boards of officers not specifically authorized by any other directive. a. Preliminary investigations – Even when formal procedures are contemplated, a preliminary informal investigation may be advisable to ascertain the magnitude of the problem, to identify and interview witnesses, and to summarize or record their statements. The formal board may then draw upon the results of the preliminary investigation. b. The primary function of any investigation or board of officers is to ascertain facts and to report them to the appointing authority. It is the duty of the investigating officer or board to ascertain and consider the evidence on all sides of each issue, thoroughly and impartially, and to make findings and recommendations that are warranted by the facts and that comply with the instructions of the appointing authority. c. The following individuals may appoint investigations after consulting with the servicing judge advocate or legal advisor; any general court-martial or special court-martial convening authority, any general officer, any commander or principal staff officer in the grade of COL or above at the installation, activity, or unit level. d. The following individuals may appoint an informal investigation; any officer authorized to appoint a formal board, a commander at any level, a principal staff officer or supervisor in the grade of major or above. e. Informal investigations and boards may be appointed orally or in writing. Formal boards will be appointed in writing but, when necessary, may be appointed orally and later confirmed in writing. Any written appointment will be in the form of a memorandum of appointment. 4. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity, which is that what the Army did was correct. a. The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states 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. The applicant contends that the Board should reverse the decision of the OSRB that denied her OER appeal and that she should be reconsidered for promotion to COL by an SSB. 2. With respect to the OERs and reversal of the OSRB decision. a. The applicant received an OER for the rating period 10 July 2012 through 9 July 2013 in which her rater provided the following rating: * Outstanding performance, must promote * Promote and send to senior service school immediately b. Her senior rater provided the following rating: * Best qualified * Center of mass * The best deputy staff judge advocate I have served with in my career and in the top 10% of officers I senior rate * Absolutely unlimited potential; promote to below the zone COL and select for senior service college ahead of peers c. She received an OER for the rating period 4 June 2014 through 3 June 2015 in which her rater provided the following rating: Spectacular performance by an enormously talented leader. [Applicant’s] ability to solve complex problems and create positive change was vital to mission success. Not only do I rely on her wise advice and counsel, but all of the command group seeks out her guidance to solve some seemingly intractable legal problems. [Applicant] functions at the strategic level. She was instrumental in advising on a highly complex classified investigation and issues that involved navigating the interagency process. She is the epitome of loyalty and selfless service. [Applicant] established a positive and unprecedented reputation with her team of senior attorneys. d. Her rater was also her senior rater and provided the following rating: * Must promote now * Promote now and select for senior service college * most qualified e. The OSRB reviewed her OERs to determine if there was substantive inaccuracies and determined there were not any inaccuracies warranting the removal of the evaluations in question. It is presumed that the OSRB adhered to the applicable regulatory guidance when considering whether the evaluations should be removed. The evaluations do not appear to be administratively incorrect and the evaluations are neither derogatory in nature nor referred. 3. By law and regulation, promotion selection boards cannot divulge the reason for non-selection of a particular officer. As such, any contention by the applicant that her non-selection was due to the two OERs in question is speculative at best. a. Promotion reconsideration is appropriate for non-selected officers whose records contained a material error when it was considered by a promotion board. A material error is defined as being of such a 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 the officer would have been recommended for promotion. b. There does not appear to be a material error in her non-selection for promotion to COL. 4. The applicant argues her rater was not qualified to evaluate her due to his regular and reoccurring absence from his place of duty and a toxic work environment. a. She provides third party sworn statements and a self-authored affidavit detailing her raters absence during the duty day and alleged toxic environment, however, they do not support her contentions that the rater was not qualified to perform as her rater nor negates the presumption of regularity. Furthermore, the development of the rating chain and who fills the roles of rating officials is a function of local leadership/chain of command. She endorsed the contested evaluations confirming the administrative data was correct. b. She contends there were two investigations being conducted against her rater and he retaliated against her on both evaluations. Although she provides statements and emails regarding an investigation, they are speculative at best. There is no evidence the command initiated any AR 15-6 investigations against her rater. c. The following individuals may appoint investigations after consulting with the servicing Judge Advocate or legal advisor: any general court-martial or special court-martial convening authority; any general officer; any commander or principal staff officer in the grade of COL or above at the installation, activity, or unit level. d. The following individuals may appoint an informal investigation: any officer authorized to appoint a formal board, a commander at any level, or a principal staff officer or supervisor in the grade of major or above. e. Informal investigations and boards may be appointed orally or in writing. Formal boards will be appointed in writing but, when necessary, may be appointed orally and later confirmed in writing. Any written appointment will be in the form of a memorandum of appointment. 5. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and independent evidence provided by the applicant appear to be sufficient to render a fair and equitable decision at this time. ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS BOARD DATE: 31 July 2018 DOCKET NUMBER: AR20170018885 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. ABCMR Record of Proceedings (cont) AR20170018885 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20170018885 18 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2