IN THE CASE OF:	  

	BOARD DATE:	
	DOCKET NUMBER:  AR20070004781 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant has deferred to her counsel to formulate and submit her request for reconsideration of the decision arrived at by the Board on 11 April 2006.

2.  Applicant saw and agreed to the content of the request for reconsideration as evidenced by her signature on the last page of counsel's letter to the Board.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  In counsel’s letter application to the Board, he specifically requests reconsideration of the following issues:

      a.  removal of the NCOER the applicant received for the period April 1994 through July 1994 from her official record;
      
      b.  removal of the DA-Imposed QMP Bar to Reenlistment from her official records; 
      
      c.  reconsideration by the Standby Advisory Board for lost promotions or selection to the Warrant Officer Program; and
      
      d.  reconsideration of the Board's conclusion that the applicant did not show any official results from AR 15-6 Investigations, Commander's Inquiries, Inspector General's Investigations, or Equal Opportunity complaints.

2.  Applicant's counsel states, in effect, that the applicant made repeated attempts to initiate various investigations and her requests were ignored.

3.  Counsel states that on 13 February 1994, the applicant had requested a commander's inquiry into an NCOER that was changed for the period between September 1993 and February 1994.  This new unjust NCOER was for the period ending February 1994.  On 2 March 1994, she contacted the Inspector General's (IG) office because of the lack of responsiveness regarding her request for a commander’s inquiry.  The IG sent her a request form that she submitted on 5 March 1994.

4.  On 9 May 1995, Captain (CPT) W______ E. K______, her original rater provided a statement indicating that he was reassigned and a change of rater NCOER was initiated for the applicant.  The original NCOER was submitted for final signature for 27 May 1994.  Around 14 June 1994, CPT E____ T. G______ and the battalion executive officer contacted CPT W______ E. K______ and asked him to change his rating.  They both threatened that if CPT WEK did not change his rating that it would "make him look bad…."  Counsel and applicant allege that CPT E____ T. G______ and the battalion executive officer specifically said to CPT W______ E. K______, "I don’t want to tell you what to do, but it could make you look bad…." if you don’t change the NCOER.  The Board concluded in its original decision that this statement did not "clearly and convincingly" show that CPT W______ E. K______ was "coerced or pressured" into changing his evaluation.  Counsel and applicant now state that the Board's conclusion that there was no pressure or coercion resulting from the above actions of the battalion executive officer and CPT E____ T. G______ warrants reconsideration in the interest of justice.

5.  Counsel states that because by 23 May 1995 the IG's office had not responded to her request, she made a second request for a commander's inquiry.  Counsel states that because the applicant was a Reservist, she used her Reserve chain of command to forward her request for an IG investigation.  She never received a response to her complaint.  Her repeated attempts for a Commander's Inquiry and IG investigation went unanswered.  In light of the Army's lack of responsiveness to her repeated attempts for an investigation, counsel and the applicant request the Board give greater weight to the indirect evidence of prejudice from her command.

6.  In support of her request, applicant's counsel submits the applicant's signed DD Form 149, Application for Correction of Military Record, dated 11 March 2007; a supplemental statement of the applicant is signed by counsel; a copy of the Record of Proceedings for Docket Number AR20050008511, which was considered on 11 April 2006, with a copy of a letter of transmittal and a memorandum of transmittal, both dated 17 April 2006; a copy of a memorandum addressed to the Commander, Headquarters, 483rd Transportation Battalion, Oakland, California, Subject:  Request for a Commander's Inquiry, dated 13 February 1994; a copy of a letter addressed to the applicant, with enclosure, from the Office of the Inspector General, Headquarters, 124th US Army Reserve Command, Fort Lawton, Washington, dated 2 March 1994; a copy of a handwritten memorandum from CPT W______ E. K______, Subject:  NCOER (9309 – 9402), [the applicant], dated 9 May 1995; a copy of a memorandum addressed to the Commander, Headquarters,
483rd Transportation Battalion, Subject:  Request for a Commander’s Inquiry, dated 23 May 1995; a letter addressed to the applicant from a loan processor, dated 1 July 1995; and three NCOERs with through dates of February 1994 [two versions of the same NCOER – one completed and the other not] and August 1993.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20050008511 on 11 April 2006.

2.  In the applicant's original request to the Board, she requested that the NCOER on file in her official records for the period September 1993 through February 1994 be replaced with the NCOER originally prepared for this period.  The Board considered the applicant's request and in Docket Number AR20050008511, a portion of which is under reconsideration, the applicant's request was denied.

3.  In the present request for reconsideration, the applicant's counsel prepared and submitted a "Supplemental Statement" and appended this statement to his letter to the Board and to the applicant's DD Form 149, Application for Correction of Military Record.  Reconsideration of removing the NCOER on file in her official records for the period September 1993 through February 1994 be replaced with the NCOER originally prepared for this period is no longer an issue.  It is noted the verbiage in this "Supplemental Statement" is the same as that in counsel's 16 March 2007 letter, Subject:  Request for Reconsideration [for the Applicant].

4.  The applicant essentially stated in her original appeal to the Board that CPT E____ T. G______, the rater for her NCOER which ended in July 1994, rendered a false, unjust, and biased rating on her.  The NCOER for the period April 1994 through July 1994 on file in her official records shows she was rated as the Personnel Staff NCO in duty MOS (Military Occupational Specialty) 75Z4O.  In Part III. D. the applicant was given charge of the special emphasis areas of "NCOERs, OERs, MARKS files, accident reports, flagging actions, MPRJs, and DA Form 1379" (U.S. Army Reserve Components Unit Record of Reserve Training).


5.  The DA Form 2166-7, NCO Evaluation Report, shows that her rater was CPT  E____ T. G______, her senior rater was MAJ G___ C. H_____ and her reviewer was LTC M_____ D. P______.  On this NCOER, CPT E____ T. G______ gave the applicant a "no" entry in part IVa.1. (Places dedication and commitment to the goals and missions of the Army and nation above personal welfare).  In the Bullet Comments about the applicant she wrote, "o  Frequently leaves work undone in order to leave for night job; o  Intentional disregard for following orders; o  Frequently ignored priorities assigned and took it upon herself to decide on priorities."

6.  In Part IV (Values/NCO Responsibilities), the rater gave the applicant one "Needs Improvement (Much)" rating (under Physical Fitness and Military Bearing), two "Needs Improvement (Some)" ratings (under Competence and under Responsibility and Accountability), two "Success" ratings (under Leadership and under Training).  In Part V (Overall Performance and Potential), the rater gave the applicant a "Marginal" rating.

7.  MAJ G___ C. H_____ gave the applicant a rating of "4" (with "1" being the highest and "5" being the lowest) for the applicant’s overall performance.  The senior rater rated the applicant's overall potential for promotion and/or service in positions of greater responsibility to be "Fair."

8.  LTC M_____ D. P______, the reviewer on both of these NCOERs, concurred with the rater's and senior rater's evaluation of the applicant.

9.  Even though the NCOER has a thru date of July 1994, the evidence shows it was not completed and submitted until April 1996.

10.  As indicated in a statement the applicant prepared on 12 January 2004, she essentially states that the reason she never requested an appeal of her NCOER which ended in July 1994 was that she never received a copy of the NCOER.  The evidence shows that the individual responsible for ensuring NCOERs were initiated on time, completed on time, submitted on time, and for ensuring that rated individuals received a copy of their NCOER was the applicant herself.

11.  The applicant signed the NCOER with an ending period of July 1994 on 4 April 1996; therefore, the applicant’s contention that she was unaware of the contents until 18 December 2003 is without merit.

12.  Counsel alleges that CPT E____ T. G______ was making disparaging remarks about the applicant to civilian loan officers that had been previously hired by the applicant.  CPT E____ T. G______'s animosity towards the applicant was so 

apparent that the broker refused to take part in an apparent loan transaction with CPT E____ T. G______ and did not grant a loan because of what he alleges was an apparent conflict of interest.  Counsel continues that CPT E____ T. G______ was incapable of providing an honest evaluation of the applicant and the mortgage broker had clearly seen the personal animosity that CPT E____ T. G______ possessed for the applicant.  The indication being the NCOER should be expunged from the applicant's OMPF.

13.  A civilian loan processor submitted a letter in support of the applicant's request. In this letter the loan processor stated CPT E____ T. G______ had identified herself as the applicant's commander and as such was in charge of the applicant.  After pursuing a loan application she decided to back out of doing her home loan as she put it, "this was a conflict of interest."  This conclusion was apparently arrived at by the loan processor after CPT E____ T. G______ allegedly asked such questions as, "How could she [the applicant] get into a home with her pay?"  The loan processor allegedly detected some type of animosity and/or conflict.

14.  Applicant's counsel states that the Board committed one error in its opinion which they would like to also have reconsidered.  Counsel requests that the Board reconsider its conclusion that the applicant did not show any official results from AR 15-6 Investigations, Commander's Inquiries, Inspector General's Investigations, or Equal Opportunity complaints.  He states the applicant made repeated attempts to initiate various investigations and her requests were ignored.  [Review of cases that have been considered by the Board in behalf of the applicant only show that an EO complaint was made by the applicant in regards to another action in 1990.  No EO complaint was submitted by the applicant with regards her current issues and requests.]

15.  Applicant's counsel submitted a copy of a 13 February 1994 memorandum addressed to the Commander, Headquarters, 483rd Transportation Battalion, Oakland Army Base, California, in which she requests a commander's inquiry.  She stated that her NCOER ending February 1994 was changed because CPT E____ T. G______ did not like the rating the applicant was getting.  This memorandum was submitted in support of her request to the ABCMR in Case Number AR2004104450 and again in Case Number AR20050008511.  This evidence has been considered by the Board and is not considered new evidence; therefore it will not be considered further in this record of proceedings.

16.  Applicant's counsel submitted a copy of a letter addressed to the applicant from the Inspector General, Headquarters, 124th US Army Reserve Command, Fort Lawton, Washington, dated 2 March 1994.  The applicant submitted an IG Action Request on 5 March 1994.  In the letter, the applicant was specifically told, "I will let 
you know when I have received your form and have begun on your case. Periodically, I will be contacting you to let you know what I am doing.  If you have questions, do not hesitate to contact me."  The applicant provided no records of telephone conversation(s) she may have had with the IG about her request for action – either initiated by the IG or by the applicant.

17.  Applicant and counsel have submitted a copy of a handwritten Memorandum for Record, Subject:  NCOER [the applicant], dated 9 May 1995, in which the author, CPT W______ E. K______, alleges he was asked (emphasis added) to change the applicant's NCOER and then alleges that intimidating statements were made to him by the battalion executive officer and CPT E____ T. G______.  This memorandum has been submitted and reviewed by the Board on two separate occasions.  In its original decision, the Board determined that the evidence did not "clearly and convincingly" show that CPT W______ E. K______ was "coerced or pressured" into changing his evaluation of the applicant for the period ending February 1994.

18.  Applicant's counsel submitted a copy of a 23 May 1995 memorandum addressed to the Commander, Headquarters, 483rd Transportation Battalion, Oakland Army Base, in which she repeats her request for a commander's inquiry into the allegations she made earlier about her changed NCOER with an end date of February 1994.  This memorandum was submitted in support of the applicant's request to the ABCMR in Case Number AR2004104450 and again in Case Number AR20050008511.  This evidence has been considered by the Board and is not considered new evidence; therefore it will not be considered further in this record of proceedings.

19.  Applicant and counsel submitted a copy of a letter dated 1 July 1995 in which an apparent loan processor alleges that CPT E_____ T. G______ had applied for financing with her prior broker and because CPT E____ T. G______ had allegedly asked some personal question about the applicant, the loan processor had decided there was personal conflict and animosity and she, in effect, did not want to be involved, ceased the processing of the loan for CPT E____ T. G______, sent her loan information back and the loan was not granted.  There is no evidence to show what the relationship was between the applicant and the loan processor, there is no evidence to show that the applicant filed a complaint when she became aware of the communications that allegedly went on between the loan processor and CPT E____ T. G______, and there is no evidence to show that an application for a loan was in fact submitted by CPT E____ T. G______ to the firm that the loan processor represented.

20.  The contested NCOER, with end dates of August 1993, February 1994, and July 1994, were completed on 12 November 1993, 5 July 1994, and 4 April 1996, respectively.  The deadline for the submission of a substantive appeal on these 
NCOER passed on 11 November 1998, 4 July 1999, and 3 April 2001; therefore, an appeal of these NCOER will not now be reconsidered by this Board, in accordance Army Regulation 623-205.

21.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets forth the policies and procedures for the Noncommissioned Officer Evaluation Reporting System.  Paragraph 6-6 states, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO is presumed to be administratively correct, prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation. 

22.  Paragraph 6-10 of the same regulation further states, in pertinent part, that when submitting an appeal, the burden of proof rests with the applicant and that he/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.

23.  Army Regulation 623-205 also states, in pertinent part, that appeals alleging bias, prejudice, inaccurate, or unjust ratings, or any matter other than administrative error are substantive in nature, and that substantive appeals must be submitted within 5 years of the NCOER's completion date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exemption, for example, extended hospitalization.

24.  Army Regulation 15-185 states, in pertinent part, that 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. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests removal of the NCOER she received for the period April 1994 through July 1994 from her official record; however, the contested NCOER which was completed on 4 April 1996 is well beyond the deadline for the submission of a substantive appeal.  The deadline for a substantive appeal passed on 3 April 2001; therefore, an appeal of this NCOER will not now be reconsidered by this Board, in accordance with Army Regulation 623-205.

2.  The applicant requests removal of the DA-Imposed QMP Bar to Reenlistment from her official records, reconsideration by the Standby Advisory Board for lost promotions, and selection to the Warrant Officer Program; however, since the Board 
will not now reconsider removal of the contested NCOER from the applicant's OMPF because it is beyond the deadline for a substantive appeal and the NCOER will not be removed from her file, the applicant's request for removal of her DA-imposed bar to reenlistment, promotion reconsideration, and entrance into the Army's Warrant Officer Program are moot.

3.  The applicant and counsel requested the Board to reconsider, in the interest of justice to determine if pressure and coercion were directed at CPT W______ E. K______ to change the applicant's NCOER.  In its original decision, the Board determined that the evidence did not "clearly and convincingly" show that CPT W______ E. K______ was "coerced or pressured" into changing his evaluation of the applicant for the period ending February 1994.  Having achieved the rank of captain, with the length of his service, and with the exposure and experiences that a captain normally acquires as he performs his duties, the Board is not convinced that undue pressure was exerted on him.  Had he been unduly coerced or pressured, CPT W______ E. K______ knew, or should have known, that he could see the battalion commander or a commander at a higher level of authority under the "open door policy" to lodge a complaint and/or to expose the alleged coercion.  In any event, the deadline for submitting an appeal of this NCOER passed in April 2001, five years after completion of the NCOER.

4.  The applicant and counsel request that the Board reconsider its conclusion that the applicant did not show any official results from AR 15-6 Investigations, Commander's Inquiries, Inspector General's Investigations, or Equal Opportunity complaints.

5.  In all requests submitted to the Board to date, the applicant has submitted documents indicating that she asked for a commander's inquiry, that she followed up on her request, that she submitted a request for intervention by the IG; however, when she received no response from the offices she dealt with, she did not go further up the administrative chain of command to get the action she was in need of. The applicant being a senior noncommissioned officer knew or should have known that if she did not receive a response from the office to which she submitted her request, she could go above to the next level and appeal for assistance at that level. For instance, in clarification, if she appealed to her company commander for support of some sort and it was not responded to, this individual has a superior [the battalion commander] that she could appeal to, and she could conceivably go further up the line.  The applicant has submitted no evidence to show that she did this.  Since the Board is not an investigative agency, the follow up action and the possible responses she may have received from those she appealed to for assistance will remain unknown to this Board; therefore, she is not entitled to a change to the 
conclusion that the Board arrived at that she did not show any official results from Army Regulation 15-6 Investigations, Commander’s Inquiries, IG’s investigations, or EO complaints.

5.  Although the individual who identified herself as a loan processor provided a statement in support of the applicant for removal of her NCOER with an end date of July 1994, it can not be accepted and given full weight by the Board.  There is no way of verifying that a client-customer relationship was established between this individual and CPT E____ T. G______ and the nature of the relationship that was established between this individual and the applicant.  Since the Board is not an investigative body, what was communicated, if anything was communicated by CPT E____ T. G______ to the loan processor will remain unknown to the Board, and the relationship between the applicant and the loan processor will also never be absolutely known to the Board.

6.  Based on the evidence in this case, the applicant is not entitled to have the NCOER for the period April 1994 through July 1994; the DA-Imposed QMP Bar to Reenlistment removed from her official military personnel file; reconsideration by the Standby Advisory Board for lost promotions or selection to the Warrant Officer Program; and a change to the Board's earlier conclusion that the applicant did not show any official results from AR 15-6 Investigations, Commander's Inquiries, Inspector General's Investigations, or Equal Opportunity complaints.

BOARD VOTE:

________  ________  ________  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20050008511, dated 11 April 2006.



      ___________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.

ABCMR Record of Proceedings (cont)                                         AR20070004781



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ABCMR Record of Proceedings (cont)                                         AR20070004781



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