ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 September 2019 DOCKET NUMBER : AR20190002903 APPLICANT REQUESTS: * removal of the DA Form 67-10-1 (Company Grade Plate (01-03: WO1-CW2) Officer Evaluation Report (OER)) (contested OER) covering the period 25 February 2014 through 24 February 2015 from her Army Military Human Resources Record (AMHRR) * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Bristol Police Department Form, dated 15 December 2014 * DA Form 67-10-1 (Company Grade Plate (01-03; WO1-CW2) Officer Evaluation Report (OER)) for the period from 25 February 2014 through 24 February 2015 * DA Form 4856 (Developmental Counseling Form), dated 11 January 2015 * Redacted DA Form 2823 (Sworn Statement), dated 18 January 2015 * Redacted DA Form 2823, dated 23 January 2015 * Redacted DA Form 2823, dated 10 February 2015 * Sprint correspondence, dated 11 March 2015 with 9 of 176 pages of call records * OER Referral Letter, dated 20 March 2015 * Memorandum, Headquarters, 143rd Regional Support Group, Connecticut (CT) Army National Guard (CTARNG), Middleton, CT, dated 20 March 2015 * Acknowledgement of OER Referral, dated 3 April 2015 * Memorandum for Record (MFR), subject: Remarks regarding referred OER from 20140225 through 20150224 for the applicant, dated 24 April 2015 * Superior Court Docket Numbers X___ and X___, dated 20 May 2015 * Superior Court Docket Numbers X___and H X___, dated 11 August 2015 with true copy certification * MFR, JFHQ CTARNG Armory, subject: Investigative Report Regarding (redacted) Complaint of Inappropriate Relations Between Her Commanding Officer and Herself, dated 14 September 2015 * Record of Proceedings, Officer Special Review Board, dated 29 August 2017 * Memorandum, U.S. Army Human Resources Command (HRC), Fort Knox, KY, subject: Evaluation Appeal (20140225-20150224), dated 16 March 2018 * Memorandum, 411th Civil Affairs (CA) Battalion (Bn), Danbury, CT, subject: Evaluation Report Appeal (applicant) 20140225-20150224), dated 19 January 2018 * Memorandum, HRC, Fort Knox, KY, subject: Evaluation Report Appeal (20140225-20150224), dated 16 March 2018 * Email correspondence, subject: Freedom of Information Act (FOIA) Records Request, dated 10 April 2018 * Memorandum, Joint Force Headquarters (JFHQ), CTARNG, Hartford, CT, * dated 7 June 2018 * Email correspondence, subject: SVC Inquiry, dated 19 July 2018 * Memorandum, National Guard Bureau (NGB), dated 20 August 2018 * Memorandum, Office of the Inspector General, CTNG, JFHQ-CT, Hartford, CT, dated 20 February 2019 * Memorandum, 411th CA Bn, Danbury, CT, subject: Inspector General Inquiry with JFHQ-CT Final response and contact statement, dated 15 April 2019 * MFR, 411th CA Bn, Danbury, CT, subject Supporting Statement for Evaluation Report Appeal of (applicant), 20140225-20150224), dated 22 January 2019 * Memorandum, 411th CA Bn, Danbury CT, subject: Request for exception to policy to appeal Evaluation Report for (applicant), 20140225-20150224 FACTS: 1. The applicant states: * the evaluation OER contains reference to unproven derogatory information from an incomplete ongoing Army Regulation (AR) 15-6 (Procedure for Investigating Officers and Board of Officers) investigation, in violation of paragraph 3-19(a-c) AR 623-3 (Evaluation Reporting System) * the references to an inappropriate relations with a noncommissioned (NCO) mentioned were at no time factual or verified which deems the information as prohibited according to AR 623-3 * the incident referenced in the referred OER notification memorandum as "documented proof" was part of an ongoing AR 15-6 investigation that was not completed until September of 2015 * the referred evaluation was submitted with a through date of 24 February 2015 * the individual alleging the inappropriate relationship was found guilty in CT of second degree stalking * the allegation of an alleged relationship was an act of reprisal/retaliation by Staff Sergeant (SSG) X___ upon her civilian arrest and placement in a correction facility * SSG X___'s allegations lead to immediate unfavorable personnel actions against her which included her immediate removal from command and ultimately the receipt of a referred OER * there are several discrepancies with the documents contained in the AR 15-6 investigation * the AR 15-6 Table of Contents shows the Investigating Officer (IO) Appointment memorandum is dated 28 November 2014, however, the furnished copy has a date of 6 January 2015 with a suspense date of completion being 6 February 2015 * the purpose to the AR 15-6 investigation was to determine whether there was a prohibited relationship as defined in AR 600-20 (Army Command Policy) paragraph 4-14 (Fraternization/relationships between Soldiers of different grades) * the investigator was to develop a thorough background investigation of the circumstances of the relationship which includes duty assignments, relationship timeline and whether it was a sexual relationship and determine the knowledge of the relationship amongst Soldiers within the command and if it impacted good order and discipline * the redacted AR 15-6 findings, dated 14 September 2015, is a targeted investigation conducted by a bias investigating officer * the evidence sought after and provided in the investigation was not relevant especially in regards to her personal medical records/history * the interview with the IO, which was summarized and completed on a DA Form 2823, does not match the information in the Report of Investigation (ROI) * the IO only interviewed two people, the accuser and the company first sergeant, (1SG) in order to substantiate the improper relationship * neither of their statements provide evidence of the existence of a relationship, only SSG O's perceived existence of a relationship without details that outline a sexual or real dating relationship * interviewing only two people does not substantiate a relationship * the telephone records provided by SSG X___'s counsel were altered or incorrectly provided to her * the records were subpoenaed from Sprint on 26 September 2015, this is past the date of completion as listed in the IO's ROI * the FOIA report states that she was provided with 250 redacted pages of which 167 pages were phone records that are not able to be interpreted in their redacted form * SSG O's counsel in a court of law and under oath on 20 May 2015 (page 12 of the transcripts) states she had met with the IO and that the investigation was still ongoing * the pet names she gave her Soldiers were not racial, demeaning or inappropriate * as a commander, she conducted climate surveys before and after her command and there was no mention of an Equal Opportunity complaints, misconduct or lack or professionalism * the remarks she received from subordinates, peers and mentors was that she fostered an environment of genuine cohesion and respect that complied with all Army regulations and policies * pet names are part of the heraldry of the company, a family dynamic creates an internal language and distinct identity of the Soldiers within the company * there was one instance when a Soldier requested not to be called by a nickname and the request was immediately complied with * the 1SG confirms that there were no complaints in his sworn statement * the statements regarding integrity concerns is unfair and bias based on a singular situation where the command displayed favoritism of an alleged victim who filed a false allegation after being arrested in the civilian sector for stalking * her integrity was never questioned during the rating period or during her tenure as the company commander * she was rated as exceeding the standard by the same official that rendered the referred OER prior to this event which demonstrates there was no pattern of misconduct * she met all required responsibilities, duties and roles as written in the evaluation * the investigation included irrelevant material, meant to diminish her character an reputation * the investigation was not completed by the suspense date and she was not provided the required extension approvals * the Special Victims Case, referenced in the ROI, was not completed in accordance with NGB guidelines and the evidence of this is provided in an email from the NGB Special Victim Council * she has an ongoing IG complaint with the CTARNG as of the date of this application, 22 January 2019 * the investigation was not complete at the time the OER was submitted * she assumed the investigation had been completed because she was never flagged for adverse action, received an honorable discharge from the CTARNG in March 2015, and immediately accepted a commission in the USAR * the OER was referred subsequent to her discharge from the CTARNG * she filed comments but there was no ability for her to provide a rebuttal; therefore, the USAR Staff Judge Advocate advised her sign the OER * the OER was submitted to HRC on 10 June 2015 * after the return of her second appeal she made a FOIA request for the AR 15-6 findings through the CTARNG * she received the redacted AR 15-6 with evidence on 7 June 2018 * after reviewing the investigation and the evidence she found the investigation to have significant errors which effected the legitimacy of the investigation due to failed processed which prompted the filing of an Inspector General (IG) complaint with the NGB IG office * the NGB IG referred her complaint to the CTARNG on 20 August 2018 * she has honorably served the ARNG and USAR 22 years and she will continue to serve until her mandatory removal date * this OER is a singular situation that could have a detrimental effect on her career as a whole * she was considered but not selected for promotion to major in 2018 * she contends she has been the victim of stalking by a fellow Soldier and she would never jeopardize her career or the good order and discipline of her command by engaging in an inappropriate relationship with an enlisted Soldier * she was an exemplary commander as demonstrated in previous and recent OERS * all her positions since leaving the CTARNG have been positons of responsibilities and leadership * she has been rated as "Among the Best," "Most Qualified," and "Exceeds" * she is currently assigned as a team leader for an Army CA team with a scheduled mobilization in support of African Command (AFRICOM) 2. After having prior enlisted service, the applicant was appointed a second lieutenant 2LT/O-1 in the Connecticut Army National Guard (CTARNG) on 13 August 2007. She was promoted through the ranks to captain (CPT/O-3) on 11 May 2012. 3. On 20 March 2015, the contested OER was referred for her acknowledgement. 4. The contested OER covering the period from 25 February 2014 through 24 February 2015, shows she was serving in the CTARNG, as the commander of the 141st Medical Company (Ground Ambulance), Middletown, CT, in the rank/grade of captain. This OER is filed in her AMHRR and contains narratives which state in part– * her history of service was undermined by substantial unprofessional conduct * her performance metrics was marred by verified instances of violation of Army Command Policy * the applicant engaged in an inappropriate personal relationship with an enlisted subordinate against Army fraternization policies * the applicant violated the Army commitment to EO by addressing Soldiers in her unit with inappropriate pet names which include racial and ethnic characterizations * the applicant tarnished her command by engaging in a documented, inappropriate relationship with an enlisted subordinate, violating Army fraternization policy * she failed to truthfully admit her mistakes raising serious integrity concerns * do not promote or invest in additional schooling 4. The applicant's records does not contain the DA Form 1574 (Report of Proceedings by Investigating Officer/Board of Officers) for the AR 15-6 investigation and the investigating officer's recommendation. (The applicant provided extracted pages that she indicates is the AR 15-6 investigation provided to her. This document is detailed in paragraph 5c below). 5. The following supporting documents were provided by the applicant, some of which are filed in her AMHRR. a. A Bristol Police Department Report, dated 15 December 2014, wherein SSG X___ admits to having a sexual relationship with the applicant. She recounts how in 2013 she took steps to end the relationship but the applicant continued to show up at her house. She finally resorted to sending letters to various individuals (redacted) and the USAR Center stating that the applicant was sleeping with Soldiers and that she was gay. She wanted to end the relationship because she felt the applicant was involved with someone else. She denied sending harassing text messages to the applicant or telling anyone about their relationship. b. A DA Form 4856, dated 11 January 2015, notifying the applicant that she was temporarily suspended from command pending the outcome of the AR 15-6 investigation to determine whether she as commander, is/was in a relationship that is prohibited by AR 600-20, paragraph 4-14, Relationships between Soldiers of different grades. This document also directed the applicant to have no contact with SSG X___. c. Memorandum for Record, Joint Force Headquarters Connecticut, subject: Investigative Report Regarding SSG X___'s Complaint of Inappropriate Relations Between Herself and Her Commander, dated 14 September 2015. It shows a preponderance of evidence supports the claim made by X___, that an inappropriate relationship between herself and her commander (the applicant) existed. d. Three redacted DA Forms 2823. (1) On 18 January 2015, SSG X___ provides a detailed account of her consensual relationship and provided the IO with text messages, photographs, and emails. (2) On 23 January 2015, an individual recounts the applicant was seen by others kissing SSG O at a Bar and Grill, during Annual Training in 2013. (3) On 10 February 2015, the applicant provided her statement in the form of questions asked by the IO and answered by herself. She did not recall kissing SSG X___. There was no inappropriate relationship but SSG X___ had harassed her family for almost a year and a half for which she was investigated and arrested in two separate jurisdictions. It made no sense to initiate and pursue a very public investigation with law enforcement and her command over the harassment she experienced from SSG X___, if she had reason to know who was harassing her. e. A redacted Sprint Call report. The recipient of this document cannot be determined. The applicant did not identify her telephone number. 6. On 29 August 2017, the Officer Special Review Board considered the applicant's appeal for removal of the contested OER. After careful consideration of the applicant's contentions, the OSRB found insufficient evidence to support the removal or amendment of the contested OER. 7. On 16 March 2018, the Human Resource Assistant, Appeals and Correction Section, HRC, informed the applicant the evidence she provided was insufficient to warrant either removal or correction of the contested OER. Thus she returned the applicant's request for appeal without action. 8. In a letter dated 7 June 2018, the CTARNG, Staff Judge Advocate, indicates he forwarded the applicant a redacted copy of the AR 15-6 investigation, totaling 250 pages, and a CD containing 975 pages of text messages, 9 photographs, and 36 voicemails. 9. On 20 August 2018, the Assistant Inspector General, National Guard Bureau (NGB), forwarded the applicant's concerns to the CTARNG IG's office. In February 2019, the Deputy IG, CTARNG, informed the applicant to appeal to the ABCMR. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that it could reach a fair and equitable decision in the case without a personal appearance by the applicant. The Board also found the relief was not warranted. The applicant’s contentions were carefully considered. The Board agreed there were no comments in reference to an investigation on her evaluation, and that the derogatory comments were founded by the AR 15-6 investigation. Based upon documentary evidence provided by the applicant and found within the military service record, the Board determined that the contested comments were supported by findings of the AR 15-6 investigation and there is insufficient evidence that shows the evaluation was unjust. 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. X CHAIRPERSON Signed by 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 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy for completing evaluation reports and associated support forms that are the basis for the Army’s Evaluation Reporting System (ERS). It provides principles of support, standards of service, and policy governing all work required, including Army evaluations policy and guidance regarding redress programs, which include Commander’s (CDR’s) or Commandant’s Inquiries and appeals. Procedures, tasks, and steps pertaining to the completion of each evaluation report and support form are contained in DA Pamphlet 623–3. a. Chapter 2-14c(3) (DA Form 67-10 series) provides that senior raters will whenever possible, for referred OERs ensure that the rated officer is given an opportunity to review the completed OER and provide comments for consideration before authentication and departure from the unit or organization. The senior rater will ensure the completion of all necessary referral actions and submission of the appropriate documents to HQDA in as timely a manner as practicable. b. Paragraph 3-19d states any verified derogatory information may be entered on an evaluation report. This is true whether the rated Soldier is under investigation, flagged, or awaiting trial. While the fact that a rated Soldier is under investigation or on trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's reference to verified derogatory information. For example, when an interim evaluation report with verified information is made available to a CDR, the verified information may be included in evaluation reports. For all evaluation reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will be notified and advised of the right to appeal the evaluation report. Evaluation reports will not be delayed to await the outcome of a trial or investigation unless the rated Soldier has been removed from his or her position and is in a suspended status. Upon completion of the trial or investigation, processing of evaluation reports will resume. Evaluation reports will be completed when due and will contain what information is verified at the time of the "THRU" date of the evaluation report. c. Chapter 4 (Evaluation Report Redress Program) stated the Evaluation Report Redress Program consists of several elements at various levels of command. 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 4-7 (Policies) states evaluation reports accepted for inclusion in the official record of a Soldier 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. An appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by Headquarters, Department of the Army (HQDA), Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by HQDA Evaluation Appeals Branch. Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board. These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials. e. Paragraph 4-11 (Burden of Proof and Type of Evidence) states to justify deletion or amendment of a report, the applicant must produce evidence that established clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was 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 applicant. 2. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to HQDA that are the basis for the Army's Evaluation Reporting System. 3. Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant’s request for the correction of a military record. Paragraph 2–11 states applicants do not have a right to hearing before the ABCMR. The Director, ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//