IN THE CASE OF:	  

		BOARD DATE:	    20 September 2011

		DOCKET NUMBER:  AR20100022448 


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 removal from her Official Military Personnel File (OMPF) of two contested DA Forms 2166-8 (NCO (noncommissioned officer) Evaluation Report (NCOER)) for the periods 20050601 through 20060531 (NCOER #1) and 20060601 through 20061031 (NCOER #2).

2.  The applicant states:

* her initial appeal packet was returned without action in August 2008 due to insufficient evidence
* the NCOERs were biased due to a Inspector General (IG) complaint and were prepared in retaliation of her grievance
* her gathering of documents under the Freedom of Information Act caused her appeal to go past the 3-year limitation for NCOER appeals
* she signed NCOER #1 on 25 August 2006, but the version in her OMPF is unsigned
* the two contested NCOERs contained unfair remarks
* the two contested NCOERs were placed in her OMPF without her knowledge
* her chain of command did not support her as the new Command Sergeant Major (CSM)
* emails show that her chain of command knew how to contact her prior to the NCOERs being placed on her OMPF
* she has an outstanding record performing her duties as a CSM 



3.  She provides:

* copies of NCOER #1 (signed and unsigned) and a copy of NCOER #2
* email from the 80th Training Command, dated 7 November 2007
* a personal statement
* a copy of a letter from the Office of the Inspector General, 80th Training Command, dated 7 March 2008
* a copy of a letter from the Department of the Army, Office of the Inspector General, dated 1 December 2008
* a copy of her NCOER appeal, dated 25 May 2010, with supporting evidence:

* a personal statement, dated 25 May 2010
* four copies of NCOERs covering the period 20061103 through 	20090930
* two Civilian Performance Ratings covering the period 20050501 through 20070217
* four third-party statements of leadership from former and present colleagues 

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 had prior active duty service.  She enlisted in the U.S. Army Reserve (USAR) on 23 August 1985.  She is currently serving in the USAR through continuous reenlistments and was promoted to the rank and pay grade of sergeant major (SGM)/E-9 on 1 November 2003.

3.  On 1 June 2005, the applicant was appointed as a command sergeant major (CSM)/E-9.  She served in that capacity until on or about 26 October 2007 when she was reassigned as a SGM.

4.  During her tenure as a CSM, the applicant filed an IG Action Request (IGAR) concerning her chain of command.  An undated letter from the IG Office, 80th Training Command shows that the IG conducted an inquiry into matters presented by the applicant and concluded the evidence did not support:

* the applicant was the reason Soldiers left the unit
* the applicant was made to feel or be treated as an outsider
* a sensing session was conducted solely for the purpose of collecting information against the applicant
* the brigade chain of command did not support the applicant

The IG inquiry concluded that the evidence did support:

* the applicant was spoken to or treated in a demeaning way
* the applicant was ordered to perform duties outside her scope of responsibilities such as counseling the unit PSNCO
* the applicant was counseled numerous times during June 2006

5.  The two contested NCOERS appear on the performance part of the applicant's OMPF.  NCOER #1 was an annual report covering the period 20050601 through 20060531 evaluating her as a battalion CSM at the 3rd Battalion, 318th Regiment, 80th Division, Baltimore, MD.  In part IIc (Authentication), the rating chain signatures are all dated 1 May 2007.  The report is not signed by the applicant.

6.  NCOER #1 contains the following:

	a.  In rater part IVa (Army Values), the rater indicated in the bullet comments that the applicant was highly organized and communicated effectively, she placed mission above personal needs, and that she put Soldiers first.

	b.  In rater part IVb (Values/NCO Responsibilities), the applicant received a “needs improvement” rating.  The supporting comments indicate she failed to earn the respect of the Battalion's enlisted Soldiers and officers, she had an adversarial relationship with senior NCOs in the battalion, she was unfamiliar with the IET (initial entry training) environment and the battalion senior NCOs perceived she was unwilling to listen and learn.

	c.  In rater part IVd (Leadership), the applicant received a “needs improvement” rating.  The supporting comments indicate she failed to foster a positive relationship with first sergeants of the battalion, the battalion senior 


NCOs perceived her leadership style as negative and had shut down, and she was counseled by the brigade commander and battalion commander on her ineffective leadership and the resulting negative impact on battalion morale.

	d.  In part V (Overall Performance and Potential), the rater rated the applicant’s potential for promotion and service in positions of greater responsibility as "marginal."  The senior rater (SR) rated the applicant’s performance and potential as "fair."  He indicated in his comments that the applicant was an extremely intelligent individual who had the ability to perform her job to the fullest potential.  However, she had not earned the respect of the majority of those whom she supervised.  The SR added that the applicant claimed that she could not adequately communicate with the brigade commander, CSM, or her battalion commander.

7.  The applicant provides a duplicate NCOER #1 which was authenticated by her rating chain on 31 July 2006 and which she signed. This report contains the same administrative data and narrative comments, with the exception of rater part IVa which did not contain the laudatory bullet comments found on the OMPF report.  It is noted this version of NCOER #1 was completed on the October 2001 version of DA Form 2166-8 which was obsolete at the time.

8.  NCOER #2 is a change of rater report evaluating the applicant in the same position as the previous NCOER with the same rating chain.  In part IIc, the rating chain signatures all contain the same authentication date of 26 January 2007.  The report also indicates the applicant was unavailable for signature.

9.  NCOER #2 contains the following:

	a.  In part IVd, the applicant received a “needs improvement” rating. The supporting comments indicate that the applicant had not improved her relationship with senior NCOs after repeated counseling’s and that she continued to have an adversarial relationship with the company first sergeants.

	b.  In part V, her rater rated her overall potential for promotion as "marginal."  Her SR rated her overall performance as fair, and her overall potential as "superior" (block 3 of 3).

10.  The applicant appealed the two contested NCOER’s to the Appeals and Correction Branch (ACB), USAHRC.  On 12 August 2008, the Appeals and Correction Branch returned the applicant’s appeal without action due to insufficient evidence.  An ACB official stated, “Allegations that a performance 


appraisal is not a realistic representation of performance and potential or that the rating officials’ perceptions are in error, must be resolved by the Enlisted Special Review Board (ESRB).  There is no evidence in the applicant’s records that show she submitted her appeal to the ESRB. 

11.  The applicant provided four third party statements that all attested to her high level of performance.
 
12.  The applicant provided 4 NCOERs for the period 20061103 through 20090930 – the first 2 reports were for her duties as a CSM and last 2 were for her duties as a staff SGM.  The raters and SRs of the above reports rated the applicant as successful with no negative comments.

13. The applicant provided two Civilian Performance Ratings covering the periods of 20050501 through 20070217.  The reports show that she received “Highly Successful“ ratings.

14. The applicant provided an email, dated 7 November 2006, that shows she contacted her rater requesting an NCOER for the period June 2006 through October 2006.  In addition, she provided information for her evaluation, including that she completed her MBA, visited sites in Missouri, held boards, and reviewed "DSS" and senior packets.  The applicant's email resulted in the production of NCOER #2.

15.  Army Regulation 623-205, in effect at the time, established the policies and procedures for the enlisted evaluation system.  It provided that an EER, accepted by Headquarters, Department of the Army, and included in the official record of the Soldier, is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation states that the burden of proof in an appeal of an EER rests with the applicant.  Accordingly, to justify deletion or amendment of an EER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.  It also states that substantive appeals must be submitted within 5 years of the NCOER’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.

16.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies and mandated operating tasks for the Military Personnel (MILPER) Information Management/Records Program of the Military 


Personnel System.  Paragraph 2-4 provides that once a document is placed in the OMPF, it becomes a permanent part of that file.  The document will not be removed from a fiche or moved to another part of the fiche unless directed by the following: 

* The Army Board for Correction of Military Records (ABCMR). 
* The Department of the Army Suitability Evaluation Board (DASEB). 
* Army appeal boards. 
* Chief, Appeals and Corrections Branch, PERSCOM. 
* The OMPF custodian when documents have been improperly filed. 
* Commander, PERSCOM, ATTN: TAPC-PDO-PO, as an approved policy change
* Chief, Appeals Branch, ARPERCEN. 
* Chief, Appeals Branch, National Guard Personnel Center.

Table 2 of the regulation pertains to the composition of the OMPF and states, in pertinent part, that NCOERs will be filed on the Performance Fiche.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests the contested NCOERs be removed from her OMPF.  She contends that the NCOERs were issued as reprisal for her filing an IGAR.

2. The applicant's contention was carefully considered and determined to be without merit.  Although, the applicant filed an IG complaint against her chain of command, there is no evidence her allegations were substantially validated, or that the NCOERs rendered to the applicant were issued in reprisal to her IG complaint.

3.  It appears the applicant, for whatever reasons, did not affect a smooth transition as a battalion CSM.  Friction developed and personalities clashed, and rather than work to resolve the situation and remove impediments to a successful tenure as CSM, the applicant chose to file an IGAR against her chain of command.  There is no proof the applicant's rating chain produced the contested  reports for any reason other than the applicant's inability to work with her battalion officers and NCOs.

4.  By regulation, in order to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the reports under 


consideration and action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to warrant the removal of the contested NCOERs.

5.  Concerning the signed and unsigned versions of NCOER #1, the first (signed) version was rendered on an obsolete DA Form 2166-8.  It appears this version was rejected and returned to the unit.  Subsequently, the report was reproduced on the then current version of DA Form2166-8 and submitted without the applicant's signature.  This is not a fatal flaw which would render the report unacceptable.  In fact, the unsigned version actually added laudatory comments in part IVa, making a poor report somewhat stronger.

6.  The contested reports appear to represent a fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.

7.  There is no evidence that the contested reports contain any administrative deficiencies or that they were not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested NCOER, or that they exercised faulty judgment in evaluating her as they did.

8.  In view of the foregoing evidence, the applicant has not provided clear and compelling evidence which shows the ratings in the contested reports 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.  Additionally, there is no evidence in the available records and she has not provided evidence showing the contested report was inaccurate, unjust, or otherwise flawed.  As a result, there is no basis to further change the NCOER or remove it from the applicant's OMPF.

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)                                         AR20100022448



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100022448



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1