IN THE CASE OF:	  

		BOARD DATE:	  25 September 2012

		DOCKET NUMBER:  AR20110024721 


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:

	a.  reinstatement of her rank/grade to sergeant first class (SFC)/E-7 and restoration of her date of rank to 1 October 2007;

	b.  removal of the annual DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the rating period 16 April 2010 to 15 April 2011 (hereafter referred to as the contested NCOER) from her Army Military Human Resource Record (AMHRR); and

	c.  back pay and allowances.

2.  The applicant states:

* she was erroneously accused of being absent without leave (AWOL) and her pay was illegally withheld for 3 weeks
* as a result of her pay being withheld, she incurred $700.00 in banking fees
* the bank recouped $500.00 from her savings, leaving her with no money to support her family
* she informed her command of this hardship, but received no assistance
* she forged her command sergeant major's (CSM) signature on an Army Emergency Relief (AER) application because of the hardship her family incurred
* she was reported AWOL even though she was on medical appointments at the hospital in Fort Bragg, NC
* she was punished four times for something that could have been avoided had the command not illegally withheld her pay
* $700.00 was withheld from her pay as punishment, she received a letter of reprimand, and was reduced to the rank/grade of staff sergeant (SSG)/E-6

3.  The applicant provides:

* six DA Forms 1059 (Service School Academic Evaluation Report)
* seven DA Forms 2166-8
* DA Form 2142 (Pay Inquiry)
* five DA Forms 2823 (Sworn Statement)
* six DA Forms 4187 (Personnel Action)
* DA Form 3349 (Physical Profile)
* eight DA Forms 4856 (Developmental Counseling Form)
* DA Form 638 (Recommendation for Award)
* AER Form 700 (Application for AER Relief)
* two Defense Finance and Accounting Service (DFAS) Military Leave and Earnings Statements (LES)
* Reduction board notes
* patient appointment listing
* bank statement
* three emails
* 13 memoranda
* orders

CONSIDERATION OF EVIDENCE:

1.  The applicant initially enlisted in the U.S. Army Reserve on 7 August 1998 where she served until she reenlisted for the Active Guard Reserve (AGR) Program on 29 November 2009.  She was promoted to SFC/E-7 on 1 October 2007.

2.  Her record contains the contested NCOER which shows she was rated for duty as the battalion senior supply NCO in duty MOS 92Y4O while assigned to the 362d Quartermaster Battalion (Petroleum Supply), Kinston, NC, for the rating period 16 April 2010 to 15 April 2011.  The form shows in:

	a.  Part Ig (Reason for Submission), "Annual";

	b.  Part II (Authentication), her rater was the property book officer and her senior rater was the battalion S-4;

	c.  Part III (Duty Description (Rater)), her principal duty was the battalion senior supply NCO;

	d.  Part IIIf (Counseling Dates), she was counseled on 2 June 2010, 8 November 2010, and 22 February 2011;

	e.  Part IVa (Army Values), "No" was selected for block 2 (Duty) and "Yes" was selected for all other blocks;

	f.  Part IVa, the following bullet comments were entered:

		(1)  "has limited potential and requires more experience applying daily soldier leadership skills";

		(2)  "failed to use time wisely, consistently failed to complete duty assignments"; and

		(3)  "must realize the importance of finishing assigned tasks without supervision";

	g.  Part IVb (Competence),"Needs (Some) Improvement" was selected and the following bullet comments were entered:

		(1)  "struggles with following up with tasks given to her by her first line supervisor; needs constant supervision and follow up on task completion";

		(2)  "attended [Property Book Enhanced Unit Supply] courses but did not actively engaged [sic] with its use with subordinate units"; and

		(3)  "failed to perform many assigned duties and responsibilities as senior logistic NCO; was unable to multi task requirements and perform under time constraints";

	h.  Part IVc (Physical Fitness and Military Bearing), "Needs (Some) Improvement" was selected and the following bullet comments were entered:

		(1)  "earned a score of 229 on most recent [physical fitness] test";

		(2)  "suffers from anxiety and panic attacks which has hinder [sic] her daily work performance"; and

		(3)  "requested to leave the AGR program; this request displaced her for four month[s] from working within the S4 section";

	i.  Part IVd (Leadership), "Needs (Some) Improvement" was selected and the following bullet comments were entered:

		(1)  "received verbal and written counseling for not following the chain of command";

		(2)  "sometimes she does not understand the importance of her position; leadership and managerial skills need improvement to qualify for next rank"; and

		(3)  "had poor rapport with subordinates [sic] units and was ineffectual in communicating suspense requirements to standard, lacks initiative, should work on staff skills";

	j.  Part IVe (Training), "Success (Meets Standard)" was selected;

	k.  Part IVf (Responsibility and Accountability), "Success (Meets Standard)" was selected;

	l.  Part V (Overall Performance and Potential):

		(1)  her rater rated her as "Marginal" and

		(2)  her senior rater rated her overall performance as "Poor" and her overall potential for promotion and/or service in positions of greater responsibility as "Fair";

	m.  Part Ve (Senior Rater Bullet Comments), her senior rater entered the following:

		(1)  "despite repeated assistance and training, she continues to have serious difficulties as a Senior Logistics NCO, recommend reclassification";

		(2)  "unable to perform at this Senior NCO Level without constant supervision, retention is not advised"; and

		(3)  "allowed the pressure of anxiety and panic attacks to affect her work performance, recommend release from duties and receive mental health counseling."

3.  The contested NCOER shows all rating officials authenticated the form with their electronic signatures.  The reviewer concurred with the rater and senior rater evaluations.  Further, the applicant signed the form on 30 June 2011, verifying the rating officials, duty description, counseling dates, and Army Physical Fitness Test/height/weight entries were correct; that she had seen the completed report; and that she was aware of the appeal process of Army Regulation 623-3 (Evaluation Reporting System).

4.  Her record reveals a disciplinary history that includes eight DA Forms 4856 documenting adverse counseling sessions from 29 September 2010 through 1 July 2011 for:

* leaving her place of duty without the proper authorization of leadership
* two occasions of missing movement
* failing to report for duty at the appointed time
* failing to obey lawful orders and follow guidelines
* failing to utilize chain of command on numerous occasions
* being AWOL
* forging the battalion CSM's signature
* making a false statement 
* delinquency in paying government credit card bill

5.  She submitted a patient appointment listing, dated from 19 January to 19 September 2011, which shows the appointments she kept, her telephonic consultations, cancellations, and no-show appointments during this period.  She highlighted the following appointments:

* 6 June 2011 at 1500 hours, special consultation, 90 minutes
* 6 June 2011 at 1523 hours, acute, 30 minutes
* 7 June 2011 at 0905, telephone consultation,10 minutes

6.  The list of patient appointments did not show any type appointments scheduled or kept for 17 or 18 June 2011.

7.  She submitted a DA Form 3349, dated 23 May 2011, which shows she was recommended for a temporary "3" physical profile due to an adjustment disorder with mixed emotions and concerns regarding conduct.

8.  Her record contains and she submitted emails dating from 1 June to 29 June 2011 regarding her attendance during annual training (AT).

9.  Her record contains and she submitted six DA Forms 4187, dated 22 and 23 June 2011, which ultimately shows she was AWOL on 6, 7, and 17 June 2011.



10.  She submitted two LES's for the following periods:

	a.  1 to 30 June 2011, which shows:

* she incurred a debt for $1,174.57
* her end of month pay as $1,711.57
* her pay in stop held pay status effective 23 June 2011
* her status as AWOL 6 to 7 June 2011
* her status as AWOL 17 to 18 June 2011

	b.  1 to 31 July 2011, which shows she had an advanced debt balance of $1,226.50 and received a casual pay for $2,467.53 on 29 June 2011.

11.  She submitted two pages of her eight-page checking bank statement for the period 15 June to 14 July 2011 on which she highlighted the following transactions:

* 15 June 2011, a $2,457.53 credit to her account from DFAS
* 15 June 2011, a $2,457.53 debit from her account to DFAS
* 30 June 2011, a $2,457.53 credit to her account from DFAS

12.  She submitted a DA Form 2142, dated 23 June 2011, which indicates she intended to request casual pay.

13.  Her record contains and she submitted an AER Form 700, dated 23 June 2011, which shows in:

	a.  item 12, she completed an application for an AER loan due to an unfortunate situation that caused a family hardship;

	b.  item 14c (Name/Rank of Commander/First Sergeant, Signature, Phone Number, and Email), the entry "D____ W____, CSM," and an illegible signature; and

	c.  item 14e (Remarks), the counselor stated she had to call the CSM and the applicant asked her not to because the CSM did not sign form.  The CSM contacted AER and stated the applicant was AWOL and she did not sign the form.



14.  She submitted and her record contains six DA Forms 2823, dated from 29 June to 19 July 2011, which show she was counseled for:

	a.  violation of the Uniform Code of Military Justice, Articles 123 and 107, for forgery and rendering a false statement regarding forgery of a loan document by signing the CSM's signature and

	b.  her absence from work during the periods 6 to 10, 14, and 16 June 2011.

15.  On 8 July 2011, a Commander's Inquiry was conducted based upon the allegations that the applicant was AWOL during documented days in September and October 2010, and June 2011; forged her CSM's signature on an AER loan application; disobeyed a direct order; and violated a previously-written counseling statement, dated 8 November 2010, to use her chain of command, by sending emails to the brigadier and commanding generals on 29 June 2011 prior to presenting her concern to the battalion chain of command.

16.  Based on interviews with rating officials, key leaders, and administrative personnel, the Investigating Officer (IO) made the following observations and findings:

* the applicant was AWOL on 28 September 2010 and she agreed to charges on 29 September 2010
* she was counseled on 28 October 2001 for missing movement twice with no reference to AWOL
* she was AWOL on 6, 7, and 17 June 2010 and counseled on 6 July 2011
* the unit had AT from 5 to 18 June 2011, but she remained at the home station for duty
* the unit administrator was under the impression that she had attended AT until a discrepancy was noted on the daily personnel status report
* she then stated her absences were due to medical appointments, but did not produce any documentation
* she did forge the CSM's signature on an AER loan application
* she did disobey a direct order and violated a previously-written counseling
* she did send emails presenting her concerns to the general officers without notifying her chain of command
* she stated she tried to use her chain of command, but submitted no proof
* the IO recommended her reduction in rank and relief from the AGR Program because she failed to follow Army regulations and was a risk to unit readiness

17.  Her record contains and she submitted a memorandum for record, dated 20 July 2011, subject:  Counseling for Missing Movement, in which she states she attempted to contact Chief Warrant Officer D____ to inform him she was running late on 28 October 2010 and when she arrived he had already left for the training site so she drove her personal vehicle.

18.  She submitted a memorandum from the 207th Regional Support Group, Fort Jackson, SC, dated 15 September 2011, subject:  Notification/Reduction in Grade, informing her that under the provisions of Army Regulation 600-8-19 (Enlisted Promotions), paragraph 10-5, a board was scheduled to convene on 21 October 2011 to reduce her in grade based on misconduct due to multiple occasions of AWOL, missing movement, and forging her CSM's signature.  Her rights were explained to her.

19.  On 30 September 2011, she received a general officer memorandum of reprimand (GOMOR) for presenting a fraudulent loan application to the AER on which she had falsely made the signature of the battalion CSM on 27 June 2011, for being AWOL on multiple occasions in 2010 and 2011, and missing movement twice in 2010.  The GOMOR was imposed as an administrative measure and not as punishment under Article 15 of the Uniform Code of Military Justice.

20.  On or about 21 October 2011 (recorded as 21 September 2011), a rank reduction board convened.  The applicant and her counsel were present.  The reduction board reduced her to the rank/grade of sergeant/E-5.

21.  She did not acknowledge receipt of the GOMOR, but elected to submit matters on her own behalf.

22.  On an unknown date, the GOMOR imposing authority directed permanently filing the GOMOR in the applicant's AMHRR.

23.  Orders B-11-107455 issued by U.S. Army Human Resources Command, Fort Knox, KY, dated 15 November 2011, show she was reduced in rank/grade to SSG/E-6 with a date of rank of 21 October 2011.

24.  A review of the applicant's military records in the interactive Personnel Electronic Records Management System revealed that the GOMOR and allied documents were filed in both the performance portion and restricted portion of the applicant's AMHRR effective 13 January 2012.

25.  On 5 March 2012, she submitted an appeal to the GOMOR indicating:

* the unit accused her of being AWOL when she was on Fort Bragg for her medical appointments and illegally withheld her pay for weeks
* her command refused to support her with a loan for assistance
* she was going through a financial hardship and signed the AER loan for assistance because the command illegally submitted AWOL paperwork to the finance office
* the GOMOR contained several counseling statements which she disagreed with because the counseling was false, so she did not sign it
* she requested removal of the GOMOR from her AMHRR

26.  She submitted a hardcopy of her AMHRR, to include her memoranda showing award of recruiter badges, academic evaluation reports, military award, training certificates, and NCOER's throughout her career.

27.  Army Regulation 600-8-19 (Enlisted Promotions), paragraph 10-5, states a Soldier may be reduced for inefficiency.  Inefficiency is a demonstration of characteristics that shows that the person cannot perform duties and responsibilities of the grade and MOS.  Inefficiency may also include any act or conduct that clearly shows the Soldier lacks those abilities and qualities normally required and expected of an individual of that grade and experience.  Commanders may consider misconduct, including conviction by civil court, as bearing on inefficiency.

28.  Army Regulation 600-8-19, paragraph 10-6, further states that a Soldier must have served in the same unit for at least 90 days prior to being reduced one grade for inefficiency, the commander starting the reduction action will present documents showing the Soldier's inefficiency to the reduction authority that include statements of counseling and documented attempts at rehabilitation by the chain of command or supervisors, record of misconduct during the period concerned, and/or documents that establish a pattern of inefficiency rather than identify a specific incident.

29.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  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.


DISCUSSION AND CONCLUSIONS:
1.  The applicant's requests to remove the contested NCOER from her AMHRR and to reinstate her rank/grade of SFC/E-7 have been carefully considered.

2.  The applicant's reduction in rank and the forfeiture of pay were based on her periods of AWOL and forgery of her CSM's signature.  The punishment was proper; therefore, there is no justification for restoring her rank/grade to SFC/E-7 and granting her back pay and allowances.

3.  Although she submitted a list highlighting her kept medical appointments at 1500 and 1523 appointments on 6 June 2011, she did not submit evidence showing she reported to her place of duty prior to or after these appointments or had authorization to report directly to the medical facility.  In addition, the appointment she highlighted on 7 June 2011 was a telephone consultation that was only 10 minutes in duration.   Furthermore, there is no evidence nor did she submit any evidence showing she had any type of medical appointment on 17 June 2011.  Therefore, there is insufficient evidence to show she was not properly in an AWOL duty status for 6, 7, and 17 June 2011.

4.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown 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.  The evidence shows each of these documents was properly administered in accordance with applicable regulations and is properly filed in the performance section of her AMHRR.  There is no evidence of an error or an injustice.

6.  The purpose of maintaining the AMHRR is to protect the interests of the Army and the Soldier.  In this regard, the AMHRR serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, evaluation periods, and any corrections to other parts of the AMHRR.  Once placed in the AMHRR, the document becomes a permanent part of that file and will not be removed from or moved to another part of the AMHRR unless directed by an appropriate authority.



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 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)                                         AR20110024721



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ABCMR Record of Proceedings (cont)                                         AR20110024721



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