IN THE CASE OF:	  

		BOARD DATE:	       19 August 2008

		DOCKET NUMBER:  AR20080002326 


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 requests, in effect, that her Noncommissioned Officer Evaluation Report (NCOER) (DA Form2166-7) for the period from August 1999 through May 2000, be removed from her Official Military Personnel File (OMPF). She also asks that the data base maintained by the Human Resources Command (HRC) be updated to show her last duty assignment as Fort McNair, Washington DC.

2.  The applicant states, in effect, that the subject NCOER was written in malice.  She further states that she did not receive a copy of the NCOER until November 2001 and contends that this report was the cause of her non-selection for the Warrant Officer Candidate School.  The applicant also states that she was reassigned from Fort Wainwright, Alaska to Fort McNair where she worked from April 2000 until July 2002.  The applicant claims that the HRC data base shows her last duty as being at Fort Stewart, Georgia.  She says that was her first assignment.

3.  The applicant provides copies of her Certificate of Release or Discharge from Active Duty (DD Form 214); an award recommendation and certificate for the Army Commendation Medal, Personnel Qualification Record, Part II 
(DA Form 2-1); and her NCOER Appeal, dated 15 May 2001.  





CONSIDERATION OF EVIDENCE:

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 Army Board for Correction of Military Records (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.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 14 September 1995, the applicant enlisted in the Regular Army.  She completed her initial training and was awarded military occupational specialty (MOS) 63B (Light Wheeled Vehicle Mechanic).

3.  On 14 February 1996, the applicant was assigned for duty as a light wheeled vehicle mechanic with the 3rd Combat Support Battalion, Fort Stewart, Georgia.

4.  On 11 June 1997, the applicant was reassigned to the 23rd Aviation Regiment, Fort Wainwright, Alaska.

5.  On 1 August 1999, the applicant was promoted to sergeant, pay grade E-5.

6.  The applicant received a Change of Rater NCOER for the 10-month period from August 1999 through May 2000.  This NCOER, as currently filed in her OMPF, reflects that she was a sergeant with a date of rank of 1 August 1999.  It evaluated her performance of duty as a light wheeled vehicle mechanic and a squad leader.  

   a.  Part III (Duty Description), of the contested NCOER, reflects, in part, that the applicant was assigned as a squad leader and was also responsible for the health, welfare, morale, professional development and training of one subordinate.  It further reflects that she received an initial counseling on 
24 August 1999 with subsequent counseling sessions on 22 December 1999 and on 21 April 2000.
   
   b.  Part IVa (Values/NCO Responsibilities), of the contested NCOER, reflects the applicant failed to maintain high standards of personal conduct on and off duty, and to support [the principles of] equal opportunity/equal employment opportunity (EO/EEO).  The bullet comments stated that she was disrespectful to superiors; verbally and physically assaulted subordinates and peers; and that she directed racially motivated statements towards enlisted personnel.  
   
   c.  Part IVb (Competence), of the contested NCOER, reflects that the applicant needed some improvement in this area due to her display of poor judgment and common sense when dealing with enlisted Soldier tasks.
   
   d.  Part IVc (Physical Fitness and Military Bearing), of the contested NCOER, reflects that she passed the Army Physical Fitness Test (APFT) in November 1999; that she maintained an adequate level of physical fitness; and that she had been on the weight control program for 1 month.
   
   e.  Part IVd ( Leadership), of the contested NCOER, reflects that the applicant needed much improvement in this area due to a lack of concern for Soldiers; failure to act according to regulations and professional standards; and use of her position for personal gain.
   
   f.  Part V (Overall Performance and Potential) of the contested NCOER, reflects a marginal potential for promotion and/or service in positions of greater responsibility.  The Senior Rater commented that she would make an excellent Nuclear, Biological, Chemical (NBC) custodian and light wheeled vehicle mechanic.  However, she was unable to control her emotions while on or off duty; lacked self discipline to maintain a military bearing at all times; had difficulty showing dignity and respect to Soldiers, peers and superiors; and she was not recommended for promotion at that time.
   
   g.  The contested NCOER was signed by both the rater and senior rater.  The applicant refused to sign the report.  The reviewer concurred with the rater and senior rater's evaluations.  All signatures were dated 19 July 2000.  

5.  On 15 May 2001, the applicant initiated an appeal of the contested NCOER.  Enclosures to this appeal included, in part, a photo copy of her Army Physical Fitness Test Card showing her last APFT on 10 March 1999; her promotion orders to sergeant, pay grade E-5, with an effective date and date of rank of 
1 August 1999; signed, but undated, copy of the contested NCOER; orders assigning her to Fort McNair with a reporting date of 14 June 2000; Certificate of Appreciation, dated 1998; a draft copy of an NCOER for a rated period commencing in June 1999; and a Command Inspection Checklist dated 
5 January 2000.  The applicant stated that she was purposely handed a copy of the contested NCOER 24 hours after she had signed out of the unit to keep her from disputing the report's contents.  If she had stayed to dispute the NCOER she would have suffered great financial loss and caused stress on her daughter. 
6.  The applicant requested that the contested NCOER be removed from her OMPF based on the following comments and argument:

   a.  that her date of rank was incorrectly reported as 15 August 1999;
   
   b.  that her last Army Physical Fitness Test was administered in March 1999 and not in November 1999 as indicated on the NCOER; 
   
   c.  that she only received counseling on the initial date;
   
   d.  that she was responsible for three Soldiers;
   
   e.  that she received "NO" ratings in Part IVa (Values/NCO Responsibilities) because she had received nonjudicial punishment (NJP) 3 days before leaving Fort Wainwright, Alaska.  She states that she had a fight with her boyfriend when she caught him cheating on her in the barracks.  She further contends that she received this rating because she is black and her boyfriend was white.  She includes a copy of an United States Army Alaska Equal Employment Opportunity Certificate of Appreciation dated 1998, recognizing her support of the command's EEO Special Emphasis Committee Multicultural Poster Contest;
   
   f.  that the "needs improvement" ratings in Parts IVb and IVd were given with the intent to ruin her career.  She provides letters of support from peers, supervisors, and government civilians to refute the ratings; and
   
   g.  that the bullet comment in Part IVe (Training) stating that she had "instructed and tested 45 personnel with realistic NBC training maintained company readiness", contradicted the bullet in Part IVd (Leadership) that indicated she lacked a genuine concern for Soldiers.

7.  The applicant also provided in her appeal of the NCOER ten statements/letters of support written in the early days of May 2000.  They speak to her good qualities as a Soldier and to her abilities to perform her duties.  Without being specific, they indicate that the applicant's conduct during a recent incident was not normal.  It appears that these statements were written on her behalf in regards to her receiving NJP.

8.  There is no available evidence of record showing that she received NJP.

9.  On 11 May 2000, the applicant was reassigned for duty at Fort McNair, in Washington DC.  

10.  A memorandum dated 10 September 2001, indicates that the applicant provided additional documents in support of her NCOER appeal, including a certified copy of her DA Form 2-1, copies of supporting evidence and electronic mail (e-mail) communications.  The e-mail communications between personnel at Fort McNair and Fort Wainwright discussed a desire to obtain an original copy of the applicant's APFT Scorecard for the purpose of assembling a Warrant Officer Candidate Packet.  There is no evidence of any finding or decision on her appeal of the NCOER.

11.  On 30 July 2002, the applicant was released from active duty for the purpose of attending civilian schooling.  She had attained the rank of sergeant, pay grade E-5, and had completed 6 years, 10 months, and 17 days of creditable active service.  Her characterization of service was honorable.  She was transferred to the United States Army Reserve Control Group (Reinforcement).

12.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), then in effect, set forth the policies and procedures for the Enlisted Evaluation Reporting System.  Paragraph 4-2 stated, in pertinent part, that an evaluation report accepted for inclusion in the official record of an NCO was presumed to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Paragraph 4-7 stated, in pertinent part, that when submitting an appeal, the burden of proof rested with the individual and that he or she must produce evidence that clearly and convincingly established that action was 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.

13.  The applicant's ERB, dated 16 July 2001, clearly shows that she was last assigned to the United States Army Signal Activity, Military District of Washington, Fort McNair, Washington DC from on or about 11 May 2000 until her release from active duty on 30 July 2002.

14.  On 2 August 2002, the applicant was awarded an Army Commendation Medal for her exceptionally meritorious service during the period from 
20 April 1999 to 20 July 2002 while assigned as a member of the United States Army Signal Activity, Military District of Washington. 






DISCUSSION AND CONCLUSIONS:

1.  The applicant has failed to provide sufficient, relevant and convincing evidence that her Change of Rater NCOER was inaccurate or unjust and should be removed from her OMPF.  It appears that the NCOER was corrected prior to filing in her OMPF to show her date of rank as 1 August 1999.  Furthermore, she has not provided any convincing evidence showing that her last APFT was in March 1999; that she was not counseled as indicated on the NCOER; or that she supervised more than one individual.  

2.  The applicant's contention that the contested NCOER was written with malice and intent to ruin her career is not supported by any evidence of record.  The certificate that she received in connection with the EEO multicultural poster contest is not convincing evidence showing that she fully supported the principles of the EO/EEO program at all times.

3.  Her being a good NBC instructor does not necessarily translate into her being a good leader. 

4.  The statements of support are noted.  However, none of these individuals were aware of the expectations of her rating chain or were in a better position to appraise the applicant’s performance than her rating chain.

5.  While the applicant's award for exceptionally meritorious service during 1999 through her release from active duty in 2002 speaks well of her; it does not mean that all of her previous service was as equally exceptional.

6.  The contested report appears to represent a fair, objective and valid appraisal of the applicant's demonstrated performance and potential during the period in question; therefore, there is no basis for removing it from her OMPF.

7.   The applicant's contention that the HRC data base is incorrect with respect to her last duty assignment is not supported by any evidence of record.  Her ERB clearly shows that she was assigned to Fort McNair for the 2 years immediately preceding her release from active duty. 

8.  In view of the above, the applicant's request should be denied.






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 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.

ABCMR Record of Proceedings (cont)                                         AR20080002326



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ABCMR Record of Proceedings (cont)                                         AR20080002326



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