BOARD DATE:	  31 July 2014

		DOCKET NUMBER:  AR20140002587 


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 reconsideration of her earlier request through her Congressional representative for:

	a.  removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) (hereafter referred to as the contested report) for the period 1 March 2008 through 28 February 2009 from her Official Military Personnel File (OMPF);

	b.  promotion reconsideration to sergeant first class (SFC)/E-7;

	c.  expeditious processing of her request as her expiration of term of service is 12 February 2014; and

	d.  removal of any documents provided by SFC P____ and Captain (CPT) L____ during the period of the contested report from her OMPF.

2.  She states:

	a.  She has been a victim of reprisal and violation of her rights from her previous chain of command in an Army unit.  She requests a Congressional appeal and investigation into these violations.

	b.  She appealed the contested report to this Board in July 2013 under the provisions of Army Regulation 623-3 (Evaluation Reporting System), chapter 4.  The basis of her appeal was to identify numerous administrative errors, substantive inaccuracy, unjustified performance rating, and unproven derogatory information.

	c.  Her request was denied under the presumption of legal submission, but not under the unfair and unjustified performance rating.

	d.  The contested report has been revised by numerous senior NCO's and previous members of the board.  All of them agreed that the contested report is unfair, unjust, and unjustifiable.

	e.  The letters from her lawyer request dissolution of any records made by SFC P____ and CPT L____ based on the findings in the court-martial and state the chain of command agreed to dissolve any records, reports, and evidence made by SFC P____ and CPT L____.  These letters were not taken into consideration by this Board.

	f.  She has never been counseled or received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), or committed a bad act as an NCO.

	g.  She always placed her mission first; respected her superiors; conducted her job with dignity, respect, and integrity; and maintained the Army Physical Fitness Badge for over 5 years.

3.  She provides:

* contested report
* two DA Forms 2823 (Sworn Statement)
* DA Form 4430 (Department of the Army Report of Result of Trial)
* letters from civilian attorneys
* Army Board for Correction of Military Records (ABCMR) Docket Number AR20130013372 with cover letter

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20130013372 on 19 September 2013.

2.  The applicant's request for removal of any documents from her records provided by SFC P____ or CPT L____ is acknowledged.  However, a review of her records located in the integrated Personnel Electronic Records Management System (iPERMS) failed to reveal any documents made by SFC P____ or CPT L____ or pertaining to the summary court-martial.  Therefore, this portion of the applicant's request will not be further discussed in this Record of Proceedings.

3.  The applicant provided new arguments that now warrant consideration by the Board.

4.  The applicant enlisted in the Regular Army on 7 January 1999 with prior enlisted service.  She was released from active duty on 19 February 1999 for failure to meet medical procurement fitness standards.  This period of service was uncharacterized.

5.  She again enlisted in the Regular Army on 1 July 1999.  She completed training and was awarded military occupational specialty (MOS) 42A (Human Resources Specialist).

6.  She was promoted to the rank and pay grade of staff sergeant (SSG)/E-6 on 1 February 2008.

7.  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.

8.  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 iPERMS.

9.  She received an annual NCOER for her duties as a Human Resources NCO in the rank of SSG for period 1 March 2008 through 28 February 2009 (5 months) while assigned to the 344th Military Intelligence (MI) Battalion.  Her rater was SFC G____ P____, the Battalion S-1 NCO in Charge; her senior rater (SR) was CPT J____ L. L____, the Battalion Adjutant; and her reviewer was Major R____ C. S____, 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 (Army Values), the rater placed an "X" in each "Yes" block except "Duty."  In this block he checked "No" and entered the following bullet comments:

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

	c.  Part IVb (Competence), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* 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 Permanent Change of Station and MOS orders
* did not make sound judgments when work needed to be accomplished

	d.  Part IVc (Physical Fitness and Military Bearing), the rater placed an "X" in the "Success" block and entered the following bullet comments:

* awarded the Army physical fitness badge [sic]; scoring 290 on most recent APFT [Army Physical Fitness Test]
* maintained a high level of physical fitness

	e.  Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

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

	f.  Part IVe (Training) – the rater placed an "X" in the "Needs Improvement (Some)" block and entered the following bullet comments:

* 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; over 50 orders were back logged [sic] in 1st quarter

	g.  Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Success" block and entered the following bullet comments:

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

	h.  Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) and Part Vb (Rater – List 3 Positions in Which the Rated NCO Could Best Serve the Army at His/Her Current or Next Higher Grade), the rater placed an "X" in the "Marginal" block and entered the following positions:

* Section Leader
* Squad Leader
* Human Resources Sergeant

	i.  Part Vc (SR – Overall Performance) and Part Vd (SR – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the SR placed an "X" in the "Fair 4" block for the applicant's overall performance and an "X" in the "Fair 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 following bullet comments:

* 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

10.  The contested report was signed by the applicant's rating officials on 28 and 29 April 2009.  The rated NCO's signature block is blank.  This report is currently filed in the performance section of her OMPF.



11.  She resubmitted the following documents in support of this application:

	a.  A DA Form 4430, dated 13 May 2009, shows the applicant 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.

	b.  A letter from her counsel, dated 14 May 2009, demanded cessation and desistance of any “misappropriate” behavior or procedures toward the applicant.  Counsel also requested dissolution of any record, evidence, or report against the applicant, including the contested NCOER.

	c.  A letter from her counsel, dated 20 May 2009, stated counsel and the 344th MI Battalion agreed to dissolve any records, evidence, or reports against the applicant made by SFC P____, CPT L____, or any personnel in the chain of command.  Counsel stated he and the commander recognized the court-martial, sworn statements, malicious evidence, and NCOER were wrongfully conducted to harm the applicant's military career.  The command agreed and promised to take the necessary steps to fix it or remove it from her records.

	d.  Two DA Forms 2823, dated 13 November 2011, show both individuals asserted that Mr. D____ stated the applicant was released from Army training or discharged from the Army for homosexuality/homosexual acts.

	e.  A letter from her counsel, dated 10 April 2013, advised a member of the Dallas Recruiting Battalion that his firm represented the applicant in a court-martial in which the applicant was found not guilty.

12.  Army Regulation 623-3 prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.  Part Vc and Part 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 block for each area.

	a.  Paragraph 2-15 states that 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, the SR will also ensure the final report is submitted to Headquarters, Department of the Army, 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 (NCOER Counseling and Support Form) at the beginning of the rating period and sign the completed DA Form 2166-8 at the end of the rating period when preparing his or her portion of the NCOER.

	b.  Paragraph 2-17 states the reviewer will ensure 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.  The reviewer will comment only when in disagreement with the rater and/or SR.  The reviewer will indicate concurrence or nonconcurrence with the rater and/or SR by checking the appropriate block 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 records of a Soldier are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  To justify 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 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 applicant.

	d.  Paragraph 6-7 states an evaluation report accepted for inclusion in the official records of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to 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.

13.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions) prescribes the enlisted promotions and reductions function of the military personnel system.  Paragraph 4-13 states Standby Advisory Boards are convened to consider 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 appeals the contested evaluation report on the basis of administrative and substantive regulatory errors, unjustified performance rating, and unproven derogatory information.

2.  The applicant's contentions, arguments, and the evidence submitted in support of her request have been carefully considered.  However, she did not provide clear and convincing evidence 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.

3.  The applicant's service OMPF is void of evidence that shows she was a victim of acts of reprisal from her chain of command.  There is insufficient evidence to show the negative bullet comments constitute reprisal because she filed any type of complaints (i.e., Department of the Army Inspector General, Equal Employment Opportunity, Commander's Inquiry).  Therefore, her allegations of reprisal are not substantiated.

4.  The applicant's OMPF is void of evidence which supports her contentions that the letters from her lawyer requesting dissolution of any records made by SFC P____ and CPT L____ based on the findings in the court-martial and/or stating the chain of command agreed to dissolve any records, reports, and evidence against the applicant made by SFC P____ and CPT L____ were not fully considered by the Board.

5.  The applicant contends she has never been counseled or received nonjudicial punishment under Article 15, UCMJ, or committed a bad act as an NCO.  Although her records do not show she received nonjudicial punishment or committed misconduct, the contested NCOER shows the applicant was initially counseled regarding her performance on 25 November 2008 and later on 30 January 2009, 1 month prior to the ending date of the report.  The content of those counselings is not known.  She provides insufficient evidence to show the counselings did not take place.

6.  The applicant has not provided sufficient evidence to show the NCOER was not processed in accordance with applicable laws and regulations.  She has not provided sufficient evidence to refute the rating officials' statements about her performance shortfalls.

7.  In the absence to evidence to the contrary, it appears the contested NCOER represents the considered opinions and objective judgment of the rating officials.  As a result, the contested NCOER was processed and accepted for filing in her OMPF in accordance with Army Regulation 623-3.  There is insufficient clear and compelling evidence to overcome the presumption of regularity and/or to remove the contested NCOER, in whole or in part, or warrant promotion reconsideration to SFC/E-7 under the provisions of Army Regulation 600-8-19.

8.  The applicant's request for expeditious processing is acknowledged.  However, as stated in the previous case, the ABCMR normally processes applications in the order they are received.  It would not be appropriate for the Board to give preferential treatment to one Soldier over another or potentially disadvantage another applicant by delaying a request to process another that was filed later.

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 the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130013372, dated 19 September 2013.



      ___________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)                                         AR20140002587



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ABCMR Record of Proceedings (cont)                                         AR20140002587



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