IN THE CASE OF:	  

		BOARD DATE:	    9 July 2014

		DOCKET NUMBER:  AR20140001492 


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:

* the removal from her Official Military Personnel File (OMPF) of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 12 March 2011 through 11 March 2012, referred to hereafter as the contested NCOER
* reinstatement into the U.S. Army Reserve (USAR) as a Troop Program Unit (TPU) Soldier

2.  The applicant states:

	a.  The Army Board for Correction of Military Records (ABCMR) should review her Qualitative Retention Program (QRP) packet and reinstate her into a TPU.  

	b.  She believes the contested NCOER is unjust because she was evaluated as a chief instructor, a position in which she never performed the duties.  She was removed from the chief instructor position in December 2010 and placed in a 9990 (excess) position.

	c.  She was informed by Sergeant Major (SGM) B___ that he would be her rater and she would work in the S-1.  Five months later, SGM H_____ informed her that he was ordered to remain her rater.  On the DA Form 2166-8-1 (NCOER Counseling and Support Form), the senior rater's name does not match the rating scheme.  This is a repeat from her NCOER for the rating period 12 March 2010 through 11 March 2011.  In addition, statements made on the contested NCOER are untrue and, overall, she was treated unfairly. 

3.  The applicant provides:

* two DA Forms 2166-8
* three orders
* Unit Manning Report (UMR), dated 7 October 2010
* unit training schedule, dated 9 July 2011
* four memoranda, dated between 12 July and 30 December 2013
* letter, dated 12 October 2011
* court decision docket, dated 20 January 2012
* unit rating scheme, dated 29 February 2012
* four statements of support
* ten pages of email, dated between 27 May 2010 and 17 June 2012
* five DA Forms 2166-8-1 
* two pages titled NCOER Frequently Asked Questions (FAQ)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the USAR on 10 April 1981 and served continuously in the USAR throughout several reenlistments and/or extensions.  

2.  On 15 May 2002, by memorandum, the USAR Personnel Command issued the applicant a memorandum, subject:  Notification of Eligibility for Retired Pay at Age 60 (Twenty-Year Letter).  This memorandum notified her that she had completed the required years of service and she would be eligible for retired pay upon application at age 60.

3.  She was promoted to the rank/grade of master sergeant (MSG)/E-8 on 1 November 2006 and she held military occupational specialty (MOS) 42A (Human Resources Specialist).  She was assigned to Detachment 1, 1st Battalion, 100th Regiment, TPU, 102nd Division, Fort Sheridan, IL.

4.  During the month of August 2011, she received an annual NCOER that covered 12 months of rated time from 12 March 2010 through 11 March 2011 for her duties while serving as the chief instructor for Detachment 1, 1st Battalion, 100th Regiment.  Her rater was SGM H_____, her senior rater was Major (MAJ) S______, and the reviewer was Lieutenant Colonel (LTC) D______:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for five of the seven values and in the "No" block for item 2 (Duty:  Fulfills their obligation) and item 3 (Respect:  Treats people as they should be treated).  This block contained the following comments:

* was repeatedly disrespectful of senior NCO's and officers
* is not receptive to supervision and is not willing to receive constructive criticism

	b.  In Part IV (Values/NCO Responsibilities), the rater placed an "X" in the "Success" blocks of IVc (Physical Fitness & Military Bearing), and IVe (Training).  These blocks, in part, contained the following comments:

* scored 291 on Army Physical Fitness Test (APFT)
* ensures that S-1 functions are addressed for the detachment

	c.  In Part IVb (Competence), the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* failed to meet any of the MOS qualifications (MOSQ) in her first year with the unit
* dedicated an extraordinary amount of time and effort toward trying to raise her Armed Services Vocational Aptitude Battery (ASVAB) scores in order to become duty MOSQ (DMOSQ)

	d.  In Part IVd (Leadership), the rater placed an "X" in the "Needs (Much) Improvement" block.  This block contained the following comments:

* cannot perform any of her DMOS instructor mission
* received seven written counseling's and multiple on the spot corrections for behavior unbecoming a senior NCO

	e.  In Part IVf (Responsibility & Accountability), the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* failed to provide a work plan for MOSQ and to meet other given suspenses
* failed to provide rescheduled training (RST) form prior to not attending battle assemblies (BA) and to complete other tasks in the prescribed manner
* managed facilities and support equipment for the detachment without incident 

	f.  In Part Va (Overall Performance and Potential), the rater placed an "X" in the "Marginal" block.  

	g.  In Part Vc (Overall Performance), the senior rater placed an "X" in the "4 - Fair" block and in Vd, he placed an "X" in the "4 - Fair" block.  

	h.  In Part Ve (Senior Rater Bullet Comments), the senior rater entered the following comments:

* failed to achieve qualifications for duty position despite multiple opportunities afforded by the command
* do not promote at this time; Soldier has not demonstrated potential to perform at the next rank
* do not send to MOS schooling until Soldier can achieve basic qualifications
* under stressful situations Soldier allowed temper to control her emotions and was disrespectful to senior NCOs and officers to include her detachment and battalion commanders

5.  This NCOER was signed by her rater on 1 August 2011 and senior rater on 3 August 2011.  The reviewer concurred with the rating officials’ evaluations and signed the NCOER on 4 August 2011.  The applicant refused to sign the NCOER; it is currently filed in the performance folder of her OMPF.

6.  The applicant provides a DA Form 2166-8-1, wherein it shows she was counseled by her rater, SGM H_____ on 13 September, 10 and 28 November, and 10 December 2011 on the objectives for her duty performance for the new rating period.  The counseling covered the following areas and stated:

	a.  For her duty description, that because the applicant was not MOSQ and not currently in a position with a duty title, she would be treated and rated on the initial duty position she joined the unit in, course manager.  The position was fitting for her grade and would be the most beneficial for her and the battalion mission.  She would be rated on her performance of as many of the duties as were applicable.  Because she was not MOSQ not all course manager requirements were applicable.  The specific duties were outlined in the attached memorandum (emphasis added).  The applicant did not provide the memorandum that spelled out the specific duties expected of her.

	b.  For Part IVa, all Soldiers were expected to live and behave in accordance with the Army Values.  

	c.  For Part IVb, she must become MOSQ for her duty position or find an alternate position within the battalion or brigade.  A formal written response to the task was required by 1 November 2011.  The performance summary for this block stated the applicant had refused to sign the counseling and had not responded in any written or verbal manner.

	d.  For Part IVc, maintain current APFT score level, maintain or improve current weapons qualification level.  The performance summary stated the applicant was maintaining her level of proficiency in the APFT and weapons.

	e.  For Part IVd, she must become MOSQ in order to support the mission, must be a leader within the detachment and the battalion.  The performance summary stated the applicant was not MOSQ and was not making progress.  Her attitude and lack of progress was not becoming of a leader.

	f.  For Part IVe, she must implement individual and team training in order to support the mission, one training event per quarter organized and conducted by the applicant for the detachment.  The performance summary stated as of 10 December 2011, the applicant had not implemented any individual or team training.

	g.  For Part IVf, she must ensure all verbal and written instructions were adhered to, show personal accountability for actions.  The performance summary stated the applicant picked and chose which verbal and written instructions she wished to follow.

	h.  The counseling form also shows her senior rater as SGM B___ and the reviewer as LTC D______.

7.  During the month of May 2012, she received the contested NCOER, an annual NCOER that covered 12 months of rated time from 12 March 2011 through 11 March 2012 for her duties while serving as the chief instructor for Detachment 1, 1st Battalion, 100th Regiment.  Her rater was SGM H_____, senior rater was MAJ R______, and the reviewer was LTC D______:

	a.  In Part IVa, the rater placed an "X" in the "Yes" block for six of the seven values and in the "No" block for item 2.  This block contained the following comments:

* shows improvement in her behavior toward other Soldiers
* did not complete assigned tasks
* did not make improvement toward MOSQ

	b.  In Part IV, the rater placed an "X" in the "Success" blocks of IVc and IVe.  These blocks, in part, contained the following comments:

* scored 287 on the APFT
* taught a class on the NCO promotion system

	c.  In Part IVb, the rater placed an "X" in the "Needs (Much) Improvement" block.  This block contained the following comments:

* for the second year Soldier failed to become MOSQ
* made no effort to retake the ASVAB to raise score needed for MOS instructor qualification; therefore, Soldier remained non-mission capable
* did not make an effort to become DMOS qualified 

	d.  In Part IVd, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* rarely took part in detachment training
* did not place mission first as evident by failure to become qualified as an MOS instructor
* showed improvement in attitude and level of respect when interacting with senior leaders and other Soldiers within the battalion

	e.  In Part IVf, the rater placed an "X" in the "Needs (Some) Improvement" block.  This block contained the following comments:

* failed to provide a work plan to become MOSQ
* unable to complete assigned tasks and suspenses 
* Soldier refused to accept responsibility for failure to become DMOSQ
* no true effort was made to learn and grow within assigned duty position

	f.  In Part Va, the rater placed an "X" in the "Marginal" block.  

	g.  In Part Vc, the senior rater placed an "X" in the "4 - Fair" block and in Vd, he placed an "X" in the "4 - Fair" block.  

	h.  In Part Ve, the senior rater entered the following comments:

* do not promote at this time; Soldier has not demonstrated potential to perform at the next rank
* failed to make progress toward becoming DMOSQ
* do not send to MOS schooling until Soldier can achieve basic qualifications
* Soldier does not have potential in this MOS

8.  This NCOER was signed by her rating officials on 12 May 2012.  The applicant refused to sign the NCOER; it is currently filed in the performance folder of her OMPF.

9.  On 11 July 2012, she was reassigned to the U.S. Army Support Command, TPU, Rock Island, IL.

10.  Orders 13-149-0069, dated 29 May 2013, issued by Headquarters (HQ), 88th Regional Support Command, Fort McCoy, WI, released the applicant from her current assignment and reassigned her to the USAR Control Group (Reinforcement) effective 31 July 2013 by reason of nonselection by selective or Qualitative Retention Board (QRB).

11.  In June 2013, the applicant submitted an appeal to the U.S. Army Human Resources Command (HRC) requesting the NCOER for the rating period 12 March 2010 through 11 March 2011 be removed from her OMPF.  On 21 August 2013, her request was denied.

12.  In or around June/July 2013, the applicant submitted an appeal to HRC requesting the contested NCOER be removed from her OMPF.  On 23 October 2013, her request was denied.

13.  In the processing of this case an advisory opinion, dated 2 April 2014, was received from the Chief of Evaluations, Evaluations, Selections and Promotions Division, HRC.  However, the advisory official stated the response was reference the applicant's concerns of the NCOER she received for the rating period 12 March 2010 through 11 March 2011.  It did not reference the contested NCOER.  The advisory official noted her appeal of the NCOER was received on 18 June 2013 and she was notified on 22 August 2013 that her request was denied [on 21 August 2013].

14.  In a response to the advisory opinion received on 28 April 2014, the applicant addressed HRC's denial of her appeal to have the contested NCOER (12 March 2011 through 11 March 2012) removed from her OMPF and stated:  

	a.  In March 2011, SGM H____ informed her that SGM B___ would be her rater and she would be working in the S-1 section as the HR supervisor.  On 17 August 2011, SGM H____ informed her that Command Sergeant Major (CSM) S____ ordered him to remain her rater.  SGM H____ rated her as chief instructor because she was not MOSQ and told her she would be treated and rated in the initial duty position [she had] when she was assigned to the unit.  She had been working as the HR supervisor since her assignment and not as chief instructor.  She notified CSM S____ and LTC D_____ to intervene but received no assistance.

	b.  SGM B___ was listed as her senior rater on her DA Form 2166-8-1 and the last counseling date was 6 January 2012.  However, MAJ B______ was listed as her senior rater on the contested NCOER.  [It is unclear what the applicant is referring to as the contested NCOER shows MAJ R_______ as her senior rater.]  The rating scheme shows MAJ B______ as her senior rater effective 12 March 2010.  The governing regulation states the rater will advise the Soldier of the objectives and who is in the rating chain throughout the rating period.

	c.  In March 2010, she was slotted in the chief instructor position on the UMR but performed the duties as an HR supervisor.  In December 2010, she was slotted in a 9990 position but her duties as HR supervisor did not change.  She was not assigned other duties.  On her NCOER counseling in November 2011, SGM H____ placed to be determined (TBD) in the principal duty title and 12X (Chief Instructor) as DMOS and explained she was not MOSQ but would be rated as the chief instructor.  She was denied the opportunity to work as a chief instructor/writer and worked as an HR supervisor.

	d.  SGM H____ stated she rarely took part in detachment training and did not place mission first because she was not MOSQ; however, SGM H____ never attended BA and just because she was not MOSQ does not mean she didn't place mission first.  She participated in all functions during BA, assisted the supply NCO, and provided documents to the training NCOs.

	e.  SGM H____ stated that she failed to provide a work plan to become MOSQ and was unable to complete assigned tasks and meet suspenses.  Those comments were written on her NCOER for the rating period 12 March 2010 through 11 March 2011 and have nothing to do with the contested NCOER rating period.  MAJ B______ stated she failed to make progress toward becoming DMOSQ; however, in October 2010 she took the ASVAB test and scored an 87 but a score of 88 was needed.

	f.  MAJ B______ had been her senior rater since March 2010 but MAJ S____ rated her as unacceptable on her previous NCOER, which was unacceptable.  MAJ B______ had no knowledge that he was her senior rater but he is making an unjust remark concerning her as a Soldier and her career.  Overall, the contested NCOER was not in accordance with Army Regulation 623-3 (Evaluation Reporting System) so she is requesting it be removed from her OMPF.

15.  Orders C-05-406826, dated 15 May 2014, issued by HRC, released the applicant from the USAR Control Group (Reinforcement) and reassigned her to HQ, First Army, Rock Island, IL, effective 1 June 2014 as an Individual Mobilization Augmentee (IMA).

16.  The applicant provides:

	a.  Four statements of support, all undated, from Soldiers in Detachment 1, 1st Battalion, 100th Regiment, in the grades of E-7, E-6, and E-5, that stated they had served with the applicant and she had worked as the Detachment NCO in Charge (NCOIC).  She was friendly, pleasant, knowledgeable, and she helped many Soldiers update their records and resolve other personnel problems.  All of them stated they had never witnessed the applicant perform duties as chief instructor.

	b.  A rating scheme, updated on 29 February 2012, wherein it showed that as of 11 March 2012 the applicant's rater was SGM H____, effective 12 March 2010; her senior rater was MAJ B______, effective 12 March 2010; and her reviewer was LTC D______, effective 19 August 2009.

17.  Army Regulation 135-205 (Army National Guard and USAR Enlisted Personnel Management), chapter 2 governs the QRP and states the purpose of the QRP is to determine retention potential and designed to ensure only the best qualified Soldiers are retained beyond 20 years of qualifying service, provide for career incentive, to ensure an opportunity for advancement to the higher grades during the peak years of a Soldier's effectiveness, satisfy the continuing requirement for senior NCOs by the appropriate commands, and provide the command with a tool to control enlisted personnel inventory and management of career progression.  The QRP is not designed to be used in lieu of separation or removal procedures authorized by other regulations such as unsatisfactory performance, unsatisfactory participation, and failure to meet body fat standards.

18.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  This includes the DA Form 2166-8.  

	a.  Paragraph 3-2i states rating officials have a responsibility to balance their obligations to the rated Soldier with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On one hand, this evaluation will give full credit to the rated Soldier 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, Department of the Army selection boards and career managers can make intelligent decisions.  

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

	c.  Paragraph 6-11d states that for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials.  Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the contested NCOER should be removed form her records as she was evaluated as a chief instructor but never performed the duties of the position.  

2.  The evidence of record shows the applicant was assigned to her unit to perform the duties as chief instructor; however, she was not MOSQ for the position and needed to raise her ASVAB score in order to become qualified.  The applicant, a senior NCO with almost 30 years of USAR service, was repeatedly counseled by her rater on her duties, responsibilities, and objectives for the rating period but failed to meet those objectives.  Furthermore, she acknowledged that she failed to achieve the required ASVAB score in order to become MOSQ.  

3.  Although she provides evidence that indicates possible irregularities in the published rating scheme for her senior rater, there is no evidence and she has not provided conclusive evidence that shows she was not properly informed as to her rating chain or that her senior rater on the contested NCOER did not meet senior rater qualifications.  

4.  The contested NCOER appears to be correct and appears to represent a balanced, fair, objective, and valid appraisal of the applicant's demonstrated performance and potential during the period in question.  There is no evidence, and the applicant has not provided sufficient evidence, to show her rater and/or senior rater did not comply with the regulatory requirements of evaluating her in a fair and unbiased manner.  More importantly, she 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.

5.  By regulation, to support removal or amendment of a report, there must be evidence that establishes clearly and convincingly that this presumption of regularity should not be applied and that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature.

6.  The applicant's arguments provided in this case address her dissatisfaction with her rating and her belief that it was an unfair assessment.  However, she did not provide any 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.  

7.  In view of the foregoing, there is no basis for granting the applicant the requested relief.

8.  With respect to the applicant's request for reinstatement in a USAR TPU, it appears her records went before an enlisted QRB for selective retention but she was not selected for retention.  Her request is premature; she has not provided any evidence that shows she submitted this request to the USAR and was denied relief.  In addition, orders show she was assigned as an IMA on 1 June 2014.  Additionally, the ABCMR is not an investigative agency.  Reviewing her QRP is a function of her chain of command, not this Board.


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)                                         AR20140001492





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140001492



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1