IN THE CASE OF: BOARD DATE: 8 January 2021 DOCKET NUMBER: AR20200001673 APPLICANT REQUESTS: correction of her DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report (OER)) covering the period 12 March 2016 through 11 March 2017 as follows: * to show her rating period as 28 March 2016 through 27 March 2017 * to show her rater as Colonel F____ through 27 March 2016 * to show her principle duty title as Health Services Human Resources Officer * delete the comment related to being absent without leave * delete the comment related to not submitting a DA Form 67-10-1A (OER Support Form) * delete the comment related to previous OERs not being completed 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) * Email, Applicant and Rater, dated 4 October 2015 through 5 October 2015, subject: OER Rating Scheme, with Rating Scheme Attached * Orders 141-1000, California Army National Guard (ARNG), dated 20 May 2016 * Email, Rater, dated 11 September 2016, subject: OER Rating Scheme, with Rating Scheme Attached * DA Form 67-10-1 covering the period 30 September 2015 through 11 March 2015 * DA Form 67-10-1 covering the period 12 March 2016 through 11 March 2017 REFERENCES: 1. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 2. 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. a. Paragraph 2-4 (General Rules for Establishing Rating Chains) the rating chain for a Soldier will be established at the beginning of the rating period. This allows the rated Soldier and rating officials to properly execute their roles and responsibilities in the evaluation process. Rating officials must meet grade requirements, as well as time in position, in order to render evaluation reports. b. Paragraph 3-19 (Unproven Derogatory Information) provided that any mention of unproven derogatory information in an evaluation report can become an appealable matter if later the derogatory information is unfounded. References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army. c. Paragraph 3-20(d) (Prohibited Comments) provides that no remarks about nonrated periods of time or performance or incidents that occurred before or after the rating period will be made on an evaluation report. d. Paragraph 3-26 (Referred DA Form 67-10 series (OER)) states OERs with the following entries are referred or adverse reports. Such OERs will be referred to the rated officer by the senior rater for acknowledgement and an opportunity to comment before being submitted to Headquarters Department of the Army (HQDA): (1) a rater performance evaluation of "Capable" in Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes) where the required explanation has derogatory information; (2) a rater potential evaluation in Part IV where the required explanation has derogatory information; and/or (3) any negative or derogatory comments contained in Part IV or Part VI (Senior Rater) of the OER. e. 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 the HQDA Evaluation Appeals Branch. Appeals based on administrative error only will be adjudicated by the 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. f. Paragraph 4-8 (Timeliness) states substantive appeals will be submitted within 3 years of an evaluation report "THRU" date. Failure to submit an appeal within this time would require the appellant to submit his or her appeal to the ABCMR. The Army Special Review Board will not accept appeals over 3 years old or appeals from Soldiers who are no longer serving on active duty or as part of the Army National Guard. g. Paragraph 4-11 (Burden of Proof and Type of Evidence) provided that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity will not be applied to the evaluation report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct is some or all of the assertions, the clear and convincing standard has been met with regard to those assertions. For a claim of administrative error, appropriate evidence may include the published rating scheme used by the organization during the period of the evaluation report being appealed and assignment, travel, or temporary duty orders. h. Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) provided that once a decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. 3. 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. Paragraph 6-1 (Deciding to Appeal) states an appellant who perceives that an evaluation report is inaccurate in some way has the right to appeal for redress to the appropriate agency. However, before actually preparing an appeal, an objective analysis of the evaluation report in question should be made. In an administrative appeal, for example, an official copy of a published rating scheme in effect during a specific evaluation report period may indicate that an incorrect rating official prepared an evaluation; or duty appointment orders and appropriate extracts from local personnel records may indicate that the period of a report, duty title, or periods of nonrated time are incorrect. 4. Army Regulation 40-501 (Standards of Medical Fitness), in effect at the time, governed medical fitness standards for enlistment, induction, appointment (including officer procurement programs), retention, and separation (including retirement). a. Chapter 7 (Physical Profiling) provided a system for classifying individuals according to functional abilities under six factors designated "PULHES." Four numerical designations are used to reflect different levels of functional capacity. The basic purpose of the physical profile serial is to provide an index to overall functional capacity. Therefore, the functional capacity of a particular organ or system of the body, rather than the defect per se, will be evaluated in determining the numerical designation of 1, 2, 3, or 4. * an individual having a numerical designation of "1" under all factors is considered to possess a high level of medical fitness * a physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations * a physical profile serial containing one or more numerical designators of "3" signifies the individual has one or more medical conditions or physical defects that may require significant limitations – the individual should receive assignments commensurate with his or her physical capability for military duty * a physical profile serial containing one or more numerical designators of "4" indicates the individual has one or more medical conditions or physical defects of such severity that performance of military duty must be drastically limited b. Paragraph 7-4 (Temporary versus Permanent Profiles) stated all permanent "3" and "4" physical profiles for Soldiers on active duty will be reviewed by a medical evaluation board physician or physician approval authority. If a temporary physical profile is needed beyond 12 months, the temporary physical profile will be changed to a permanent physical profile. FACTS: 1. The applicant states: a. Her OER covering the period 11 March 2016 through 11 March 2017 should have a starting date of when her change of duty occurred. Her duty as the Commander of the 297th Area Support Medical Company ended on 28 March 2016 and she transferred to a new unit. b. The OER shows the wrong rater from 11 March 2016 through 28 March 2016. While she was a company commander, her rater was Colonel E____ F____ and her senior rater was Colonel A____ G____. c. Her OER filed in the interactive Personnel Electronic Records Management System shows Captain J____ M____ as her rater – someone she never met, counseled with, or spoke with before this time frame, nor was he in her chain of command as a commander. d. Her OER shows her principle duty title as Patient Administrative Officer and her position/area of concentration as 70E. It should show her principle duty title as Health Services Human Resources Officer and her position/area of concentration as 70F as shown on her transfer orders. e. Comments on her OER state she did not submit an OER Support Form; she submitted one manually at her rater's request. f. Comments on her OER state she was absent without leave, which was not within the rating period. g. Comments on her OER state she had not completed her OER prior to being transferred to her new unit, which is not true. h. She was diagnosed with a brain tumor in March 2017 during the period of her contested OER and her unit failed to initiate a physical profile or initiate a medical evaluation board. 2. She was serving in the California ARNG in the rank/grade of captain/O-3 when she was assigned as the Commander of the 297th Area Support Medical Company effective 1 July 2014. 3. The California ARNG Medical Detachment Rating Scheme, effective October 2015, shows the applicant's rater as Colonel S____ J____ and her senior rater as Colonel A____ G____. 4. Her OER covering the period 30 September 2015 through 11 March 2016 shows in: * Part Ii (Reason for Submission) – Change of Duty * Part IIa(1) (Name of Rater) – Colonel S____ J____ * Part IIc(1) (Name of Senior Rater) – Lieutenant Colonel A____ G____ * Part IIIa (Principal Duty Title) – Commander 5. California ARNG dated 28 April, released her from assignment as the Commander of the 297th Area Support Medical Company and transferred her to the California Medical Detachment as a Health Services Human Resources Officer with an effective date of 30 September 2015. Her duty area of concentration is shown as 70F (Health Services Human Resources Officer). 6. California ARNG, dated 20 May, amended Orders 119-1005, changing the effective date to 28 April 2016. 7. The email from Major J____ M____, California Medical Detachment Human Resources Officer, dated 1 September 2016, published the unit's new rating scheme with an effective date of 11 September 2016. The rating scheme shows the applicant's rater as Major J____ M____ and her senior rater as Lieutenant Colonel A____ G____. Her next OER due date was shown as 11 March 2017. 8. She provided no evidence of her OER Support Form covering the period 12 March 2016 through 11 March 2017, nor is there evidence in her military personnel records. 9. Her OER covering the period 12 March 2016 through 11 March 2017 shows in: a. Part Ii (Reason for Submission), Annual; b. Part IIa(1) (Name of Rater), Major J____ M____; c. Part IIc(1) (Name of Senior Rater), Colonel A____ G____; d. Part IId (This is a Referred Report, Do You Wish to Make Comments?), no blocks are marked; e. Part IIe(1) (Rated Officer Signature), no signature; f. Part III (Duty Description), her principle duty title as Patient Administration Officer and her area of concentration as 70E; g. Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes), her rater rated her overall performance as "Capable" and commented: "[Applicant] is a capable officer that [who] did not meet unit expectations during this rating period. [Applicant] did not submit an OER support form nor has she completed 2 OERs prior to arriving at the MED DET [medical detachment] in APR [April] 2016. [Applicant] was AWOL [absent without leave] for February 2016 IDT [inactive duty training]." h. Part IVc(2) (Presence), her rater commented: "[Applicant] exceeded the standard with a 227 on her APFT. While [Applicant] expressed self-confidence, she was not fully engaged with her section and demonstrated a lack of presence with the section during IDTs. Her lack of presence was further evidenced by her AWOL during FEB [February] 2017 IDT." The applicant's handwritten note states she was not assigned to the section; i. Part IVc(3) (Intellect), her rater commented: "[Applicant] exhibited interpersonal tact during her limited interactions with the PAD [Patient Administration Division] section. [Applicant] clearly demonstrates intellectual competence by holding an MFTI [Marriage and Family Therapist] License, a first responder certificate and Psychiatric Technician level 5 certificate. [Applicant] lacked professional expertise in the PAD arena and failed to seek out other successful officers for assistance." The applicant's handwritten note states she was not assigned to the PAD; j. Part IVc(4) (Leads), her rater commented: "[Applicant] took over a struggling PAD section with the expectation of improvement under her leadership. She struggled to establish trust and confidence with the PAD section and peers. [Applicant] provides positive leadership in her civilian area of responsibility. This same leadership is was [sic] lacking in the PAD section and unit throughout the rating period." The applicant's handwritten note states she never took over the PAD section; k. Part IVc(5) (Develops), her rater commented: "[Applicant] has a strong work ethic in her civilian responsibilities but has not to [sic] utilized that talent to develop the PAD section." The applicant's handwritten note states she ever worked in the PAD section; l. Part IVc(6) (Achieves), her rater commented: "[Applicant] has over 3,000 hours in clinical areas assisting civilians and veterans in the community. Her achievements in the PAD section are lacking." The applicant's handwritten note states she was never in the PAD section and that wasn't her job; m. Part VI (Senior Rater), her senior rater rated her potential as "Qualified" and commented: "Rated Soldier refuses to sign. [Applicant] displays potential to perform in her current assignment. She is capable of assuming a greater leadership role." 10. On 30 September 2019, the applicant was discharged from the California ARNG and transferred to the Retired Reserve after completing 25 years, 9 months, and 1 day of total service for retired pay. 11. She provided no evidence of her diagnosis of a brain tumor, nor is there evidence of this diagnosis in her military personnel records. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found partial relief is warranted. 2. The Board found that the contested OER contained a “capable” rating and negative rater comments that required the OER to be referred to the applicant for comment. The Board found no evidence in the available records indicating that the OER was referred to her. The Board also noted that the contested OER references an instance of AWOL that took place outside of the rated period, which is a prohibited comment. After considering the failure to refer the OER to her and the prohibited comment, the Board determined the contested OER should be deleted from her record and replaced with a statement of non-rated time. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from her record the Officer Evaluation Report for the period 12 March 2016 through 11 March 2017 and replacing this report with a statement of non-rated time. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to amending the contested Officer Evaluation Report . 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001673 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1