IN THE CASE OF: BOARD DATE: 16 February 2022 DOCKET NUMBER: AR20210009877 APPLICANT REQUESTS: * removal of DA Form 67-10-1 (Company Grade Plate (O1 – O3; WO1 – CW2) Officer Evaluation Report (OER) for the rating period 1 April 2014 through 14 May 2015 * promotion consideration to the rank/grade of major (MAJ)/O-4 * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Seven OERs * Memorandum, subject: Response to Congressional Inquiry * Memorandum, subject: Command Climate Assessment – 846th Transportation Company * DA Form 3881 (Rights Warning Procedures/Waiver Certificate) * Six DA Forms 2833 (Sworn Statement) * DA Form 1574 (Report of Proceedings by Investigating Officers/Board of Officers) * Memorandum, subject: Extended Scope of AR 15-6 Investigation for [Applicant] * Memorandum, subject: AR 15-6 Investigation of Alleged Misconduct by [Applicant] * Memorandum, subject: Legal Review of Army Regulation (AR) 15-6 [Procedures for Administrative Investigations and Boards of Officers] Investigation into Alleged Misconduct by [Applicant] * Two Memoranda, subject: Official Removal as Commander, 846th Transportation Company, Salisbury, NC, 4 February 2015 and 14 May 2015 * Memorandum, subject: Evaluation Report Appeal [Applicant], 1 April 2014 through 14 May 2015 * Memorandum, subject: Rebuttal to 15-6 Investigation Officer Alleged Misconduct [Applicant] * Memorandum, subject: Decision Memorandum – Administrative Separation Board, [Applicant] * Memorandum, subject: Show Cause Recommendation under AR 135-175 [Separation of Officers], [Applicant] * Findings and Recommendations Summary * Officer Record Brief (ORB) * Military Biography and Resume of Service Career FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, 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 she was on the U.S. Army Reserve Command (USARC) flags and show cause recommendations for FY [Fiscal Year] 2018 PSB [Promotion Selection Board] due to a 2015 referred OER. She was not notified of the show cause/flag until- 10 September 2019 and was not afforded an opportunity to respond by the suspense of 22 March 2019 in order to prevent the 1x Passover for promotion. She is contributing the 1x Passover for promotion to the flags W [Involuntary Separation or Discharge (Headquarters Department of the Army Initiated] and B [Involuntary Separation of Discharge (Field Initiated)] dated 14 November 2018 and October 2019, which stemmed from FY18 show cause board and initiation of involuntary separation. a. She received recommendation to be retained from the 85th Support Command president of the board, general officer, and USARC commanding general for the FY18 show cause board. The flag codes W and B were removed later on 20 May 2020 and 6 May 2020. She believes that if she had been notified in a timely manner of the show cause recommendation requirements for the FY18, the flags would have been removed and she would not have received a 2x Passover in FY20. b. She believes the evaluation unfairly exaggerates three contentions based on the AR 15-6 investigation in the 2015 OER that does not contain sufficient facts to support them. It unfairly represents the period of service that it purports to. She requests total removal of the OER. She believes the erroneous evaluation to be of a retaliation to derail her career. She mailed a 2016 OER appeal packet to the proper channel with no certified notification provided. No response received of the packet at that time. It is her intent to be promoted to MAJ/O-4 to continue her career progression and to seek key leadership positions until her original mandatory removal date of 30 April 2025. 3. Having had prior enlisted service in the Regular Army, the applicant was appointed as a Reserve commissioned officer on 29 July 2009. 4. She entered active duty for training on 13 July 2010 and was honorably released from active duty training and transferred to the USAR on 2 November 2010. 5. On 6 October 2011, by memorandum, the U.S. Army Human Resources Command (HRC) issued her a Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter). It notified the applicant she completed the required years of qualifying Reserve service and is eligible for retired pay on application at age 60. 6. She entered active duty on 3 January 2013 and served in Iraq from 15 March 2011 to 18 December 2011. She was honorably released from active duty on 29 June 2012. 7. The applicant provides: a. Multiple OERs, which show her duty position, responsibilities, potential, and ratings. b. Memorandum, subject: Response to Congressional Inquiry – SGT , dated 14 July 2014, which shows the applicant responded to the inquiry of the Soldier’s request regarding the Soldier’s attendance for battle assembly and being annotated as a non-participant. c. Memorandum, subject: Command Climate Assessment – 846th Transportation Company, dated 20 July 2014, which shows a sensing session was conducted and determined the organization has a hostile/toxic command climate including micromanagement, perceived favoritism, pay not being signed in a timely manner, and other allegations. d. The applicant’s rights warning statement from the investigating officer (IO) pertaining to her statement. e. The applicant’s sworn statement to the IO regarding questions relating to the Congressional Inquiry response, time as a commander, and the attendance roster. f. Five additional sworn statements from Soldiers in the unit regarding battle assembly attendance, training, and support from the commander. g. Report of Proceedings by Investigating Officer/Board of Officers and Memorandum, subject: [AR] 15-6 Investigation of Alleged Misconduct by [Applicant], dated 22 December 2014 authenticated by the investigating officer (IO), which states the he was appointed as the IO for the alleged misconduct by the applicant to determine whether there is evidence with regard to 1) handling and processing of attendance 2) recommendation for separation 3) response to Congressional Inquiry of SGT and 4) whether there was a toxic command climate. (1) Findings. As to handling and processing of attendance, she put the codes on the attendance roster from May 2013 to July 2013 and was informed that coding was not her responsibility. She did not code anymore attendance rosters. As to the recommendation for separation and response to the Congressional Inquiry, his concern is that when the Soldier showed up for non-participation initiative, she was not counseled by either the first sergeant or the applicant (Commander). The applicant’s response to the Congressional Inquiry said the Soldier failed to show up for duty and as a result, she was required to initiate a separation packet. He found the applicant should not have initiated separation for the Soldier and should have been counseled. (2) Recommendations. He recommended the applicant be relieved as the company commander immediately. He recommended the unit develop a policy letter in reference to non-participation initiative and proper coding. He recommended the first sergeant be counseled and that the Soldier receives assistance and to remain in the unit if she desires (the Soldier). h. Memorandum, subject: Extended Scope of AR 15-6 Investigation for Applicant, dated 21 December 2014, which shows the IO’s scope of investigation was expanded to include the command climate and toxic leadership. i. Memorandum, subject: Legal Review of AR 15-6 Investigation into Alleged Misconduct by Applicant, dated 29 December 2014, which shows the deputy staff judge advocate reviewed the IO’s proceeding and determined the IO’s findings were consistent with and supported by a preponderance of the evidence. The IO found that the applicant should not have initiated the Soldier for separation for non-participation. j. Memorandum, subject: Official Removal as Commander, 846th Transportation Company, Salisbury, NC, dated 4 February 2015, which shows the applicant was relieved from command, effective 4 February 2015 for processing a Soldier for administrative separation. k. Memorandum, subject: Rebuttal to 15-6 Investigation Officer Alleged Misconduct [Applicant], dated 14 March 2015, which shows the applicant submitted a response to the 15-6 investigation and requested to be heard and allowed the opportunity to complete her role as the commander with the proper training and guidance. l. Contested OER, for the rating period 1 April 2014 through 14 May 2015 [Applicant’s Request for Removal], which shows her referred evaluation report as the company commander. It shows in pertinent part: (1) Part IV (Performance Evaluation – Professionalism, Competencies, and Attributes): "Unsatisfactory," she has been relived from her duties as the commander of the 846th Transportation Company for failure to follow established procedures for processing a Soldier for separation, then submitted a response to a Congressional Inquiry that was untrue. She failed to acknowledge that the Soldier’s situation had been mishandled and needed to be rectified. To the rater’s knowledge, the applicant did not initiate an MSAF [Multi-Source Assessment Feedback]. The rater did not receive a DA Form 67-10-1A (OER Support Form). She failed to maintain professional and military bearing when faced with adversity. She demonstrated poor judgement when the Soldier filed a Congressional Inquiry, failed to adequately explain what happened. (2) Part VI (Senior Rater): Not Qualified, she was relieved of her duties as the commander. She demonstrated a lack of respect for Soldiers under her command and submitted a false response to a Congressional Inquiry as determined by an AR 15-6 Investigation and sensing sessions performed by the battalion commander. Assign to positions of increasing responsibility to allow the applicant to develop the professional Warrior Ethos required for leading Soldiers. Rated officer refused to sign. m. Memorandum, subject: Official Removal as Commander, 846th Transportation Company, Salisbury, NC, dated 14 May 2015, authenticated by the Commanding General, which states he carefully reviewed all documents submitted to him on her relief for cause case including the AR 15-6 Investigation, chain of command recommendations, and her rebuttal. Upon careful consideration, he concurs with the recommendation of her battalion commander that she be relieved of command. She was officially relieved from command, effective 14 May 2015. n. Memorandum, subject: Evaluation Report Appeal [Applicant], dated 11 January 2016, from the applicant to HRC, which states: (1) Under the provisions of AR 623-3 (Evaluation Reporting System), chapter 4, she appeals the evaluation for the rating period 1 April 2014 through 14 May 2014. She has over 25 years of service (as both an officer an enlisted), including 7 years on active duty and 11 in the Army National Guard. She has served in the USAR for the past 7 years. Her zone for promotion to MAJ/O-4 is 1 July 2018. She is not currently pending any adverse administrative action. She is pending an appointment to serve as detachment commander. (2) Basis. The basis of her appeal is substantive inaccuracy. Her evaluation is inaccurate in three main ways: 1) the subject evaluation is completely based on one AR 15-6 investigation, which contains findings that are not supported by facts, 2) the purported justification provided in the narrative portion of the evaluation includes only three contentions; however, each of them are repeated and/or re-written throughout the evaluation, 3) the evaluation fairly misrepresents this period of her service. (3) Request. She respectfully requests total removal of the evaluation report. o. Memorandum, subject: Show Cause Recommendation under AR 135-175, chapter 2-12, Applicant, dated 11 February 2020, which shows the commanding general of 85th Support Command reviewed the case file of the board of inquiry concerning the applicant held on 10 January 2020 and recommended she be retained. p. Memorandum, subject: Decision Memorandum – Administrative Separation Board, Applicant, dated 1 May 2020 from the USARC commanding general, which states: (1) On 10 January 2020, 85th Support Command convened a board of inquiry against the applicant in accordance with AR 135-175, paragraph 2-13 (Acts of Misconduct or Moral or Professional Dereliction). Specifically, the applicant was verbally abusive and used derogatory remarks towards Soldiers under her command, physically intimidated a Soldier under her command, failed to follow established procedures for processing a Soldier for separation, and submitted a false response to a Congressional Inquiry. Additionally, her behavior constituted conduct unbecoming an officer. The board found that the first allegation was not supported by a preponderance of the evidence, but found that her conduct amounted to conduct unbecoming an officer. The board recommended that she be retained in the USAR. (2) In accordance with AR 135-175 and AR 15-6, paragraph 2-8, as applicable, he is bound by the results of the board. Accordingly, he approves the board’s recommendation and retains her in the USAR. q. Her ORB, military biography, and career of service resume, which shows her assignments, awards, and military history. 8. The applicant entered active duty on 1 October 2018 and was honorably released from active duty on 30 September 2019 for completion of required active service. 9. The applicant was considered by the FY19 Major Army Promotion List for promotion to MAJ but she was not selected for promotion. 10. The applicant was also considered by the FY20 Major Army Promotion List for promotion to MAJ but she was not selected for promotion. 11. On 30 July 2020, by memorandum, subject: Options Upon Non-Selection for Promotion After Second Consideration, notified the applicant of the following: a. The purpose of this memorandum is to provide further information concerning options available to you as a result of her recent consideration for promotion. Reserve officers not selected for promotion are considered again by a selection board approximately 1 year later. If they are not selected on this second consideration, they must be separated not later than the 1st date of the 7th month following the President’s approval of the board results. b. She has been considered twice for promotion to the next higher grade by the USAR selection board and unfortunately, she was not selected. Her transition from an active status is thus mandatory. c. The Reserve Status Statement and Election of Options contained on the next page of this memo indicates her status and whether she is entitled to elect an option. She must complete the enclosed election of options and return it to this command. If her election of options is not received by the suspense date shown above, she will be administratively transferred to the Retired Reserve, if eligible, or discharged in accordance with the law. 12. On 2 January 2021, the applicant was transferred to the Retired Reserve. She completed 29 years and 4 months of qualifying service for non-regular retirement. 13. On 25 January 2022, HRC conducted a thorough review of her records and credited her with a 6-month drop. Based on the submitted documentation, her date placed on the retired list will be October 5, 2022. 14. By regulation, in order 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. 15. Also by regulation, a commissioned officer twice nonselected for promotion by a HQDA PSB and not approved to be selectively continued, will continue to be processed for separation. 16. 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. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition and available military records the Board determined there was insufficient evidence to support the applicant’s request. Evidence in the record show the applicant was relieved of command, based on conduct unbecoming. Furthermore, the Board determined that the applicant had not demonstrated by a preponderance of evidence that any procedural error occurred that was prejudicial to the applicant, nor had the applicant demonstrated by a preponderance of evidence that the contents of the OER are substantially incorrect to support removal. The Board determined the applicant was a two time non select for promotion and does not meet the regulatory guidance for consideration. There does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's AMHRR. Therefore, relief was denied. 2. The purpose of maintaining the Army Military Human Resource Record (AMHRR) is to protect the interests of both the U.S. Army and the Soldier. In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the AMHRR. Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority. 3. The applicant’s request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 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 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 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 4-7 (Policies) stated an evaluation report accepted for inclusion in the official record of a Soldier is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of 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 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. b. Paragraph 4-8 (Timeliness) stated: (1) 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 USAR or Army National Guard. (2) Administrative appeals will be considered regardless of the time that has elapsed since the period of the evaluation report and a decision will be made in view of the regulation in effect at the time the evaluation report was rendered. The likelihood of successfully appealing an evaluation report diminishes, as a rule, with the passage of time. Prompt submission is recommended. c. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated 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. 3. AR 600-8-29 (Officer Promotions), prescribes policies, operating rules, and steps governing promotion of Army commissioned and warrant officers on the active duty list. Paragraph 6-9 (Effect of Two-Time NonSelection for Promotion) states a commissioned officer twice nonselected for promotion by a HQDA PSB and not approved to be selectively continued, will continue to be processed for separation. 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 may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, 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. //NOTHING FOLLOWS//