IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20220003249 APPLICANT REQUESTS: removal of the DA Form 67-9 (Officer Evaluation Report (OER)) covering the period 18 December 2012 through 17 December 2013 from her Army Military Human Resource Record (AMHRR). 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) * DA Form 67-9 * Trial Defense Service, Army National Guard (ARNG), Memorandum (Request for Removal of Suspension of Favorable Personnel Action (Flag) under Army Regulation 600-8-2 (Suspension of Favorable Personnel Actions (Flag)), 15 August 2014 * ARNG Medical Detachment Memorandum for Record (Referred OER for (Applicant)), 3 August 2021 * ARNG Medical Detachment Memorandum for Record ((Applicant) Referred OER), 10 August 2021 FACTS: 1. The applicant did not file within the 3-year time frame provided in Title 10, U.S. 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 her OER was categorized unjustly as referred during the period of a Judge Advocate General (JAG) investigation before the investigation was adjudicated. The investigation found she was without fault. 3. She was appointed as a Reserve commissioned officer in the Medical Service Corps in the rank/grade of second lieutenant/O-1 in the ARNG and executed the oath of office on 17 December 2010. She was promoted to the rank/grade of first lieutenant (1LT)/O-2 effective 17 June 2012. 4. She received the referred OER covering the period 18 December 2012 through 17 December 2013 on 4 February 2014, which addressed her duty performance as the Platoon Leader, Treatment Platoon, 297th Area Support Medical Company, San Mateo, CA. Her rater was the company commander, Captain (CPT) . , and her senior rater was the battalion commander, Lieutenant Colonel (LTC) . . Her rater and senior rater digitally signed the referred OER on 30 December 2013 and 3 February 2014, respectively. The applicant digitally signed the OER on 4 February 2014. The OER shows in: a. Part Ih (Reason for Submission), the entry "Annual"; b. Part IId (This is a referred report, do you wish to make comments?), a checkmark was placed in the appropriate box, signifying to the applicant that she was receiving a referred report. In that same block, a checkmark was placed in the "Yes" box, indicating the applicant wished to make comments; c. Part Va (Performance and Potential Evaluation – Evaluate the Rated Officer's Performance During the Rating Period and His/Her Potential for Promotion), an "X" was placed in the "Other (Explain)" box. The rater entered the following comment: "[Applicant] is currently going through an investigation on an ADCO [Alcohol and Drug Control Officer] for her surgery where she received 2 out of 3 drugs she is allergic to that they failed to enter in her record, which is why this is a referred OER"; d. Part VIIa (Senior Rater – Evaluate the Rated Officer's Promotion to the Next Higher Grade), an "X" was placed in the "Other (Explain below)" box; e. Part VIIb (Potential Compared with Officers Senior Rated in Same Grade), her senior rater marked "Below Center of Mass – Retain"; and f. Part VIIc (Comment on Performance/Potential), her senior rater entered the following comments: [Applicant] is an outstanding officer. Her professionalism has led her platoon into completed success with 100% passing of the APFT [Army Physical Fitness Test] with an average score of 230. Her role in Operation Total Chaos was unequalled as her platoon performed 100% of all 3 of 4 METL [Mission Essential Task List] Tasks. [Applicant] is currently going through an ADCO investigation where she had surgery. 2 of the 3 drugs given to her she is allergic to, so they are not putting it in her medical records as medication given. She should not be held accountable for any limits to her career due to this incident. [Applicant] is a true professional and has not allowed this investigation to get her down. She should be promoted ahead of peers and be put in a higher position of responsibility once the investigation is completed.? 5. In an undated document, she submitted the following comments: At my ARNG Drill [inactive duty training assembly] in January of 2013, I took a UPL [Unit Prevention Leader – should read urinalysis] test 2 days after I had foot surgery. In February of 2013, I was informed that my UPL was positive. In turn, I supplied my chain of command with my prescriptions as well as a letter from my surgeon documenting what I was prescribed. Later, I was informed the drugs that were present in my urine were not on my prescription. I went back to my anesthesiologist to request the anesthesia record used during my procedure. I can only speculate the drugs that I tested positive for were given to me while I was anesthetized. I also have further documentation showing that I do have an allergy and a negative reaction to the narcotics in question, hydrocodone and hydromorphone. I initiated an IG [Inspector General] complaint in order to have this rectified, and after they completed their investigation JAG and Trial Defense Services were recommended to me. I have done everything that my unit and my chain of command have asked me, and I will continue to do so. I maintain and insist that I did not take these medications. I will not admit to something that I did not do. 6. A review of her AMHRR shows the referred OER is filed in the performance folder. 7. Her records are void of documentation and she did not provide any evidence showing a Commander's Inquiry was requested or conducted. 8. Her AMHRR does not contain documentary evidence of an investigation as mentioned by the applicant and noted in her contested OER. Additionally, there is no evidence that she appealed the contested OER to the U.S. Army Human Resources Command and the Officer Special Review Board. 9. She provided: a. a ARNG Trial Defense Service memorandum (Request for Removal of Suspension of Favorable Personnel Action (Flag) under Army Regulation 600-8-2), 15 August 2014, which requested removal of the flag against her on or around 10 August 2013. The memorandum noted she was notified that an adverse flag was initiated against her because of an administrative separation regarding a positive urinalysis. It further noted the California Adjutant General had declined to move forward with her separation case; b. a self-authored memorandum for record (Referred OER for (Applicant)), 3 August 2021, wherein she noted: As a 1LT under the maiden name of . , I was rated during the period of 20121218 to 20131217 [18 December 2012 through 17 December 2013] by my Rater CPT and Senior Rater LTC . This OER was wrongly flagged as a Referred OER. During this time period I was being investigated by JAG for a situation which would be adjudicated in my favor. My Senior Rater at the time, LTC , was advised by JAG as well as OPM (Office of the Provost Marshal) not to refer this OER as the situation in question was still under investigation. She decided against this advice and flagged the OER regardless. Please refer to AR [Army Regulation] 623-3 [Evaluation Reporting System], para[graph] 3-9 and para[graph] 3-27. The OER itself is complimentary and accurately reflects my work as a 70B (Health Services Administration) Officer. Shortly after this OER was completed, and I signed it as recognition of receipt, the case against me was decided in my favor. I have continued to serve the California Army National Guard honorably as an Officer, even earning a second AOC [area of concentration] as 65D, Physician Assistant. I am formally requesting this OER be removed as it was done incorrectly and against expert advice. It has the potential to be harmful to a lucrative career, ultimately degrading the ARNG fighting force. I have communicated with my Rater, now MAJ [Major] , who agrees with this assertion and is willing to help with its complete resolution. c. a memorandum for record ((Applicant) Referred OER), 10 August 2021, from her then-company commander wherein he noted: I was [Applicant's] Rater for the period of 20121218 thru 20131217 [18 December 2012 through 17 December 2013]. At the conclusion of the above rating period, then [Applicant] was flagged and had an ongoing investigation with the Medical Review Officer (MRO) for a prescription drug. Upon submission of the Officer Evaluation Report (OER) for this period, the results of the investigation had not been concluded and the senior rated directed that the report be completed as referred evaluation in violation of AR [Army Regulation] 623-3, paragraph 3-5. After submission of the above report, it was determined that then [Applicant] was legally prescribed a Schedule II prescription medication by a licensed medical professional and the MRO was closed in then [Applicant's] favor. As the rating officer at the time, I now know the above mentioned OER was in violation of the regulation and can have a negative impact on now [Applicant's] career. I concur with [Applicant's] memorandum requesting that her OER be removed from her file. 10. She was promoted to the rank/grade of CPT/O-3 effective 27 September 2016. She is currently serving with the ARNG Medical Readiness Detachment, as a physician assistant. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found that relief was warranted. The Board carefully considered through counsel 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 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 agreed the applicant’s chain of command concurred with removal after the applicant was cleared of any misdoings based on having been legally prescribed a Schedule II prescription medication by a licensed medical professional for her surgery. Based on this the Board granted full relief. 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. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 X X X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by removing from her Army Military Human Resource Record (AMHRR) the officer evaluation report (OER) covering the period 18 December 2012 through 17 December 2013 and provide a memorandum of record as unrated time. 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, U.S. 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 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 ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. 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. 3. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. It provides principles of support, standards of service, and policy governing all work required, including Army evaluation policy and guidance regarding redress programs, which include Commander's Inquiries and appeals. a. Paragraph 1-11 (Commander's or Commandant's Inquiry) states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. b. Paragraph 3-27 (Referred DA Form 67-10 Series) states OERs with the following entries are referred or adverse reports, such as any negative or derogatory comments contained in Parts IV, V, or VI of the OER. Such OERs will be referred to the rated officer by the senior rater for acknowledgment and an opportunity to comment before being submitted to Headquarters, Department of the Army (HQDA), (see Department of the Army Pamphlet 623-3 (Evaluation Reporting System) for detailed instructions and process for handling referred OERs). The rated Soldier's participation in an official investigation and/or providing investigating officials information protected under Public Law 101-12, known as the Whistleblower Protection Act of 1989, and/or information provided to officials as part of official or unofficial investigations will not be mentioned in Army evaluation reports. c. Paragraph 3-29 states the referral process ensures the rated Soldier knows his/her OER contains negative or derogatory information and affords him/her the opportunity to sign the evaluation report and submit comments, if desired. (1) The senior rater will refer a copy of the completed OER (an OER that has been signed and dated by the rating officials) to the rated Soldier for acknowledgment and comment. (2) Upon receipt of the rated officer's acknowledgment (for example, receipt of a signed OER, email, signed certified mail document, signed acknowledgment statement accompanying memorandum, submission of signed comments, and so forth), the senior rater will enclose it, any written comments provided by the rated officer, and the referral memorandum, with the original OER for forwarding to the reviewer (if applicable). (3) If the senior rater decides the comments provide significant new facts about the rated Soldier's performance that could affect the evaluation of the rated Soldier, he or she may refer the comments to the other rating officials, as appropriate. The rating officials, in turn, may reconsider their evaluations of the rated Soldier. The senior rater or reviewing official will not pressure or influence another rating official. Any rating official who elects to raise their evaluation as a result of this action may do so. However, the evaluation may not be lowered because of the rated Soldier's comments. If the OER is changed but still requires referral, the OER will again be referred to the rated Soldier for acknowledgment and the opportunity to provide new comments, if desired. Only the latest acknowledgment ("YES" or "NO" on OER signed by the rated Soldier) and the rated Soldier's comments, if submitted, will be forwarded to HQDA. d. Paragraph 4-7 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. e. Paragraph 4-8 (Timeliness) states because evaluation reports are used for personnel management decisions, it is important to the Army and the rated Soldier that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. Substantive appeals will be submitted within 3 years of an OER's "THRU" date. f. Paragraph 4-11 (Burden of Proof and Type of Evidence) states 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: (1) the presumption of regularity will not be applied to the report under consideration; and (2) action is warranted to correct a material error, inaccuracy, or injustice. g. Paragraph 4-11d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides procedural guidance for completing and submitting evaluation reports and associated support forms to the Department of the Army. a. If a referred OER is required, the senior rater will place an "X" in the appropriate box in Part IId of the completed OER. The OER will then be given to the rated officer for signature and placement of an "X" in the appropriate box in Part IId. b. The rated officer may comment if he or she believes the rating and/or remarks are incorrect. The comments must be factual, concise, and limited to matters directly related to the evaluation rendered on the OER; rating officials may not rebut rated officer's referral comments. c. The rated officer's comments do not constitute an appeal. Appeals are processed separately. Likewise, the rated officer's comments do not constitute a request for a Commander's Inquiry. Such a request must be submitted separately. 5. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the Official Military Personnel File (OMPF), it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 6. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policies governing the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the OMPF, finance-related documents, and non-service related documents deemed necessary to store by the Army. a. Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) contains the list of all documents approved by the Department of the Army and required for filing in the AMHRR and/or interactive Personnel Electronic Records Management System. Appendix B states the DA Form 67-9 and DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) Officer Evaluation Report) are filed in the performance folder of the Soldier's OMPF. //NOTHING FOLLOWS//