IN THE CASE OF:	  

		BOARD DATE:  1 August 2013

		DOCKET NUMBER:  AR20130011269 


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 correction of her DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER)) covering the period 1 January 2009 through 27 November 2009 or, in the alternative, removal of the NCOER from her Army Military Human Resource Record (AMHRR).

2.  The applicant states the basis for the appeal is both administrative and substantive inaccuracy of the NCOER.

	a.  She states she received ratings of "4" (Fair) on the NCOER by the "reviewer" based on failure of a diagnostic Army Physical Fitness Test (APFT) that was conducted on an unauthorized route during her deployment in Iraq.  She adds that her performance was not fairly evaluated and there are many other discrepancies on the NCOER, as well of proof of toxic leadership and inequalities.

   b.  She did not immediately appeal the NCOER.  She did speak with her platoon sergeant and first sergeant and was told that, regardless of the Army regulation, the NCOER was valid.  She made an appointment to speak with the command sergeant major, but he failed to show up for the appointment.  At that time, she ceased to pursue the issue.

   c.  Later on she decided to gather documentation to appeal the NCOER.
However, the U.S. Army Human Resources Command (HRC) was unable to contact the rater.  She continued to gather additional evidence even though the process took longer than the 3-year appeal period.
3.  The applicant provides copies of the following documents:

* appeal memorandum, dated 22 January 2013
* DA Form 2166-8-1 (NCOER Counseling and Support Form)
* five NCOERs
* three memoranda of support
* All Army Activities (ALARACT) message 163/2003
* HRC Evaluation Report Look-Up

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 17 September 1998.

2.  She was promoted to staff sergeant (SSG)/pay grade E-6 on 1 November 2008 in military occupational specialty 68W (Health Care NCO).  She deployed to Iraq with her unit in support of Operation Iraqi Freedom (OIF) on 15 September 2008.

3.  A review of the applicant's AMHRR maintained in the Interactive Personnel Electronic Records Management System revealed:

	a.  The change of rater NCOER for the period 1 January 2009 through 
27 November 2009 for the applicant's performance while assigned as Squad Leader, Brigade Support Medical Company (BSMC), 25th Brigade Support Battalion, Fort Wainwright, AK, is filed in the performance section of her AMHRR.

	b.  It also shows in:

		(1)  Part II (Authentication) that the rating chain at the time was:

* Rater:  Sergeant First Class (SFC) Y--- K. S----, Platoon Sergeant
* Senior Rater:  Captain (CPT) J--- E. W----, Executive Officer
* Reviewer:  CPT G--- L. M----, Company Commander

		(2)  Part III (Duty Description), block f (Counseling Dates), that she was counseled on 12 February 2009, 20 May 2009, and 1 August 2009.

    	(3)  Part IV (Army Values/NCO Responsibilities), block c (Physical Fitness and Military Bearing), was marked "Needs Improvement (Some)."  In addition, "FAIL" and "20090720" (i.e., 20 July 2009) were entered in the "APFT" block along with the comment, "failed to meet run standards of record Army Physical Fitness Test."
    	(4)  The NCOER also shows she received "Yes" ratings for all "Army Values/Attributes/Skills/Actions" and "Success (Meets Standard)" with positive comments for all "Values/NCO Responsibilities" (other than "Physical Fitness and Military Bearing" that was discussed above).

		(5)  Part V (Overall Performance and Potential):

		(a)  the rater placed an "X" in the "Marginal" block for service in positions of greater responsibility;

	 	(b)  the senior rater's bullet comments state:

* promote to Sergeant First Class with peers
* send to Senior Leadership Course when eligible
* limitless potential for positions of increased responsibility
* professional NCO; always demonstrated keen MOS proficiency despite physical challenges

		(c)  the senior rater placed an "X" in the "4" (Fair) block for overall performance and an "X" in the "4" (Fair) block for overall potential for promotion and/or service in positions of greater responsibility.

		(6)  The applicant, rater, senior rater, and reviewer all digitally signed the NCOER on 19 November 2009.

4.  A review of the applicant's AMHRR failed to reveal any evidence that she submitted a timely appeal of the NCOER to HRC.

5.  In support of her request the applicant provides the following documents:

   a.  A memorandum, dated 22 January 2013, from the applicant to HRC (Evaluation Appeals), Fort Knox, KY, that shows her appeal of the NCOER was based on "substantive inaccuracy" and included the supporting documents she now submits to this board.  She indicated that ALARACT message 163/2003 and Department of the Army Pamphlet 623-2 (Evaluation Reporting System), Table 3-4 (Army Values/Attributes/Skills/Actions - Values/NCO Responsibilities), states that units that do not allow the Soldier to train for the APFT due to mission requirements should not administer an APFT.  She offered memoranda from previous leadership in support of her appeal.  She asserted that the counseling dates on her DA Form 2166-8-1 do not match those on the DA Form 2166-8; the DA Form 2166-8-1 shows she previously passed the APFT in May 2009, and she received a profile due to a combat-related injury shortly thereafter that hindered her APFT performance in July 2009.  She concluded by requesting removal of the NCOER from her AMHRR.

   b.  DA Form 2166-8-1 pertaining to the applicant that shows in:

* Part II (Authentication):

* Initial:  "20090115"  (15 January 2009)
* Later:  " 20090428" (28 April 2009)
* Later:  "20090717" (17 July 2009)

* Pat III (Duty Description ):

* block a (Principal Duty Title):  "Squad Leader"
* block f (Physical Fitness and Military Bearing):

* APFT:  "PASS"
* APFT Date:  "May 09"

* Part IV (Army Values/Attributes/Skills/Actions), block c (Physical Fitness and Military Bearing), Task/Actions:  "Ensure Squad Conducts PT"

   c.  five NCOERs spanning the period from 1 January 2008 through 31 August 2012 (including the NCOER under review).  The other four NCOERs offer evidence of the applicant's duty performance during the specified rating periods and show:
   
		(1)  she passed the APFT on 7 August 2008, 15 October 2010, and 
23 August 2012;

		(2)  Part V:

		(a)  the four (different) raters (including the applicant's rater for the NCOER under review) placed an "X" in the "Among the Best" block for service in positions of greater responsibility; and

		(b)  the four (different) senior raters (including the applicant's senior rater for the NCOER under review) placed an "X" in the "Successful - 1" block for overall performance and an "X" in the "Superior - 1" block for overall potential for promotion and/or service in positions of greater responsibility.
   
   d.  A memorandum, dated 28 January 2013, under the signature of SSG C--- M. W---- who served with the applicant during the period of the NCOER under review.  SSG W--- states that SFC S---- (the rater of both her and the applicant) acted indifferently to the applicant.  She ignored her and dismissed issues of indiscipline that the applicant brought to her attention, including inappropriate email messages that she received from the company commander (who was the reviewer on the applicant's NCOER).
   
   	(1)  In a conversation with the first sergeant, the applicant and SSG W--- told him that they thought SFC S--- (their rater) was involved in inappropriate relationships and that she was racially biased.

   	(2)  SSG W--- stated, "A few weeks before we were scheduled to redeploy we took a record APFT on a run route that to my knowledge was never verified and was not the same as the one we had used a few months prior.  [The applicant] failed her run and was sent home [in advance of her unit] to escort a Soldier."

   e.  A memorandum, dated 25 January 2013, under the signature of CPT J--- Q. C----, who observed the applicant during the period of the NCOER under review.  She states that she believes the applicant's NCOER reflects changes as a direct result of the applicant raising concerns about her rater (SFC S----) to the first sergeant.  She adds that the applicant's rating is completely different from her previous NCOER even though she had the same rating chain for both reports.
   
   	(1)  CPT C--- identifies specific items and discrepancies that she feels she has first-hand knowledge of that render the report inaccurate and unfair.  These include the value of equipment under the applicant's area of responsibility, that she completed 12 college credit hours (deserving an "excellent" bullet), reestablishing the Brigade Medical Treatment Facility, and performing duties as Master Driver for the BSMC.  She also questions the positions in which the applicant would best serve the Army.

   	(2)  CPT C--- states, "The APFT was a diagnostic APFT that was taken in Iraq on Forward Operating Base Warhorse.  [The applicant] left FOB Warhorse immediately following this diagnostic APFT [in advance of her unit] because she was responsible for setting up the Aid Station.  I recall the diagnostic APFT at that time.  The course had not been validated."
   
   	(3)  CPT C--- outlines steps she took to intervene on the applicant's behalf regarding the NCOER, but the leadership in the BSMC was toxic and nothing occurred.  She adds that, after the applicant redeployed, the company commander (the reviewer for the applicant's NCOER) was removed.

   	(4)  CPT C--- acknowledges shortcomings in her leadership by not pursuing resolution of issues that were adversely affecting the command climate.
   
   f.  A memorandum, dated 28 January 2013, under the signature of Lieutenant Colonel (LTC) M--- L. R---, who has known the applicant since September 2005.  She and the applicant were deployed in support of OIF from September 2005 to November 2006 and from September 2008 to September 2009.  She acknowledges that she was not in the applicant's rating chain during the period of the NCOER under review.

   	(1)  LTC R--- attests to the applicant's professional behavior and outstanding duty performance.

   	(2)  LTC R--- has reviewed the applicant's NCOERs and notes that the NCOER under review is "a clear outlier report."  She opines that the NCOER does not accurately reflect [the applicant's] performance or her potential for future performance."
   
   g.  ALARACT message 163/2003, APFT Requirements for NCOER for Soldiers Deployed in Support of Operation Iraqi Freedom.  It shows that during deployment units should conduct physical training and testing, if the mission and conditions permit.

   h.  Evaluation Reports Available by Individual Look Up that shows the applicant's NCOER for the period 1 January 2009 through 27 November 2009 was received at HRC on 22 January 2010 and was being held pending correction of the bullet comment for the APFT failure.  Upon correction, signature, and resubmission, the corrected NCOER would be filed in the applicant's AMHRR.

6.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System, this includes the DA Form 2166-8.

	a.  Chapter 1 (Introduction), paragraph 1-10 (Changes to an Evaluation Report), provides that members of the rating chain, the appropriate administrative personnel office, or Headquarters, Department of the Army (HQDA), will point out obvious inconsistencies or administrative errors to the appropriate rating officials.  After needed corrections are made, the NCOER will be sent to the appropriate HQDA processing office.

	b.  Chapter 2 (The Rating Chain), paragraph 2-12 (Role of the Rater), provides that the rater will:

		(1)  assess the performance of the rated Soldier using all reasonable means, to include personal contact, records and reports, and the information provided by the rated NCO on the NCOER Support Form;

		(2)  verify the rated individual's APFT and height and weight data for entry on the evaluation report (DA Form 2166-8, Part IVc); and

		(3)  provide an objective and comprehensive evaluation of the rated Soldier's performance and potential on the DA Form 2166-8.

	c.  Chapter 3 (Army Evaluation Principles):

		(1)  paragraph 3-14 (Rater Assessment), provides that the rater will assess the performance and potential of the rated NCO using all reasonable means to prepare a fair, correct report that evaluates the NCO's duty performance, values/NCO responsibilities, and potential.  The rater will enter the APFT and height and weight result entries on the DA Form 2166-8, Part IVc.

		(2)  paragraph 3-27 (Preparation and Submission Procedures), provides that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in Part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight data; and that he/she has seen the completed report.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the evaluation.

	d.  Chapter 6 (Evaluation Redress Program):

		(1)  paragraph 6-7 (Policies), places the burden of proof on the applicant to provide clear and convincing evidence to justify deletion or amendment of an NCOER; and

		(2)  paragraph 6-8 (Timeliness), provides that substantive appeals will be submitted within 3 years of an NCOER "Thru" date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant an exception.

7.  Department of the Army Pamphlet 623-3 prescribes the policy and tasks for the Army's Evaluation Reporting System. Table 3-4 shows for Part IV, block c (APFT), in pertinent part, that deployed units unable to administer the APFT due to mission or conditions will annotate NCOERs with the following statement: "NCO unable to take the APFT during this period due to deployment for combat operations/contingency operations."  In accordance with Army Regulation 350-1 (Army Training and Leader Development), upon return from deployment, NCOs will be administered a record APFT no earlier than 3 months (for active Army Soldiers).

8.  Army Regulation 600-8-104 (Army Military Human Resources Records Management) provides policies, operating tasks, and steps governing the AMHRR.

	a.  Depending on the purpose, documents will be filed in the AMHRR in one of six sections:  performance, service, restricted, medical, other, or State/Territory.  Once placed in the AMHRR, the document becomes a permanent part of that file.

	b.  Table B-1 (Authorized Documents) shows the DA Form 2166-8 is filed in the performance section.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the APFT entries recorded in Part IVc and several other entries on the NCOER covering the period 1 January 2009 through 
27 November 2009 should be deleted from the NCOER or, in the alternative, the NCOER should be removed from her AMHRR.

2.  The applicant's contentions were carefully considered.

   a.  The applicant's NCOER Counseling and Support Form for the NCOER under review shows the applicant was counseled on three occasions during the rating period (i.e., 15 January, 28 April, and 17 July 2009).  The NCOER also shows she was counseled on three occasions during the rating period 
(i.e., 12 February, 20 May, and 1 August 2009).  While the dates on the two forms do not correspond, the applicant offers no argument or evidence that she was not counseled by her rater during the rating period on at least three occasions.  Thus, the issue is a matter of administrative inaccuracy and, as such, is deemed a harmless error in this case.

   b.  ALARACT message 163/2003 shows that during deployment, units should conduct physical training and testing, if the mission and conditions permit.
   
   	(1)  The DA Form 2166-8-1 shows the applicant was tasked to ensure that her squad conducts physical training.
   	(2)  Thus, the evidence of record indicates that the applicant's unit was participating in PT during deployment. 
   
   	(3)  Despite the applicant's contention that the APFT conducted on 20 July 2009 was a diagnostic test, she provides no official documentary evidence 
(i.e., DA Form 705 - APFT Scorecard) in support of her contention.  

   	(4)  Despite the applicant's contention that she received a physical profile due to a combat-related injury (sustained sometime after the May 2009 APFT) that hindered her APFT performance in the July 2009 APFT, she does not provide a copy of the physical profile exempting her from the APFT or any of the APFT events.
   
   		(a)  The evidence of record clearly shows the applicant failed the run portion of the APFT.

   		(b)  The evidence she provides in the form of supporting statements is contradictory.  The statement by SSG W--- (who was rated by the same rater as the applicant) indicates it was a record APFT, while the statement by CPT C--- (who was not in the applicant's rating chain) indicates it was a diagnostic APFT.  Thus, the applicant provides insufficient evidence to support her contention that the entry on the DA Form 2166 is in error.

   c.  There is no evidence of record that shows the applicant submitted her appeal of the NCOER to HRC on 28 January 2013 (or at any other time) or that her appeal was returned without action because it was not filed in a timely manner.  

   d.  While the applicant may have experienced a high operational tempo immediately following her redeployment, it's not clear why it took more than three years to prepare her appeal that essentially consists of her statement and three supporting statements that were all prepared more than 3 years after the NCOER that is under review.  In any event, she did not exercise due diligence in this matter.

3.  There is no evidence of material error, inaccuracy, or injustice in the contested NCOER that would support a conclusion that the NCOER does not represent the considered opinions and objective evaluations of the rating officials.  Therefore, there is insufficient evidence to correct any of the entries on the NCOER.

4.  The NCOER is properly filed in the performance section of the applicant's AMHRR.
5.  By regulation, in order to alter or remove a document from the AMHRR, there must be clear and convincing evidence showing the document is untrue or unjust.  The applicant failed to submit sufficient evidence to show the NCOER in question that is filed in her AMHRR is untrue or unjust.  Therefore, the entries in question on the NCOER are deemed to be valid and should not be altered.  In addition, the NCOER is properly filed and should not be removed from the applicant's AMHRR.

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)                                         AR20130011269



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ABCMR Record of Proceedings (cont)                                         AR20130011269



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