IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120000852 


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 reconsideration of her request to remove from her Official Military Personnel File (OMPF) a relief for cause noncommissioned officer evaluation report (NCOER) for the period ending 28 September 2006 and all associated documents, including her appeal.

2.  The applicant defers her comments to counsel.

3.  The applicant provides:

* a new statement from her rater/commander
* her relief for cause notification
* a statement from her rater/commander and her command sergeant major
* the Army Regulation 15-6 investigation with supporting documents

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the Board reconsider the applicant's request to remove the contested NCOER and that the Board consider the statements from the rater/commander indicating he would not have rendered the NCOER had information obtained afterwards had been available.

2.  Counsel states that the Board has refused to recognize the independent nature of evidence submitted by the applicant that clearly shows the NCOER was issued in error.  Counsel further states for the Board to ignore the nature of the evidence is wasteful and is an improper use of the Federal judiciary and intellectually unsupportable.

3.  Counsel provides no additional documents other than those provided by the applicant.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records that were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090020425 on 28 January 2010 and AR20100010575 on 16 September 2010.

2.  The applicant presents a statement from the rater/commander who issued the relief for cause NCOER who now asserts his support for the removal of the contested NCOER was not retrospective thinking or a sense of regret.  However, it was based on information that he had received in September 2006 which he later found was untruthful.  He also states as a captain in the U.S. Army his word is in fact and deed.  This statement was not previously considered by the Board; therefore, consideration is warranted.

3.  The applicant enlisted in the Regular Army on 19 September 1990 for a period of 3 years and training as a chemical operations specialist.  She completed her training and she remained on active duty through a series of continuous reenlistments.  She was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 September 2003.

4.  On 17 August 2006, while the applicant was serving as a first sergeant in a chemical company at Camp Hovey, Korea, an officer (major) was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 regarding allegations of fraternization and an inappropriate relationship between the applicant and the supply sergeant.

5.  On 7 September 2006, the investigating officer published his executive summary of findings and indicated the applicant and the supply sergeant had violated three elements of Army Regulation 600-20 (Army Command Policy and Procedure) by having an inappropriate relationship.  He further indicated credible witnesses within the battalion and company witnessed inappropriate behavior between the two and the chaplain observed them in Yongsan holding hands while walking together.


6.  On 28 September 2006, the applicant received a relief for cause NCOER covering the period 1 July through 28 September 2006.  In Part IV, under Army Values, her rater/commander gave her "No" ratings under loyalty, honor, and integrity.  He indicated the applicant was involved in an inappropriate relationship that compromised the chain of command and created an adverse impact on discipline, authority, and morale.

7.  In Part IV, under Values/NCO Responsibilities, the applicant's rater/
commander gave her a "needs Improvement" rating under leadership and indicated she had violated the leadership attributes of Be, Know, and Do by engaging in an inappropriate relationship with a subordinate.  He also gave her a "Marginal" rating for overall potential for promotion.

8.  The applicant's senior rater (SR) gave her a "Fair" rating under performance and a "Superior – 3" rating under potential for promotion.  He indicated her potential is limited and she currently does not possess the traits required for promotion to sergeant major.  The reviewer (brigade commander) concurred with the rater and SR's evaluations.

9.   The applicant appealed the NCOER to the Enlisted Special Review Board (ESRB).  On 20 August 2009, the ESRB determined the overall merits of her case did not warrant removal of the contested NCOER from her OMPF and denied her request.

10.  On 9 November 2009, she applied to this Board requesting removal of the contested NCOER and all associated documents from her OMPF.  After reviewing all available evidence, on 28 January 2010, the Board voted unanimously to deny her request in docket number AR20090020425.

11.  The applicant then applied to the Board for reconsideration of her request and submitted a statement from the rater/commander of the contested NCOER who indicated he believed a statement made by an NCO against the applicant was untrue and fabricated to hide his own misconduct.  He also stated had he known it at the time it would have served to disprove the allegations against the applicant.

12.  After considering all the available evidence, the Board determined there was insufficient evidence to reverse its previous findings and opined the rater/
commander was engaging in retrospective thinking.  The Board again denied her request on 16 September 2010.


13.  The applicant again applied to the Board for reconsideration on 6 May 2011 and the staff of the Board advised the applicant that the Board would not further consider her case.  She was advised to seek relief in a court of proper jurisdiction.

14.  The applicant again is applying for reconsideration with the assistance of counsel.  Her request for reconsideration is dated 28 November 2011 and she has provided another statement from the rater/commander who indicates his word is fact and bond and he was not engaging in retrospective thinking.  It should also be noted the same officer was also subsequently relieved of command of that company for inappropriate conduct with female subordinates.

15.  Army Regulation 623-3 (Evaluation Reporting System) sets forth the policies and procedures for the Army's Evaluation Reporting System.  Paragraph 6-7 (Policies) states an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to:

	a.  Be administratively correct.

	b.  Have been prepared by the proper rating officials.

	c.  Represent the considered opinion and objective judgment of the rating officials at the time of preparation.

16.  Paragraph 6-7 of Army Regulation 623-3 further states when submitting an appeal, the burden of proof rests with the applicant and he/she must produce evidence that establishes clearly and convincingly 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and supporting documents have been noted and found to lack merit.  Additionally, counsel's contentions that the Board has refused to recognize the independent nature of the evidence presented has also been noted and found to lack merit.

2.  While it appears the applicant and counsel believe the Board should only consider argument and evidence they deem to be important, the Board must consider all of the available evidence in reaching its deliberation of a case.

3.  The applicant's rater/commander who initiated the contested report now believes the report to be unjust and contends it was based on untruthful information from one NCO.  However, the facts in this case show an investigation was conducted that found sufficient evidence from more than one source to substantiate the allegations against the applicant.

4.  Although the rater/commander may believe his word is not subject to question, the evidence in this case suggests the applicant did have an inappropriate relationship with a subordinate and nether the applicant, counsel, nor the rater/commander has submitted sufficiently mitigating evidence to prove otherwise.

5.  In view of the foregoing, there is an insufficient evidentiary basis to grant her request for reconsideration or to further consider her case.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090020425, dated 28 January 2010 or Docket Number AR20100010575, dated 16 September 2010.



      ____________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)                                         AR20120000852



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ABCMR Record of Proceedings (cont)                                         AR20120000852



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