RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  19 July 2007
	DOCKET NUMBER:  AR20070004262 


	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.  


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst


The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Mr. Robert J. Osborn, II

Member

Mr. Michael J. Flynn

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 the removal of a Bar to Reenlistment, removal of three Noncommissioned Officer Evaluation Reports (NCOER) and counseling statements, and the enforcement of a previously approved request for reenlistment.

2.  The applicant provided her statement through counsel. 

3.  The applicant provided additional documentary evidence through legal counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests that the removal of the applicant's bar to reenlistment, three NCOERs and counseling statements, and the enforcement of the applicant's previously approved request for reenlistment.

2.  Counsel states the command used the bar to reenlistment as a reprisal for an Equal Opportunity (EO) complaint that the applicant submitted and that the bar itself was inaccurate.  Counsel further states that the applicant had not received any negative counseling in the past, she was harassed for having a physical profile, and that the same company commander who approved the bar had approved her request for reenlistment three months earlier.  Counsel concludes that the applicant was not counseled on her performance and that her NCOERs reflect that she is fully qualified in her primary occupational specialty (PMOS).

3.  Counsel provides documentary evidence that includes a Department of the Army (DA) Form 4126-R (Bar to Reenlistment Certificate), DA Form 4126 (Developmental Counseling Form), DA Form 7279-R (Equal Opportunity Complaint Form), DA Form 3349 (Physical Profile, DA Form 4187 (Personnel Action) Request for Reenlistment, DA Form 1059 (Service School Academic Evaluation Report), DA Form 2166-7 (NCO Evaluation Reports), and a DA Form 1559 (Inspector General Action Request) in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show that she initially entered into the AGR program on 6 July 1976.  Records also show that the applicant held MOS 42A (Human Resources Specialist).  The highest grade she attained was sergeant/pay grade 
E-5.  Records further show the applicant was assigned to Headquarters and Headquarters Detachment, 321st Military Intelligence Battalion, Austin, Texas, on 1 June 2004. 

2.  On 2 June 2005, the applicant received her first contested NCOER and refused to sign it.  This contested report is identified as a 12 month annual rating for the period June 2004 through May 2005. 

3.  The rater placed an "X" in the Needs Improvement box in Part IVb (Competence) and provided the following comments "does not possess the necessary skills to accomplish daily personnel and administrative functions", "failed to meet required suspense and complete tasks that have been assigned", and "failed to obtain necessary computer training required to perform and complete daily duties."

4.  The rater placed an "X" in the Needs Improvement box in Part VIc (Physical Fitness and Military Bearing) and provided the following comments "failed the two-mile run of the APFT for the second consecutive time and was enrolled in remedial PT program", and "failed to provide required PT plan for fitness improvement and improve on the 2 mile run."

5.  The rater placed an "X" in the Needs Improvement box in Part VId (Leadership) and provided the following comments "lacks initiative and motivation as an NCO to provide direction to subordinate soldiers" and "lacks the knowledge on how to effectively communicate and instruct soldiers in their duties."

6.  The rater placed an "X" in the Marginal box in Part Va (Overall Performance and Potential).

7.  The senior rater (SR) placed an "X" in the number 4 (Fair) box indicating the applicant's overall performance and in the number 4 (Fair) indicating the applicant’s overall potential.  The SR provided the following comments: "Conscientious, dedicated, and adaptive", "Needs remedial training, motivation, and initiative to be successful at current duty position", "Has the potential to perform duties as section sergeant", and "Groom this Sergeant for Staff Sergeant."

8.  The applicant refused to sign the first contested NCOER.  There is no evidence that the applicant appealed this NCOER to the Enlisted Special Review Board (ESRB).

9.  On 22 June 2005, the applicant received developmental counseling from her supervisor, a senior human resources sergeant.  The counselor stated, in effect, that the applicant was not performing to standards in the areas of MOS competence, leadership, physical fitness, and training.  The back page of the developmental counseling form that describes the plan of action and assessment of the plan was not available for review with this case.

10.  On 14 October 2005, the applicant obtained a physical profile from a military medical treatment facility (MTF) due to knee pain thus preventing her from running the 2-mile run portion of the Army Physical Fitness Test (APFT).

11.  On 29 November 2005, the applicant submitted an EO complaint against her immediate supervisor.  In her complaint, the applicant stated, in effect, that she was the only female in the organization and not treated the same way others were.  The applicant further states that the supervisor showed favoritism towards another Soldier, that he kept asking her for her running profile, and that she was not normally invited to section meetings.  

13.  The findings and conclusions of the applicant's EO complaint are not available for consideration with this case.

14.  On 1 March 2006, the applicant received her second contested NCOER.  This contested report is identified as a 10 month change of rater rating for the period June 2005 through February 2006.  

15.  The rater placed an "X" in the Success box in Part IVb through Part IVf and placed an "X" in the Fully Capable box in Part Va (Overall Performance and Potential).  The Senior Rater (SR) placed an "X" in the number 3 (Successful) box indicating the applicant's overall performance and in the number 3 (Superior) indicating the applicant’s overall potential.  

16.  The applicant signed the second contested NCOER.  There is no evidence that the applicant appealed this NCOER to the ESRB.

17.  On 24 June 2006, the applicant requested reenlistment per Chapter 8 of Army Regulation 140-111 (Army Reserve Reenlistment Program) on a DA Form 4187 (Request for Personnel Action).  The request, which reflected her last APFT date as 19 May 2006, was signed by her Commander who checked the "Recommend Approval" block and dated the DA Form 4187 on 15 June 2006
[9 days earlier than the applicant].

18.  On 18 September 2006, the applicant received her third contested NCOER. The contested report is identified as a 4 month annual rating for the period March 2006 through August 2006.

19.  The rater placed an "X" in the Needs Improvement box in Part IVb (Competence) and provided the following comments "struggled to grasp the technical skills needed to operate automated systems in her daily duties", "does not possess the knowledge necessary to perform tasks without direct supervision", and "completed tasks always required additional work by others before going higher."

20.  The rater placed an "X" in the Needs Improvement box in Part IVf (Responsibility and Accountability) and provided the following comments "refused to acknowledge her initial counseling which explained her duties, responsibilities, and performance expectations", "does not take responsibility for her actions; but will instead argue about the validity of the counseling", and “failed to properly clear weapon resulting in a near incident while cleaning her weapon."

21.  The rater placed an "X" in the Marginal box in Part Va (Overall Performance and Potential). And the Senior Rater (SR) placed an "X" in the number 4 (Fair) box indicating the applicant's overall performance and in the number 4 (Fair) indicating the applicant’s overall potential.  The SR provided the following comments: "has been marginal in meeting obligations with regard to helping the needs of the unit", "although giving an effort, has not yet developed those personal characteristics that would enhance effectiveness", and "not aware that each individual's attitude has an effect on all members of the company; does not go through proper channels." 

22.  On 20 September 2006, the Commander, Headquarters and Headquarters Detachment, 321st Military Intelligence Battalion initiated a Bar to Reenlistment Certificate citing the applicant's substandard performance, aversion of the use of automated systems, lack of MOS knowledge and skills, marginal NCOERs, APFT failures, and numerous negative counseling as the relevant indicators for un-trainability and unsuitability.

23.  On 21 September 2006, the applicant submitted a DA Form 1559 (Inspector General Action Request), requesting assistance in reviewing the processing of her bar to reenlistment. 



24.  On 11 October 2006, the applicant received an email from the Command Sergeant Major, 321st Military Intelligence Battalion, informing the applicant that if she wished to request a Commander Inquiry, she would need to submit a written memorandum stating what type of investigation and the specific allegations.

25.  On 19 October 2006, the Commander, 321st Military Intelligence battalion recommended approval of the bar to reenlistment and forwarded the action to the Commander of Military Intelligence readiness Command.

26.  On 13 November 2006, the applicant received her Service School Academic Evaluation Report which shows that she had attended the common core portion of the Basic Noncommissioned Officer Course (BNCOC), Course 001-07, during the period 24 October 2006 to 13 November 2006.  The report reflected she achieved course standards and received a satisfactory rating in written and oral communications, leadership skills, contribution to group work, and research ability

27.  On 8 March 2007, the Office of the Inspector General (IG), Fort Belvoir, Virginia, informed the applicant that the IG reviewed the bar to reenlistment and determined that it was procedurally correct and that her case was closed.

28.  Paragraph C-6 of Field Manual (FM) 22-100 (Army Leadership) prescribes that organizational readiness and mission accomplishment depend on every member's ability to perform to established standards.  Supervisors must mentor their subordinates through teaching, coaching, and counseling.  Leaders coach subordinates the same way sports coaches improve their teams:  by identifying weaknesses, setting goals, developing and implementing plans of action, and providing oversight and motivation throughout the process.  To be effective coaches, leaders must thoroughly understand the strengths, weaknesses, and professional goals of their subordinates.

29.  Army Regulation 623-205 prescribes the enlisted evaluation function of the military personnel system.  Paragraph 3-2 of this regulation states that reports are submitted on all NCOs in the grade of SGT through CSM.  Paragraph 3-2d states that rating officials directly affect a rated NCO's performance and professional development.  Thus, these officials must ensure that the rated NCO thoroughly understands the organization, its mission, his or her role in support of the mission, and all of the standards by which performance will be judged.


30.  Paragraph 3-2g of Army Regulation 623-205 states that rating officials have a responsibility to balance their obligations to the rated NCO with their obligations to the Army.  Rating officials must make honest, fair evaluations of the NCOs under their supervision.  On the one hand, they must give full credit to the rated NCO for his or her achievement and potential.  On the other hand, rating officials are obligated to the NCO and the Army to be honest in their evaluations.  Selection boards and career managers need balanced evaluations in order to make intelligent decisions.

31.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), paragraph 6-6 states an NCOER accepted for inclusion in an NCO’s official record is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 6-10 states the burden of proof in an NCOER appeal rests with the applicant.  Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.

32.  Army Regulation 601-280 (Army Retention Program), paragraph 3-7 pertains to Commander’s evaluation of Soldiers for continued service.  Commanders should evaluate all potential reenlistees under the “whole person” concept. Those Soldiers who are not considered suited for future military service should be considered for immediate administrative separation or initiation of a bar to reenlistment under the provisions of chapter 8 of this regulation.  Some of the factors considered under the “whole person” concept are recent nonjudicial punishment, repetitive nonjudicial punishment, low aptitude area scores, low education achievement in combination with a pattern of disciplinary incidents, low evaluation reports, slow rank progression resulting from a pattern of marginal conduct or performance, potential for further service, and a combination of any or all of the above factors.  This is a commander’s guideline to assist in evaluating the potential reenlistee. 

33.  Army Regulation 601-280 (Army Retention Program) states that untrainable Soldiers will be identified as soon as possible with a view toward eliminating them from the service.  When discharge under administrative procedures is not warranted, action will be taken under this regulation to bar the soldier from further service with the Active Army.  These soldiers are often identified by failure to perform the basic tasks required of their PMOS, or loss of qualification in PMOS, and the Soldier’s inability to be retrained.  Additional indicators include: failure to achieve individual weapons qualification, second consecutive failure of the APFT, and substandard evaluations.  Soldiers who meet the minimum standards for their present rank but lack the potential to become a supervisor or senior technician may be deemed untrainable.  The same Army Regulation also states that unsuitable Soldiers will be identified early in their military service with a view toward elimination from the service.  When administrative discharge is not warranted, action will be taken under this chapter to bar the Soldier from further service with the Active Army.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the NCOERs were issued as reprisal for her filing an EO complain was carefully considered and determined to be without merit.  Although, the applicant's records indicate that she filed an EO complaint against her chain of command, there is no evidence that the applicant's claims were substantiated.  Additionally, there is no evidence that the NCOERs rendered to the applicant were issued in reprisal to the applicant's EO complaint.

2.  Although the contested counseling statement dated 22 June 2005 is missing the second page which clarifies how the applicant reacted to the leader's plan of action, this counseling was in fact a culmination of the supervisor's observation of the subordinate and his continuous counseling.  Records show that the applicant was counseled on numerous occasions prior to receiving the negative counseling statement.  Records also show that the entry on the third contested NCOER "refused to acknowledge her initial counseling which explained her duties", do not support removal of the counseling statement. 

3.  The applicant's contention to remove the three NCOERs from her records was carefully considered and determined not to have merit.  There is no evidence and the applicant has not provided sufficient evidence showing that the ratings were not the objective opinions of the rating officials at the time the reports were rendered.  

4.  The NCOERs were prepared and processed in accordance with applicable regulations.  Each entry that reflected the applicant "Needs Improvement" was supported with bullet comments by the rater that justified the marking.  Each entry of "Marginal" rating by the rater or "Fair" rating by the senior rater was also supported by factual and bullet comments.  Evidence shows the applicant failed the APFT, was periodically counseled, did not show technical improvement, and did not respond positively to performance or developmental counseling. 

5.  The unit commander, charged with the responsibility of enforcing an aggressive retention program has clearly identified the applicant as neither trainable nor suitable.  The applicant's APFT failures, poor performance, lack of potential to become a supervisor, shirking responsibility, apathetic behavior, inability to train for the job, non-competitiveness for promotion, and slow rank progression resulting from poor performance supports the unit commander’s decision to bar the Soldier from reenlisting in the Army.  The applicant's records also show that the Inspector General determined that the bar to reenlistment was procedurally sound.  The applicant's contention is therefore determined not have merit.

6.  The applicant's contention that the request for reenlistment which was previously approved be enforced was also considered.  Requests for reenlistment must be approved by appropriate authorities.  In the case of the applicant, her immediate commander recommended approval; however, there is no evidence that the approving authority took action on this request.  Subsequent to the commander's recommendation for approval of the applicant's request for reenlistment, he initiated a Bar to Reenlistment which was determined to have been processed in accordance with applicable regulations.  Therefore, there is no basis for enforcement of her request for reenlistment.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_MJA___  _RJO___  _JTM____   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.



__John T. Meixell_________
       CHAIRPERSON

INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.