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ARMY | BCMR | CY2012 | 20120007748
Original file (20120007748.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120007748 


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 earlier request for 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 she disagrees with the previous Board's decision.  Further, the previous Board's decision contained inaccuracies and she provides the following clarification and makes her request based on the following:

   a. Her enlistment military occupational specialty (MOS) was 31R (Multi-Channel Transmission Systems Operator/Maintainer) until she was reclassified in February 2006 into MOS 25B (Information Systems Operator).

   b.  Her assignments included the 4th Brigade Combat Team, Early Entry Command Post, U.S. Army Reserve (USAR) Noncommissioned Officer Academy, and Headquarters and Headquarters Company, 3rd Maneuver Enhancement Brigade.
   
c.  She was unaware of the option of a commander's inquiry (CI).

   d. She is positive the U.S. Army Alaska (USARAL) Command Sergeant Major (CSM) purposely extended her punishment and reprised against her because:

* her assignment was curtailed
* her nonjudicial punishment (NJP) and her NCOER were held up until her supervisor's court-martial concluded
* she was flagged from 15 March 2010 to September 2010 when she was permitted to make a permanent change of station (PCS) move
* she received a bar to reenlistment without being counseled, and the bar was not lifted when she PCS'd

3.  The applicant addresses the subject NCOER by stating:

* the initial counseling date of 9 February 2010 cannot be correct because the rater had not even arrived in the unit on that date
* the Part IVd (Leadership) bullet comment is too brief and too vague
* any mention of her adulterous relationship should have been placed in her previous NCOER
* the Army Enlisted Special Review Board's (ESRB) denial of her NCOER appeal was "logically and legally erroneous" because it stated:

* she provided no evidence to support her contentions
* there was a presumption she was counseled on her shortcomings
* she was expected to adhere to Army Values and NCO responsibilities

4.  The applicant further states she received her NCOER 119 days after the "thru" date; 123 days after her confession of adultery to the Inspector General's (IG) office; 94 days after the completion of the Army Regulation 15-6 investigation; 82 days after the release of the findings of the investigation to the appropriate supervisors for appropriate action; and 1 day after her supervisor's court-martial proceedings.

5.  The applicant provides:

* self-authored statements 
* a timeline
* an indexed, tabbed binder with Tabs A through AC

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110024457, on 12 February 2012.

2.  The applicant submits self-authored statements, a timeline, and an indexed tabbed binder with Tabs A through AC.  These are considered new evidence and as such warrant consideration by the Board.

3.  The applicant states that on 15 March 2010, she was flagged for adverse action but was not counseled on why.  The flag was removed in September 2010 to allow her to make a permanent change of station (PCS) move.  She further states that at some point during that time she was issue a bar to reenlistment while she was in an indefinite status and again, was not counseled or informed.  The bar was not lifted when she PCS'd and was not removed until 13 July 2011.  

4.  Associated documents pertaining to the applicant's bar to reenlistment are not available for review.

5.  The applicant, a staff sergeant (SSG)/E-6, committed adultery with her first sergeant (1SG)/E-8 from 25 September 2009 to 27 December 2009.  The offense was discovered, court-martial charges were preferred against the 1SG, and the applicant was offered, and accepted, a field grade Article 15 on 28 June 2010.

6.  In October 2010, the applicant received the subject NCOER for her duties as an Information Systems Team Chief.  The report shows:

* her rater was a sergeant first class (SFC)/E-7 serving as the Brigade S-6 Noncommissioned Officer in Charge (NCOIC)
* she was initially counseled on 9 February 2010
* Part IV (Army Values/Attributes/Skills/Actions) shows in Part IVd (Leadership) "Needs (Some) Improvement" and adds the bullet comments:

* demonstrated poor judgment
* encouraged her Soldiers to attend college courses and worked to enroll them in advanced information technology courses
* an outstanding technical resource; the NCO placed the need of her Soldiers above her own

7.  The rater's NCOER for this period shows he began serving as the Brigade S6 NCOIC and the applicant's rater on 11 January 2010.

8.  The record is void of a request for CI regarding the subject NCOER.



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

10.  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 (the rated individual) states 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.  

	b.  Paragraph 3-2i (Evaluation requirements) 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 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.

	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 (Modification to previously submitted reports) 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.

	g.  Paragraph 6-2 (Information) states the Redress Program protects the Army's interests and ensures fairness to the evaluated officer or NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause.  By way of a CI, commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports.  

11.  Army Regulation 601-280 (Army Retention Program) prescribes the criteria for the Army Retention Program.  Only Soldiers of high moral character, personal competence, and demonstrated adaptability to the requirements of the professional Soldier's moral code will be reenlisted in the Active Army.  The Bar to Reenlistment is intended to put the Soldier on notice that he or she may be a candidate for separation if circumstances that led to the Bar to Reenlistment are not overcome.  Any commander in the Soldier's chain of command may recommend removal of a Bar to Reenlistment, or remove a Bar to Reenlistment, if he or she is in the same or higher level of command than the one that initially approved the Bar to Reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for reconsideration of her previously denied request for amendment of her DA Form 2166-8 for the period 20100130 through 20101012 was carefully considered.

2.  The applicant violated the UCMJ and she was punished.  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.  The governing regulation permits references to any verified derogatory information.  Receipt of the NJP itself is derogatory and, therefore, is permissible.

3.  Although the applicant argues her initial counseling date of 9 February 2010 is incorrect because rater had not arrived in the unit, records show her rater was assigned on 11 January 2010. 

4.  The applicant states she confessed and sought the assistance of the IG; however, there is no evidence she requested a CI.

5.  The applicant argues none of the other bullet comments support the "needs improvement" rating and the fact she was never counseled for anything that would warrant "needs improvement."  Nevertheless, receipt of NJP, regardless of the reason, indicates improvement is needed.  She fails to realize the contested NCOER comment and marking is based upon "receipt" rather than the "circumstances" leading to the administration of her NJP.  Further, even if the NCOER was late, she was not deprived of any due process and experienced no harm due to the delay in processing the NCOER.

6.  The applicant contends she received a bar to reenlistment without counseling. The associated documents pertaining to her bar to reenlistment are not available; however, the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to her bar to reenlistment.

7.  In view of the foregoing, there is an insufficient basis for granting the applicant's 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 to amend the decision of the ABCMR set forth in Docket Number AR20110024457, dated 12 February 2012.



      __________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)                                         AR20120007748



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ABCMR Record of Proceedings (cont)                                         AR20120007748



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