IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20130007971 


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 removal from her Army Military Human Resource Record (AMHRR) of two of her DA Forms 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating periods 1 April through 30 November 2008 (8 rated months) and 1 December 2008 through 25 March 2009 (4 rated months), referred to hereafter as the first contested NCOER and the second contested NCOER, respectively.

2.  The applicant states:

   a.  She has concerns regarding the two NCOERs and would like them removed from her records.  She had filed an informal harassment complaint against Major (MAJ) RAE, who was the reviewer on the first NCOER and the rater on the second NCOER.  The second NCOER became a relief for cause NCOER.  Since it was an informal complaint, there was no paperwork trail for the complaint and she was subsequently removed from the section following her complaint.  It is obvious to her that the negative NCOERs are the result of her complaint.  She was the only female working in the section at the time and she was constantly being verbally and mentally harassed by the males in her department who outranked her. 
   
   b.  Another significant area of concern with the first NCOER is the fact that she was being rated by her peer, another sergeant first class (SFC), and the senior rater was the maintenance warrant officer whom she did not work for but who was also in her rating scheme.  She was aware of the marginal evaluation, but she refused to sign the NCOER because the rating scheme was unfair.  
   c.  Furthermore, due to the second NCOER being filed in her records, she is not able to re-enlist at this time.  She was not aware of the second relief for cause NCOER which is why it does not bear her signature.  She has been trying to recover from this incident and the other incidents that she dealt with being under their supervision since then.
   
   d.  After leaving that department, she was recognized by the Commandant, Army Logistics University, Fort Lee, VA, for attaining the commandant’s list in the Advanced Noncommissioned Officer Course.  She has attended training to become a Unit Movement Officer, a Sexual Harassment/Assault Response Prevention representative, and an Equal Opportunity (EO) Leader.  She also possesses the additional skill identifiers of 2S (Battle Staff NCO) and 3C (Operational Contract Support Specialist).  
   
   e.  She believes her potential and capabilities are limitless and she wants to continue to serve with honor and dignity.  Her military career is extremely important to her and she does not believe that one NCOER should determine her future in the Army.  She believes she is a great leader and that she possesses the strengths and attributes to continue to be an asset to the Army if she is given the opportunity.  She asks that at least the second NCOER be removed from her AMHRR so she can retire with honor.  She now only has 16 years of service.

3.  The applicant provides seven DA Forms 2166-8, three DA Forms 1059 (Service School Academic Evaluation Report), and two memoranda.

CONSIDERATION OF EVIDENCE:

1.  Having had prior active service, the applicant's records show she enlisted in the Regular Army on 9 November 1999 and she holds military occupational specialty 92Y (Unit Supply Specialist).  She was assigned to the 121st Combat Support Hospital (CSH), Korea, on or about 23 January 2007.  She attained the rank/grade of SFC/E-7 on 1 March 2008.  

2.  During the month of December 2008, the applicant received the first contested NCOER, a change of rater NCOER, which covered 8 months of rated time from 1 April 2008 through 30 November 2008 for her duties while serving as a supply sergeant.  Her rater was an SFC and her senior rater was a chief warrant officer two (CW2).  The NCOER shows the following entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for four of the seven values "Duty, Respect/EO/EEO, Selfless-Service, and Honor," and an "X" in the "Yes" block for "Loyalty, Integrity, and Personal Courage."  This block, in part, contained the following comment:
* lacked dedication to the Army, unit's mission, and her Soldiers; failed to mentor, plan, organize or execute problem solving skills; does not provide consistent or timely professional guidance

	b.  In Part IV (Values/NCO Responsibilities), the rater placed an "X" in the "Success" blocks of IVc (Physical Fitness & Military Bearing), IVe (Training), and IVf (Responsibility & Accountability).  The rater placed an "X" in the "Needs (Some) Improvement" blocks of IVb (Competence) and IVd (Leadership).  These blocks, in part, contained the following comments:

* failed to provide appropriate guidance relative to her occupational skill; sound judgment compromised on a regular basis
* failed required and assigned duties; dereliction of duty had potential to cost the government in excess of one million dollars as a result of poor management

	c.  In Part V (Overall Performance and Potential), the rater placed an "X" in the "Marginal" block.  

	d.  In Part Ve (Senior Rater - Overall Performance), the Senior Rater placed an "X" in the "Fair" block and in Vd (Senor Rater - Overall Potential for Promotion…), placed an "X" in the "Superior/3" block.  

	e.  In Part Ve (Senior Rater Bullet Comments) the senior rater entered, in part, the following comments:

* Soldier refused to sign this NCOER (emphasis added)
* consider for promotion after further development, demonstrated potential for advancement when motivated to do so
* consistently failed to meet administrative requirements within the appropriate time

3.  This NCOER was signed by the applicant's rating officials on 14 and 22 January 2009.  Her signature block is blank.  It is currently filed in the performance section of her AMHRR. 

4.  On or about 18 December 2008, an Army Regulation 15-6 (Procedures for Investigating Officers and Board of Officers) investigating officer was appointed to conduct a Commander's Inquiry (CI) into allegations against the applicant filed by one of her junior Soldiers of favoritism, sexual harassment, and gambling/shopping [with subordinate Soldiers] during duty hours and/or while in uniform and a government vehicle.  The inquiry was completed on or about 23 February 2009 and found the applicant had misappropriated a government vehicle and went gambling with subordinates during duty hours.

5.  During the month of April 2009, the applicant received the second contested NCOER, a relief for cause NCOER, which covered 4 months of rated time from 1 December 2008 through 25 March 2009 for her duties while serving as a supply sergeant.  Her rater was MAJ RAE and her senior rater was a lieutenant colonel (LTC).  The NCOER shows the following entries:

	a.  In Part IVa, the rater placed an "X" in the "No" block for five of the seven values "Duty, Respect/EO/EEO, Selfless-Service, Honor, and Integrity" and an "X" in the "Yes" block for "Loyalty and Personal Courage."  This block contained the following comments:

* dedicated to herself at the expense of her Soldiers and the interests of the Army; relieved and removed from position (emphasis added)
* derelict in her duties; does not respect Soldiers' right to professional leadership; misappropriates government resources and the time of those Soldiers assigned to her charge

	b.  In Part IV, the rater placed an "X" in the "Success" blocks of IVc and IVe, and placed an "X" in the "Needs (Much) Improvement" blocks of IVb, IVd, and IVf.  These blocks, in part, contained the following comments:

* derelict in her duties; regularly exercised poor judgment and initiative
* unable to complete simple, job related tasks; processed wrong equipment for turn-in and did not distinguish between Army and unit funded purchases
* avoided work; decided not to attend Army Warrior Task training even after being directed to do so
* disregarded direct orders from supervisor on numerous occasions
* worked diligently to transfer all duties to the individual assuming her responsibilities upon notification of relief for cause (emphasis added)
* misappropriated government transportation resources to take Soldiers gambling during duty hours
* condones inappropriate behavior from her subordinates; actions conducted in her presence are observed with no repercussion

	c.  In Part V (Overall Performance and Potential), the rater placed an "X" in the "Marginal" block.  

	d.  In Part Ve (Senior Rater - Overall Performance), the Senior Rater placed an "X" in the "Poor" block and in Vd (Senior Rater - Overall Potential for Promotion…), placed an "X" in the "Fair" block.  

	e.  In Part Ve (Senior Rater Bullet Comments) the senior rater entered, in part, the following comments:

* Soldier refused to sign this NCOER (emphasis added)
* do not promote
* do not place in a leadership position; reduce or eliminate her influence on impressionable Soldiers
* retrain and send to all basic and developmental leadership courses 

6.  This NCOER was signed by the applicant's rating officials on 7 and 27 May 2009.  Her signature block is blank.  It is currently filed in the performance section of her AMHRR. 

7.  On 29 April 2009, she accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for the following:

* four specifications of failing to go at the prescribed time to her appointed place of duty
* three specifications of failing to obey a lawful order from her superior commissioned officer
* one specification of negligently failing to perform her assigned duties on divers occasions between 1 to 31 October 2008
* one specification of violating a lawful regulation by wrongfully misusing a government vehicle for the purpose of gambling and shopping
* one specification of being derelict in the performance of her duties on or about 10 February 2009
* one specification of violating a lawful order or regulation of prohibited relationships between Soldiers of different ranks by wrongfully gambling with a private/E-2 and private first class/E-3

8.  The DA Form 2627 she received shows she elected not to demand trial by court-martial; she requested a closed hearing and did not request a person to speak in her behalf; and she elected to present, in person, matters in defense, extenuation, and/or mitigation.  After a closed hearing, she was found to be guilty of all of the specifications and the DA Form 2627 was directed to be filed in the performance section of her AMHRR.  She elected not to appeal the Article 15.  

9.  Her records also contain a letter of reprimand (LOR), dated 4 May 2009, she received from COL RES, the Commander, U.S. Army Medical Department Activity, Korea, wherein COL RES reprimanded her for engaging in inappropriate relationships, misusing government resources, disobeying orders, being derelict in her duties, and failing to be at her appointed place of duty.  He further stated:

   a.  Since October 2008, the applicant committed misconduct on a regular basis beginning when she was derelict in the performance of a simple inventory, a basic duty in her position, and continued when she misused a government vehicle to do personal shopping and to gamble at a local casino.  What made the excursion more troubling was that she took her Soldiers, a PV2, PFC, and a sergeant (SGT) with her and exposed them to her misconduct.  This poor NCO leadership created an environment that was lacking in discipline and allowed additional misconduct by the Soldiers to go unchecked at best and condoned at worse.
   
   b.  She had also shown a complete lack of respect for the chain of command and on several occasions failed to show up for work after being given a clear directive by MAJ RAE to give him a morning briefing on the status of her tasks.  Her position served an important function within the command and her inability to properly account for her whereabouts significantly affected his ability to accomplish the unit's mission.  In addition to being unaccountable for her whereabouts, she indicated an unwillingness or inability to follow direct orders to provide a plan for taking care of her children during duty hours when they were out of school.  The email traffic from her to MAJ RAE referencing this issue was flagrantly insubordinate and indicative of her loss of military bearing throughout the past several months.
   
   c.  Her actions since October 2008 were a severe departure from the professional conduct he expected from NCOs in the 121st CSH.  She was given every opportunity to take corrective action and avoid administrative action but she refused.  She should be leading the way and not tarnishing the image of NCOs and the command.  As a result of the misconduct detailed in her Article 15, he had serious doubts about her ability to continue serving as an NCO in the U.S. Army.  He further stated the LOR was being imposed as punishment under Article 15, UCMJ, and would be filed in her AMHRR.

10.  There is no indication she appealed either the first or the second contested NCOER to the Enlisted Special Review Board.

11.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Paragraph 3-39 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 applicant.

DISCUSSION AND CONCLUSIONS:

1.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

2.  The evidence of record confirms the applicant received NJP in April 2009 and an LOR in May 2009 for her unprofessional and inappropriate behavior that appears to have occurred commencing in October 2008.  The LOR states she committed misconduct on a regular basis beginning in October 2008 when she was derelict in the performance of her duties.  

3.  There is no evidence that the first contested NCOER, with a through date of 30 November 2008, contains any administrative deficiencies, that it was not prepared in compliance with applicable regulations and policy, that the rating officials' evaluations represented anything other than their objective judgment, or that her rating scheme was improper.  

4.  There is no evidence and the applicant has not provided any evidence that shows she filed a complaint of harassment against MAJ RAE and, as a result, he removed her from the section, and gave her a relief for cause NCOER.  Rather, the evidence of record shows a CI was conducted against her based on allegations from a junior Soldier of favoritism and sexual harassment and, as a result, she was relieved for cause.

5.  There is no evidence that the second contested relief for cause NCOER contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, 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 second contested NCOER or that they exercised faulty judgment in evaluating her as they did.  

6.  The applicant did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the reports under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Therefore, 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)                                         AR20130007971





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130007971



8


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1