IN THE CASE OF:	  

		BOARD DATE:	  12 February 2012

		DOCKET NUMBER:  AR20110024457 


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 amendment of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) for the period 20100130 through 20101012 by removing the "Needs Improvement" rating in the "Leadership" block.

2.  The applicant states:

* The Enlisted Special Review Board (ESRB) failed to properly address numerous errors in the contested report and compounded this with errors of its own
* Each of the ESRB's concluding statements is either logically or legally erroneous and require her to prove the counseling did not take place
* The bullet comment of "demonstrated poor judgment" under the Leadership block is prohibited since it is brief and may be misinterpreted by selection boards
* If the bullet was based on her misconduct which resulted in her acceptance of nonjudicial punishment for adultery, this incident occurred outside the rating period covered by the contested report
* She was not counseled regarding the "Needs Improvement" rating and the supporting bullet does not support such rating

3.  The applicant provides the contested NCOER, the ESRB Record of Proceedings, and her Article 15.


CONSIDERATION OF EVIDENCE:

1.  The applicant’s records show she enlisted in the Regular Army on 30 September 1997 and she held military occupational specialty 25B (Information Systems Specialist).  She served through multiple reenlistments in a verity of stateside or overseas assignments and she attained the rank/grade of staff sergeant (SSG)/E-6.  

2.  She served in Alaska from on or about 1 March 2006 to on or about 10 November 2010.  She was assigned to Headquarters and Headquarters Company, 3rd Maneuver Enhancement Brigade, Joint Base Elmendorf-Richardson.  

3.  On 28 June 2010, she accepted NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for committing adultery on divers occasions between 25 September and 27 December 2009.  Her punishment consisted of a reduction to sergeant/E-5 (suspended until 25 December 2010), a forfeiture of $1,000 pay per month for 2 months, and 45 days of extra duty.

4.  On the same date, she appealed her punishment.  The next higher commander granted her appeal by reducing the forfeiture from $1,000.00 to $500.00 pay per month for 2 months.  All other stayed the same. 

5.  During the month of October 2010, she received a change of rater NCOER which covered 8 months of rated time, from 30 January 2010 through 12 October 2010 for her duties serving as an Information Systems Team Chief.  Her Rater was a sergeant first class (Brigade S-6 NCO in Charge), her Senior Rater was a captain (Brigade S-6 Officer in Charge), and her Reviewer was a lieutenant colonel (Brigade Executive Officer).  The NCOER shows the following entries:

	a.  In Part IV (Army values/Attributes/Skills/Actions), she received a "Yes" rating for all seven Army values.

	b.  In Parts IVb (Competence) and IVc (Physical Fitness and Military Bearing) she received an "Excellence" rating.  

	c.  In Part IVd (Leadership) she received a "Needs Some Improvement" rating.  Her Rater entered the following bullet comments:  "demonstrated poor judgment," "encouraged her Soldiers to attend college courses and worked to enroll them in advanced information technology courses," and "an outstanding technical resource; this NCO placed the needs of her Soldiers above her own." 

	d.  In Parts IVe (Training) and IVf (Responsibility and Accountability) she received a "Success" rating.  

	e.  In Part Va (Overall potential for promotion and/or service in positions of greater responsibility) she received a "Fully Capable" rating.

	f.  In Part Vc (Overall Performance) she received a "Successful" rating, in Part Vd (Overall Potential) she received a "Superior" rating, and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comment:  "NCO given guidance from outside the rating chain not to sign evaluation." 

6.  The NCOER shows the rater and senior rater authenticated this form by placing their signatures in the appropriate places, and that the reviewer concurred with the rater and senior rater and authenticated this form by placing his signature in the appropriate place.  Furthermore, the applicant's signature block is blank.

7.  There is no available evidence showing that the applicant requested a commander's inquiry regarding the subject NCOER.  

8.  On 25 July 2011, the ESRB unanimously denied her petition to remove the contested NCOER.

9.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  This regulation states in:

	a.  Paragraph 2-10 that raters will provide their support forms, along with the senior rater's support forms, to the rated Soldier at the beginning of the rating period.  The senior rater will discuss the scope of the rated Soldier's duty description with the rated Soldier within 30 days after the beginning of the rating period.  This counseling will include, as a minimum, the rated Soldier's duty description and the performance objectives to attain.  The discussion will also include the relationship of the duty description and objectives with the organization's mission, problems, priorities, and similar matters.  The rated Soldier will participate in counseling, assessments and a final evaluation.  Assessment will be conducted with the rating chain throughout and at the end of the rating period.  Rated Soldiers have the opportunity to express their own views during the assessment to ensure that they are clear, concise, and accurate.

	b.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for their achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards and career managers can make intelligent decisions.  

	c.  Paragraph 3-22 (Prohibited comments) states a thorough evaluation of the Soldier is required.  The following techniques will, therefore, not be used:  brief, unqualified superlatives or phrases, particularly if they are considered trite and too brief comments that frequently need to be interpreted by the selection board and the career manager.

	d.  Paragraph 3-23 (Unproven derogatory information) states that 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, Department of the Army.  If the rated individual is absolved, comments about the incident will not be included in the evaluation Prohibited comments) states a thorough evaluation of the Soldier is required.   The following techniques will, therefore, not be used: 

	e.  Paragraph 3-24 (Prohibited comments) states when nonjudicial punishment is given and filed on the restricted fiche or locally under Army Regulation 27-10 (Military Justice), rating officials may not comment on the fact that such NJP was given to a rated Soldier.  This does not preclude mentioning the rated Soldier’s underlying misconduct that served as the basis for the NJP.

	f.  Paragraph 3-39 states 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.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant, a SSG, serving in a leadership position as a Team Chief, violated the Army values on divers occasions between September and December 2009.  In June 2010, she accepted NJP under the provisions of Article 15 of the UCMJ for committing adultery.
2.  She received a change of rater NCOER that covered the period 30 January 2010 through 12 October 2010.  While the regulation states rating officials may not comment on the fact that such NJP was given to a rated Soldier, this does not preclude mentioning the rated Soldier’s underlying misconduct that served as the basis for the NJP.  Although her UCMJ violations occurred outside the rating period covered by the NCOER, her acceptance of the NJP occurred during the period covered by the NCOER.

3.  While the governing regulation contains prohibitions regarding the reference to incidents outside the rating period, it permits references to any verified derogatory information.  Inasmuch as the applicant's misconduct occurred in 2009 (outside the rating period of the contested NCOER), it is not the intent of the governing regulation to tie the hands of rating officials when the resulting outcome (Article 15) of this misconduct was carried over to the rating period. 
Not only did the applicant exercise poor judgment as a leader, she has yet to take responsibility for her actions.

4.  There is no evidence that the contested report contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented anything 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.

5.  In view of the foregoing evidence, she is  not entitled to the requested relief.

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)                                         AR20110024457



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ABCMR Record of Proceedings (cont)                                         AR20110024457



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