IN THE CASE OF:	  

		BOARD DATE:	  21 May 2013

		DOCKET NUMBER:  AR20130006956 


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 a transfer of the annual DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), covering the rating period 30 November 2008 through 29 November 2009 [hereafter referred to as the contested NCOER] from the performance section to the restricted section of her Army Military Human Resource Record (AMHRR).

2.  The applicant states she bases her request on substantive inaccuracies, specifically the rater's comments in the competence and responsibility/ accountability blocks and the senior rater's comments in the overall performance rating.  She states:

* She maintained her innocence during the Article 15 hearing and the administrative separation board found she did not commit misconduct
* She always maintained she did not knowingly ingest drugs, stating she was under the influence of a substance is to dismiss the fact that she was unknowingly drugged
* She met the standards in three categories on the contested NCOER; the negative comments are not commensurate with the rating of poor overall performance

3.  The applicant provides:

* The findings and recommendation of the administrative separation board
* Legal review of the administrative separation board
* Administrative separation board proceedings 
* Contested NCOER
* NCOERs she received prior to and after the contested NCOER
* Denial memorandum from the Enlisted Special Review Board (ESRB) regarding the contested NCOER
* Approval memorandum from the Department of the Army Suitability Evaluation Board (DASEB) regarding the Article 15

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 28 March 2000 and currently holds military occupational specialty 92Y (Unit Supply Specialist).  She served through multiple reenlistments in a variety of assignments and she attained the rank/grade of sergeant first class (SFC)/E-7 on 1 November 2008. 

2.  She was assigned to Headquarters and Headquarters Company (HHC), 44th Medical Command, Fort Bragg, NC, on 27 May 2009, when she participated in a unit urinalysis and her urine sample tested positive for cocaine. 

3.  On 21 July 2009, she accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for wrongfully using cocaine between on or about 22 May and 27 May 2009.  Her punishment consisted of a suspended forfeiture of pay and extra duty.  She appealed her punishment contending that the cocaine was unknowingly ingested in a "spiked" drink but her appeal was denied. 

4.  At the time of the contested NCOER, she was assigned as a Supply Plans/Operations NCO.  Her rater was Chief Warrant Officer KRB, the Logistics Management Officer in Charge; her senior rater was Captain JHG, the deputy to the Deputy Chief of Staff for Logistics; and her reviewer was Lieutenant Colonel MJD, the Deputy Chief of Staff for Logistics.   

5.  During November 2009, she received an annual NCOER that covered 12 months of rated time from 30 November 2008 through 29 November 2009. This NCOER shows in:

* Part IVa (Army Values) the rater checked the "Yes" blocks for all values except "Integrity."  He checked "No" for "Integrity" and entered the bullets "tested positive for illegal substance during random unit urinalysis testing"
* Part IVb (Values/NCO Responsibilities – Competence) the rater checked the "Needs Some Improvement" block and entered the bullets: 

* exercised poor judgment in doing what is right during off duty hours
* improved self-development during School OPS Program January-May 2009; close to attaining Associates degree in Business

* Part IVc (Values/NCO Responsibilities – Physical Fitness and Military Bearing) the rater checked the "Success" block
* Part IVd (Values/NCO Responsibilities – Leadership) the rater checked the "Success" block
* Part IVe (Values/NCO Responsibilities – Training) the rater checked the "Success" block 
* Part IVf (Values/NCO Responsibilities – Responsibility and Accountability) the rater checked the "Needs Improvement" block and entered the bullet "lacked accountability and responsibility while driving for 10 hours under illegal drug influence during Memorial Day Weekend" 
* 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
* Part Vc (Overall Performance and Potential – Senior Rater – Overall Performance) the senior rater checked the "Poor" block
* 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" block and entered the bullets: 

* do not promote at this time
* extremely knowledgeable NCO, understands supply and logistics functions
* NCO refuses to sign NCOER due to conflict with rater over the contents of the report

6.  This NCOER was signed by the applicant's rating officials on 9 and 11 March 2010.  Her signature block is blank.  It is currently filed in the performance section of her AMHRR. 

7.  During the early months of 2010, it appears the applicant's chain of command initiated separation action against her under the provisions of chapter 14-12c, Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) for commission of a serious offense.  She was advised of her rights and elected an administrative separation board.  

8.  On 18 June 2010, an administrative separation board convened at Fort Bragg, NC, to determine if the applicant should be separated by reason of misconduct.  The administrative separation board determined the allegations of misconduct were not substantiated by the preponderance of the evidence and recommended the applicant not be separated.  

9.  On 20 September 2010, the convening/separation authority approved the administrative separation board's findings and recommendation.  

10.  On 26 March 2012, she petitioned the DASEB to transfer the Article 15 from the performance to the restricted section of her AMHRR.  She stated nonjudicial punishment was imposed against her under the provisions of Article 15 despite her presentation of evidence refuting the allegations against her.  She also contended the Article 15 had served its intended purpose. 

11.  On 24 May 2012, the DASEB determined the length of time since receiving the Article 15, her subsequent NCOERs and education, the letters of support, the fact that she had not been selected for promotion to master sergeant, the polygraph test she submitted, and the findings of the administrative separation board was sufficient evidence to support a finding that the Article 15 had served its intended purpose.  As such, the DASEB granted her relief in the form of a transfer of the Article 15 to the restricted section of her AMHRR. 

12.  Meanwhile, while her DASEB petition was being processed, on 6 April 2012, she also appealed the contested NCOER to the U.S. Army Human Resources Command.  Her appeal to remove the contested NCOER was forwarded to the ESRB.  Her appeal was based on substantive inaccuracies.  She contended:

* She was innocent and the evidence contradicted the allegations that she knowingly ingested a controlled substance
* The administrative separation board found she did not commit a serious offense and had the results been available, the rating would have been different
* She met the standards in three categories and she was only in need of improvement in two categories
* She was a "take charge NCO" and she sacrificed her time for the mission

13.  On 20 December 2012, the ESRB determined the evidence she submitted did not establish clearly and convincingly that the presumption of regularity should not be applied or that action was warranted to justify altering or withdrawing the contested NCOER.  The ESRB voted unanimously to deny her request.  

14.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA 2166-8.  
	a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier 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 Soldier 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, Department of the Army selection boards and career managers can make intelligent decisions.  

	b.  Paragraph 3-39 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 an administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

	c.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a Commanders/Commandant's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the 
Army.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.  

	d.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  The results of a Commander's or Commandant's Inquiry may provide support for an appeal request.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence shows the applicant tested positive for cocaine during a unit urinalysis.  As a result, her chain of command punished her with an Article 15.  The imposing officer, in consultation with the legal advisor, found beyond a reasonable doubt that the applicant wrongfully used cocaine.  She appealed her Article 15 to the next higher commander, contending that the cocaine was unknowingly ingested in a "spiked" drink.  Her appeal was denied.

2.  Additionally, her chain of command initiated separation action against her.  She elected an administrative separation board and the board concluded that her separation action under provisions of chapter 14, Army Regulation 635-200, for the commission of a serious offense, was not supported by a preponderance of the evidence.  But, this conclusion did not negate the evidence used in establishing the basis for the Article 15.  

3.  There are no facts in evidence to show the administrative separation board refuted the scientific evidence establishing the applicant's cocaine ingestion.  Further, the administrative separation board did not explain how it reached its conclusions that there was a preponderance of evidence that the appellant did not commit a serious offense.

4.  The administrative separation board was an independent administrative process which took place after the end of the rating period.  The rating officials properly commented on her misconduct, which was the underlying basis for the Article 15.  Inasmuch as the burden of proof in the administration of an Article 15 is much higher than that required in an administrative separation process, the rating officials would not have been obligated to reach the same conclusions as the separation board, or even been bound by the board's conclusions. 

5.  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.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  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.

6.  The applicant did not provide any 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)                                         AR20130006956



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ABCMR Record of Proceedings (cont)                                         AR20130006956



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