IN THE CASE OF:	

		BOARD DATE:	  5 February 2009

		DOCKET NUMBER:  AR20080018495 


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 the Noncommissioned Officer Evaluation Report (NCOER) for the period from 1 January 2006 through 31 December 2006 be removed from her records and that upon removal she be reconsidered for promotion.

2.  The applicant states the “Rating officials are in violation of Army Regulation 623-3 (Evaluation Reporting System) rating scheme change after the rating period was over and while the original NCOER of an entirely different report was being reviewed.”  She states she never worked for the senior rater, Major (MAJ) R_s, and that the major knows nothing about her.  She states the original NCOER that was drafted reflected her rater as Captain (CPT) K__z, her senior rater as CPT W__t, and her reviewer as Lieutenant Colonel (LTC) P____r.  

3.  The applicant provides, in support of her application, copies of the contested NCOER, the NCOER she contends was prepared but not submitted, and her letter of appeal, with 10 enclosures, to the U.S Army Human Resources Command (HRC) -Indiana of the contested NCOER.

CONSIDERATION OF EVIDENCE:

1.  The applicant's military personnel records show she initially enlisted in the Regular Army on 1 December 1987 for a period of 2 years.  She served continuously on active duty and on 18 December 2000 reenlisted for an indefinite period.  She was promoted to sergeant first class effective 1 May 2003.
2.  The contested NCOER is an annual report for the period from 1 January 2006 through 31 December 2006.

3.  Part II - Authentication of this NCOER shows the rater was Chief Warrant Officer (CW4) V___y, the senior rater was MAJ R_s, and the reviewer was MAJ D___s.  Part IIIf (Counseling Dates) shows the applicant was counseled on 
10 January 2006, 20 April 2006, and 11 July 2006.

4.  In Part IVa (Army Values) of the NCOER the rater entered "no" for the applicant's loyalty, duty, selfless-service, honor, and integrity.  The rater included the Bullet comments - "has not demonstrated loyalty, honesty, or integrity to the Army, the unit, or her Soldiers" and "balked when faced with the prospect of deploying and refused to do so."

5.  In Part IVd (Leadership) of the NCOER the rater indicated the applicant needed much improvement and included the bullet comment - "refused to deploy with the Brigade in support of Operation Iraqi Freedom 06-08."

6.  The rater rated the applicant's overall potential for promotion and/or service in positions of greater responsibility as marginal.  The senior rater rated the applicant's overall performance and overall potential for promotion and/or service in positions of greater responsibility as poor.  The senior rater included the bullet comments - "do not promote," "recommend separation under QMP," "not a leader nor a follower," and "Soldier is unavailable for signature."

7.  On 15 January 2008, the applicant appealed her NCOER to the HRC - Indianapolis.  Her appeal consisted of a four page memorandum with 
10 enclosures.  

8.  The applicant's appeal included an unsigned NCOER, Enclosure 2 to her appeal.  Part II - Authentication of this NCOER shows the rater was CPT K__z, the senior rater was CPT W__t, and the reviewer was LTC P____r.  Part IIIf (Counseling Dates) shows the applicant was counseled on 10 January 2006, on 20 April 2006, on 11 July 2006, and on 16 November 2006.  This NCOER did not contain any negative comments.

9.  The rating scheme the applicant submitted with her appeal, as Enclosure 5, shows her rating scheme as of 4 February 2007.  This rating scheme shows her rater as Master Sergeant (MSG) B___s, her senior rater as CW4 D___s, and her reviewer as CPT W__t.



10.  A statement from Command Sergeant Major (CSM) C_____s, Enclosure 9 to her appeal, indicated that CW4 V___y, MAJ R_s, and MAJ D___s were not in the applicant's rating scheme.  However, the CSM did not make any comment as to who was in the applicant's rating scheme.

11.  On 25 February 2008, HRC-Indianapolis referred the applicant's appeal to the Army Special Review Board (ASRB) for review.

12.  On 28 August 2008, the ASRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the NOCER under consideration or that action was warranted to correct a material error, inaccuracy, or injustice.  The ASRB determined, by unanimous vote the overall merits of the applicant's appeal did not warrant the relief requested.

13.  Paragraph 2-5 (Rules for designating a rater) of Army Regulation 623-3 (Evaluation Reporting System) provides that a rater will be the person (immediate supervisor) in the rating chain that directs and is most responsible for the rated Soldier’s performance.  The rater will be the immediate supervisor that monitors/observes the day to day performance of the rated individual and directly guides the rated Soldier’s participation in the organization’s mission.  In the case of NCOERs a rater will be an officer or NCO of the U.S. Armed Forces or an employee of a DOD or U.S. Government agency (including nonappropriated fund rating officials).  The rater will normally be the immediate supervisor for a minimum period of 90 consecutive days.

14.  Paragraph 2–7 (Rules for designating a senior rater) of Army Regulation 623-3 provides that a senior rater will be an officer or NCO of the U.S. Armed Forces or an employee of DOD (including nonappropriated fund employees) who is senior to the rater by either pay grade or date of rank.  Members of allied forces are not authorized to be senior raters.  A senior rater will be a supervisor over all other rating officials in the rated Soldier’s chain of command or supervisory chain.  The senior rater will be the immediate supervisor of the rater and designated as the rated Soldier’s senior rater for a minimum period of 
60 consecutive days.

15.  Paragraph 2–8 (Rules for designating a reviewer) of Army Regulation 623-3 provides that NCOERs will include a reviewer who is in the U.S. Army.  The reviewer will be an officer, CSM, or sergeant major (SGM) in the direct line of supervision and senior in pay grade or date of rank to the senior rater.  Promotable master sergeants may serve as reviewers, provided they are working in an authorized CSM or SGM position.   No minimum time period is required for reviewer qualification.
16.  Paragraph 6–7 (Policies) of Army Regulation 623-3 provides that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.

17.  Paragraph 6–11 (Burden of proof and type of evidence) of Army Regulation 623-3 provides that the burden of proof rests with the appellant.  Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.

DISCUSSION AND CONCLUSIONS:

1.  Paragraphs 2-5, 2-7, and 2-8 of Army Regulation 623-3 provide the rules for designating the rater, senior rater, and reviewer in the rating scheme of an NCO.  The applicant has not submitted any evidence that shows rating officials did not comply with these rules.

2.  The applicant has not provided any evidence that MAJ R_s was not in her rating scheme during the period of the NCOER she is contesting or that he was not qualified to be her senior rater under the provisions of paragraph 2-5 of Army Regulation 623-3.  The rating scheme that she submitted with her appeal was as of 4 February 2007, a little over a month following the end of the period of the contested NCOER.  The statement from CSM C_____s did not provide any evidence as to who was in the applicant's rating scheme during the period of the contested NCOER.

3.  There is no evidence of who was in the applicant's rating scheme during the period of the contested NCOER.

4.  The applicant has not submitted any evidence that would clearly and convincingly establish that the presumption of regularity should not be applied to the contested NCOER or that action is warranted to correct a material error, inaccuracy, or injustice.



5.  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 that requirement.
  
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)                                         AR20080018495



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ABCMR Record of Proceedings (cont)                                         AR20080018495



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