BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120009440 


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 removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 29 March 2010 through 10 December 2010 from her official military personnel file (OMPF).
 
2.  The applicant states:

* The NCOER in question has multiple errors, it was done unfairly, and it was completed with prejudice
* She requested a Commander's Inquiry and the investigating official recommended that the NCOER be removed from her records
* The NCOER was held until an Army Regulation 15-6 (Procedures for Investigating Officers and Boards of Officers) investigation was completed
* The NCOER was a change of rater report
* The individual responsible for the NCOER had a change of command on 10 December 2010 and he was not provided any information concerning the investigation until February 2011  

3.  The applicant provides:

* Army Regulation 15-6 investigation results
* Email
* Appeals packet
* Commander's Inquiry

 
CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 23 November 1988 and she has remained on active duty through continuous reenlistments.  She was promoted to first sergeant (1SG) on 1 September 2008.  

2.  The contested NCOER is a 6-month change of rater NCOER covering the period 29 March 2010 through 10 December 2010.  The rater provided a "No" entry for duty in Part IV (Army Values/Attributes/Skills/Actions) with the bullet comments:  

* her duties as 1SG were temporarily reassigned due to an investigation
* cares for and led Warriors in Transition displaying selfless-service
* faces adversity and adapts to overcome obstacles through personal courage

3.  She was rated as "Success (Meets Standard)" for "Leadership" with bullet comments:
  
* supervised zero NCOs for a 3-month period during rating period; due to investigation
* provided compassionate leadership for each individual Warrior in Transition and their family members

4.  She was rated "Fully Capable" for overall potential for promotion and or service in positions of greater responsibility by her rater.

5.  She was rated "Successful-2" for overall performance and "Superior-2" for overall potential for promotion and/or service in positions of greater responsibility by the senior rater.  

6.  The senior rater bullet comments in Part Ve (Overall Performance and Potential) were:

* overall great performance marred by an unfortunate incident
* afford the opportunity to serve as a 1SG
* promote with peers
* Soldier unavailable for signature

7.  On 6 March 2011, the applicant requested a Commander's Inquiry and she alleged her rater did not provide a fair evaluation of her performance during the period in question.   

8.  On 21 July 2011, the investigating official recommended the NCOER in question be removed from the applicant's OMPF.  He found:

* The applicant was the subject of an investigation initiated on 1 October 2010 and completed on 16 November 2010
* She was suspended from performing 1SG duties during the period of the investigation
* The investigation was completed on or about 16 November 2010 and she received a GOMOR on or about 10 January 2011
* She appealed the GOMOR and an amended GOMOR was presented on 8 February 2011
* Again she appealed the GOMOR; however, it was subsequently filed locally
* During this period, the three rating officials signed multiple (at least three) versions of the NCOER between 7 February and 23 March 2011
* The applicant did not sign any of the documents but she continued to address her concerns with her rating officials
* The NCOER that was signed on 23 March 2011 by the reviewer was filed in her OMPF
* In this NCOER the applicant was given a "no" in Values – Part IV.a.2 (Duty)
* The substantiating bullet was "her duties as 1SG were temporarily reassigned due to investigation" 
* Although she received a "success" for leadership, the rater placed the bullet "supervised zero NCOs for a 3-month period during rating period; due to investigation" and the senior rater wrote "overall great performance marred by an unfortunate incident"
* The applicant provided documentation that shows she made a good faith effort to discuss the irregularities on her NCOER with her rating officials before it became a matter of permanent record
* Her concerns were not appropriately addressed by the rating officials before the NCOER was filed 

9.  The investigating official concluded:

* The NCOER had serious irregularities and indicated a lack of fairness or objectivity by the rating officials
* He viewed the multiple comments to the "investigation" to justify both a "no" rating as well as a "success" rating as unjustly prejudicial to the rated Soldier

10.  On 3 August 2011, the applicant submitted an appeal of the NCOER to the Enlisted Special Review Board (ESRB).  On 12 January 2012, the ESRB determined: 

   a.  The evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action was warranted to correct a material error, inaccuracy, or injustice. 

   b.  The overall merits of her case did not warrant the relief requested. 

11.  A review of the applicant's performance section of the OMPF on the interactive Personnel Electronic Records Management System revealed a copy of the contested NCOER.

12.  Army Regulation 600-8-104 (Military Personnel Information Management/ 
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF. 

13.  Army Regulation 623-3 states, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the NCOER in question has multiple errors, it was done unfairly, and it was completed with prejudice.

2.  Her contention the NCOER was held until the investigation was completed was noted.  However, evidence shows the investigation commenced on 
1 October 2010 and was completed on or about 16 November 2010.  The rating period did not end until 10 December 2010.  Therefore, it does not appear the NCOER was held until the outcome of the investigation. 

3.  She contends the individual responsible for the NCOER had a change of command on 10 December 2010 and he was not provided any information concerning the investigation until February 2011.  However, there is no evidence and she provides no evidence to support this contention.

4.  It is acknowledged the investigating official recommended the contested NCOER be removed from her records.  However, the applicant has not provided sufficient evidence to show that the NCOER was not processed in accordance with applicable laws and regulations.

5.  The governing regulation states NCOERs will be filed in the performance section of the OMPF.  The NCOER in question is properly filed in the applicant's military records in accordance with the governing regulation.  Therefore, there is insufficient evidence on which to remove the NCOER from the applicant's OMPF.

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)                                         AR20120009440



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ABCMR Record of Proceedings (cont)                                         AR20120009440



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