IN THE CASE OF:	  

		BOARD DATE:	  19 September 2013

		DOCKET NUMBER:  AR20130013372 


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 the noncommissioned officer evaluation report (NCOER) for the rating period 1 March 2008 through 28 February 2009 from her Army Military Human Resource Record (AMHRR), previously known as the Official Military Personnel File
* promotion reconsideration to sergeant first class (SFC)/E-7
* expeditious handling of her request as her expiration term of service (ETS) ends on 12 February 2014
* removal of any documents (from her records) provided by SFC Pxxxxxxxx and Captain (CPT) Lxx during this rated period

2.  The applicant states:

   a.  Her ETS is 12 February 2014.  This NCOER needs to be removed in order for her to reenlist.  According to her court-martial counsel, the chain of command agreed to dissolve all records created by her rater SFC Pxxxxxxxx.  All other documents were deleted except for this NCOER.

	b.  The basis of this request is to identify numerous administrative errors, substantive inaccuracy, unjustified performance rating, and unproven derogatory information.

	c.  In Part III (Duty Description - Counseling Dates), the rater (SFC Pxxxxxxxx) lied about the initial counseling dates (27 August 2008 and not 25 November 2008).  He arrived to the unit in July 2008 and worked under SFC Gxxxxx until October 2008.  Upon SFC Gxxxxx's departure, the senior rater (SR) (CPT Lxx) notified her that a change of rater would not be necessary.  SFC Pxxxxxxxx (not her rater) was authorized to rate her on her annual NCOER.

	d.  Part IId (Authentication - Concur with rater and senior rater evaluations) and Part IIe (Rated NCO) were checked "Concur" by SFC Pxxxxxxxx, not by her. Parts IId and e should be checked by the rated Soldier if he/she agreed, verifying the administrative date provided.  The NCOER was prepared on 28 April 2009 by SFC Pxxxxxxxx, and signed and processed by CPT Lxx and Major (MAJ) Sxxxxx on 29 April 2009 while she was on emergency leave.  She was on emergency leave because her daughters were victims of sexual assault, traumatized, and placed under the homebound program until she PCS'd [permanent change of station] for her safety.  She was not afforded the opportunity to see or review the NCOER before it was sent for processing through command channels.

   e.  She did not see her NCOER until after contacting her counsel (Mr. Gxxx); who requested the NCOER as evidence just days prior to the court-martial hearing.  The evidence clearly proved that SFC Pxxxxxxxx and CPT Lxx planted the false evidence, stories, and unsubstantiated accusations against her in an effort to tarnish and ruin her military career.

   f.  In Part VI (Army Values/Attributes/Skills/Actions), SFC Pxxxxxxxx placed an "X" in the "No" block for "Duty."  When questioned by her counsel to provide proof for this rating, SFC Pxxxxxxxx failed to show any substantiating proof or evidence to the court.

   g.  In Part VIc (Physical Fitness and Military Bearing), she was rated as "Success" for Physical Fitness and Military Bearing.  The first bullet states, "awarded the Army Physical Fitness Badge; scoring 290 on the most recent Army Physical Fitness Test (AFPT)."  That bullet should be rated as "Excellence" per Army Regulation 623-3 (Evaluation Reporting System (ERS)) and any other Army bullet recommendations.  SFC Pxxxxxxxx rated her APFT score at 290 "Excellence" in a prior evaluation report for the period 1 March 2007 through 29 February 2008.

   h.  In Part IVf (Responsibility and Accountability), she was rated "Success" although the first bullet reads, "maintained 100 percent accountability of over $18,000 worth of office equipment."  Army Regulation 623-3 and any other Army bullet recommendations stated that 100 percent accountability should be rated "Excellence."
   
   i.  She appeals Parts IVb, IVd, and IVe under chapter 3, section VI, paragraph 3-19, Unproven Derogatory Information.  She was never counseled in reference to any of those bullets and all statements from SFC Pxxxxxxxx were dropped in the court-martial.  SFC Pxxxxxxxx could not prove any of the statements in court nor for the bullets from the NCOER in controversy.

   j.  In November 2008, while she was assigned to the 344th Military Intelligence (MI) Battalion, she requested a Commander's Inquiry for sexual harassment against Mr. Dxxxxx (civilian).  The investigation was proven to be substantiated by Staff Sergeant (SSG) Lxxxx, Equal Opportunity Assistant.  In retaliation, Mr. Dxxxxx got into her military records and said that she was released from the Army because she was a homosexual.  She believes this action also contributed to her erroneous NCOER by SFC Pxxxxxxxx and CPT Lxx since they were friends with Mr. Dxxxxx.  At the court-martial, SFC Pxxxxxxxx admitted that she called SFC Cxxxxxx at the 428th Battalion, her prior unit, looking for evidence that she could use to recommend her for an Article 15 or any evidence to harm her career.  

   k.  SFC Pxxxxxxxx, after admitting to the applicant's counsel her act of guilt, involved the 5th Amendment and decided to remain silent during the remainder of the interrogation to avoid incriminating herself and CPT Lxx of wrongdoing.  CPT Lxx also invoked the 5th Amendment.  Based on the evidence she was found not guilty by the court and exonerated of all charges.  SFC Pxxxxxxxx and CPT Lxx acted with malicious intent to produce evidence to harm her career and also to damage her NCOER, which was fraudulent.

   l.  Based on the foregoing evidence, she requests total removal of the contested NCOER and total reconsideration for promotion.  She also requests assistance in the removal of any documents provided by SFC Pxxxxxxxx and CPT Lxx during this rated period.  She is attaching a letter from her counsel based on the findings of the court-martial and her chain of command agreeing to dissolve any records, reports, and evidence submitted by SFC Pxxxxxxxx and CPT Lxx, including the contested NCOER.

   m.  She is also providing documents showing her military career progression. She has never received counseling for a justified Article 15 or any bad act as an NCO.  She always placed her mission first; respected her superiors; conducted her job with dignity, respect, and integrity; and maintained the physical fitness badge for over 5 years.  She has never been rated "Success" in Part IV in her NCOERs.  She has never been rated "Marginal" in Part Va (Rater - Overall potential for promotion and/or service in positions of greater responsibility) of her NCOERs.  She has never been rated less than "2" in Part Vc (Senior Rater - Overall Performance) and Part Vd (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility).

3.  The applicant provides:

* DA Form 1059 (Service School Academic Evaluation Report), dated 
21 April 2008 
* two DA Forms 2823 (Sworn Statement)
* Contested NCOER
* Letters from a psychiatrist and Director of Special Education pertaining to her daughter 
* DA Form 4430 (Department of the Army Report of Result of Trial)
* Three letters from her counsel
* Four DA Forms 2166-8 (NCOER) for the periods between March 2007 through August 2012
* two DA Forms 1059, dated 26 May 2011 and 16 February 2012
* Letter from the U.S. Army Human Resources Command (HRC), Appeals and Correction Section

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army (RA) on 1 July 1999, with prior enlisted service.  She was released from active duty on 19 February 1999 for Failure to Meet Medical Procurement Fitness Standards.

2.  She again enlisted in the RA on 16 April 2003.  She completed training and she was awarded military occupational specialty (MOS) 42A (Human Resources Specialist).  She was promoted to the rank of SSG, pay grade E-6, on 1 February 2008.  On 21 February 2008, she reenlisted in the RA for 6 years.

3.  On 4 February 2008, she was notified of her removal from Drill Sergeant School for academic reasons.  On the same day, she acknowledged receipt of the academic evaluation report and elected not to submit a statement in her own behalf.

4.  She received an "Annual" NCOER for her duties as an Administrative NCO, for the period 1 March 2007 through 29 February 2008 wherein she received "Success" and "Excellence" assessments and was rated "Among the Best."  This report is filed in her records located in the integrated Personnel Electronic Records Management System (iPERMS).

5.  She received an "Annual" NCOER for her duties as a Human Resources NCO while assigned to the 344th MI Battalion, in the rank of SSG.  The report was for a 5-month rating period from 1 March 2008 through 28 February 2009.  Her rater was a SFC (SFC Pxxxxxxxx), the Battalion S-1 NCO in Charge; her senior rater (SR) was a CPT (CPT Lxx), the Battalion Adjutant; and her reviewer was a Major, the Battalion Executive Officer.  This NCOER shows in:

   a.  Part III(f) Counseling Dates: Initial – 25 November 2008, Later – 30 January 2009;

	b.  Part IVa – the rater placed an "X" in each "Yes" block except for "Duty."  He checked the "No" block and entered the bullets:

* did not put mission first
* treats all Soldiers with respect

   c.  Part IVb (Competence) – the rater placed an "X" in the "Needs Improvement" block and entered the bullets:

* lacked technical expertise expected of a SSG with 10 years active duty service; not capable of being in charge of an admin section and routinely shredded files
* did not possess a thorough conceptual knowledge of current assignment; constantly made mistakes on quality checks for PCS and MOS orders
* did not make sound judgments when work needed to be accomplished

	d.  Part IVc – the rater placed an "X" in the "Success" block and entered the bullets:

* awarded the Army Physical Fitness Badge; scoring 290 on most recent APFT
* maintained a high level of physical fitness

	e.  Part IVd (Leadership) – the rater placed an "X" in the "Needs Improvement" block and entered the bullets:

* always placed herself first before subordinates
* passive leadership style; needed to be firmer and more assertive when dealing with subordinates and did not display any leadership capabilities
* incompetent as an NCO

	f.  Part IVe (Training) – the rater placed an "X" in the "Needs Improvement" block and entered the bullets:
* created an MOS training schedule, but needed to provide a greater clarity and guidance to the training concepts being taught; classes were done substandard
* failed to spend more time and effort guiding Soldiers to work as a team in processing orders in a timely manner; and over 50 orders were back logged in the 1st quarter

	g.  Part IVf – the rater placed an "X" in the "Success" block and entered the bullets:

* maintained 100 percent accountability of over $18,000 worth of office equipment for the "PSC" section
* care and maintenance of the "PCS" shop was satisfactory; resulting in no accidents

	h.  Part Va and Vb, the rater placed an "X" in the "Marginal" block and entered the three positions in which she could best serve the Army at her current grade or next higher grade:  Section Leader, Squad Leader, and Human Resources Sergeant;

	i.  Part Vc and Part Vd – the SR gave a rating of "Fair" and placed an "X" in the "4" block for the applicant's overall performance and a rating of "Fair" and placed an "X" in the "4" block for the applicant's overall potential for promotion and/or service in positions of greater responsibility.

   j.  In Part Ve (SR Bullet Comments) the SR entered the bullets:

* NCO not ready for increased responsibility based on rated job performance; do not promote with peers
* needs to relearn MOS basics, only send to MOS related courses
* retraining needed, continue to develop in positions similar to current job
* rater constantly needed to step in for NCO; may reach full potential if retrained in basic NCO leadership
* Soldier refused to sign

6.  The NCOER was signed by the applicant's rating officials on 28 and 29 April 2009.  Her signature block is blank.  This report is currently filed in the performance section of her AMHRR. 

7.  She provides copies of the following:

   a.  Two DA Form 2823, dated 13 November 2011, wherein the individuals provided statements asserting Mr. Dxxxxx stated the applicant had been released from the Army/class for homosexuality.

   b.  A letter, dated 1 April 2009, which pertains to her daughter's hospitalization from 27 February through 25 March 2009 following an incident where she had been sexually traumatized by an adult neighbor.  The letter stated the applicant was scheduled for transition to another base around 10 April 2009.

   c.  A letter, dated 3 April 2009, which pertains to her daughter being placed in the General Education Homebound Program as of 6 April 2009.

   d.  A DA Form 4439, dated 13 May 2009, which shows she was found not guilty by a summary court-martial of making a false official record on a DA Form 31 (Request and Authority for Leave).  This summary court-martial is not filed in her records located in iPERMS.

	e.  A letter purportedly from her counsel, dated 14 May 2009, wherein he demanded the cease and desist of any misappropriate behavior or procedures toward his client (the applicant).  He also requested the dissolution of any record, evidence, or report against the applicant, including the contested NCOER.

   f.  A letter, dated 2 May 2009, purportedly from her counsel wherein he advised the applicant that the 344th MI Battalion chain of command had agreed to dissolve any records, evidence, or reports made by SFC Pxxxxxxxx and CPT Lxx against her.  Counsel also advised that the command recognized that the court-martial, sworn statements, malicious evidence, and the NCOER were conducted wrongfully in order to harm her military career.  They agreed to take the necessary steps to either fix or remove it from her records.

   g.  Four DA Forms 2166-8 for the periods from March 2009 through August 2012 wherein she received "Success" and "Excellence" assessments and was rated "Among the Best."  These reports are filed in her records located in iPERMS.

	h.  Two DA Forms 1059 which show she achieved course standards for Basic NCO Common Core in 2008 and the Senior Leader Course in 2012.

	i.  A letter from her counsel, dated 10 April 2013, wherein he advised the Dallas Recruiting Battalion that the applicant was found "not guilty" by a court-martial in 2009.

	j.  A letter, dated 15 July 2013, from HRC, Appeals and Corrections Section, wherein she was advised of the return of her appeal of the contested NCOER without action since her appeal had not been received within 3 years of the through date (28 February 2009).  She was also advised she could apply to the Army Board of Correction of Military Records (ABCMR).

8.  A review of her records located in iPERMS failed to reveal any evidence or documents made by SFC Pxxxxxxxx or CPT Lxx or pertaining to the summary court-martial.  Based on the foregoing, this portion of the applicant's request will not be further discussed in this Record of Proceedings.

9.  Army Regulation 623-205 (NCOER System), dated 15 May 2002, prescribed the enlisted evaluation function of the military personnel system.  The regulation states in paragraph 3-13 that NCOs receiving one or more "needs improvement: rating cannot receive a rating of "Among the Best."  The following definitions will be used when completing parts Vc and Vd, Successful/Superior:  A "1" rating represents the cream of the crop and is a recommendation for immediate promotion.  A "Fair" rating represents NCOs who may required additional training/observation and should not be promoted at this time.  

10.  Army Regulation 623-3, effective 10 September 2007, prescribes the policies for completing evaluation reports that support the ERS.  Parts Vc and Vd are completed by the SR who evaluates overall performance and potential by placing one typewritten or handwritten (in black ink) "X" in the appropriate box for each area.  

	a.  Paragraph 2-15d states in addition to evaluating the rated NCO, the SR will perform a review of the NCOER before forwarding it to the reviewer.  Following completion of the NCOER by the designated reviewer and the rated NCO, he or she will also ensure the final report is submitted to Headquarters, Department of the Army (HQDA) in a timely manner and a copy is provided to the rated NCO.  The SR will also review and initial the DA Form 2166-8-1 at the beginning of the rating period and sign the completed DA Form 2166-8 at the end of the rating when preparing his or her portion of the NCOER.

	b.  Paragraph 2-19 states the reviewer will ensure that the proper rater and SR complete the report and examine the evaluations rendered by the rater and SR to ensure they are clear, consistent, and just in accordance with known facts. The reviewer will take special care to ensure the specific bullet comments support the appropriate "Excellence" or "Success" or "Needs Improvement" ratings in part IV, blocks b through f of DA Form 2166-8.  The reviewer will comment only when in disagreement with the rater and/or SR.  He/she would indicate concurrence or nonconcurrence with rater and/or SR by checking the appropriate box in part II and adding an enclosure, not to exceed one page.

	c.  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.

	d.  Paragraph 4-7 states an evaluation report accepted for inclusion in the official record of a rated Soldier’s AMHRR is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence.

11.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system. Paragraph 4-13 of the regulation states STABs are convened to consider records of those Soldiers whose records were not reviewed by a regular board, or whose records were not properly constituted, due to material error, when reviewed by the regular board.  Reconsideration normally will be granted when an adverse NCOER reviewed by the board was subsequently declared invalid in whole or in part and was determined to constitute a material error.

DISCUSSION AND CONCLUSIONS:

1.  The applicant received an annual NCOER covering the period 1 March 2008 through 28 February 2009.  Her rater evaluated her competence, leadership, and training performance as "Needs Improvement."  Her SR evaluated her overall performance as "Fair/4" and her overall potential as "Fair/4."

2.  Her contentions and the documents submitted were carefully considered; however, the contested report appears to represent a fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence the contested report contains any administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  

3.  More importantly, 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 contested NCOER or that they exercised faulty judgment in evaluating her as they did.  She also has not shown that her chain of command did in fact agree to remove the NCOER from her records.  

4.  She did not provide sufficient evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  There is insufficient evidence to grant her the requested relief.

5.  With respect to promotion reconsideration, pertinent regulations provide for STAB promotion consideration when an adverse NCOER reviewed by the board was subsequently declared invalid in whole or in part and was determined to constitute a material error.  The contested NCOER was received and processed and has not been declared invalid.  Therefore, she is not entitled to promotion reconsideration by a STAB.

6.  With respect to expediting her case, the ABCMR usually processes cases in the order they are received.  The Board understands the circumstances that bring about applications to the ABCMR; many are urgent, and for all other kinds of cases, Soldiers who file the same kind of application are usually in similar circumstances and often have similar needs to have their cases processed quickly.  The Board understands the effects that processing times can have on Soldiers and their families.  However, it would not be appropriate for the Board to give preferential treatment to one Soldier over another, and disadvantage a Soldier or another by delaying one case to first process another that was filed later.  Therefore, no matter how short or long the normal processing time, the Board normally processes cases in order based on when they were received.

7.  In view of the foregoing, there is no basis for granting the applicant's request.








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)                                         AR20130013372





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ABCMR Record of Proceedings (cont)                                         AR20130013372



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