IN THE CASE OF:	  

		BOARD DATE:  11 July 2013

		DOCKET NUMBER:  AR20130008595 


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 non-concurrence memorandum attached to her noncommissioned officer evaluation report (NCOER) (hereinafter referred to as the contested NCOER) for the period 1 July 2008 through 30 June 2009.

2.  The applicant states her reviewer attached a non-concurrence memorandum to the contested NCOER based on a substantive error.  The memorandum mentioned an incident that occurred outside the rating period.  

3.  The applicant provides:

* transcripts from Saint Regis University, dated 7 June 2002
* contested NCOER for the period 1 July 2008 through 30 June 2009
* contents of interactive Personnel Electronic Records Management System (iPERMS), dated 3 July 2009
* non-concurrence memorandum, dated 23 September 2009
* email, dated June 2009
* DA Form 2823 (Sworn Statement), dated 10 June 2009
* email, dated 27 February 2013
* two memoranda, dated 27 March 2013
* Self-authored statement, dated 11 April 2013

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 29 June 1987 and holds military occupational specialty 44C (Financial Management Technician).  She has served through a number of reenlistments or extensions and been assigned to various stateside or overseas assignments.  She currently holds the rank/grade of sergeant major/E-9.

3.  Her record contains transcripts from:

	a.  Saint Regis University which shows she was granted a Master of Business Administration in Financial Management degree on 7 June 2002.

	b.  Touro University International which shows she was granted a Bachelor of Science in Business Administration degree on 21 September 2007.

	c.  Trident University International which shows she was granted a Master of Business Administration degree on 30 June 2012.

4.  Her record contains the contested NCOER for the period 1 July 2008 through 30 June 2009 which shows her reviewer, Major General (MG) WHM, box-checked Part IId (Non-concur with Rater and/or Senior Rater Eval) and forwarded a memorandum of non-concurrence, dated 23 September 2009, to the U.S. Army Human Resources Command (HRC), Alexandria.  The memorandum stated:

"As reviewer for a majority of the rating period of this NCOER, I disagree with the rater's and senior rater's evaluation of [Applicant].  During the rating period, it was discovered that [Applicant] maintained a fraudulent Master’s Degree in her official file that she obtained from an on-line "diploma mill" and for which she did not perform any course work.  When this issue was reported to my agency, we conducted an Army Regulation 15-6 [Procedures for Investigating Officers and Boards of Officers] 


investigation, which confirmed the allegation.  The facts discovered during the investigation caused me to question [Applicant's] ability to serve at greater levels of responsibility.  For this reason I cannot concur with the positive comments in her evaluation."

5.  She provided an email, dated June 2009, from the lead human resources assistant (official 1), HRC Indianapolis, U.S. Army Soldier Record Data Center to another official (Official 2) at HRC, which stated:

* Official 2 wrote up a problem case, dated 26 May 2009, directing that the Saint Regis University transcript be removed the applicant's Army Military Human Resource Record (AMHRR)
* Official 1 was directed to place the Saint Regis University transcript back on the applicant's AMHRR
* The applicant must go through the ABCMR to have the transcript removed
* HRC cannot remove transcripts form a Soldier's AMHRR without a directive from the ABCMR even if the university is not authorized/ unaccredited

6.  She provided a DA Form 2823, dated 10 June 2009, wherein HRC official 1 stated that on 26 May 2009, she removed a transcript dated 7 June 2002 from the applicant's AMHRR.  The transcript was from Saint Regis University, a known unauthorized university.  It was an iPERMS problem case requested by the Chief of Board Support (HRC official 2).  Official 2 requested to have the transcript removed because it was from an unauthorized school.  The past guidance was to remove these bogus transcripts from Soldier's AMHRR when discovered by someone within HRC.

7.  Her record contains a Army Special Review Board Record of Proceedings (ROP), dated 3 June 2010, which shows MG WHM, her reviewer, published a memorandum of review of the Army Regulation 15-6 investigation, dated 28 July 2009, wherein he indicated that he approved the recommendations of the Army Regulation 15-6 investigation, with the exception that he did not believe sufficient evidence existed to find the appellant knowingly, and with intent to deceive, submit an illegal transcript for inclusion in her AMHRR.

8.  She provided an e-mail from an official at HRC, Fort Knox, KY, dated 
27 February 2013, wherein the HRC official (official 3) stated "Your records were migrated over to iPERMS from enlisted Records in Indianapolis… [on 17 July 2005].  A transcript was removed [from your AMHRR] on 3 September 2010 that had an effective date of 7 June 2002, this was the end result of a Department of the Army Special Evaluation Board decision that you initiated."

9.  She provided a letter of support, dated 27 March 2013, wherein the rater of the contested NCOER stated:

	a.  "During… [the period covered by the contested NCOER]… you served in a permanent assignment with my inspection team at HQDA.  I am uncertain in my recollection, but I believe that word of an incident involving your schooling came to my attention after the 2008-09 rating period ended, but before the [contested] NCOER was written and signed… I am certain that the incident - a representation you made to the Army about your schooling - was reported to have occurred before the rating period.  It was my conclusion, therefore, that paragraph 3-20a, Army Regulation 623-3 [Evaluation Reporting System] 
(10 August 2007) was controlling:"

Each report will be an independent evaluation of the rated Soldier for the specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance incidents occurring before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.

	b.  "I believe my comments on the evaluation were an accurate assessment of your performance during the rating period.  They were not based on events that may have taken place outside the rating period… I do not mean to second guess the reviewer's decision, but I do not believe, after again reviewing Army Regulation 623-3, that a non-concurrence was an available course of action.  The reviewer's examination for the discrepancies and the like should be limited to the period covered in the evaluation."

10.  She provided a letter of support, dated 27 March 2013, wherein the reviewer of the contested NCOER, MG WHM, stated:

	a.  "I support your request to remove the non-concurrence memorandum I attached as the reviewer with a statement of non-rated time based on the discovery of new information provided by the HRC Enlisted Records Branch."

	b.  "I rendered a non-concurrence memorandum as the reviewer of…[the contested NCOER]… based on the posting of a transcript to your [AMHRR]… which occurred on 30 June 2009.  On 27 February 2013, the… HRC Records Branch conducted an audit of your [AMHRR] and revealed the transcript was 

added in 2005.  Furthermore, additional information clarified that when the transcript posted to your [AMHRR] on 10 June 2009 the action was not initiated by you but by the Chief, Personnel Records Division who directed that the transcript be placed in your official file after it was successfully removed.  I had been informed in 2009 that you had initiated the action.  This is what caused me to non-concur with your evaluation at the time."  Additionally he added the site from Army Regulation 623-3, paragraph 3-20a, that was previously noted in the rater’s letter of support referring to stand alone reports.

	c.  "After careful review of this new information and the regulatory guidance, I have determined that the transcript was maintained in your official file prior to the reporting period… [of the contested NCOER].  This information was unknown at the time the non-concurrence memorandum was rendered because the Soldier’s [AMHRR] indicated that the transcript was posted on 10 June 2009.  I was advised that you added this transcript to your official file, when in fact, you did not.  If this information had been known at the time the report was rendered I would have concurred with the report."

11.  She provided a self-authored statement, dated 11 April 2012, wherein she argued, in effect, the block check of non-concurrence her review entered on the contested NCOER and the memorandum of non-concurrence should be removed based on the information provided by HRC officials and the letters of support provided by the rater and reviewer of the contested NCOER.  The basis of the error is that the incident occurred outside the rating period and that she never requested the unofficial transcript be placed back into her AMHRR.

12.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System (ERS). 

	a.  Paragraph 2-17 states the reviewer is responsible for rating safeguard overwatch and will examine the evaluations rendered by the rater and senior rater to ensure they are clear, consistent, and just, in accordance with known facts.  The reviewer indicates concurrence or non-concurrence with rater and/or senior rater by annotating the appropriate box with a typewritten or handwritten “X” in part II and adding an enclosure.

	b.  Paragraphs 3-20a and b state each report will be an independent evaluation of the rated Soldier for a specific rating period.  It will not refer to prior or subsequent reports.  It will not remark on performance or incidents occurring 

before or after the period covered.  The determination of whether an incident occurred during the period covered will be based on the date of the actual incident or performance; it will not be based on the date of any subsequent acts, such as the date of its discovery, a confession, or finding of guilt, or the completion of an investigation.  

	c.  Paragraph 3-23 stipulates 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.  Any verified derogatory information may be entered on an evaluation.  This is true whether the rated Soldier is under investigation, flagged, or awaiting trial.  While the fact that a rated individual is under investigation or trial may not be mentioned in an evaluation until the investigation or trial is completed, this does not preclude the rating chain's use of verified derogatory information.  For example, when an interim report with verified information is made available to a commander, the verified information may be included in an NCOER.

	d.  Paragraph 3-24c states no remarks on an evaluation report will be made on performance or incidents occurring before or after the rating period except in Relief-for-Cause reports based on information pertaining to a previous reporting period and the most recent Army Physical Fitness Test (APFT) performance or profile data occurred prior to the beginning date of the report.  This exception allows the rated individual to comply with APFT and height and weight requirements.  

	e.  Paragraph 3–40 states that if rating officials become aware of information that would have resulted in a higher evaluation of a rated Soldier, they will take action to alter or remove the report in accordance with the appeal policy.  Rating officials will precisely specify the new information, how it was obtained, whether it was factually confirmed, or how it would change the evaluation had it been considered in writing the original report.  Addenda will not be used to report this type of information.  The rated Soldier may be provided with a statement by the rating official who discovered the new favorable information, and that statement could be used in the rated Soldier’s appeal.

DISCUSSION AND CONCLUSIONS:

1.  Each NCOER must be an independent evaluation for the specific rating period and will not remark on performance incidents occurring before or after the period covered.  Further, the determination of whether an incident occurred during the 
period covered will be based on the date the actual incident or performance occurred and not on the date of discovery or the completion of an investigation.

* the contested NCOER covered the period 1 July 2008 through 30 June 2009
* the unofficial transcript, dated 7 June 2002, was initially placed in the applicant's iPERMS/AMHRR on 17 July 2005, removed, and again placed in her records around May 2009 through HRC action
* the unofficial transcript was discovered by her chain of command during the rating period of the contested NCOER
* the investigation was completed on or about 28 July 2009

2.  It is clear that the non-concurrence block check and memorandum were inappropriate and should not have been placed on or with the contested NCOER because the incident occurred well before the rating period began and the investigation was concluded after the rating period ended.

3.  Her reviewer believed, based on the information he was provided, that she personally requested the previously removed unofficial transcript be placed back onto her iPERMS/AMHRR.  Therefore, he non-concurred with the contested NCOER and attached a non-concurrence memorandum.  

* new, favorable evidence shows she did not request the unofficial transcript be added back into her record
* the unofficial transcript was added back into the record as a result of an HRC policy
* the reviewer’s letter of support fully supports removing the non-concurrence block mark and memorandum based on this new favorable information

4.  Based on the forgoing, the applicant’s record should be corrected to show her reviewer concurred with the rater and senior rater and the attached non-concurrence memorandum should be removed.

BOARD VOTE:

____X___  ____X___  ___X__ _  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to show the reviewer concurred with the rater and senior rater in the contested NCOER and by removing the memorandum of non-concurrence.  



      _______ _  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)                                         AR20130008595





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ABCMR Record of Proceedings (cont)                                         AR20130008595



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