IN THE CASE OF:	  

		BOARD DATE:	  2 August 2011

		DOCKET NUMBER:  AR20110003926 


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 of a Noncommissioned Officer Evaluation Report (NCOER) (DA Form 2166-8) covering the rating period 2 December 2006 through 30 November 2007 (hereafter referred to as the contested NCOER) from her records.

2.  She states that this NCOER was posted in her official military personnel file (OMPF) 3 years later.  The errors or injustices in her NCOER were caused by pending Uniform Code of Military Justice (UCMJ) action and conflict with her rating chain.  She also states that it has been more than 3 years since she advised her rating chain that this NCOER was not posted in her records.  She finally took it upon herself to appeal this NCOER.  She was advised that it was too late for an appeal even though this was the first time the NCOER itself was actually posted in her records.

3.  She provides:

* Contested NCOER
* NCOER Counseling and Support Form, dated 11 July 2007
* Six DA Forms 4856 (Developmental Counseling), dated 31 December 2006, 3 and 16 March 2007, 2 May 2007, 2 June 2007, and 14 November 2007
* Army Physical Fitness Test (APFT) Scorecard, dated 18 September 2007
* Evaluation Report Appeal package, dated 19 January 2011, to include her 2005-2006 and 2007-2008 NCOERs and four statements of support
* Memorandum from the U.S. Army Human Resources Command (AHRC), dated 28 January 2011

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's military records show she enlisted in the Regular Army on 27 June 2002.  She completed training and was awarded military occupational specialty (MOS) 68W (Health Services Specialist).  She was promoted to sergeant, pay grade E-5, on 1 September 2005.  

3.  On 31 December 2006, she was counseled by her platoon sergeant, a staff sergeant (SSG) of C Company, 27th Brigade Support Battalion (BSB), 4th Battalion Combat Team (BCT), regarding initial NCO counseling. 

4.  On 3 and 16 March, 2 May, and 2 June 2007, she was counseled by her squad leader regarding promotions, military bearing, Soldier's issues, being confrontational, education, and 2-7 medical rotations.

5.  On 14 November 2007, she was counseled by another platoon sergeant regarding her negative progress to overcome a bar to reenlistment.  She was advised that the bar was approved on 2 November 2007.  She was further advised that separation action could be initiated if unsatisfactory behavior continued.  

6.  The 31 December 2006 and 14 November 2007 counseling statements show two different platoon sergeants.  The same squad leader counseled her on 3 and 16 March, 2 May, and 2 June 2007.

7.  She was issued an annual NCOER, the contested report, for her duties as a Health Care NCO (Part III Duty Description) while assigned to C Company, 121st BSB, Fort Bliss, TX.  Her rater was a SSG, squad leader; her senior rater was a sergeant first class, platoon sergeant; and her reviewer was a captain, company commander.  The NCOER shows the following entries:

	a.  In Part III(f) (Duty Description) (Counseling Dates):

* Initial - 13 March 2007
* Later - 21 June 2007
* Later - 14 September 2007
* Later - 14 November 2007

	b.  In Part IV (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block of number 3 (Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO).  The rater entered the comments, "does not accept responsibility for her actions" and "shows no respect towards leaders she does not like."

	c.  In Part IV(b) (Competence), the rater placed an "X" in the "Success" block and entered the following comments, "demonstrated ability to accomplish the duties and tasks assigned with little or no supervision," "completed 800 hours of correspondence courses," and "self-starter, displayed a high degree of initiative during training by teaching Soldiers additional material from personal experiences." 

	d.  In Part IV(c) (Physical Fitness & Military Bearing), the rater placed an "X" in the "Success" block and entered the following comments, "exhibited superb confidence and infectious enthusiasm during all tasks without regard to level of difficulty" and "persistent and exceptional efforts were factors in steadily improving her Soldiers' physical training and removal from the overweight program."  

	e.  In Part IV(d) (Leadership), the rater placed an "X" in the "Needs Improvement" block and entered the following comments, "ensured her team possessed the capability and knowledge to achieve a high standard of patient care, cared for over 600 patients with a 100% success ratio," "quickly points out other peoples [sic] deficiencies in order to justify her own shortcomings rather than correct them," and "consistently circumvents the Chain of Command and NCO Support Channel when convenient for her."

	f.  In Part IV(e) (Training), the rater placed an "X" in the "Success" block and entered the following comments, "motivated Soldiers to advance in knowledge and skills through her positive attitude and experience," "readily shared technical and tactical experience with diligence to enhance training," and "led from the front and focused on the fundamentals of combat medical training during her deployment."

	g.  In Part IV(f) (Responsibility & Accountability), the rater placed an "X" in the "Success" block and entered the following comments, "effectively maintained 100% accountability of all medical equipment during deployment to Operation 
Iraqi Freedom 06-08, valued at over $250,000.00," "assisted with the evacuation, design, and implementation of the Battalion Aid Station MASCAL (mass casualty) Plan," and "will not under any circumstances accept responsibility for her actions, shifts focus to other unrelated events to avoid punishment."

	h.  In Part V(a) (Overall Performance and Potential), the rater placed an "X" in the "Fully Capable" block.  The rater commented that the applicant could best serve the Army at her current grade or next higher grade as a Team Leader, Recruiter, or Instructor.

	i.  In Part V(a) (Senior Rater Bullet Comments), the senior rater entered the following comments, "Soldier refuses to sign," "send to BNCOC (Basic NCO Course) with peers," "was a detriment to the good order, discipline, and morale of her platoon by attempting to undermine and manipulate the chain of command," and "possessed the ability, potential, and knowledge to be an outstanding NCO, just fails to use it."

	j.  In Part V(c) (Senior Rater – Overall Performance) and in Part V(d) (Senior Rater – Overall Potential), the senior rater gave a rating of "Successful" and placed an "X" in the "2" block for the applicant's overall performance and a rating of "Superior" and placed an "X" in the "3" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility.  

8.  The contested NCOER was digitally signed by her rater and reviewer on 25 June 2009 and by her senior rater on 26 June 2009 and was filed in her OMPF.  The report shows her signature block contains no entry.

9.  The senior rater on the contested NCOER was the same platoon sergeant who counseled her on 14 November 2007.

10.  She was promoted to SSG on 1 November 2007.

11.  On 19 January 2011, she requested an appeal of the contested NCOER.  She stated that the appeal was based on both administrative and substantive error.  She also stated that the contested NCOER was given to her rater on 
1 July 2007. SSG Ch_ _ _ _ _ _ was her rater for 4 months out of the 12 rated months in the NCOER.  She spent the remaining 8 months in the same company, 27th BSB, under different raters in a different platoon.  

12.  She further stated that her counseling statements clearly illustrated that her rating chain changed in July 2007 and no change of rater NCOER was generated at that time; however, the contested NCOER (20061201-20071130) rated her for all 12 months without any mention of her rating time in the Evacuation Platoon, a period of 4 months.  This is not in accordance with (IAW) Army Regulation (AR) 623-3 (Evaluation Reporting System), paragraph 3-44.  

13.  She also stated that the reviewer of the contested NCOER, who was not her original reviewer, signed the NCOER on 25 June 2009.  This was one day before the senior rater signed on 26 June 2009.  Department of the Army Pamphlet (DA PAM) 623-3 (Administrative Data - NCOER Instructions), paragraph 3-5, states the reviewer's signature and date cannot be before the rater's or senior rater's.  She disagreed with the content of the NCOER and did not sign the report as she understood her signature verified the information and she could not verify the information.  She discussed that with her rater and senior rater.  Instead of any changes taking place, her senior rater made the comment in Part V (Overall Performance and Potential), "Soldier refused to sign."

14.  She further stated that it was not until she left the unit itself in October 2008 that she realized the contested NCOER was never posted in her records.  In June 2009, the rating chain intended to send the NCOER again.  She never saw a completed copy nor was she notified that the NCOER was finally sent again.  She did not refuse to sign it, but did ask for changes to be made IAW AR 623-3 when she believed the NCOER to still be a work in progress.

15.  She also stated that Part III (Principal Duty Title) covered only the period of time she served in the Treatment Platoon.  Areas of special emphasis included more assignments than the contested NCOER indicated that she performed.  Appointed duties should include BLS (Basic Life Support) Instructor and CLS (Combat Life Saver) Instructor.  

16.  She further stated that the counseling dates listed in the contested NCOER are forged.  She did not become a member of the Treatment Platoon until 1 July 2007.  That means that the first two dates listed never existed and she could not have been counseled on 13 March 2007.  In September 2007, she received 3 counseling statements and none was given on 14 September 2007.  The 14 November 2007 DA Form 4856 has a correction to the "date of counseling" which was made by hand.  She never signed that form.  IAW DA PAM 623-3, actual dates of counseling statements are to be obtained from the DA Form 2166-8-1.  The lack of counseling may be used to help support other claims made in an appeal.

17.  She also stated that Part VI (Army Values/Attributes/Skills/Actions) of the contested NCOER has an entry of "No" for Respect/EO/EEO.  From September to November 2007, an array of accusations, false statements, and reprisal actions took place in a constant, harassing manner against her from her chain of command in C Company, 27th BSB.  She stated that she was including three third-party statements with her appeal to help paint a picture of the inflammation of character and false allegations the contested NCOER contained.  

18.  She further stated that when she was reinstated to a new unit within the 4th Battalion, 1st Cavalry, in late November 2007, within days all charges against her were dropped (court-martial proceedings), a Report to Suspend Favorable Personnel Actions for adverse action was lifted, a bar to reenlistment was disapproved, and she was promoted to SSG in a matter of days.  Her date of rank was effective 1 November 2007 even though she was not promoted until sometime in December 2007 in the new unit, under new leadership.

19.  She also stated that AR 623-3, paragraph 3-23, states no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to Headquarters, DA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.  This restriction is intended to prevent unverified derogatory information from being included in evaluating reports.  It will also prevent unverified derogatory information from being permanently included in a Soldier's OMPF, such as (1) charges that are later dropped and (2) charges or incidents of which the rated individual may later be absolved.  

20.  She further stated that in Part VI(d) she wants to emphasize on the rating given, "needs improvement."  She, in effect, worked closely with one Soldier to accomplish lifting two flags and reenlisting and another improved considerably on her PT test.  The derogatory comment in that block, "circumvents the chain of command," should not have been made IAW AR 623-3, paragraph 3-23.

21.  She also stated that Part VI(f) and Part V contained derogatory comments regarding responsibility are mentioned.  In effect, she was an outstanding Soldier and NCO, had struggled in the past, and learned from her mistakes.  At the time she was a sergeant with a chain of command all the way up to the battalion commander against her.  She was requesting that the contested NCOER be changed or preferably removed from her records.  
22.  On 28 January 2011, the AHRC Appeals and Corrections Section, in response to her appeal of the contested NCOER, returned her correspondence without action.  She was advised that AR 623-3, paragraph 6-8b, placed a time restriction on the submission of substantive appeals.  Since the NCOER she was interested in appealing had a through date of 30 November 2007 and her appeal was not received within 3 years of those dates, she must make application to the ABCMR to resolve any issue she could have with the evaluation report in question.  

23.  AR 623-3 (Evaluation Reporting System) establishes the policies and procedures for the preparation and submission of NCOER's for corporals through command sergeants major.  

	a.  Paragraph 2-15 states the senior rater is the senior rating official in the military rating chain.  Senior raters use their position and experience to evaluate the rated Soldier from a broad organizational perspective, military program of instruction, or civilian academic course standards.  Senior raters will ensure support forms are provided to all rated Soldiers they senior rate at the beginning of and throughout the respective rating periods; use all reasonable means to become familiar with a rated Soldier's performance; assess the ability of the rated Soldier; ensure that rating officials counsel the rated Soldier individually and throughout the rating period on meeting their objectives and complying with the professional standards of the Army.

	b.  Paragraph 3-23d states that any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  For all reports, if previously reported information later proves to be incorrect or erroneous, the Soldier will notified and advised of the right to appeal the report in accordance with chapter 6.

	c.  Paragraph 3-37f(5) states the reviewer's signature and date will not be before the rater's or senior rater's.  The rated Soldier may not sign or date the 
report before any rating official.  Paragraph 3-37(3)h states NCOERs will be forwarded to reach HQDA no later than 90 days after the ending date of the report.  A report received at HQDA after the required amount of time is not an automatic basis for appealing the report.  

	d.  Paragraph 3-44 states a change of rater NCOER is mandatory when the rated NCO ceases to serve under the immediate supervisor of the rater and minimum rating qualifications have been met.  Paragraph 3-45 states an annual report is mandatory for a rated Soldier on completion of 1 calendar year of duty following the THRU date of the last NCOER in the Soldier's OMPF.  An annual report will not be submitted when the provisions for the change of rater report or change of duty report also apply.  

	e.  Paragraph 6-4 states alleged error, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's or commandant's attention by the rated individual or anyone authorized access to the report.  

	f.  Paragraph 6-7 states evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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.

	g.  Paragraph 6-8 states that substantive appeals will be submitted within 3 years of an NCOER.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 

24.  DA PAM 623-3 prescribes the procedures for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-6 states Part III provides for the duty description of the rated NCO.  It is the responsibility of the rating officials to ensure the duty description information is factually correct.  This information is entered by the rater and verified with the rated NCO.  The duty description should show type of work required rather than frequently changing tasks.    

DISCUSSION AND CONCLUSIONS:

1.  With respect to the rating officials, the counseling forms from December 2006 to November 2007 show several different names and positions for the rating officials, the one consistent equation is the rater's position as SSG.  These documents show the SSG position, regardless of who was filling the position at the time, was designated as the applicants' rater.  However, these errors, by themselves, do not invalidate the report.

2.  The fact that the contested report was submitted and posted in her records 18 months after the through date of the report shows that there were procedural errors and an injustice in the processing of this report.  Regardless of any reasons the rating chain may have had for rendering the adverse report 18 months after the fact, this clearly created an injustice the applicant could not ever hope to overcome.  Even though she received counseling she did not have the chance to overcome the derogative report.  

3.  The fact the report was submitted 18 months after the through date also denied her the opportunity to request a Commander's Inquiry and appeal the report in a timely manner and affected the possibility of changes being made to the report or its removal entirely.  Therefore, in the interest of justice it would be appropriate to remove the NCOER covering the rating period 2 December 2006 through 30 November 2007 from her records.  

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 annual NCOER for the 1 December 2006 through 30 November 2007 from the applicant's OMPF; 

   b.  preparing and inserting a memorandum in the performance portion of her OMPF annotating the period as unrated time; and 
   
   
   
   
   
   
   
   
	c.  filing all associated appeal documentation in the restricted portion of her OMPF.



      _______ _   _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)                                         AR20110003926





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ABCMR Record of Proceedings (cont)                                         AR20110003926



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