IN THE CASE OF:	  	 

		BOARD DATE:	   6 February 2014

		DOCKET NUMBER:  AR20130008449 


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, in effect, the removal of her DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)), for the period 20090211 – 20090731 (hereinafter referred to as the contested NCOER), from her Army Military Human Resource Record (AMHRR). 

2.  The applicant states:

* while assigned to Headquarters and Headquarters Battery (HHB), 214th Fires Brigade, Fort Sill, OK, her rater executed a Permanent Change of Station (PCS) move 
* at the time of her rater's PCS move, she was attending Phase I of the Advanced Leader Course (ALC) and did not receive an NCOER
* she experienced difficulties when counseling or mentoring subordinates, and was frequently at odds with the brigade Equal Opportunity NCO or other leaders in her chain of command
* she tried to allow her chain of command to fix the issues with her undisciplined subordinates and her missing NCOER
* when she returned from the resident phase of ALC, she was informed of missing equipment that she was being held responsible for
* she was presented with 4 different NCOERs during the time she was assigned to the 214th Fires Brigade
* she left Fort Sill, OK without a completed NCOER
* during her inprocessing at Fort Knox, KY, she noticed the completed, incorrect NCOER in her AMHRR – she began the appeal process
* she was told this NCOER would not hurt her because her other NCOERs are favorable; however, she is now unable to execute her indefinite reenlistment
* the contested NCOER contains personal, opinionated bullets, unproven derogatory statements, and contradicting statements
* her counseling dates were incorrect – she was not counseled on three separate occasions
* the contested NCOER has caused her to be non-retainable in the Army

3.  The applicant provides numerous, voluminous records, including:

* a memorandum she signed on unit letterhead (Headquarters, U.S. Army Medical Department Activity (MEDDAC)), Fort Knox, KY, dated 5 April 2013, subject: Evaluation Report Appeal for Injustice of [Applicant], SSG (staff sergeant), XXX-XX-2988
* the contested NCOER (with draft copy)
* DA Forms 4856 (Developmental Counseling Form), with continuation pages
* copy of email message dated 2 June 2009, subject: Purchase Card
* memorandum for record, dated 31 July 2009
* NCOER, for the period 1 October 2008 through 10 February 2009  
* numerous email messages between the applicant and members of her chain of command, sent during the period February through May 2009
* memoranda, emails, various sworn statements, and hand receipts concerning lost property and a financial liability investigation
* previous and subsequent NCOERs
* training documents
* deployment documents
* DA Forms 3349 (Physical Profile) 
* character letters/letters of support

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 18 January 2001.  She completed her initial entry training and was awarded military occupational specialty (MOS) 92Y (Unit Supply Specialist).  

2.  She served through multiple reenlistments, in a variety of stateside or overseas assignments, and on 1 September 2007, she attained the rank/grade of SSG/E-6.  

3.  On 22 July 2009, she received the contested NCOER, a Change of Rater report that covered 6 months of rated time during the period 11 February 2009 through 31 July 2009.  She was rated on her performance of duties as the Supply NCO, HHB, 214th Fires Brigade.  Her Rater was the Brigade S4 NCO in Charge (NCOIC), her Senior Rater was the Brigade Sustainment Officer, and her Reviewer was the Deputy Commander, 214th Fires Brigade.  The NCOER shows the following entries:

	a.  In Part IV (Army Values/Attributes/Skills/Actions), sub-part a. (Army Values), the Rater placed a "No" in the "Loyalty," "Duty," "Selfless Service," and "Integrity" blocks and made the following comments:  

* questionable loyalty
* puts her own need [sic] before the needs of the unit and Army
* not committed to being a team player to accomplish [sic] mission 

	b.  In Part IV (Rater – Values/Responsibilities), sub-part b. (Competence), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* is not fully competent in MOS when performing daily task [sic] and duties
* use [sic] her MOS proficiency to deceive supervisor and subordinates
* routinely failed to meet given suspense [sic] and to complete tasks in the prescribed manner

	c.  In Part IV, sub-part c. (Physical Fitness and Military Bearing), the Rater placed an "X" in the "Success" block and entered appropriate comments.

	d.	In Part IV, sub-part d. (Leadership), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: 

* her lack of skills and experience made her a non-quality leader resulting in lost deadlines for supply actions for section
* becomes intolerable [sic] insubordinate when counseled in regards to corrective counseling and criticism
* failed to comply with instruction of superiors on several occasions

	e.  In Part IV, sub-part e. (Training), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments: 

* unable to train herself and Soldiers on technical skill setting for MOS specific training and taskings
* allowed subordinates to ignore verbal and written directives 

	f.  In Part IV, sub-part f. (Responsibility and Accountability), the Rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* failed to maintained [sic] 100% accountability of Government Purchase Card
* failed to report and sign in off of authorized leave in a timely manner
* failed to maintained [sic] accountability of Government Purchase files under current billing official for audit purposes

	g.  In Part V (Overall Performance and Potential), sub-part a. (Rater), the Rater placed an "X" in the "Marginal" block.

	h.  In Part V, sub-parts c. (Senior Rater – Overall Performance) and d. (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the Senior Rater placed an "X" in the "Fair/4" blocks.  

	i.  In Part V, sub-part e. (Senior Rater Bullet Comments), the Senior Rater entered the following comments:

* do not promote with peers
* her lack of responsibility resulted in negligence and lost accountability of Government Purchase Card
* failure to follow directive and guidance from superior
* perception of conduct affected discipline within the section; places blame on others for own short comings
* Soldier not available for signature
 
4.  The Rater and Senior Rater authenticated the NCOER by placing their signatures in the appropriate places.  The Reviewer concurred with the Rater's and Senior Rater's evaluations and comments and authenticated the form by placing his signature in the appropriate place.  The applicant did not sign the form.

5.  There is no available evidence that shows the applicant requested a Commander's Inquiry (CI) after receiving the contested NCOER.  Likewise, there is no available evidence that shows the applicant appealed the contested NCOER, through the U.S. Army Human Resources Command (HRC), to the Enlisted Special Review Board (ESRB). 

6.  Orders 014-0157, issued by U.S. Army Installation Management Command, Headquarters, U.S. Army Garrison Command, Fort Knox, KY on 14 January 2014, ordered her separation from active duty, effective 5 April 2014.

7.  She provides:

   a. A three-page memorandum (dated 5 April 2013, subject:  Evaluation Report Appeal for Injustice of [Applicant], SSG (staff sergeant), XXX-XX-2988), in which she outlines her request for an appeal of the contested NCOER on the basis of substantive injustice.  

   b. Numerous other documents that outline her efforts to obtain her NCOER prior to her departure from Fort Sill, OK.

   c. Numerous documents, including sworn statements, email messages, and letters of support, which address her abilities vis-à-vis supply accountability.

8.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS).  

	a.  Paragraph 1-11 (CI) states when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The CI 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 Headquarters, Department of the Army (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 3-2i states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual 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, selection boards and career managers can make intelligent decisions.  

	c.  Paragraph 3-23 (Unproven derogatory information) states that no reference will be made to an incomplete investigation (formal or informal) concerning a Soldier.  References will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting the evaluation to HQDA.  If the rated individual is absolved, comments about the incident will not be included in the evaluation (Prohibited Comments) states a thorough evaluation of the Soldier is required. 

	d.  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 administrative error or factual inaccuracy.  The burden of proof rests with the appellant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed from her record.  She further contends the contested NCOER contains personal, opinionated bullets, unproven derogatory statements, and contradicting statements.

2.  The applicant received a Change of Rater NCOER that covered 6 months of rated time.  The governing regulation permits references to any verified derogatory information.  Her rating officials believed she did not possess the Army values and attributes necessary for those serving in her grade, based on her performance during the rating period, and rated her accordingly.    

3.  The NCOER reflects the objective judgment of the rating officials during a given rating period.  The Board does not substitute its own evaluation of the applicant to that rendered by her rating officials as the Board is neither privy to her performance during the rating period nor is it an evaluating Board.  She neither requested a CI nor appealed the contested NCOER to HRC within the time allotted when more facts could have been uncovered. 

4.  There is no evidence that the contested report contains any administrative or substantive deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that 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.  By regulation, in order to justify the 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 action is warranted to correct a material error, inaccuracy, or injustice.  In this case, the applicant did not provide sufficient evidence to warrant the removal of the contested NCOER.  Therefore, she is not entitled to 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)                                         AR20130016644



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ABCMR Record of Proceedings (cont)                                         AR20130008449



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