ARMY BOARD FOR CORRECTION OF MILITARY RECORDS 
RECORD OF PROCEEDINGS 
IN THE CASE OF:  BOARD DATE: 8 February 2022 DOCKET NUMBER: AR20210005823 
APPLICANT REQUESTS: 
. Removal of Article 15, Uniform Code of Military Justice (UCMJ) from her official records . Removal of Officer Evaluation Report (OER) for rating period 20120803 thru 20130416 . Personal appearance before the Board 
APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 
. DD Form 149 (Application for Correction of Military Record) 
. OER removal letter by J.A.S., 28 April 2020 
. Endorsements for Rebuttal for Delay of Promotion and Referral to a Promotion 
Review Board (PRB) 
. Bio 
. Officer Record Brief (ORB) 
. (3) DA Form 67-10-1 (Company Grade Plate (O1-O3; WO1-CW2) OER)(s) 
. Orders B-08-905558 
. PRB decision, 7 June 2019 
. DA Form 67-9 (OER), 20130416 
. DA Form 2627 (Record of Proceedings Under Article 15, UCMJ) 
. DA Form 268 (Report to Suspend Favorable Personnel Actions (FLAG) 
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 stated she believes the record is unjust because she has since been promoted twice, she was involuntarily discharged from Active Duty after being non-select for promotion to captain (CPT). She was granted a waiver to join the Army Reserves immediately following her discharge from active duty. She was then boarded 

the following year for CPT. She was on the promotion list then immediately placed into a promotion retention board. A year after the promotion list was released she was retained and promoted to CPT. She believes the record is unjust and has served its purpose and she would like the board to consider removing both items from her record to allow her the opportunity to progress in her military career. She has included a letter of endorsement from her senior rater on the relief for cause OER as well. Allowing her this opportunity to move forward without those documents in her file will give her a fighting chance at each promotion level. 

3. 
The applicant provided: 

• 
OER removal letter by S., her senior rater in 2013 who assessed her potential as below center of mass with a recommendation that she not be retained in the Army; supporting the removal of that OER from her records 

• 
Endorsements for Rebuttal for Delay of Promotion and Referral to a PRB in which her chain of command endorsed her to remain on the Army Reserve promotion selection list to CPT (letters are attached in documents for review) 

• 
Bio showing her accolades in civilian and military education, award and decoration, and assignments 

• 
ORB showing her military records in a snapshot • (3) OER(s): 

• 
20161130 – 20180401 showing in Part VI (Senior Rater): Most Qualified; promote ahead of peers 

• 
20180402 – 20190622 showing in Part VI: Highly Qualified; among the top 25% of all 35 company commanders senior rated 

• 
20190623 – 20200418 showing in Part VI: Highly Qualified; among the top third of the 35 CPTs senior rated 



• 
PRB decision, showing she was retained on the fiscal year 2018 CPT, Army Reserve Non-Active Guard Reserve, promotion list on 7 June 2019 

• 
DA Form 268 showing a flag was initiated on her for commander’s investigation on 25 February 2013 



4. 
A review of the applicant’s service records shows: 


a. 
She enrolled in the U.S. Army Reserve (USAR) on 22 April 2008 as an Army Senior Reserve Officers’ Training Corps (ROTC) cadet. On 14 May 2011, she was appointed as a Reserve commissioned officer. 

b. 
On 2 October she was ordered to active duty. On 6 October 2011, she was appointed as a Regular Army commissioned officer. She had service in Afghanistan from 7 January 2013 until 6 July 2013. 

c. 
On 9 March 2013, a general officer in the applicant's chain of command notified her that he was considering whether she should she punished under Article 15, UCMJ, for violating various articles of the UCMJ (see below). 

d. 
The applicant consulted with counsel, declined trial by court-martial, and elected closed hearing. On 10 March 2013, the imposing general officer found her guilty of 


. On or about 23 February 2013, conspire with another Soldier to commit obstruction of justice, and in order to effect the object of the conspiracy delete evidentiary emails relating to her inappropriate relationship 
. Between on or about 1 January 2013 and on or about 23 February 2013, violate a lawful general order, by wrongfully having a member of the opposite sex in a single gender living area 
. Between on or about 1 November 2012 and on or about 23 February 2013, knowingly fraternize with a specialist (an enlisted person), by engaging in a sexual relationship 
. On or about 24 February 2013, wrongfully impede with an AR 15-6 investigation, by deleting evidentiary emails relating to her inappropriate relationship with a specialist 
e. 
The imposing general officer ordered the Article 15 permanently filed in the restricted section of her official military personnel file (OMPF). She elected not to appeal the finding of guilty or the punishment. 

f. 
On 16 April 2013, the applicant received a change of rater OER, covering the rating period 3 August 2012 through 16 April 2013 for her duties as female engagement team (FET) platoon leader, Headquarter and Headquarters Company (HHC), 1st Armored Brigade Combat Team (ABCT), Forward Operating Base Apache. Her rater was CPT B__, FET Chief, HHC 1st, ABCT, and her senior rater was major (MAJ) promotable S__, brigade executive officer (XO). The OER indicates this was a referred OER and comments were not provided. This OER shows in:  


(1) 
Part IV (Performance Evaluation, Professionalism), sub-part (a) (Army Values), the rater placed an X in the "NO" block of 2 out 7 Army values (Integrity and Duty). 

(2) 
Part V (Performance and Potential Evaluation), the rater placed an "X" in the "Unsatisfactory Performance - Do Not Promote" block and entered the comments (in part): Though her ability to conduct combat operations was sound, her ability to apply sound judgment off the battlefield hindered her in motivating and strengthening Soldiers under her command creating an overall toxic leadership environment. She compromised her duty to the Corps and took part in actions unbecoming of an officer which destroyed good order and discipline for the team. Her integrity was compromised 

and her moral compass fell short of the mark creating an investigation that overall relieved her of her duties as FET OIC. [Rater] cannot trust her with even the smallest mission and feel comfortable that she will accomplish it, without maximum supervision. Place her back in the next available Medical Platoon Leader position for further development and mentorship in order to groom her to be a Company XO. 

(3) 
Part VII (Senior Rater), the senior rater evaluated the rated officer's promotion potential sub-part (a) by placing an X in the "Fully Qualified" block, sub-part 

(b) 
“Below Center of Mass Retain” and sub-part (c) entered the following comments (in part): She aggressively sought to expand her overall competence to lead in combat operations, but required significant supervision to complete tasks to standard and on time. She compromised her integrity and set a poor example for her Soldiers, which contributed directly to incidents of indiscipline throughout her team. She expresses a desire and willingness to learn from her mistakes and grow into a more effective leader. With further development, [Applicant] has the potential to serve in positions of increased responsibility. 

(4) 
The rater signed the OER on 4 May 2013 and the senior rater signed it on 6 May 2013. The applicant signed on 8 May 2013. 

g. 
She was considered for promotion by the Fiscal Year 2016 Captain Army Medical Department Promotion Selection Board but she was not selected. This was her second non-selection. 

h. 
Headquarters, Department of the Army directed her involuntary separation effective 1 March 2017 in accordance with Title 10, U.S. Code, section 611a and Army Regulation (AR) 600-8-24 ( 

i. 
 On 1 March 2017, she was honorably released from active duty and transferred to her reserve unit. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 5 years and 5 months of active service this period. It also shows her reason for separation as non-selection, permanent promotion. 

j. 
Prior to her discharge from active duty, on 18 November 2016, her request for a two-time non-select waiver in order to enable her appointment as a Reserve Component officer was approved. 

k. 
On 2 March 2017, she was appointed as a Reserve Commissioned Officer of the USAR. 

l. 
She was selected for promotion to CPT by the Fiscal Year 2018 Reserve Component Army Medical Department Promotion Selection Board Results. However, her record was referred to a promotion review board. 

m. 
On 10 September 2018, the applicant's immediate commander submitted a memorandum indicating that it had come to her attention that [Applicant] has been referred to a promotion board of review for a review of her selection for the rank of Captain. The immediate commander added that she is aware of the circumstances of this referral-that is, of the errors in judgement she made early in her career-and she agreed with the disciplinary actions taken against her at that time. With that said, she believe she has since learned from those mistakes and has proven she is ready for advancement. It is therefore her recommendation to the board that the promotion review board endorse her promotion to Captain. 

n. 
On 10 September 2018, the applicant's senior commander submitted a memorandum to the President of the Promotion Review Board, Subject: Rebuttal for Delay of Promotion and Referral to a Promotion Review Board, [Applicant]. The memorandum was submitted to provide [Applicant] an endorsement to remain on the Army Reserve promotion selection list to CPT. Over the past year, she had solid character, competence, and commitment combined with continuous desire to increase technical and tactical skills as a medical officer. 

o. 
On 7 June 2019, the Secretary of the Army ordered he retention on the Fiscal Year 2018 Army Reserve Non-Active Guard Reserve, Medical Services Corps, Competitive Category, Promotion List, pursuant to paragraph 4-11 of Army Regulation (AR) 135-155 ) Promotion of Commissioned Officers and Warrant Officers Other than General Officers). 

p. On 21 August 2019, she was promoted to CPT. 

q. 
Her records contain an OER for the period 20200419 thru 20210330 showing in Part VI: Most Qualified; with senior rater comments stating: [Applicant] is #1 of 6 Task Force Marshall company commander's senior rated in three mobilizations. Absolutely promote to Major, send to in-resident Intermediate Level Education, and select for future command opportunities in the USAR due to her outstanding potential. 

r. 
There is no evidence the applicant requested a commander's inquiry in relation to the referred OER or that she submitted an appeal of this OER to the U.S. Army Human Resources Command within 3 years of the completion date. Additionally, failure to submit an appeal within this time may be excused only if an applicant provides exceptional justification to warrant this exception. The applicant provides no such justification in this case. 


5. 
By regulation, AR 15-185 (ABCMR) states 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. 

6. 
By regulation, (AR 623-105), to support removal or amendment of a report there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice. Clear and convincing evidence must be of a strong and compelling nature. 

7. 
By regulation (AR 27-10), setting aside and restoration, this is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored. The basis for any set-aside action is a determination that, under all the circumstances of the case, the imposition of the Article 15 or punishment has resulted in a clear injustice. "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier. An example of clear injustice would be the discovery of new evidence unquestionably exculpating the Soldier. 

8. 
By regulation, (AR 600-8-104) (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627 will be filed in the restricted folder. 


BOARD DISCUSSION: 
After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, letter of support and regulatory guidance were carefully considered.  
a. 
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. 

b. 
Board members noted that she violated the UCMJ; she consulted with counsel, declined trial by court-martial, and elected closed hearing, and was found guilty for conspiring with another Soldier, violating a lawful general order, fraternizing with an enlisted person, by engaging in a sexual relationship, and impeding an investigation. 


These were serious offenses, for which she received punishment. The Article 15 is properly filed in her official record and she provides insufficient reason to remove it. 
c. As for the contested OER, Board members noted that an evaluation report accepted by HQDA included in the official record of an officer is presumed to have been prepared by the proper designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. This is the case here. Board members voted to deny. 
BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING 
XX: XX: XX: DENY APPLICATION 
BOARD DETERMINATION/RECOMMENDATION: 
The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. 
X 
CHAIRPERSON 
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) 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. 


a. 
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. 

b. 
Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 


3. AR 623-105 (Evaluation Reporting System), in effect at the time, prescribes the officer evaluation function of the military personnel system and provided principles of support, standards of service, policies, tasks, rules, and steps governing all work required in the field to support the Officer Evaluation System. It also provides guidance regarding redress programs, including command inquiries and appeals. 
a. 
Paragraph 3-57 of this regulation provides the basic rule applicable to modifications of previously-submitted reports. It states, in pertinent part, that an evaluation report accepted by Headquarters, DA and included in the official record of an officer is presumed to be administratively correct, to have been prepared by the proper designated rating officials, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. It also states that requests that a report that has been accepted for filing in an officer's record be altered, withdrawn, or replaced with another report will not be honored. Exceptions are only authorized when information that was unknown or unverified is brought to light or verified and the information is so significant that it would have resulted in a higher or lower evaluation had it been known or verified when the report was prepared. 

b. 
Paragraph 6-10, contains guidance on the burden of proof and type of evidence necessary to support the submission of an OER appeal. It states, in effect, that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant must, produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph 6-6 should not be applied to 


the report under consideration and that action is 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. 
4.  AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. 
a. 
 Chapter 3 implements and amplifies Article 15, UCMJ, and Part V, Manual for Courts-Martial. It states the decision whether to file a record of NJP in the performance folder of a Soldier's official military personnel file (OMPF) rests with the imposing commander at the time punishment is imposed. 

b. 
 Paragraph 3-43 contains guidance for transfer or removal of records of NJP from the OMPF. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates there must be clear and compelling evidence to support removal of a properly-completed, facially-valid DA Form 2627 from a Soldier's record by the ABCMR. 


5.  AR 600-8-104 (Army Military Human Resource Records (AMHRR) Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR. Paragraph 3-6 provides that once a document is properly filed in the OMPF, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. Appendix B (Documents Authorized for Filing in the AMHRR and/or iPERMS) of AR 600-8-104 and the U.S. Army Human Resources Command website provide a listing of documents authorized for filing in iPERMS. A DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 5 on the DA Form 2627). Allied documents accompanying the DA Form 2627 will be filed in the restricted folder. 
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