IN THE CASE OF:	  

		BOARD DATE:	  3 September 2013

		DOCKET NUMBER:  AR20120022665 


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 her DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the rating period 10 July 2011 through 18 June 2012 (hereafter referred to as the contested NCOER) from her records.

2.  The applicant states:

* the contested NCOER contains a false rating scheme and the information within it is incorrect
* the contested NCOER was placed in her official records after she had signed out of her unit to make it difficult for her to oppose and have corrected
* the chain of command refused to cooperate with correcting the contested NCOER and she was only given 24 hours to sign or rebut the contested report
* she submitted two appeals to the U.S. Army Human Resources Command, only to be referred to the Army Board for Correction of Military Records (ABCMR)

3.  The applicant provides:

* contested NCOER appeal package
* rating scheme
* emails
* DA Form 4856 (Developmental Counseling Form), dated 17 June 2012
* PowerPoint slides
* personnel roster

CONSIDERATION OF EVIDENCE:

1.  The applicant is a retired U.S. Army Reserve (USAR) sergeant first class (SFC)/E-7 who served in the Regular Army and in the Active Guard Reserve (AGR).

2.  She held military occupational specialty 92W (Water Treatment Specialist) and was promoted to SFC/E-7 on 1 September 2008.

3.  On 15 July 2010, the applicant was notified of her eligibility for retired pay at age 60 (Twenty Year Letter).

4.  Records show:

* she submitted a retirement packet in December 2011 for a 1 January 2012 retirement date
* her retirement packet was held by her battalion commander for 3 months before it was forwarded to the next command level
* her retirement packet was returned for corrections, thus requiring her to change her requested retirement date

5.  The applicant provides numerous emails from 8 February to 31 May 2012 which show the problems and attempts made to process her retirement request. 

6.  A DA Form 4856, dated 17 June 2012, shows the applicant was counseled for the following:

   a.  On 13 June 2012, she reported to Fort Bragg, NC, for a Quartermaster Liquid Logistics Exercise  2012 (QLLEX-12) with 6 of the 10 advanced echelon personnel, she failed to complete the tasks that were assigned for the day, and she took the Soldiers back to Jacksonville, NC, to remain overnight without authority.
   
   b.  On 14 June 2012, she failed to report to her designated place of duty (Fort Bragg, NC) and she wrongfully instructed her subordinate Soldiers to do the same.  Several telephone and text message attempts to contact her were unsuccessful.
   
   c.  On 15 June 2012, she reported to Fort Bragg, NC, and she failed to complete the tasks that were assigned for the day.
   d.  On 16 June 2012, she failed to complete the assigned mission for the day (set up tactical distribution water distribution system lines for water operations), which resulted in the domino effect that crippled the mission of the shower and bath, laundry, DFAC (dining facility), and supply capabilities for over 500 Soldiers at the field site with no running water.
   
   e.  She was also counseled that her actions may result in punishment under Article 15, Uniform Code of Military Justice (UCMJ), court-martial, or adverse action such as a bar to reenlistment, suspension of favorable personnel actions (promotions, retention, school), or other  appropriate administrative sanctions.

7.  The applicant's DA Form 4856 also shows in the "Plan of Action" block the following:

* Soldier will be relieved from position as Detachment Noncommissioned Officer in Charge (NCOIC) and receive a subsequent Relief for Cause NCOER
* Soldier will be assigned to an alternate unit for the duration of QLLEX-12
* Soldier will be flagged pending UCMJ

8.  The applicant provided a response to the counseling which outlined the circumstances listed on her DA Form 4856.  In her response, she:

* admitted she made a decision to remain in the rear without advising the command sergeant major (CSM); however, it was not intentional but an oversight
* stated she was being harassed as a result of her retirement packet being held up at the battalion level for months
* stated she requested to have the retirement issue resolved and believed negative outcomes and poor communication with her on the negative end would continue
* stated she only wanted to retire and that she had served her county and the unit to the best of her ability

9.  The contested NCOER shows in:

	a.  Part IVa (Army Values) the rater checked "No" for the Duty, Honor, and Integrity value blocks and provided the following bullet comments:

*	"failed to fulfill NCOIC duties in preparation for QLLEX-2012"
*	"improperly guided 14 Soldiers to miss movement to Annual Training"
*	"displayed questionable integrity and left the impression of deliberate negligence"

	b.  Part IVb (Values/NCO Responsibilities – Competence) the rater checked the "Needs Improvement (Some)" block and provided the following bullet comments, in pertinent part:

*	"competent and resourceful senior NCO; failed to use sound judgment during the initial phases of Annual Training 2012"
*	"unit did not meet aim point upon entry into AFPD [available force pool date]"

	c.  Part IVc (Values/NCO Responsibilities – Physical Fitness and Military Bearing) the rater checked the "Success" block and included the bullet comment "displayed a lack of mental and physical toughness during all phases on Annual Training 2012."

	d.  Part IVd (Values/NCO Responsibilities – Leadership) the rater checked the "Needs Improvement (Some)" block and provided the following bullet comments, in pertinent part:

		*	"failed to place the mission first during the most critical time of the 
			year"
		*	"her actions were directly responsible for a three-day delay in water 
				services during QLLEX-12"
		*	"provided improper guidance to 14 Soldiers; resulted in their absence 
			as advance party for Annual Training 2012"

	e.  Part IVe (Values/NCO Responsibilities – Training) the rater checked the "Needs Improvement (Some)" block and provided the following bullet comments, in pertinent part:

		*	"failed to train her unit on accomplishment of the unit's core mission"
		*	"failed to lead by example by not completing the Senior Leader's 
			course"

	f.  Part IVf (Values/NCO Responsibilities – Responsibility and Accountability) the rater checked the "Success" block and provided the following bullet comment "the rated NCO has been notified of the reason for relief."

	g.  Part Va (Overall Performance and Potential – Rater) the rater checked the "Marginal" block and entered three positions in which the applicant could best serve the Army at her current or next higher grade.


	h.  Part Ve (Senior Rater Bullet Comments) the senior rater commented, in pertinent part:

		*	"do not promote at this time"
		*	"failed to attend Senior Leader's Course in a timely manner following
			 promotion to SFC"
		*	"relieved from duties as Detachment NCOIC after she provided 
			improper guidance to 14 Soldiers, causing them to miss movement to
			Annual Training"
		*	"direct actions as NCOIC jeopardized the water treatment mission at 
			QLLEX-12"

	i.  Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) and in Part V(d) (Overall Performance and Potential – Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) the senior rater checked the "Fair" blocks.

10.  The contested NCOER was signed by the applicant and her rating officials as follows:

* on 4 August 2012 by the rater and senior rater
* on 13 August 2012 by the reviewer
* the applicant refused to sign the contested NCOER

11.  On 20 August 2012, the applicant appealed the contested NCOER to the Enlisted Special Review Board (ESRB).  Her contentions were on the basis of administrative error and substantive inaccuracy.

12.  On 28 November 2012, the ESRB returned the applicant's appeal without action because her Army Military Human Resource Record (AMHRR) showed she had separation orders dated 27 July 2012.  She was advised to apply to the ABCMR.  Additionally, her separation orders had an effective date of 31 December 2012.

13.  On 31 December 2012, the applicant was honorably retired due to sufficient service for retirement.

14.  The applicant provides a copy of her contested NCOER appeal package, emails dated 23 November 2011 through 20 August 2012 which were exchanged with members of her chain of command and others with regard to her retirement package, the contested NCOER, and rating scheme.  She also provides PowerPoint slides on the mission of QLLEX-12, the 431st Quarter-master Detachment, and a personnel roster.
15.  A review of the applicant's AMHRR with regard to her rating chain shows:

* her rater on previous NCOERs was the battalion executive officer (XO)
* the battalion XO who was the rater for the contested NCOER was assigned to the position for the period 14 June 2011 through 13 June 2012

16.  The applicant provides an undated unit rating scheme showing Command Sergeant Major (CSM) "W" as her rater and the battalion XO as her senior rater for an annual report for the period 10 July 2011 through 8 July 2012.  She also provides emails which show CSM "W" was unaware he was a rater or of the unit's attempt to get an approved rating scheme and clarification on the undated rating scheme.

17.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System.

     a.  Paragraph 1-11 states when it is brought to the attention of a commander that a report rendered by one of their subordinates or subordinate commands may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander’s Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by HQDA, and the conduct of the rated Soldier and members of the rating chain. The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

     b.  Paragraph 2-3 states a rating chain is established by the commander, commandant, or leader of an organization and maintained by rating officials to provide the best evaluation of an individual Soldier’s performance and potential.  A rating chain also ties the rated Soldier’s performance to a specific senior or subordinate relationship.  This allows for proper counseling to develop the rated Soldier and accomplish the mission.  These functions are normally best achieved within an organization’s chain of command or supervision.  Generally, the evaluation of Soldiers by persons not involved in the chain of command or chain of supervision is inappropriate.

     c.  Paragraph 3-36 states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.

     d.  Paragraph 4-11 states the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received a relief for cause NCOER that covered 12 months of rated time from 10 July 2011 through 18 June 2012.  Although not signed by the applicant, this NCOER was digitally signed by her rating officials and is filed in her AMHRR.

2.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  

3.  Although the applicant provides an undated rating scheme showing CSM "W" as the rater, previous NCOERs in her AMHRR show the battalion XO was her rater.  Therefore, the rating scheme on the contested NCOER appears to be correct.  There is no evidence the contested report contains any administrative deficiencies such as a false rating scheme or that it was not prepared in compliance with applicable regulations and policy.  

4.  The applicant describes what transpired during the processing of her contested NCOER and events occurring 13 June through 16 June 2012.  More importantly, 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 applicant did not provide evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  There is insufficient evidence to grant her the 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.

ABCMR Record of Proceedings (cont)                                         AR20120022665



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ABCMR Record of Proceedings (cont)                                         AR20120022665



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