RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:            27 SEPTEMBER 2005
      DOCKET NUMBER:         AR20050001466


      I certify that hereinafter is recorded the true and complete record
of the proceedings of the Army Board for Correction of Military Records in
the case of the above-named individual.

|     |Mr. Carl W. S. Chun               |     |Director             |
|     |Mr. Jessie B. Strickland          |     |Analyst              |


      The following members, a quorum, were present:

|     |Mr. Ronald Blakely                |     |Chairperson          |
|     |Mr. Lawrence Foster               |     |Member               |
|     |Ms. LaVerne Douglas               |     |Member               |

      The Board considered the following evidence:

      Exhibit A - Application for correction of military records.

      Exhibit B - Military Personnel Records (including advisory opinion,
if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests reinstatement to the pay grade of E-6, removal
of a “Relief for Cause” noncommissioned officer evaluation report (NCOER)
and promotion consideration to the pay grade of E-7.

2.  The applicant states, in effect, that she was unjustly punished because
she filed a complaint with the Inspector General (IG), that she was
wrongfully not afforded protection under the Whistleblower Protection Act,
that she was discriminated against, treated impartially, that she was not
trained in her new job, that she was the victim of an overbearing
supervisor and that her physical limitations were not taken into
consideration before she was unjustly reduced in rank.

3.  The applicant provides a photograph, a letter to a member of Congress,
a copy of her Record of Proceedings under Article 15, UCMJ (DA Form 2627),
a copy of a letter addressed to the Sergeant Major of the Army (SMA) from
an enlisted member of the Navy, who is also the applicant’s husband, a
letter from the command IG acknowledging her telephonic complaint on 26
September 2002, a letter from the Office of the Inspector General to her
husband indicating that his letter to the SMA had been forwarded to the
whistleblower reprisal branch, a letter from the Office of the IG (DAIG)
indicating that her complaint did not meet the timeliness criteria of the
Department of Defense (DoD) Directive, a 15-page recollection of events
prepared by the applicant, and copies of evaluation reports from 1995
through 2003.

CONSIDERATION OF EVIDENCE:

1.  She enlisted on 12 March 1985 and remained on active duty as an animal
care specialist through a series of continuous reenlistments.  She was
promoted to the pay grade of E-6 on 1 April 1999.

2.  On 13 November 2002, nonjudicial punishment (NJP) was imposed against
the applicant for dereliction in the performance of her duties by culpable
inefficiency for her failure to complete a DA Form 4187 for separate
rations, for failure to dispatch a welcome packet to an incoming Soldier,
for failure to meet NCOER suspense deadlines, for failure to meet her
suspense for hand-receipt change-over and assuming the hand receipt, and
for failure to pick up and properly in-process a newly arriving soldier.
Her punishment consisted of a reduction to the pay grade of E-5, a
forfeiture of pay, extra duty and restriction.  The forfeiture of pay,
extra duty and restriction were suspended until 11 February 2003, unless
sooner vacated.  The applicant appealed her punishment.  However, her
appeal was denied on 21 November 2002.  The imposing commander directed
that the Record of NJP (DA Form 2627) be filed on the Restricted Fiche of
her Official Military Personnel File (OMPF).

3.  She also received a “Relief for Cause” NCOER covering the period from
June 2002 through October 2002, evaluating her as the administrative
noncommissioned officer (NCO) of the largest district in the Veterinary
Command.  In Part IV, under Army Values, her rater gave her “No” ratings
under “Duty- Fulfills their obligations” and “Selfless Service: Puts the
welfare of the Nation, the Army and subordinates before their own”.  In the
bullets comments he indicated that the applicant had difficulty completing
all assigned tasks and that she places her own well-being ahead of other
soldiers.  In Part IVb and d, under “Competence” and “Leadership” he gave
her a “Needs Improvement” rating.  He indicated in his comments that she
did not meet several suspenses over a 60 day period for a hand receipt
inventory, that she did not possess time management skills and lacked
attention to detail resulting in lengthy delays in accomplishing daily
tasks.  He also indicated that she failed as a sponsor by not picking up a
new private from the airport and by not mailing a welcome packet in a
timely manner.  In Part V, under Overall Potential and Performance, her
rater gave her a “Marginal” rating.

4.  Her senior rater (SR) gave her a “Poor” rating under performance and a
“Fair” rating under potential.  He indicated that she should not be
promoted, that she had reached her full potential, that she had failed to
meet suspenses of assigned taskings, that she placed her own well-being
over that of fellow soldiers and that she had not performed to standards at
her current grade.

6.  The applicant was transferred to the Fort Story, Virginia, Veterinary
Treatment Facility, where she remained until she was honorably released
from active duty in the pay grade of E-5 on 31 March 2005 and was
transferred to the Retired List effective 1 April 2005, due to sufficient
service for retirement.  She had served 20 years and 19 days of total
active service.

7.  There is no evidence in the available records to show that the
applicant ever appealed the NCOER to the Enlisted Special Review Board
(ESRB) or that she requested a commander’s inquiry.

8.  The evidence submitted by the applicant does indicate that an IG
investigation was initiated as a result of a letter from the applicant’s
husband, also a service member, to the SMA.  The response to that inquiry
indicates that the IG determined that the NJP was based on several
incidents of poor performance that occurred prior to the protected
communication (20 July through 20 September 2002) and that the imposition
of NJP was delayed based on her complaint to the IG on 23 September 2002.
Her NJP was finalized in November 2002 and she did not submit a
whistleblower complaint until March 2003.  Additionally, the preponderance
of evidence collected and evaluated did not meet the criteria of the
Department of Defense Directive pertaining to the Military Whistleblower
Protection Act.

9.  A review of the applicant’s NCOER history reveals that the applicant
received an NCOER similar to the contested report in December 1989, while
assigned to Fort Ord, California.

10.  Army Regulation 623-205, Noncommissioned Officer Evaluation Reporting
System sets forth the policies and procedures for the Enlisted Evaluation
Reporting System  It provides, in pertinent part, that an evaluation report
accepted for inclusion in the official record of an NCO is presumed to
represent the considered opinion and objective judgment of rating officials
at the time of preparation.

11.  Paragraph 4-7 of that regulation states, in pertinent part, that when
submitting an appeal, the burden of proof rests with the applicant and that
he or she must produce evidence that establishes clearly and convincingly
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.

12.  Army Regulation 27-10 provides the policies and procedures for the
administration of military justice within the Army.  It provides, in
pertinent part, that nonjudicial punishment may be set aside and all rights
and privileges restored.  This is an action whereby the punishment or any
part  of the punishment is set aside and any rights, privileges or property
affected by the punishment is restored to the individual concerned.  NJP is
“wholly set aside” when the commander who imposed the punishment.  A
successor-in-command, or a superior authority sets aside all punishment
imposed upon an individual under Article 15.  The basis for any set aside
action is a determination that, under all of the circumstances of the case,
the punishment has resulted in a clear injustice.  Clear injustice means
there exists an unwaived legal or factual error, which 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.
13.  Title 10, United States Code, provides, in pertinent part, that
enlisted personnel may be advanced in grade to the highest grade
satisfactorily held, as determined by the Secretary of the Army, upon
completing 30 years of service.  This service may consist of combined
active service and service in the USAR Control Group (Retired).

DISCUSSION AND CONCLUSIONS:

1.  The contested report appears to represent a fair, objective and valid
appraisal of her demonstrated performance and potential during the period
in question.  The report also appears to have been prepared in accordance
with the applicable regulation and by the appropriate rating officials.
Therefore, there is no basis for removing the report from her OMPF.

2.  The NJP imposed against the applicant also appears to have been
administered in accordance with applicable laws and regulations with no
indication of any violations of the applicant’s rights.  The punishment
imposed was not unjust nor disproportionate to the offense committed.
Accordingly there appears to be no basis to remit her punishment.

3.  The applicant’s contention that she was not afforded the protection she
was entitled for submitting an IG complaint has been noted and also appears
to be without merit.  The evidence submitted by the applicant with her
application indicates that the IG did a preliminary investigation and found
that the applicant submitted her complaint after she had committed the
offenses and NJP was being contemplated.

4.  It is also noted that the applicant had the option of requesting a
commander’s inquiry regarding her NJP and NCOER if she believed that she
was being treated unfairly or improperly.  However, there is no evidence to
suggest that she exercised that right.

5.  It also appears that the offenses for which she was accused were
preventable on her part and that they were tasks which should have
presented no degree of difficulty for an NCO with the applicant’s years of
experience to accomplish.

6.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
appear, that the record is in error or unjust.  The applicant has failed to
submit evidence that would satisfy this requirement.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__RB ___  ___LF___  ___LD __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable
error or injustice.  Therefore, the Board determined that the overall
merits of this case are insufficient as a basis for correction of the
records of the individual concerned.





            ____Ronald Blakely__________________
                    CHAIRPERSON




                                    INDEX

|CASE ID                 |AR20050001466                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2005/09/27                              |
|TYPE OF DISCHARGE       |(HD)                                    |
|DATE OF DISCHARGE       |2005/04/01                              |
|DISCHARGE AUTHORITY     |AR 635-200                              |
|DISCHARGE REASON        |RETIREMENT                              |
|BOARD DECISION          |(DENY)                                  |
|REVIEW AUTHORITY        |AR 15-185                               |
|ISSUES                  |325/VOID NJP                            |
|1.133.0300              |                                        |
|2.111.0005              |221/VOID NCOER                          |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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