IN THE CASE OF:	

		BOARD DATE:	  03 June 2010

		DOCKET NUMBER:  AR20100010008 


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 DA Form 2166-8 (NCO Evaluation Report [ER]) for the period covered from April 2004 through November 2004 from her official military personnel file (OMPF).

2.  The applicant states, in effect, that the NCO-ER has erroneous administrative data specifically the listed rating officials were not in her rating chain nor did they meet the minimum rating period qualifications to render her a report.  She states the rated period should be "0 days" not 7 months as it currently shows.  Additionally, the rater did not counsel her as required by regulation. 

3.  The applicant provides the following documents in support of her application:

	a.  a NCO-ER authenticated by the applicant and mechanically date stamped on 14 December 2004;

	b.  a DA Form 1559 (Department of the Army Inspector General Action Request [IGAR] System) opened on 22 November 2004 and closed on 22 September 2005; and

	c.  six separate memorandums of support or character reference letters.

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.  The applicant reenlisted in the Regular Army on 28 April 2003 in the rank of sergeant first class/pay grade E-7 for an indefinite period and continues to serve on active duty.  She is qualified and serves as a senior human resources sergeant in military occupational specialty of 42A.

3.  The applicant's OMPF contains a DA Form 2166-8 covering the period from April 2004 through November 2004.  This NCO-ER form contains the following entries:

	a.  Name of Rater:  Lock----, Bar-----; Rank: Major; 

	b.  Name of Senior Rater:  Kut---, Br---; Rank: Lieutenant Colonel; 

	c.  Part III f (Counseling Dates) contains no entries; 

	d.  Rater, senior rater, rated NCO, and reviewer all signed this NCO-ER and each entry contains a mechanical date stamp entry showing 14 December 2004;.and

	e.  Part Ve (Senior Rater Bullet Comments) contains the entry; 

		(1)  "Rater failed to conduct counseling IAW (in accordance with) AR (Army Regulation) 635-205;" 

		(2)  "Rater used DA Form 4856s (General Counseling Forms) for disrespect issues;" and  

		(3)  "Potential for increased responsibilities hampered by infraction of disrespect to senior officers."

4.  The applicant did not provide to the Board unit enlisted rating schemes for the period of the NCO-ER in question.

5.  In support of her application, the applicant provided a DA Inspector General Report substantiating her allegation that her rater improperly failed to counsel her on her duty performance and professional development throughout the rating period from April 2004 thru November 2004 in violation of Army Regulation 623-205, paragraph 2-9(a).  However, this report did not substantiate that an error existed within the published unit enlisted rating schemes.

6.  The applicant provided six letters of recommendation or character reference letters:

	a.  by memorandum, a colonel in effect states that he knows of no NCO-ER performance counseling sessions or documented disciplinary issues affecting the applicant.  He states he had daily contact with the applicant from June 2003 to June 2004.  He continues by stating she was very professional and a capable leader who carried more than her fair share of the workload in two personnel departments for two separate units, the Army Medical Department Center and School, and the 32nd Medical Brigade.  She also performed the duties of two commissioned officers during their extended absences.  Additionally, she volunteered and performed the duties of first sergeant for a 1,800 student detachment.  He concludes by saying the relationship between the applicant and her rater was strained and speculates it was because of the significant difference in Army personnel management knowledge between the applicant and rating officer with this officer having minimal knowledge of basic Army personnel skills required to perform her job.    

	b.  by memorandum, a lieutenant colonel in effect states the applicant's evaluation in question is not reflective of her dedication and commitment to the unit.  This officer served as the medical brigade executive officer and was the applicant's senior rater from April 2003 to March 2004.   He states during this period she performed multiple duties serving as the adjutant and assumed the commissioned officer's duties in the personnel division of the school while concurrently performing her own noncommissioned officer in charge duties.  He found her articulate and very knowledgeable of Army personnel management systems and she often briefed senior leadership and the commander.  He concludes by stating the applicant was also undergoing extreme personal duress during this period with ill family members, physical ailments to include migraine headaches, and was preparing for an overseas permanent change of station movement.  Her chain of command did not show compassion nor recognize her selfless work ethic.  He recommends removal of this NCO-ER from her OMPF. 

	c.  by memorandum, a sergeant major in effect states that the applicant faced significant challenges with a rater who lacked the basic knowledge of Army human resource management.  From his observation, the rater would not accept the applicant's professional guidance on certain key issues.  Serving as the medical command's sergeant major from April 2004 to November 2004, he states from his observation the applicant was very knowledgeable and performed her duties in an outstanding manner.  He concludes by saying the rater was rendered an unfair evaluation and that she persuaded the rating chain to support her poor evaluation of the applicant.  He concludes by recommending the NCO-ER be removed from her OMPF. 

	d.  by memorandum, a master sergeant states in effect, that he observed the applicant for a period of 16 months to include the period of the NCO-ER she is appealing.  He states the applicant performed many tasks without supervision, that she was very knowledgeable, and a tested performer.  He states that he did not observe any counseling sessions between the applicant and her rater and without proper counseling the rater's comments are unjustified.  He concludes by saying it appears the rater and applicant had a personality conflict.

	e.  by letter, a retired Army colonel who was the former medical brigade commander in effect states that the applicant exhibited no negative behaviors or events during her tenure.  She states the applicant was respectful to both superiors and subordinates and that her duty performance was exemplary.  For the applicant's demonstrated performance, she recommended the applicant for the Meritorious Service Medal.  She notes the relationship between the applicant and her rater was less than ideal attributing it to the demanding work with limited human resource management specialists to support the extensive population of 6,000 Soldiers in the medical brigade.  With reduced staffing and a strained working relationship, the former commander states the applicant was performing under an extremely unrealistic workload putting her under enormous stress.  From her observation, the applicant performed flawlessly under the former medical brigade's adjutant officer performing the duties and responsibilities of a senior noncommissioned officer.   

7.  References:

	a.  Army Regulation 600-37 (Unfavorable Information), paragraph 7-2a, states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  

	b.  Army Regulation 623-205 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This includes DA Form 2166-8 (NCO-ER), and DA Form 1059 (Service School Academic Evaluation Report (AER).  Evaluation 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.  Paragraph 6-10 states, in relevant part, 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 applicant.

	c.  Paragraph 2-9 of Army Regulation 623-205 states that counseling will be conducted within 30 days after the beginning of the rating period and quarterly thereafter for NCOs.  Counseling develops a duty description for the Soldier and major performance objectives to accomplish during the rating period.  It will also be used to guide the ratee's performance during the early part of the rating period.  Additionally, the absence of counseling will not be used as the sole basis for an appeal.  

	d.  Paragraph 6-6h(1) of Army Regulation 623-205 states, in relevant part, that the rated NCO's signature verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the Army physical fitness test (APFT) performance and height and weight data entries made by the rater in Part IVc.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated NCO (Parts I, II, and IVc) will be accepted only under the most unusual and compelling circumstances.  The rated NCO's signature also verifies the rated NCO has seen a completed NCOER minus Parts II d and e.

	e.  Paragraph 6-7 of Army Regulation 623-205 states that substantive appeals must be submitted within 5 years of the NCO-ER'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.  Administrative appeals will be considered regardless of the period of the report and a decision will be made based on the regulation in effect at the time the report was rendered. 



DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided clear and compelling evidence to support her contention that the rater and senior rater of the NCO-ER she is contesting were not in her rating chain for the required minimum rating periods.  

2.  The IGAR report she provided as evidence substantiates the fact that the rater failed to conduct required job performance counseling within established periods in accordance with regulatory guidance.  However, this same IGAR report does not support the applicant's contention that the rater and senior rater were not in her rating chain as she purports. 

3.  The letters submitted in the applicant’s behalf by other officers and noncommissioned officers who were not in her rating chain during the time in question do not offer a basis for granting her request.  These individuals were not in the same vantage point as the applicant’s raters who had the responsibility of measuring her performance and potential during the period in question.  

4.  With the applicant's signature on the NCO-ER, she verified the accuracy of the information in Part I (Administrative Data) to include her established rating chain, both the rater and senior rater.  The NCO-ER filed in her OMPF shows that no counseling dates were recorded or documented.  Further, the senior rater stated the rater did not conduct the required job performance counseling.  However, he noted on the NCO-ER that the rater used a general counseling form to document the applicant's disrespectful conduct.   

5.  The applicant has not provided clear and compelling evidence which shows that the ratings on the contested report were in error or that they were not the considered opinions and objective judgments of the rating officials at the time the report was rendered.  Nor did she provide evidence to show that the raters were not in her rating chain.  In fact, through her signature she verified the raters were in fact her official raters established by published unit rating schemes.  

6.  The lack of documented counseling is not a basis for an appeal.  As such, there is no justification to remove a valid NCO-ER from her OMPF.  Therefore, there is no basis to grant the relief requested.  



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)                                         AR20100010008



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ABCMR Record of Proceedings (cont)                                         AR20100010008



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