IN THE CASE OF:	  

		BOARD DATE:	  26 October 2010

		DOCKET NUMBER:  AR20100015070 


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 a Noncommissioned Officer Evaluation Report (NCOER) for the period 13 May 2007 through 31 August 2007 from her Official Military Personnel File (OMPF).  

2.  The applicant states the rater, Sergeant First Class (SFC) W____, is considered an unqualified rating official due to substantiated findings from an official Equal Opportunity (EO) investigation.

3.  The applicant provides the following:

* Memorandum, Subject:  Formal EO Complaint Appeal Notification, dated 13 August 2007
* Commander's Inquiry (CI), dated 6 February 2008
* DA Form 7279 (EO Complaint Form)
* Memorandum, Subject:  EO Complaint Investigation Review for [Applicant], dated 3 December 2009
* NCOER (13 May 2007 through 31 August 2007)

CONSIDERATION OF EVIDENCE:

1.  The applicant's contested NCOER from the period 13 May 2007 through 31 August 2007 shows her rank as staff sergeant (SSG) with a date of rank of 1 July 2004.  Her primary military occupational specialty is listed as 68W (Patient Care Noncommissioned Officer (NCO)).  She received a 4-month change of rater report while assigned to Headquarters and Headquarters Company, Area Support Group (ASG) - Kuwait.  

2.  The contested report shows the applicant was rated by the Troop Medical Center (TMC) noncommissioned officer in charge (NCOIC), SFC W____, and senior rated by the TMC Executive Officer, Captain D____.  The reviewer was listed as the TMC Officer in Charge, Major S____.  The report was electronically signed by the rater, senior rater, and reviewer on 26 October 2007, 29 October 2007, and 31 October 2007, respectively.  The applicant was listed as unavailable for signature.

3.  The EO Complaint Form shows that on 13 July 2007 the applicant filed a complaint against three NCOs for racial discrimination and against her rater, SFC W____, for gender discrimination.  The acting commander indicated that he nonconcurred with the findings of the investigating officer (IO).  The form shows both substantiated and unsubstantiated blocks were checked; however, the unsubstantiated block was initialed.  The comments stated no racial discrimination by the three NCOs and "SFC W____ did unintentionally commit gender discrimination."  The acting commander said SFC W____ would receive consideration of others and EO training.  He also said SFC W____ should receive a letter of concern from the commander.  The acting commander's signature is dated 13 August 2007.

4.  On the same form, the applicant's rater elected to appeal the commander's decision to give her a letter of concern.  She stated the appeal was based on the IO's finding that the allegations were unfounded and the evidence submitted on her behalf.  The rater checked the block indicating a continuation sheet was attached, but the continuation sheet was not submitted with the applicant's packet to this Board.  The applicant also did not provide a copy of the IO's investigation.  The rater's signature is dated 20 August 2007.

5.  On 13 August 2007, the Commander, ASG - Kuwait sent a memorandum to the Commander, US Army Forces, U.S. Central Command (ARCENT) notifying him that a formal EO complaint was found to be substantiated for gender discrimination.  He further stated the appointing authority recommended SFC W____ receive a letter of concern describing her actions contributing to the hostile environment with retraining and development counseling on EO issues and gender discrimination.  

6.  On 6 February 2008, the commander stated that he conducted a second CI into the administrative and substantive inaccuracies noted on the applicant's contested report.  In reference to the allegation by the applicant that SFC W____ was considered an unqualified rating official due to substantiated findings from an official EO investigation initiated on 13 July 2007, he found the following:

The equal opportunity investigation referred to by the [applicant] was initiated on 13 July 2007 and concluded on 20 January 2008.  The appellate authority did not find enough evidence pertaining to racial and gender discrimination and therefore unsubstantiated those claims.  As such, the rating official was authorized in her capacity as immediate supervisor to render the evaluation report with a period of 13 May 2007 through 31 August 2007 for the [applicant].

7.  In a memorandum, dated 3 December 2009, the Equal Opportunity Advisor (EOA) stated that he conducted a thorough review of the applicant's investigation and noted the EO process was not met in accordance with Army Regulation 
600-20 (Army Command Policy), appendix D.  He cited what he perceived as discrepancies in the investigation; however, he neglected to provide a copy of the investigation to which he refers.  The EOA concluded that based upon his review, the applicant did not receive a fair process or justice during the entire complaint process. 

8.  On 31 December 2008, the applicant appealed her NCOER through the Army Special Review Board (ASRB) on the basis of substantive inaccuracy.  The applicant contended her rater, SFC W____, was considered an unqualified rating official due to substantiated findings from an official EO investigation.  The ASRB denied the applicant's request to remove the contested NCOER from her OMPF based on an unqualified rater.  The board opined that the EO investigation exonerated SFC W____ and determined she remained a qualified rating official.  The ASRB made an administrative correction to the applicant's Army Physical Fitness Test date.  It is noted that a copy of the memorandum from the ASG - Kuwait Commander, dated 13 August 2007, substantiating gender discrimination was not a part of the evidence provided to the ASRB.

9.  On 2 October 2010, the Commander, ASG - Kuwait responded to an inquiry regarding his signature on the EO Complaint Form and the memorandum to the ARCENT Commander, dated 13 July 2007.  He verified that the signatures were his and the finding of gender discrimination against SFC W____ was substantiated. 

10.  Army Regulation 623-3 (Evaluation Reporting System), paragraph 2-20, states that special rules apply when a rating chain member is unable to render an evaluation of the rated Soldier.  These situations occur when a rating official dies, is declared missing, is relieved, or becomes mentally or physically incapacitated to such an extent that they are unable to submit an accurate evaluation.  When a rating official is officially relieved or determined to be incapacitated, they will not be permitted to evaluate their subordinates.

11.  Army Regulation 623-3, paragraph 6-5(1), identifies an improperly designated or unqualified rating official as rating officials who have had substantiated findings against them from an official investigation.

12.  The same regulation states a Commander's Inquiry will not be used to document differences of opinion among members of the rating chain about a rated Soldier's performance and potential.  The evaluation system establishes rating chains and normally relies on the opinions of the rating officials.  Rating officials will evaluate a rated individual and their opinions constitute the organization's view of that Soldier.  However, the commander may determine through inquiry that the report has serious irregularities or errors. 

13.  Army Regulation 600-20, appendix E, states the EOA role is to discuss assessment results with the commander to aid in developing action plans.   EOAs are agents for cultural change and act as the eyes and ears for the commander.  They will, in pertinent part, receive and assist in processing individual complaints of unlawful discrimination and sexual harassment in the informal stage and conduct EO inquiries according to the commander’s guidance.

DISCUSSION AND CONCLUSIONS:

1.  The applicant maintains her rater was an unqualified rating official due to a substantiated finding from an official EO investigation.  She provides a copy of an EO Complaint Form alleging gender discrimination against her rater.  

2.  The Commander, ASG - Kuwait verified the finding of gender discrimination against SFC W____ was substantiated.  As cited in the regulation, SFC W____ was unqualified to render an evaluation report based on a substantiated EO investigation of gender discrimination.  

3.  Allowing SFC W____ to render the evaluation report after an approved finding of gender discrimination against the applicant clearly created an injustice and a procedural error that invalidates the report in accordance with Army Regulation 623-3.  Therefore the contested report should be removed from the applicant's OMPF.


BOARD VOTE:

___X____  ___X____  ___X____  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 contested report for the period 13 May 2007 through 31 August 2007 and

	b.  preparing and inserting a memorandum in the performance portion of the applicant's OMPF annotating the period as unrated time.



      _______ _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)                                         AR20100015070



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ABCMR Record of Proceedings (cont)                                         AR20100015070



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