IN THE CASE OF:	   

		BOARD DATE:	  12 August 2014

		DOCKET NUMBER:  AR20140003029 


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 DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 7 February 2010 through 6 February 2011 from her official military personnel file (OMPF). 

2.  The applicant states accurate information was not placed on the NCOER.  She was issued four different versions of the same NCOER and each version was worse and was made with threat of reprisal.  Personal feelings were shown. She had never had an NCOER that looked like the contested NCOER.  

3.  The applicant provides:

* Five versions of the contested NCOER
* letter from the U.S. Army Civil Affairs and Psychological Operations Command (Airborne) (USACAPOC (A)) Inspector General (IG)

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show she enlisted in the Regular Army on 9 September 1997 and she held military occupational specialty 31U (Signal Support Systems Specialist). 

2.  She was honorably released from active duty on 8 September 2001 and she was transferred to a troop program unit (TPU) of the U.S. Army Reserve (USAR). 

3.  She was promoted to sergeant (SGT)/E-5 on 13 March 2003.  She served in a variety of assignments in the USAR, including periods of active duty mobilization: from 21 October 2007 to 23 November 2008; from 21 April 2009 to 6 February 2010; from 12 April 2010 to 6 February 2011; and from 10 May 2011 to 21 July 2012. 

4.  She was assigned as a Human Resources (HR) SGT to the 1st Civil Affairs and Psychological Operations Brigade, Fort Bragg, NC.  

5.  Her OMPF contains the contested NCOER.  In February 2011, she received an annual NCOER covering 12 months of rated time from 7 February 2010 through 6 February 2011 for her duties as an HR SGT.  Her rater was the Senior HR Sergeant, Staff Sergeant (SSG) L.A. T-----; her senior rater was the Mobilization Officer, First Lieutenant (1LT) R.D. G------; and her reviewer was the Brigade S3, Major (MAJ) T.E. V--------.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in all "Yes" blocks and entered favorable bullet comments.

	b.  In Parts IVb (Competence), IVc (Physical Fitness and Military Bearing), and IVe (Training), the rater placed an "X" in the "Excellence" or "Success" blocks and entered favorable bullet comments in each block.

	c.  In Part IVd (Leadership), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following negative bullet comment:  "failed to respond to corrections agreed upon during quarterly training." 

	d.  In Part IVf (Responsibility and Accountability), the rater placed an "X" in the "Needs Improvement (Some)" and entered the following negative bullet comment:  "will only work to full potential under supervision." 

	e.  In Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Marginal" block.

	f.  In Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Fair/4" block.

	g.  In Part Vd (Senior Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater placed an "X" in the "Fair/4" block.

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

* "do not promote with peers"
* "Soldier is not ready to attend Advance Leadership Course"
* "resisted suggestions for improvement and actively worked against the orders of her superiors"
* "does not possess the qualities to perform at the next higher grade"
* "Soldier unavailable for signature due to deployment to Afghanistan" 

6.  The NCOER shows the rater and senior rater authenticated this form by placing their hand-written signatures in the appropriate places and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place.  The applicant's signature block does not contain her signature.  

7.  There is no available evidence showing the applicant appealed this NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board.

8.  On 25 January 2012, she contacted the USACAPOC (A) for assistance.  She alleged that MAJ T.E. V-------- (her senior rater) had fraternized with an enlisted Soldier.  She also alleged the relationship between her and her senior rater affected and subsequently resulted in an unfavorable final NCOER in violation of the governing regulation.  The IG determined: 

* she was not slandered or discriminated against by her chain of command
* there was no undue command influence on anyone in her rating chain
* the performance counseling on the contested NCOER was not completed to standard
* her evaluation report was based on objective values is not consistent with regulatory guidance from that time
* there was confusion in the creation of four NCOERs for the same period
* there were more complications due to the absence of detailed evidence to explain the unfavorable change that occurred between the second and third versions of the contested NCOER
* the concern that the Soldier did not receive a fair evaluation is founded 

9.  She provided:

	a.  Four versions of the NCOER, digitally signed by the same rating officials but not by her.  These NCOERs:

		(1)  changed the rater's placement of the "X" in the Leadership and Responsibility Accountability from "Needs Improvement (Some)" to "Success."  They also contain different bullet comments. 

		(2)  changed the rater's placement of the "X" in the "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" from the "Marginal" to the "Fully Capable" block.

		(3)  changed the senior rater's placement of the "X" in the Senior Rater – "Overall Performance" from the "Fair/4" and "Fair/4" to "Successful/3." 

		(4)  changed the senior rater's placement of the "X" in the Senior Rater – "Overall Potential for Promotion and/or Service in Positions of Greater Responsibility" from the "Fair/4" block to "Superior/3" block in three of the four versions and kept the "X" in the "Fair/4" block in the fourth version. 

		(5)  in each version, the reviewer concurred and signed each form without any attempt to explain, elaborate, or resolve the differences. 

	b.  A letter, dated 4 October 2012, from the USACAPOC (A) IG.  The IG stated after completing his analysis, he presented the applicant with three means to seek redress.  She chose and submitted a commander's inquiry.  In response, her command initiated an investigation to discover the facts related to the allegations she presented.  The allegations she presented were not substantiated.  Once completed, she was provided a copy of the commander's inquiry which had been endorsed by the commander.  Derived from the facts in the investigation, several material errors were discovered.  There were four versions of the same NCOER published for signature.  The first and second evaluations signed by her chain demonstrated a difference in opinion between the rater and senior rater.  The reviewer could have chosen to generate and attach a letter of explanation but he chose not to do so.  Two more versions of the same evaluation contained less favorable remarks.  The date of the handwritten signatures on those reports placed them chronologically in front of the first two reports.  During the rating period, evidence provided that only three counselings were prepared.  Only two were signed by her (the applicant) and the rater.  Counseling was not conducted and the NCOER support form was not completed to standard.  Therefore, the issue of an improperly-executed performance evaluation for her last rating period was founded.  

10.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 September 2007, prescribes the policies for completing evaluation reports that support the Evaluation Reporting System.

	a.  Paragraph 1-11 (Commander's Inquiry) states that when it is brought to the attention of a commander that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter.  The Commander's Inquiry will be confined to matters related to the clarity of the evaluation report, the facts contained in the report, the compliance of the evaluation with policy and procedures established by Headquarters, Department of the Army (HQDA), and the conduct of the rated Soldier and members of the rating chain.  The official does not have the authority to direct that an evaluation report be changed; command influence may not be used to alter the honest evaluation of a rated Soldier by a rating official.

	b.  Paragraph 3-2i (Evaluation Report Requirements) states rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army.  Rating officials will make honest and fair evaluations of Soldiers under their supervision.  On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential.  On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions.

	c.  Paragraph 3-23 (Unproven Derogatory Information) states 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.  If the rated individual is absolved, comments about the incident will not be included in the evaluation.

	d.  Paragraph 3-39 (Modification to Previously Submitted Reports) states evaluation reports accepted for inclusion in the official record of a Soldier are 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.  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.




DISCUSSION AND CONCLUSIONS:

1.  The applicant received a derogatory NCOER covering the rating period 7 February 2010 through 6 February 2011.  She raised the issue through the IG. A subsequent commander's inquiry discovered several administrative and substantive errors in the contested NCOER.  To make things worse, her rating officials prepared, submitted, and digitally signed four different NCOERs for the same rating period, each showing different ratings and/or bullets comments.  

2.  The NCOER reflects the objective judgment of the rating officials during a given rating period.  This Board does not substitute its own evaluation of the applicant to that rendered by her rating officials as the Board is neither privy to her performance during the rating period nor is it an evaluating Board.  It is unclear which of the five versions of the contested NCOER is correct.  The IG determined the issue of an improperly-executed performance evaluation for her last rating period was founded.

3.  The applicant should not be penalized for her rating officials' failure to render an honest, objective, and fair evaluation of her performance during the rating period.  As a result, it is only fair that this contested NCOER be removed from her OMPF and replaced with a statement reflecting this period as non-rated. 

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 by 




removing the NCOER for rating period 7 February 2010 through 6 February 2011 from her OMPF and placing a statement of non-rated time in her OMPF in lieu of this form. 



      _____________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)                                         AR20140003029



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ABCMR Record of Proceedings (cont)                                         AR20140003029



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