IN THE CASE OF:	  

		BOARD DATE:	    13 August 2013

		DOCKET NUMBER:  AR20120022148 


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 the following corrections:

   a.  Removal of a Non-Concurrence Memorandum for Noncommissioned Officer Evaluation Report (NCOER) attached to an unsigned DA Form 2166-8 (NCOER) for the period 10 August 2009 through 20 July 2010.
   
   b.  Award of the Bronze Star Medal.

2.  The applicant states:

	a.  She was recommended for award of the Bronze Star Medal for service on 2 June 2010 which was approved by the Awards Branch on 25 June 2010.  This award was approved by the intermediate authority on 9 June 2010.  She was given an order number for the award and then the award was denied without comment on 11 July 2010.

	b.  While in Iraq, she filed a complaint against the command sergeant major (CSM) and the CSM reprised against her.  She filed a reprisal complaint and then she was removed from her position to a downgraded position without cause.  She was investigated by the same officer that encouraged and assisted her in creating the original complaint she filed.

	c.  When she challenged the actions taken against her, she was counseled and sent back early from Iraq without being given a chance to correct these issues.  She later found that her NCOER included a non-concurrence statement attached by the commanding officer that lists derogatory and inaccurate information.  After her complaint was filed and she relocated she was told that the commander and the CSM (whom the complaint was against) were inquiring about how to get her removed from her permanent position in California with the Sergeants Major Advisory Council, subsequently replaced by the next person on the promotion list.  That next person in-line just happened to be deployed with them in Iraq and it is the same person listed in one of her counseling statements as the reason for her counseling.  

	d.  Her career was ruined when she returned home and she was unable to get anyone, to include the Inspector General's (IG) office, to address the larger issues.  She was denied the opportunity to speak to the Army Guard Commander and had to deal with the Chief of Staff, who controlled her assignments which led to her request to retire when she did.  Her requests for a Commander's Inquiry were denied and she was told to seek assistance from the Iraq Brigade, who eventually said it was a California Army National Guard (CAARNG) issue since she was no longer deployed and then they sent her back to the IG who eventually did not research her complaint in full.

	e.  By sending her home from Iraq, she was unable to complete the process that would have eventually led to her issue being corrected.  The Commander of the 49th Military Policy (MP) Brigade eventually became the Army Guard Commander of California so she was left with only the IG's office to try to address her issues.  She did not receive a word from them until October 2012.

3.  The applicant provides:

* Army Board for Correction of Military Records Complaint Tab Index List
* DA Form 4836 (Oath of Extension of Enlistment or Reenlistment)
* 2010 assignment orders
* DA Form 2823 (Sworn Statement)
* Command Policy Memorandum #4, Open Door Policy
* Letter of counseling memorandum
* Response to a letter of counseling memorandum
* Commander's inquiry memorandum
* three DA Forms 2166-8 for 2008, 2009, and 2010 (which was contested) 
* DA Form 2166-8-1 for 2010
* Competence Performance Summary
* Issues related to CSM Lxxxx memorandum
* April 2010 Memorandum for Record (MFR)
* Non-concurrence memorandum
* Letter of Recommendation for Consideration for Appointment to CSM memorandum
* DA Form 638 (Recommendation for Award) and narrative for Bronze Star Medal
* award disapproval notification email
* End of Tour Awards Roll Up List
* Deployment Cycle Support Checklist
* Memorandum requesting retirement
* 2012 DD Form 214 (Certificate of Release or Discharge from Active Duty)
* email correspondence to BG Exxxxxxx, the Deputy Brigade Commander and LTC Kxxx, the Brigade Operations Officer in Charge
* Request for compassion memorandum
* Email pertaining to the filing of the NCOER on the interactive Personnel Electronic Records Management System (iPERMS)
* Four DA Forms 1599 (IG Action Request)
* 2011 NCOER memorandum
* 2010 certificate of participation
* BG Cxxxxxx's Weekly Calendar
* reply to Freedom of Information Act request
* her letter and a reply from a Member of Congress
* extracts of:

* Army Regulation 623-3 (Evaluating Reporting System) 2007 and 2012
* DA Pamphlet 623-3 (Evaluating Reporting System)
* Army Regulation 15-6 (Procedures for Investing Officers and Boards of Officers)
* Army Regulation 600-20 (Army Command Policy)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the CAARNG on 31 October 1985.  She completed training and was awarded military occupational specialty 95B (MP).  She was promoted SGM on 16 January 2007.

2.  She entered active duty in support of Operation Iraqi Freedom on 25 February 2008.  She was honorably released from active duty (REFRAD) on 9 August 2009 and transferred to the Adjutant General, State of California.  

3.  She provides copies of the following:

	a.  Command Policy Memorandum #4, Open Door Policy, dated 20 October 2009.

	
	b.  Three DA Forms 2166-8 which show she received the following ratings:

		(1)  1 February through 31 July 2008 – "Success" and Excellence" and she was rated "Among the Best."

		(2)  1 August 2008 through 31 July 2009 – "Excellence" and "Success" and she was rated "Marginal."

		(3)  10 August 2009 through 9 August 2010 – "Success" and "Excellence" and she was rated "Fully Capable."

   c.  A DA Form 638 and narrative, initially recommending her for award for the Bronze Star Medal for the period 1 October 2009 through 15 July 2010.  This form indicates the award was disapproved by the Brigade Commander on 15 July 2010.  

	d.  A DA Form 4836, dated 10 December 2009, which shows she extended her 5 August 2004 reenlistment for 6 years.

   e.  A letter, dated 23 January 2010, which shows the Brigade Commander endorsed the applicant for a lateral promotion to CSM.

	f.  Orders, dated 1 June 2010, attaching her to the 49th MP Brigade.

	g.  A Commander's Inquiry memorandum, dated 12 June 2010, regarding allegations of reprisal or retaliation by CSM Lxxxx, the CSM of the 49th MP Brigade, wherein the Brigade Commander advised that the Commander's Inquiry was now complete as it revealed that CSM Lxxxx had a proper and appropriate reason to formally counsel the applicant in writing.  She was insubordinate to him on 29 March 2010 by walking out of a meeting with him without being properly dismissed.  This was intolerable and unconscionable.  Walking out on a meeting with the Brigade CSM was punishable under the Uniform Code of Military Justice.  CSM Lxxxx did not improperly retaliate against her for the use of his open door policy.  He counseled her for unprofessional conduct and insubordination toward the CSM.

	h.  A letter of counseling, dated 29 June 2010, wherein the applicant's Brigade Commander stated that three matters had come to his attention:

		(1)  Sometime during the first week of February 2010 the applicant stated to the Headquarters Company First Sergeant (1SG) that "you know you are going to have to choose sides and when this goes down you want to be on the right side."  This comment was made during a meeting in the 1SG's office following the NCO sensing session related to the Unit Command Climate Survey. The remark was related to CSM Lxxxx and the applicant.

		(2)  On 29 March 2010, the applicant walked out of a meeting with the Brigade CSM without being properly dismissed.

		(3)  On 18 June 2010, the applicant expressed her discontent at the level of responsibility she received upon her detail to the 49th MP Brigade Tactical Command (TAC) at Camp Cropper.

			a.  The edict issued to the 1SG was unprofessional, divisive, and detrimental to morale.  As he had stated in numerous venues, the treatment of others is extremely important to his command philosophy.  Her remarks to the Headquarters and Headquarters Company's 1SG placed him in an unbearable position.  Her actions had eroded the good order and discipline of the command by failing to adhere to the Army values of organizational loyalty.

			b.  Regarding her perspective that her duties at Camp Cropper are appropriate for an E-4, the specific assignment of that high-visibility ceremony was a task normally assigned to a senior NCO.  Her public description of assigned duties at Camp Cropper revealed once again her attitude towards self rather than the organization.  It had been determined that she could not work at the Brigade Headquarters due to the divisive climate she created with the Headquarters Soldiers.  He had exhausted his options to assimilate the applicant into the Brigade's mission for the remainder of the deployment; therefore, he chose to have her released from active duty immediately.  

	i.  Her response to the letter of counseling, dated 2 July 2010, wherein the applicant stated, in effect, she and the 1SG discussed the Command Climate Survey and wondered and speculated what would happen to the commander or the 1SG if the survey was really bad and what action the Brigade Commander would take to correct it.  Her conversation on 29 March with CSM Lxxxx was short and focused.  She was accused of something in that meeting that she completely denied and had since proven to be a false accusation.  When CSM Lxxxx stopped contributing to the open conversation and returned to his desk, it was obvious that this open conversation was over.  That is when she left. Although she is unable to dispute anything specific listed in the paragraph 5 of the counseling, she wanted to state she had always and still wanted to contribute to the 49th MP Brigade and its mission.  She requested reconsideration of the decision to REFRAD her early.

	j.  an email, dated 18 July 2010, which shows she was advised that the brigade commander did not approve award of the Bronze Star Medal, it was not downgraded, and there were no comments as to why.

	k.  A DA Form 2166-8-1 wherein she received counseling for the rating period 10 August 2009 through 20 July 2010.

	l.  A REFRAD NCOER for her duties as an Operations SGM for the period 10 August 2009 through 20 July 2010.  Her rater was a lieutenant colonel (LTC), Brigade G3; her senior rater (SR) was a colonel, Deputy Commander; and her reviewer was a Brigadier General (BG), the Brigade Commander.  The NCOER shows in:

   (1)  Part III(f) (Duty Description) (Counseling Dates):

* Initial – 15 August 2009
* Later – 6 December 2009
* Later – 9 March 2010
* Later - -blank-

		(2)  Part IV (Army Values/Attributes/Skills/Actions), section a, the rater placed an "X" in all the "Yes" blocks and entered the following comments:

* [The applicant] works tirelessly to ensure the mission of the operations center is accomplished
* [The applicant] accomplishes all tasks to the highest standards

		(3)  Part IV (Values/NCO Responsibilities), section b (Competence), the rater placed an "X" in the "Excellence" block and entered the following comments:

* Competent Operations SGM that utilized her vast knowledge of regulation and procedure to bolster mission accomplishments
* Assisted in a very sensitive investigation into gross misconduct in a subordinate company, her assistance was integral to its successful completion
* Incorporated battle staff knowledge to train her subordinates so that complex analog maps were maintained in case the Command Post of the Future was inoperable
* Assisted in the production of the Brigade's Operations Order (OPORD) and supporting Fragmentary Orders (FRAGOs)

		(4)  Part IV, section c (Physical Fitness & Military Bearing), the rater placed an "X" in the "Success" block and entered the following comments:

* Maintained a rigorous physical training regime, which includes an hour of cardiovascular exercise per day
* Displayed confident presence in the Operations Center
* Maintained a professional appearance and makes on-the-spot corrections of subordinates

		(5)  Part IV, section d (Leadership), the rater placed an "X" in the "Success" block and entered the following comments:

* Always demonstrated genuine concern for the safety and success of Soldiers assigned to her
* Maintained strict discipline with assigned personnel; she is willing to support them when warranted and document disciplinary problems when necessary
* Accepted Soldiers who have had problems in other sections and developed them into productive members of the team

		(6)  Part IV, section f (Responsibility & Accountability), the rater placed an "X" in the "Success" block and entered the following comments:

* Ensured all G3 suspenses were met
* Volunteered to complete tasks that fall outside the scope of the G3 in order to assist other sections
* Established a publishing and tracking system that reviewed over 6000 FRAGOs, CORPS RFIs, Orders in Staffing and published in excess of 350 Brigade FRAGOs
* Did not always accept responsibility for managing conflict within the unit

		(7)  Part V (Overall Performance and Potential), section a (Rater), the rater placed an "X" in the "Among The Best" block.

		(8)  Part V, section b (SR Bullet Comments) the SR entered the following comments:

* Extremely capable and competent senior NCO with skills, knowledge, and experiences to accomplish the mission
* Expertly synchronized intelligence, plans and operations systems to enhance Bridge Tactical Operations Center (TOC) operations
* Caring leader and positive motivator
* Interpersonal relationship with Brigade CSM hindered overall performance
* Recommend for nomination as a CSM

		(9)  Part V, section c (SR – Overall Performance) and in Part V, section d (SR – Overall Potential), the SR gave a rating of "Successful" and placed an "X" in the "2" block for the applicant's overall performance and a rating of "Superior" and placed an "X" in the "2" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility.

		(10)  The NCOER was digitally signed by her rater on 8 July 2010, by the SR on 9 July 2010, and by the reviewer on 13 July 2010.  The reviewer placed an "X" in the "Non-concur With Rater and/or SR Evaluation" block.

4.  Her record contains and she also provides a copy of a Non-concurrence Memorandum for NCOER, dated 9 July 2010, wherein the reviewer stated:

   a.  As the reviewer during the period in question he non-concurred with the rater and SR's evaluation of the applicant and he submitted the following to clarify the situation and indicated what he considered to be the proper evaluation of performance and/or potential:

		(1)  The applicant's direct supervisor and her SR have both been impressed with her technical and tactical abilities, as well as her constant attention to detail and her strong work ethic.  He concurred with their observations on these areas of performance.  However, her outstanding technical performance was overshadowed by her personal animosity for the Brigade CSM.  The applicant's animosity clouded her judgment which led to two separate letters of counseling.

		(2)  Letter of Counseling Number 1 was issued on 11 June 2010 as her brigade commander.  During the course of a Commander's Inquiry it became clear that the applicant expressed her opinions about the Brigade CSM to subordinate Soldiers.  It was also determined the applicant made Soldiers in her own TOC uncomfortable with her outspoken criticism of the Brigade CSM.  Although they respected her rank they articulated their desire for a more professional working environment.  The applicant's actions violated the Army Values of Selfless-Service and Loyalty.

		(3)  Letter of Counseling Number 2 was issued on 29 June 2010.  The applicant issued an edict to the Headquarters Company 1SG that implied he should choose sides between the Brigade CSM and applicant.  This left the 1SG in an untenable position which significantly increased his stress, distracting him from his duties in a unit fighting in a combat environment.  When he determined the applicant was creating a divisive command climate he elected to detail her to another work location (Camp Cropper).  The applicant's actions violated the Army Value of Loyalty and Selfless-Service.

		(4)  In neither of the counseling sessions did the applicant express contribution or culpability.  Although working with the Brigade CSM had been challenging for the applicant, she did not demonstrate loyalty that should have placed her Soldiers first.  Instead she chose to fight the Brigade CSM and in the process divided the headquarters command during wartime service.

   b.  He exhausted his options to find a position for the applicant in Iraq; therefore, she was returned to the home station for REFRAD prior to the end of the unit's mission.  He unsuccessfully attempted to resolve the differences with the rater by providing all investigative documents and both letters of counseling.  The applicant's rater elected to remain with his original remarks.  It is his judgment that additional efforts on his part to resolve these differences would present undue command influence.

5.  The applicant further provides copies of the following:

   a.  A letter of recommendation for (the applicant) for consideration of appointment to CSM, dated 23 January 2010, wherein the reviewer endorsed the applicant to the board for lateral promotion to CSM.  

	b.  Four DA Forms 1559, dated between 19 May and 30 November 2010 pertaining to her end-of-tour award of the Bronze Star Medal and the NCOER she received based on her job performance and duties while she was in Iraq.

   c.  A Memorandum, Subject:  Request for Commander's Inquiry, dated 
31 October 2010, concerning the reviewer's Letter of Non-Concurrence of the evaluation report for the period 10 August 2009 through 20 July 2010.  The applicant stated BG Cxxxxxx's reference to the counseling letters was inaccurate and untrue.  She had never been the subject of a Commander's Inquiry, nor had any evidence been provided to her showing that she had expressed personal opinions or criticisms about CSM Lxxxx to subordinate Soldiers of the Brigade or in her section.  She had submitted a written complaint about the issues related to CSM Lxxxx and a reprisal complaint against CSM Lxxxx to the Brigade Commander with the intent that he would address and correct CSM Lxxxx and the complaints would remain within the command.  CSM Lxxxx's actions were degrading to these subordinate Soldiers and not consistent with Army standards of conduct.  She was requesting this inquiry to provide clarity to the situation and to have her NCOER corrected to reflect her true service while deployed with the 49th MP Brigade.  

	d.  A request for compassionate reassignment memorandum, dated 22 November 2010, wherein she was notified of the denial of her request for a compassionate reassignment.

	e.  An email, dated 13 December 2010; an NCOER, dated 20 July 2010; and a Non-Concurrence memorandum, wherein she was advised that the NCOER issued by the 49th MP Brigade would be filed in her iPERMS record.

	f.  An NCOER memorandum, dated 30 March 2011, from the Chief of Staff, 49th MP Brigade, wherein the 49th MP Brigade official provided her with a synopsis of the command's actions related to her deployment NCOER and for reasons given her rating period would continue with a through date of 20 July 2010.  

	g.  A letter from the IG, dated 9 November 2012, wherein she was advised under the Freedom of Information Act that the allegation that reprisal against a subordinate (the applicant) was unfounded.   

6.  On 14 September 2010, she reentered active duty and on 31 January 2012, she was honorably retired in the rank of SGM.  She completed over 20 years of net active service.  

7.  Army Regulation 623-3 establishes the policies and procedures for the preparation and submission of NCOER's for corporals through CSM.  

	a.  Paragraph 6-4 states alleged error, injustices, and illegalities in a rated Soldier's evaluation report may be brought to the commander's attention by the rated individual.  If the commander finds no fault with the evaluation, then the Commander's Inquiry is filed locally and a copy is given to the rated individual.

	b.  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.

8.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes policy for access to the iPERMS and the Army Military Human Resource Record (AMHRR), formerly known as the Official Military Personnel File.  This regulation states that once a document is placed in the AMHRR it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the proper authorities listed in the regulation.

9.  Army Regulation 600-8-22 (Military Awards) provides Department of the Army policy, criteria, and administrative instructions concerning individual military decorations, service medals and ribbons, and similar devices awarded in recognition of accomplishments.  It states:

	a.  The Bronze Star Medal is awarded in time of war for heroism and for meritorious achievement or service.  As with all personal decorations, formal recommendations, approval through the chain of command, and announcement in orders are required.

	b.  A request for reconsideration or the appeal of a disapproved or downgraded award recommendation must be placed in official channels within 1 year from the date of the awarding authority’s decision.  One time reconsideration by the award approval authority will be conclusive.  However, pursuant to Title 10, U.S. Code (USC), section, a Member of Congress can request a review of a proposal for the award or the upgrading of a decoration that is not authorized to be presented or awarded due to time limitation established by law or policy for timely submission of a recommendation.

10.  Title 10, USC, section 1130 provides the legal authority for consideration of proposals for decorations not previously submitted in timely fashion.  It allows, in effect, that upon the request of a Member of Congress, the Secretary concerned shall review a proposal for the award or presentation of a decoration that is not otherwise authorized to be presented or awarded due to limitations established by law or policy for timely submission of a recommendation for such award or presentation.  Based upon such review, the Secretary shall make a determination as to the merits of approving the award or presentation of the decoration.

11.  The request, with a DA Form 638 (Recommendation for Award), must be submitted through a Member of Congress to the Secretary of the Army at the following agency:  U.S. Army Human Resources Command, ATTN:  SGS, 1600 Spearhead Division Avenue, Fort Knox, KY  40122.  The applicant's unit must be clearly identified, along with the period of assignment and the award being recommended.  A narrative of the actions or period for which recognition is being requested must accompany the DA Form 638.  Requests for consideration of awards should be supported by sworn affidavits, eyewitness statements, certificates, and related documents.  Corroborating evidence is best provided by commanders, leaders and fellow Soldiers who had personal knowledge of the circumstances and events relative to the request.  The burden and costs for researching and assembling documentation to support approval of requested awards and decorations rest with the requestor.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions and documents provided were carefully considered; however, she has not shown the NCOER and the attached Non-Concurrence memorandum contained any administrative deficiencies or that either document was not prepared in compliance with applicable regulations and policy. 

2.  Further, the applicant has provided insufficient evidence and/or convincing evidence that this Non-Concurrence memorandum or the NCOER were unjust, in whole or in part, to support removal of the memorandum from her record.  There is no substantive evidence of record and she has provided insufficient evidence to show exceptional justification that the memorandum is incorrect, inaccurate, or bias.

3.  The applicant's reviewer believed that her animosity towards the Brigade CSM clouded her judgment which led to two separate counseling letters.  The reviewer was unsuccessful in resolving the differences with the applicant's rater.  Her rater elected to remain with his original remarks.  The NCOER appears to represent a fair, objective, and valid appraisal of her demonstrated performance and potential during the period in question.

4.  Additionally, there is no evidence of record and none has been provided to show that the marks chosen and the comments rendered by her rater and SR on the contested NCOER are inaccurate, unjust, or bias. 

5.  With regard to award of the Bronze Star Medal, the applicant's contentions were carefully considered and found not to have merit.  The evidence shows she was initially recommended for award of the Bronze Star Medal; however, this award was disapproved and orders were not published.

6.  The decision of whether to award an individual a decoration and which decoration to award is a judgment call made by the commander having award approval authority.  It appears that it was determined that the applicant's actions may not have been worthy of award of the Bronze Star Medal. 

7.  There is no evidence to show the reason the recommendation was disapproved.  Without evidence, the Board cannot address the award authority's decision to disapprove this award.  There are regulatory provisions for requesting reconsideration for a disapproved award and the applicant has not provided sufficient evidence to show she previously requested reconsideration.  

8.  While the available evidence is insufficient for awarding her the Bronze Star Medal, this in no way affects her right to pursue her claim for the Bronze Star Medal by submitting a request through her Member of Congress under the provisions of Title 10, USC, section 1130.

9.  In view of the foregoing, there is an insufficient evidentiary 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 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.


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ABCMR Record of Proceedings (cont)                                         AR20120022148



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