IN THE CASE OF:	

		BOARD DATE:	    7 May 2014

		DOCKET NUMBER:  AR20140004082 


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 Army Military Human Resource Record (AMHRR) of DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER) for the rating period from 1 December 2010 through 1 June 2011, hereafter referred to as the contested NCOER. 

2.  The applicant states:

	a.  The contested NCOER is unjust due to the toxic leadership and [her] putting Soldiers’ needs first.  She was coerced into signing the contested NCOER as insurance that she would not agree or cooperate with the accusations made against her rater from Soldiers and other leaders in the office.  [She was told] if she did [sign the NCOER] it would not be added to her AMHRR.  

	b.  She decided to make a statement along with her Soldiers against the rater and because of that, the NCOER was sent to the U.S. Army Human Resources Command (HRC).  When her senior rater tried to recall the contested NCOER, it was too late; the report had already been added to her AMHRR.  She appealed the contested NCOER twice and had supporting documents such as memoranda from her leaders to include the brigade commander and an Army Regulation (AR) 15-6 (Procedures for Investigating Officers (IO) and Board of Officers) investigation.  However, her appeals were still denied. 

3.  The applicant provides DA Form 2166-8 and six memoranda.  


CONSIDERATION OF EVIDENCE:

1.  The applicant is an active duty Regular Army (RA) Soldier and she holds military occupational specialty 42A (Human Resources Sergeant).  She enlisted in the RA on 16 November 1999 and she was promoted to the rank/grade of staff sergeant (SSG)/E-6 on 1 December 2009.  At the time of the contested NCOER, she was assigned to the 16th Military Police (MP) Brigade, Fort Bragg, NC.

2.  During the month of June 2011, she received the contested NCOER, a senior rater option NCOER, that covered 6 months of rated time from 1 December 2010 through 1 June 2011 for her duties while serving as a human resources sergeant in the 16th MP Brigade S-1 (Personnel Section).  Her rater was Master Sergeant (MSG) TMM, her senior rater was Captain (CPT) ART, and her reviewer was Major (MAJ) WAR.  The NCOER shows the following entries:

	a.  In Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "Yes" block for six of the seven values except for item 3 (Respect/Equal Opportunity (EO)/Equal Employment Opportunity (EEO)) where she placed an "X" in the "No" block for this value.  This block contained the following comments:

* exhibits moral courage; stands up for her convictions
* shows concern for Soldiers and their families
* fails to treat superiors with dignity and respect

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

* remained physically fit despite a colossal workload and demanding schedule
* assisted subordinates by performing quality control measures on award recommendations to expedite the processing of awards

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

* presented an innovative, internal NCOER tracking system that was adopted in the S-1 enabling a more detailed perspective on the timeliness of reports
* failed to set the example and lead from the front; constant disruption in the section

	d.  In Part IVf (Responsibility & Accountability), the rater placed an "X" in the "Excellence" block.  This block, in part, contained the following comments:

* assumed duties as the hand receipt holder maintaining 100% accountability of S-1 equipment valued in excess of $100,000
* performed duties as the Range Safety Officer during M-4 and M-16 range with zero loss or injury to equipment 

	e.  In Part V, the rater placed an "X" in the "Fully Capable" block.  

	f.  In Part Vc, the senior rater placed an "X" in the "3 - Successful" block and in Vd, he placed an "X" in the "2 - Superior" block.  

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

* promote with peers and send to career enhancing schools when feasible
* potential limited until professional conduct and demeanor improves
* Department of the Army (DA) selected to perform Drill Sergeant duties
* average performance as a Brigade Human Resources Sergeant

3.  This NCOER was signed by her rater and senior rater on 31 May 2011.  The reviewer concurred with the rating officials’ evaluations and signed the NCOER on 31 May 2011.  The applicant signed the NCOER on 1 June 2011 and it is currently filed in the performance section of her AMHRR.

4.  In 2012, the applicant submitted an appeal to HRC requesting the contested NCOER be removed from her AMHRR.  With her appeal she submitted a statement of support from:

	a.  Chief Warrant Officer (CW2) EDM, dated 12 December 2011, wherein CW2 EDM stated, in part, from August 2011 to present she served as the Chief, Human Resources Management, 16th MP Brigade, and she witnessed MSG TMM display unfair treatment, unprofessional behavior, blatant disrespect, and a personal dislike toward the applicant on numerous occasions.  She also observed the applicant on a daily basis and she was a proficient NCO who continued to improve herself and her Soldiers.

	b.  Second Lieutenant (2LT) WLC, dated 27 February “2011” (i.e., 2012), wherein 2LT WLC stated, in part, she served as the Assistant Adjutant, 16th MP Brigade from December 2010 to January 2012 and she witnessed MSG TMM display unfair treatment and unprofessional behavior toward the applicant.  She had not witnessed or heard of any events that showed the applicant behaved unprofessionally or that her section was morally damaged and lacked discipline.

	c.  Colonel (COL) CBM, dated 13 March 2012, Commander, 16th MP Brigade, wherein COL CBM stated, in part, he fully supported the NCOER appeal process.  The applicant demonstrated an unwavering commitment to the process by committing the time and energy in assembling supporting documents and he fully supported her efforts for a timely and fair resolution to her NCOER situation.

5.  In October 2012, by memorandum, HRC denied the applicant's appeal and stated the Army Enlisted Special Review Board (ESRB) had determined that the evidence she submitted did not establish clearly and convincingly that the presumption of regularity should not be applied or that a material error, inaccuracy, or injustice existed that warranted removal of the contested NCOER.

6.  In 2013, the applicant submitted a request to HRC requesting reconsideration of her appeal that the contested NCOER be removed from her AMHRR.  

7.  With her request she submitted a memorandum to the Commander, 16th MP Brigade, dated 26 January 2012, subject:  Findings and Recommendations, AR 15-6 Investigation into leadership climate of the 16th MP Brigade S-1.  In the memorandum the IO stated, in part:

	a.  He substantiated the allegations that the S-1 section's morale was low; the Soldiers assigned to the S-1 were not treated well by the NCO in charge (NCOIC) (the applicant's rater); Officers assigned to the S-1 were not treated with the deference they were entitled to by virtue of rank and position by the NCOIC; Soldiers were told not to execute orders issued by the Officers; and Soldiers in the S-1 felt they could not provide input or feedback on the conduct of human resources operations.  

	b.  The allegation that Soldiers assigned to the S-1 were treated differently by the NCOIC was not substantiated.  [Records show the IO was appointed on 11 December 2011 and concluded the investigation on 23 January 2012].

8.  On 11 February 2014, by memorandum, HRC again denied the applicant's appeal and stated the ESRB had determined that the evidence she submitted did not establish clearly and convincingly that the presumption of regularity should not be applied or that a material error, inaccuracy, or injustice existed that warranted removal of the contested NCOER.

9.  AR 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.  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.  Paragraphs 6-3 and 6-4 state, in pertinent part, that the primary purpose of a Commanders/Commandant's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at Headquarters, Department of the Army.  However, in these after-the-facts cases, this paragraph is not intended to be a substitute for the appeals process, which is the primary means of addressing errors and injustices after they have become a matter of permanent record.

	d.  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 her NCOER should be removed from her AMHRR because it was unjust due to the toxic leadership of her unit and she was coerced into signing it.

2.  The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation.

3.  The fact that a 15-6 investigation substantiated allegations that the morale of those assigned to the S-1 was low and the applicant's rater did not treat the Soldiers or Officers in the S-1 well is noted; however, the investigation was conducted almost 8 months after receipt of the contested NCOER and does not support the applicant's contention that her NCOER was unjust due to toxic leadership.  The investigation did not address the applicant's conduct and in no way negates the statement on her NCOER that she (the applicant) failed to treat superiors with dignity and respect.

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 any 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.  She also contends she was coerced into signing the contested NCOER and told it would not be forwarded to HRC.  As she had served in the Army as a 42A for over 10 years and processed NCOERs, she knew or should have known that an NCOER signed by all rating officials, to include the reviewer, constituted a completed report that would be forwarded for filing in her AMHRR with or without her signature.

6.  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.

7.  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.  

8.  In view of the foregoing, there is insufficient evidence to grant her the requested relief.

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)                                         AR20140004082





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ABCMR Record of Proceedings (cont)                                         AR20140004082



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