IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20090020595 


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 removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 1 May 2007 through
13 November 2007 from her Official Military Personnel File (OMPF).

2.  The applicant states the document contains several administrative errors and a false statement that she refused to sign the document when in fact she never saw the original report.  She states her rating chain signed the report and forwarded the report without following the guidelines of Army Regulation 623-3 (Evaluation Reporting System).

3.  She states her rater and senior rater knew she was present for duty when the evaluation report was sent out and that no one has been able to provide evidence they attempted to contact her.  She states now the Army Special Review Board (ASRB) has accused her of refusing to sign the report, which is unjust.

4.  The applicant provides:

* four memoranda from the Human Resources Command (HRC), St. Louis, MO (HRC-STL) returning her evaluation reports and asking for additional statements
* results from the ASRB
* formal equal opportunity (EO) complaint summary memorandum
* various memoranda signed by members of her chain of command, including statements from her rating chain reference errors in the report
* sign-in roster showing she was present for duty on the day the report was forwarded to HRC
* DA Form 200 (Transmittal Document) transmitting the original report to HRC-STL
* DA Form 2166-8 with errors and missing signatures, which is filed in her OMPF
* DA Form 2166-8 she states she was forced to sign which HRC-STL refused to file (revised report signed on 9 April 2008)

CONSIDERATION OF EVIDENCE:

1.  The applicant's available records indicate she initially entered military service in 1988.  She is currently a member of the U.S. Army Reserve (USAR) serving on active duty in an Active Guard Reserve (AGR) position.  She was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 January 2002.

2.  The applicant’s OMPF contains a change of rater NCOER for the period
1 May 2007 through 13 November 2007 which indicates the report covered
6 rated months.  While the rater, senior rater, and reviewer all signed the report, none of the signatures reflect a “date” signed.  The report is also not signed by the applicant and contains the following statements from the rater:

* Competence - knowledgeable [sic] in the supply arena
* Leadership - can always be counted on and available to handle Soldier supply issues
* Training - always willing to train Soldiers in supply-related issues

3.  The senior rater comments included:

* Does a satisfactory job with meeting suspenses
* Supply room kept neat and orderly
* Promote if room
* Soldier refused to sign evaluation

4.  According to documents provided by the applicant, on 22 January 2008, her unit Human Resources Sergeant forwarded her change of rater NCOER for the period ending 13 November 2007 to officials at HRC-STL.

5.  On 5 February 2008, the applicant met with several members of her chain of command, including her brigade commander, who was the reviewer on her original report.  Neither her rater nor her senior rater was present at the meeting.  


During the meeting two NCOER's were discussed, one of which was the NCOER the applicant is now appealing.  The applicant noted there were administrative errors on the evaluation report for the period 1 May 2007 through 13 November 2007 and indicated she was not properly counseled concerning the report.  An agreement to correct the administrative errors on the report in question and to provide the applicant with an opportunity to sign the report was reached.

6.  On 9 April 2008 the applicant’s brigade commander signed a memorandum addressed to HRC-STL asking that a revised report for the period 1 May 1007 through 13 November 2007 be inserted into the applicant’s OMPF to replace the previously-submitted report.  The brigade commander noted the original report had several errors, including a misspelling of the applicant’s name, a missing “P” code indicating the applicant had 3 months of nonrated time during the report period, and that the report incorrectly noted the applicant had refused to sign the report in question.  He stated he had directed the applicant’s rating chain to redo the report, make the necessary corrections, and allow the applicant to review and sign the NCOER.

7.  The revised report reflected a 3-month rating period with a code of “P” to explain the 3 months of nonrated time.  The “P” code indicates the applicant was on convalescent leaving during the nonrated time.  The report reflected the digital signature of the applicant and members of her rating chain and all indicated the report was authenticated by each rating official and the applicant on 9 April 2008.  The reviewer on the revised report, however, was the deputy brigade commander, rather than the commander as on the originally submitted report.  On the report rendered just prior to the report in question, the deputy brigade commander was the reviewer on that report as well.  On reports subsequent to the report in question the deputy commander was also the reviewer.

8.  On the revised report the applicant’s rater noted:

* Competence - has knowledge in the supply arena
* Leadership - can be counted on and available to handle Soldier supply issues
* Training - willing to train Soldiers in supply-related issues

9.  The senior rater remarks on the revised report reflected:

* Promote if room and send to NCOES [Noncommissioned Officer Education System] when eligible
* Soldier not counseled during this rating period through no fault of her own

10.  On 1 May 2008 the revised report was returned by HRC-STL to the applicant’s command noting that since the rater and senior rater comments had been revised statements from both the rater and senior rater were required to support replacement of the NCOER in question.

11.  A 20 May 2008 a memorandum for record, signed by the applicant’s unit adjutant general, note that both the rater and senior rater had been requested to submit a statement regarding why their comments had been changed on the applicant’s revised NCOER.

12.  The applicant’s rater noted on his 27 May 2008 statement that the applicant’s statement on the original report that she refused to sign the report was inaccurate, that she was on convalescent leaving during part of the rating period, and that the report was amended to “give a fair and equitable picture of the Soldier’s performance during the rating period.”  He noted a commander’s inquiry had been done and it was found the NCOER on file did not represent an accurate picture of the Soldier, hence the report was revised, the applicant reviewed the report and signed it, and the brigade commander directed the revised NCOER replace the one in the applicant’s file covering the same rating period.

13.  On 12 June 2008 the applicant’s senior rendered a statement which essentially echoed the rater’s statement.

14.  The rater and senior rater statements were forwarded to HRC-STL on
16 June 2008.

15.  However, on the same day the applicant’s rater signed his statement 
(27 May 2008) explaining his revised remarks on the reconstructed NCOER, the applicant initiated an appeal of the original report which was contained in her OMPF.  She cited the administrative errors in Parts I and II of the report (missing dates, incorrect spelling of her first name in the email address, number of rated months, and lack of her signature), the different font and double spacing in the senior rater portion of the report, and the fact that the last statement (Soldier refused to sign evaluation) was inaccurate and malicious as the basis for her appeal.

16.  On 27 June 2008, officials at HRC-STL once again returned the revised NCOER to the applicant’s unit noting the applicant had initiated an appeal of the original report and indicated she was not in agreement with replacing the original NCOER with the revised report.


17.  The applicant’s NCOER appeal was reviewed by the ASRB on 30 July 2009.  Included as part of that board’s consideration was the findings of a formal EO complaint filed by the applicant in August 2008.  The findings summary statement, dated 30 January 2009, noted that her allegation of racial discrimination was unsubstantiated but her complaint of gender discrimination and harassment by her chain of command was substantiated.  The summary noted that an improper relationship may have explained how the applicant’s original evaluation report was allowed to go forward with so many errors.  The summary made no judgment regarding whether the applicant’s NCOER appeal was justified or not, nor did it make any recommendation regarding her appeal.

18.  The ASRB denied the applicant’s appeal noting the applicant failed to show, by clear and convincing evidence, that the NCOER contained a material error, inaccuracy, or injustice.  That board also noted that it appeared the applicant was given an opportunity to sign the report which was filed in her OMPF but “she elected not to do so.”

19.  Army Regulation 623-3 states reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or 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.  The burden of proof rests with the appellant.

20.  Army Regulation 623-3 also states that for NCOER's, the reviewer will be an officer, command sergeant major, or sergeant major in the direct line of supervision and senior in pay grade or date of rank to the senior rater.  No minimum time period is required for reviewer qualification.

DISCUSSION AND CONCLUSIONS:

1.  Clearly the NCOER covering the period 1 May 2007 through
13 November 2007, which is on file in the applicant’s OMPF, contains inaccuracies, material errors, and creates an injustice for the applicant.  The errors, including the statement she refused to sign the report in question, were confirmed in statements by her rater and senior rater.  As such, it would be appropriate to remove the NCOER from her OMPF.


2.  However, the applicant does have a properly-constituted revised NCOER for the same rating period which corrected the errors noted on the original report.  The applicant participated in the February 2008 meeting with members of her chain of command where it was agreed the report should be prepared and which the applicant subsequently signed on 9 April 2008 along with the other members of her rating chain.  Had she not submitted an appeal of the original report while the revised report was being finalized the revised report would have been filed in her OMPF.

3.  While it is appropriate to remove the erroneous NCOER, it would also be appropriate to insert the revised report, as agreed upon by the applicant and members of her chain of command, which was completed and signed by members of the rating chain and the applicant on 9 April 2008.  The fact the reviewer changed from the original report to the revised report creates no injustice in view of the fact the reviewer requires no minimum period in that capacity and it appears, based on the report rendered prior to the NCOER in question and in subsequent NCOER's, that the deputy brigade commander and not the brigade commander was the appropriate senior rater.

4.  If the applicant has issues or concerns with the revised NCOER once it has been inserted into her OMPF in place of the original report, she is advised that she may appeal that report through appropriate channels in accordance with Army Regulation 623-3.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

   a.  removing the NCOER for the period 1 May 2007 through 13 November 2007 which is currently filed in her OMPF; and

   b.  replacing it with the revised report for the same period, which was completed on 9 April 2008.



      _______________________
       	   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)                                         AR20090020595



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ABCMR Record of Proceedings (cont)                                         AR20090020595



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