IN THE CASE OF: BOARD DATE: 12 October 2022 DOCKET NUMBER: AR20210014324 APPLICANT REQUESTS: Permanent removal of the Referred Officer Evaluation Report (OER) for the period 8 September 2018 through 4 May 2019 from her service record. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Eleven Character References * Memorandum, subject: Response to the Commanding Generals (CG) Recommendation * OER ending on 4 May 2019 * Evaluation Letter Record of Referral-Rated Officer Response * CG’s Letter of Recommendation * Verification of Treatment * Gmail * Applicant’s Request for Retention * Retention Board of Inquiry (BOI) Decision 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 an erroneous referred OER was placed in her service record based on a nonfactual 15-6 investigation. She requests removal of this OER from her record. 3. The applicant provides the following: a. Character references (11): (1) Ms. , a prior member of the applicant’s command states the applicant was hard working, she built the units morals, and made the members feel valued and appreciated. The applicant was efficient and detail oriented, and extremely competent. She demonstrated loyalty, honesty, moral responsibility, and integrity. (2) Sergeant First Class (SFC) , a member of the applicant’s unit stated the applicant helped him become a better person. She helped him through a difficult time, she was a great leader, and a good listener, she brought up the morale in the unit. She supported the team concept and helped them set goals and achieve them. She was also efficient, organized, and detail oriented. (3) SFC stated as a member of Headquarters and Headquarters Company (HHC), he observed the applicant was mindful of the higher mission and expressed vision on how to support accomplishment of the commands mission. She changed the atmosphere in HHC from chaos to order. She supported a no-nonsense work environment. She treated everyone fair and led by example. (4) Sergeant Major (SGM) , the G-3/6 SGM of HHC, 335th stated he served alongside the applicant as the HHC First Sergeant for approximately a year. She was dedicated and her selfless service admirable. She implemented several policies and procedures that made difficult tasks seamless for their Soldiers. She was a natural leader and a true professional. She had a unique ability to convey complex and technical information in a clear and concise manner. She was critical to the successful execution and accomplishment of numerous missions during her command. She was truly an example of what a leader should be. She demonstrated unquestionable character. (5) Colonel stated he met the applicant in 2012 during his assignment at the 335th Signal Command as the G-33 Deputy Chief of Operations. The applicant performed her duties in an exceptional manner. She was confident, energetic, smart, positive, and possessed the skills to accomplish assigned tasks. As a demonstration of her abilities, she was assigned challenging tasks, and was selected to lead the command's Unit Status Report (USR) program. She is a leader who made a mistake and accepts responsibility for her actions. An appropriate level of consequence must apply in accordance with the Uniform Code of Military Justice (UCMJ). Nevertheless, she is absolutely deserving of a second opportunity. She will utilize her personal experience to inform, educate and mentor our Soldiers on personal decision making. He has the upmost trust and confidence in her abilities to continue leading our warriors who serve our Nation. (6) Sergeant (SGT) stated the applicant served as his commander for 1 year. He has never met anyone as dedicated to Soldiers and their lives as the applicant. At a very difficult time in his military career the applicant took the time to listen to him regarding the situation and took an unbiased approach and never treated him differently. Her actions consistently inspired and motivated others to follow her lead. He has developed the greatest respect for both her work ethic, and her problem-solving abilities. She made a positive and beneficial addition to the 335th HHC, more than any other commander in the 5 years he has been a part of the unit. (7) SFC stated the applicant was his commander, she was fair and just when finding the balance to provide the command with direction and purpose. She had a way of ensuring her staff and fellow Soldiers knew they were the key to her success and overall foundation of the unit. Providing purpose, direction, and motivation was something she did not take lightly. It was through this effort that the HHC became what it is today, a new beacon of competence and security for Soldiers of the HHC. The structure and support that she laid as a building block and foundation has served the needs of her staff and the Soldiers. In the first 5 months of her command, she made drastic changes to the climate and metrics. (8) Lieutenant Colonel (LTC), Chief of Operations, 335th Signal Command, stated his observation of the applicant has led him to believe she is a compassionate and respected leader. Her commitment to taking care of Soldiers reduced complaints about pay, meals, leave, physical training, and overall morale. Her open-door policy and ability to empathize with Soldiers displayed a focus on transitioning the organization into a family-oriented unit. He has observed her behavior on both a social and professional level, and she has displayed honorable traits. He has never observed her displaying any unprofessional, unfair, or unjust conduct. He has observed her working beyond the call of duty to meet mission and end state. He has also witnessed her handle Soldiers issues to comfort, resolve, and get the Soldiers focus on the mission. (9) LTC states the applicant served as a battle captain (CPT) in the 335th Signal Company (SC) operations section for approximately 3 years. He served as her immediate supervisor and rater for 2 years. She was directly responsible for all actions associated with the 335th SC Commanders Unit Status Report (CUSR). During this assignment her performance was excellent. She consistently met very challenging suspense's and provided critical subject matter expertise to subordinate units. Her initiative, professionalism, and personal drive directly resulted in improving the CUSR metrics from a management perspective. In her capacity as a battle CPT, she could be relied upon to independently coach and mentor newly assigned officers and non- commissioned officers (NCO). In terms of her character and conduct as it relates to Army Values, she exuded a high level of intestinal fortitude while serving in the operations section. She clearly understood how her responsibilities were related to the overall success of the 335th SC. (10) SGT , the motor SGT, states her experience with the applicant, as the HHC Commander, was an incredibly eye-opening experience, as a junior leader. The applicant was a compassionate leader who took measures to ensure that Soldiers were taken care of. Being in the Reserve, she has never experienced an officer who dedicated personal time taking care of Soldiers. The applicant was fair and never placed fault for a less than successful mission on Soldiers. The applicant assumed responsibility as the commander of all missions that she was entrusted with. The applicant showed that every event was a learning event for future missions. The applicant showed her how to be a better leader. The applicant is the epitome of a professional. The applicant’s leadership standard should be emulated by others. (11) CPT Detachment 1 United States Army Reserve (USAR) Element, Fort Hood, TX, apologizes for his involvement in the incident which the applicant was involved and states he has known the applicant 14 years. The applicant takes accountability for her own actions. She always strives to exceed expectation as well as the standards by setting the example as a leader both in her personal and professional life. She embodies the true meaning of a leader. He has witnessed firsthand the applicant’s relentless dedication to her family ensuring that her children never once went without any necessities. He witnessed the applicant become an excellent role model for her children. All her children are ahead of their peer group. Every one of them have advanced in a grade or two above their age group. She has graduated a 15-year- old son from high school who is now in his first year of college as a 16-year-old. He has witnessed the applicant’s unyielding pursuit of a bachelor's degree and partial completion of her master's degree while at the same time serving as a full-time mother, working two jobs, owning a business, and working in the Army Reserve. At the same time being a mother of eight children. The applicant has advanced through the ranks within her civilian career at Bank of America as well as a successful career as a Soldier in the US Army Reserve (USAR). The applicant’s example has impacted and inspired him and many others who have had the opportunity to be in her company. The applicant’s genuine ability to care about people is one of the major reasons. The applicant is his best friend, mother of his children, companion, and future wife, the applicant is everything he could ask for in a partner. The applicant has demonstrated an undeniable propensity to plan effectively, resource efficiently, and execute successfully. She is organically a mentor and leader, and her spirit of sacrifice is innate. These qualities have had a major impact on how she developed as a professional throughout her career. The applicant is knowledgeable, skillful, highly adaptive, and mentally tenacious. Her willingness to surpass the call of duty in identifying, addressing, documenting, and solving problems is well noted, widely appreciated, and easily identifiable. She has an unsurpassed reputation for professionalism and wit, and all her duties and responsibilities are self-initiated and executed to the letter and without question. b. Memorandum, subject: Response to CG’s Recommendation, dated 16 April 2019, from the applicant apologizing to the CG, leadership, and Soldiers of the command for any discord that she may have caused due to her situation. She stated that she was embarrassed challenges in her personal life had come to the CG’s attention. She thanked the CG for the opportunity to lead the HHC. The day she was asked to accept the position as the HHC Commander, it was literally one of the proudest days of her life. She has dedicated the past 18 years of her life, her entire adulthood to the United States Army. She has done so with the utmost pride, professionalism, and attention to detail, and with no regard for personal gratification or gain. Up to this point, her career as an enlisted Soldier and as a commissioned officer has been impeccable and without a blemish. She respectfully requests that her record remains clear, for the reasons described below: (1) She was passionate about each role and responsibility that she attained in the United States Army, and she has performed above the standard. It had been her pleasure and duty to not only lead, build, develop, mentor, and help others to establish a sense of purpose, pride, and self-worth, but to serve them as well, in whatever capacity fit the need at the time. When she took the position [as commander], she leaned forward with pride, dignity, and fearlessness, keeping the mission first while expressing an overall care for the wellbeing of her Soldiers. “I say my Soldiers, because these Soldiers needed a leader who not only pushed hard for mission success, training, Soldier readiness, and development, but also cared for them as human beings.” “I, myself, have also grown and developed as a leader, an officer, and a human being while I have been in command. I now have the complete understanding that every action indeed does have an equal and opposite reaction, some good and some lessons learned. I have also learned the true meaning of the phrase; Life is 10% what happens to you and 90% how you respond. This phrase is all about character.” (2) She was certainly able to own up to her mistakes; however, she did not feel that 18 years of consistent hard work and dedication should be overlooked because of this one situation. She was proud to be the HHC Commander of the 335th SC and she would like for the CG, the leadership, and most importantly, her Soldiers to know that she genuinely appreciated the CG for such a coveted leadership opportunity. (3) Regarding the findings and recommendations of the investigating officer, she respectfully disputed the methodology and conclusions. The investigating officer arrived at incorrect conclusions by taking the “word” of a piece of paper (i.e., a police report) not only over her word, but despite the fact the only viable witness in the investigation refused to provide a statement against her and was attempting to drop the case against her. Therefore, the case should be dropped because it was baseless. (4) She respectfully challenged the notion that she was obligated to report the warrant, which she was initially unaware of. There was no regulation that can be sited that requires such a duty to report - at least not a regulation that she was aware of. She had the UCMJ Article 31 and Constitutional right not to report allegations that had not yet been adjudicated. AR 600-20 only requires that a conviction be reported. There was no conviction in this matter. She did not expect there to be a conviction, therefore leaving no requirement or responsibility for her to report. She did not understand the conclusion that she could not be trusted because she did not report something that she had no duty to report. (5) She was very embarrassed that she ended up in jail, even though the confinement was not warranted. The bottom line is that when she turned herself in on Friday, 4 January [2018], she would have reasonably expected to be released on a $100 bond, rather than being detained through Monday due to the administrative error in the court records system. On 1 February 2019, the Georgia Court of Appeals ruled on her appeal in the divorce matter, concluding in part that the superior court judge should not have issued the incarceration order in February 2018. This unwarranted order alone is the reason for her stay in jail. (6) There was no requirement for her to notify anyone of a legal matter that was not adjudicated, and it was not reasonably foreseeable that she would be retained in confinement. However, she did notify a member of the command staff immediately upon her release, as well as the G2, as soon as the G2 staff became available. It is important to further add that following the ruling of the Georgia Court of Appeals that judge issued an “illegal order,” the judge who issued the “illegal” order resigned effective 31 March 2019. (7) She requested that the CG not accept the findings and recommendations of the investigating officer and that she not be removed from her command and that no other adverse actions be taken based on an investigation with faulty methodology and conclusions, baseless assumptions, and opinion. (8) Despite her strong disagreement with the investigation, she was still deeply embarrassed and sincerely apologized for the situation. She respectfully requested that she be allowed the opportunity to complete her command time and not have it affected by one challenging and misunderstood incident in her personal life. c. A Verification Treatment Statement, from Women’s Specialists, dated 8 July 2020, showing she was pregnant with an “EDD” of 25 October 2020. She was instructed to remain on bedrest until delivery. d. Gmail, dated 22 July 2020, the applicant wrote to LTC, stating per the letter submitted, she was excused from work (this includes civilian and military) and on bedrest until the delivery of her twins. Her twins were delivered on 9 July [2020] via C-section and sadly one of the twins did not make it; her sister was in the “NICU” and projected to be there for at least 3 months. In addition to trying to recover from her delivery and take care of a baby in the “NICU” she was also trying to process what happened and grieve such a loss. The letter from her obstetrician and gynecologist (OBGYN) clearly states no work until post-delivery, and then, no work until after her 6-week checkup (which is also done post-delivery). LTC was invited to contact her physician’s office to confirm that she was on bedrest for the duration of her pregnancy. She stated she was not sure why this was not done when the letter was initially received and reviewed, prior to marking her “unexcused.” She also requested that her record be updated and show she was excused for all “BTA’s” from December 2019 to the present and that the evidence of the Updates be sent to her by email. She was pending a board and I did not need any derogatory items in her record. She stated she was also taking personal time to grieve the loss of my baby girl and to take care of myself and my child in the “NICU.” She requested guidance on the length of time she would be allotted to recover from the c-section, as well as grieve the loss of her child, and to take care of the baby in the “NICU.” If further information pertaining to her situation was needed, she would provide it. Otherwise, she would like for the 335th to have some compassion and understanding and allow her to take the time she needed to take care of herself and her family. 4. A review of the applicant’s service record shows: a. Having had prior enlisted service, on 15 April 2009, the applicant was appointed a Reserve commissioned officer of the Army and executed an oath of office on the same date. She served in various assignments and attained the rank of CPT. When this application was submitted, she was a member of the active Army Reserve serving in a troop program unit (TPU). b. She received an RFC OER covering the rating period 8 September 2018 through 4 March 19, for her duties as the Commander, HHC, 335th Signal Command, East Point, GA. Her rater was the Brigadier General and her senior rater was the Major General, “CG.” This OER shows in: (1) Part IV - Performance Evaluation - Professionalism, Competencies, and Attributes (Rater). (2) APFT Pass/Fail “PASS” Date “20180907” Height “63” Weight “133” Within Standard? “Yes” (3) A completed DA Form 67-10-1A was received with this report and considered in the evaluation and Review. “Yes” (4) “HQDA” Comparison of the Rater's Profile and Box Check at the Time this Report Processed. “Capable” (5) Date: 2019-06-01, Total Ratings: “6” Rating This Officer: “1” “I currently rate ‘3’ Army Officers in this grade.” c. Comments: “The applicants off duty conduct demonstrated poor judgment, degrading her leadership's trust in her, warranting her relief from command by the CG. However, she demonstrated solid capability to perform managerial, planning, and administrative duties as the HHC Commander and exercised care for the unit's Soldiers.” (1) Character – Demonstrated active support for “SHARP,” “EEO,” and “EO.” Exercised empathy toward Soldiers with discipline challenges. Compromised her integrity by making a false statement to rater and Army Regulation (AR) 15-6 investigating officer with respect to notification of a civil arrest warrant. (2) Presence – Maintained a positive and confident composure. (3) Intellect – Exercised poor judgment in off duty affairs that negatively impacted the command, leading to her relief. Leveraged organizational expertise to effectively execute training plans. (4) Leads – Degraded bond of trust with chain of command through poor judgment. (5) Develops – Demonstrated strong concern for the professional development of Soldiers. Fostered unity through Command wide morale events. (6) Achieves – Improved readiness and lethality of the HHC through the planning and delivery of weapons ranges, warrior task training, and medical SRPs. 5. PART VI – Senior Rater: a. Potential compared with officer’s senior rated in same grade: “Qualified” Date: 2019-06-01, Total Ratings “16,” Rating This Officer “2.” b. I currently senior rate “2” Army Officers in this grade. c. Comments on Potential – “The applicants off duty misconduct resulted in an arrest warrant, which she did not inform her chain of command or G-2 of until after she was unexpectedly incarcerated, and later falsely denied knowing about the warrant. Her poor judgment and lack of candor caused the lose confidence in her ability to command and I directed her relief.” Aside from this incident, she possesses qualities and capabilities that can benefit the U.S Army Reserve and has potential to successfully continue an otherwise unblemished career.” d. List 3 future successive assignments which this officer is best suited. “S3 Plans Officer, Safety Officer, EO/EEO Officer.” e. The contested OER was referred to the applicant by the Major General, “CG.” 6. On 23 May 2019, she stated in a Memorandum for Record, subject: Remarks Regarding Referred OER from “20180908 through 20190504”: a. “I specifically do not agree with the basis of this RFC resulting in a referred OER for these reasons.” b. “Regarding the findings and recommendations of the investigating officer, I respectfully dispute the methodology and conclusions. The investigating officer arrived at incorrect conclusions by taking the word of a piece of paper (i.e., a police report) not only over my word, but despite the fact the only viable witness in the investigation refused to provide a statement against her and attempted to drop the case against her. Therefore, the case should be dropped because it was baseless.” c. “I respectfully challenge the notion that I was obligated to report the warrant, which I was initially unaware of. There is no regulation that can be sited that requires such a duty to report - at least not a regulation that I am aware of. I have the UCMJ Article 31 and the Constitutional right not to report allegations that have not yet been adjudicated. AR 600-20 only requires that a conviction be reported. There was no conviction in this matter, and I do not expect there to be a conviction, therefore leaving no requirement or responsibility for me to report. I do not understand the conclusion that I cannot be trusted because I did not report something that I have no duty to report.” d. “Sir, I am very embarrassed that I ended up in jail, even though that confinement was not warranted. Please see the excerpt from Colonel B’s (335th Staff Judge Advocate (SJA)) statement submitted on 28 February 2019.” “The bottom line is that when she turned herself in on Friday, 4 January [2019], she would have reasonably expected to be released under a $100 bond, rather than being detained through Monday due to the administrative error in the court records system.” 7. On 23 May 2019, the contested OER was signed by the rating officials and the applicant, and was filed, together with the referral memorandum/statement, in her official record. 8. A Memorandum for the President of the Board, USAR Retention Board, 335th Signal Command (Theater), East Point, GA, dated 12 June 2019, shows the Major General Commanding USAR recommended the applicant be retained in the USAR. He stated the applicant had worked tirelessly at the 335th Signal Command (Theater) for the past year as Commander, HHC, 335th SC(T). The applicant had demonstrated the ability to work independently and effectively, adjusting to changing work demands to produce a high quality of work. Her dedication to the mission, interaction with Command Staff officers, and leadership abilities demonstrate her capacity to succeed. a. The applicant received an RFC OER based on a recent domestic incident where she was less than 100% forthright. He believed she had learned from this experience and that she is committed to excellence in all aspects of her life. She was loyal to her fellow Soldiers, extremely competent in her military occupational specialty, and committed to demonstrating her mental and physical toughness. In addition, she was highly critical and creative in her thinking process, which makes her great at being a self-starter and a great motivator to her fellow teammates. b. The applicant has demonstrated exceptional collaboration skills and accomplished key job goals through effective teamwork, leading to lasting constructive relationships. She has worked closely with the command staff on all aspects of building readiness and as a result, the command was able to successfully execute all mission essential tasks and simultaneously build readiness. 9. A Memorandum for the Commander, 335th Signal Command (Theater), East Point, GA, dated 19 May 2021, shows the applicant stated she had been advised by counsel of the basis for the contemplated action to separate her for acts of misconduct or moral professional dereliction under the provisions of Army Regulation (AR) 135-175, paragraph 2-13. She also stated she was voluntarily waiving consideration of her case before a board of officer’s contingent upon her recommendation to the Commander, U.S. Army Reserve (USAR) that she be retained in the USAR. 10. On 29 June 2021, the CG USAR, notified the applicant after carefully considering the matters she submitted in rebuttal and mitigation, that he had decided to retain her as an officer serving in this command. As such, he was discontinuing the Board of Inquiry (BOI) regarding allegations of misconduct for which she was notified by his predecessor in command (generally involving her civilian arrest and allegations that she was not forthcoming about the absence from her place of duty). a. After consulting with the Office of the Staff Judge Advocate (OSJA), it does not appear the US Army Reserve Command (USARC) or Human Resources Command (HRC) have jurisdiction over the BOI described above. However, out of an abundance of caution, I am directing OSJA to confirm this information. In the event, it becomes necessary. I will grant your request to endorse “retention” by any BOI convened by a higher command in connection with the alleged misconduct described above. b. The CG also stated that he was aware there may be unresolved absences from duty related to her recent high-risk pregnancy and the loss of a child. He stated, “please accept my condolences for your loss and my heartfelt hope you have made a full recovery from any medical issues. However, “I must counsel you to quickly resolve any discrepancies in time and attendance records to the best of your ability. Our command is focused on greatly reducing the number of unsatisfactory participants within our ranks. You are expected to be at your appointed place of duty and uphold the standards expected of a commissioned officer.” 11. 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 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. 12. 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. 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 applicants petition and available military records, the Board determined the applicant did not demonstrate by a preponderance of evidence that procedural error occurred that was prejudicial to the applicant and by a preponderance of evidence that the contents of the referred Officer Evaluation Report (OER)) are substantially incorrect and support removal. The Board found the witness statements to be compelling as a testament of her leadership and her character and commitment to her Soldiers. However, her failure to notify her chain of command under the premise, she was unaware that her command needed to know is not an acceptable excuse. There does not appear to be any evidence the contested OER was unjust or untrue or inappropriately filed in the applicant's military record. Therefore, relief was denied removing the referred Officer Evaluation Report (OER) for the period 8 September 2018 through 4 May 2019, from her military record is not warranted. 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. 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. 3. This board is not an investigative body. The Board determined despite the absence of the applicant’s evidence, they agreed the burden of proof rest on the applicant, however, she did not provide any supporting documentation and her service record has insufficient evidence to support the applicant contentions to support removal of the referred Officer Evaluation Report (OER) for the period 8 September 2018 through 4 May 2019 from her service record. 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. 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 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. Fifty percent 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. c. 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. d. 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. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210014324 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1