BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20130008213 


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 a DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 31 January 2008 through 30 January 2009 from the performance section of her Army Military Human Resource Record (AMHRR) (formerly known as the Official Military Personnel File).

2.  The applicant states:

	a.  She received a "No" rating for Honor in Army Values, two "Needs Improvement" ratings, a "Marginal" rating, and senior ratings of "4" and "5."

	b.  She believes the NCOER was unjust and unfair for several reasons.

		(1)  First, it was not written by her rater, it was written by her senior rater.  She was arrested on a Sunday afternoon for an altercation with her sister.  She did not have any lost time from this incident because she was released from jail early that Monday morning at 0800 and then she immediately reported for work.  She missed physical training which was more of just showing up late than lost time for incarceration.  She paid a fine in 2010.

		(2)  Second, her senior rater wrote her entire NCOER based on this one incident.  Her case was a Class C misdemeanor equivalent to a traffic ticket.  The rater has counseling dates in Part III (Duty Description), but she was never counseled until she got arrested.  She also deployed during this rating period, but she never received a change of rater before she left.  She was immediately evacuated back home and her senior rater decided to complete her NCOER due to the fact that he was upset because she returned home after her civilian doctor requested her relief from deployment.  A week later, her senior rater produced this very personal NCOER.

	c.  Prior to the incident with her sister, she never received any negative counseling statements, never had any disciplinary actions, and she considered herself to be a great NCO.  Once she was arrested in October 2008, she was counseled and she deployed in January 2009.  She returned to the United States in February 2009.  Two weeks later, she was called in to sign her NCOER.  She only signed it because her administrative data was correct.  She believes the NCOER was written in a very personal manner and it does not show who she is as an NCO in the Army.  Even after she was arrested she still had another counseling date due to her, but she was never counseled to be given an opportunity to have a presentable NCOER.

	d.  Once her court proceedings were complete she had 1 month before she deployed to Afghanistan from June 2010 to June 2011.  Due to the 12+ hours of daily operations with no days off for a whole year, she couldn't find adequate time to appeal the NCOER.  Once she returned to the United States, she got so caught up in taking care of Soldiers, getting ready for school, preparing her home to be sold, and getting ready for a permanent change of station, that she had completely forgotten to appeal the NCOER.

3.  The applicant provides a copy of the court order (Judgment of Reduction).

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 13 February 2001.  She has remained on active duty through continuous reenlistments.  She was promoted to staff sergeant on 1 November 2005.

2.  The contested NCOER covers the period 31 January 2008 through 30 January 2009.  The rater authenticated the report on 15 February 2009.  Part IIIf (Duty Description/Counseling Dates) shows no initial counseling was conducted at the beginning of the rated period.  In Part IVa (Army Values), the rater placed an "X" in the "No" box for Honor and entered the following bullet comments:

* "responsive to needs of Soldiers"
* "Army values are questionable, due to lost time for incarceration"
* "never hesitates to voice her personal opinion"

3.  She was rated as "Needs Improvement (Some)" for "Competence" by her rater with the following bullet comments:

* "accepted and accomplished all tasks"
* "needs to apply a more sound decision making process when dealing with personal issues and situations"

4.  She was rated as "Needs Improvement (Some)" for "Leadership" by her rater with the following bullet comment:  "during this rating period did not embody the qualities of a noncommissioned officer in setting the example for subordinates and peers."

5.  She was rated "Marginal" by her rater for her overall potential for promotion and/or service in positions of greater responsibility.

6.  She was rated "Poor-5" by her senior rater for overall performance and she was rated "Fair-4" by her senior rater for overall potential for promotion and/or service in positions of greater responsibility with bullet comments:

* "promote when positions become available"
* "send to advanced schooling when available"
* "an NCO with more potential than displayed during this rating period"
* "NCO needs to engross herself into the Army Values"
* "rater failed to conduct mandatory counseling"

7.  A review of the applicant's performance section of her AMHRR on the Interactive Personnel Electronic Records Management System revealed a copy of the NCOER.

8.  She provided a court order, dated 21 April 2010, which shows she was convicted of assault on 26 October 2008.  She paid a fine and court costs.

9.  Records at the Defense Finance and Accounting Service (DFAS) do not show she had any lost time.

10.  Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the AMHRR.  It provides that the purpose of the AMHRR is to preserve permanent documents pertaining to enlistment, appointment, duty stations, assignments, training, qualifications, performance, awards, medals, disciplinary actions, insurance, emergency data, separation, retirement, casualty, administrative remarks, and any other personnel actions.

11.  Army Regulation 600-8-104, appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System), states NCOER's will be filed in the performance and service sections of the AMHRR.

12.  Army Regulation 623-3 (Evaluation Reporting System) states that an evaluation report accepted for inclusion in the official record of a rated Soldier's AMHRR 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.

	a.  Paragraph 3-9 states that the senior rater will enter a statement in Part Ve of the NCOER explaining the reason why counseling was not accomplished when counseling was not completed and counseling dates are omitted from the form.  Paragraph 3-4g states that failure to comply with any or all support or counseling form requirements will not constitute sole ground for an appeal of an evaluation report.

	b.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  The burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that:  (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 should 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 is unjust and unfair because it was written entirely by her senior rater.  However, her rater authenticated the NCOER on 15 February 2009.

2.  Her contention she did not have any lost time due to incarceration appears to have merit.  Since DFAS records do not show she had any lost time, it would be appropriate to amend Part IVa of her NCOER by deleting the entry "lost time for" in the bullet comments.

3.  The evidence of record supports her contention that she was not properly counseled.  Her senior rater indicated the rater failed to conduct mandatory counseling in his bullet comments and Part IIIf shows no initial counseling was rendered for the rated period.  However, this is not ground for a successful appeal.
4.  The governing regulation states NCOER's will be filed in the performance section of the AMHRR.  The NCOER in question is properly filed in her military records in accordance with the governing regulation.  Therefore, there is insufficient evidence on which to remove the NCOER from the applicant's AMHRR.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x______  ___x_____  ___x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting the phrase "lost time for" in the bullet comments in Part IVa of her 
DA Form 2166-8 covering the period 31 January 2008 through 30 January 2009.

2.  The Board further determined that the evidence presented was insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to removing her DA Form 
2166-8 covering the period 31 January 2008 through 30 January 2009 from the performance section of her AMHRR.  



      ___________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)                                         AR20130008213



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ABCMR Record of Proceedings (cont)                                         AR20130008213



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