IN THE CASE OF:
BOARD DATE: 26 March 2015
DOCKET NUMBER: AR20150000027
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, in effect, that a DA Form 2166-8 (NCO [Noncommissioned Officer] Evaluation Report) (NCOER) for the period 1 December 2007 to 1 October 2008 (hereafter referred to as the contested NCOER) be removed from her official military personnel file (OMPF).
2. The applicant states the contested NCOER contains a forgery of her signature and is a fraudulent NCOER. She did not sign the contested NCOER and she was not aware it had been completed. She was not available for signature at that time as the rating was conducted by the unit back in the United States or re-deployment area, during which time she was deployed in Iraq with another unit. She was in a different unit and under an entirely different command during the period of the contested NCOER.
3. The applicant provides:
* the contested NCOER
* an NCOER for the period 2 May 2008 through 20 November 2008
CONSIDERATION OF EVIDENCE:
1. She previously completed 3 months and 15 days in the Pennsylvania Army National Guard. On 4 February 2003, she enlisted in the Virginia Army National Guard (VAARNG).
2. On 29 September 2006, she was assigned to Company G, 429th Support Battalion, Norfolk, VA. On 1 April 2007, she was assigned to Company E,
429th Support Battalion, Roanoke, VA. On 8 April 2007, she was ordered to active duty as a member of her Reserve Component unit to report 11 May 2007.
3. An NCOER was completed for the period 1 April 2007 through 30 November 2007 by Company E, 429th Forward Support Battalion (FSB), Joint Logistics Task Force (JLTF) 1144, Camp Arifjan, Kuwait. The reason for submission was "Annual." Her rater was Staff Sergeant (SSG) SEH and her senior rater was Sergeant First Class (SFC) AAH. The NCOER was signed on 27 December 2007 by the applicant, her rater, and her senior rater.
4. The contested NCOER was completed for the period 1 December 2007 through 1 October 2008 by Company E, 429th FSB, JLTF 1144, Camp Arifjan, Kuwait. The reason for submission was "REFRAD." Her rater was SSG SEH and her senior rater was SFC AAH. The contested NCOER was signed on
5 December 2008 by the applicant, her rater, and her senior rater. In block Va (Overall potential for promotion and/or service in positions of greater responsibility) her rater checked the "Marginal" box. However, the rater's comments on her performance show no negative remarks and the rater gave her all "Success" ratings.
5. An NCOER was completed for the period 2 May 2008 through 20 November 2008 by Company A, 39th Brigade Troops Battalion (BTB), Tallil, Iraq. The reason for submission was "Change of Rater." Her rater was SSG JPB and her senior rater was First Lieutenant JLR. The NCOER was signed on 1 December 2008 by the applicant, her rater, and her senior rater.
6. A memorandum, dated 30 September 2008, was submitted by Headquarters, 429th Brigade Support Battalion, VAARNG to Joint Forces Headquarters (JFHQ), VA requesting non-rated time for the applicant for the time period of 2 October 2008 through 30 November 2008. She was on her REFRAD from the recent deployment.
7. There are no orders in her OMPF showing she was assigned to Company A, 39th BTB.
8. The applicant was awarded the Army Commendation Medal for meritorious service while assigned to Company A, 39th BTB, from 20 April to 15 December 2008.
9. On 28 December 2008, she was released from active duty and returned to the VAARNG. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows her last assignment as Company E, 429th Support Battalion.
10. On 19 October 2011, she was discharged from the VAARNG. Her National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows her unit as Company G, 429th Support Battalion, Norfolk, VA.
11. On 12 July 2012, she enlisted in the U.S. Army Reserve (USAR). On 8 June 2013, she was ordered to active duty in an Active Guard Reserve status to report 8 July 2013 for a period of 3 years.
12. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) provides guidance for the completion of Block Va of the DA Form 2166-8. "Marginal" is defined as "NCOs who demonstrated poor performance and should not be promoted at this time."
13. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy and tasks for the Armys Evaluation Reporting System.
a. Paragraph 4-6 (Continuity of rating periods) stated once the first report has been submitted, NCOERs would show a continuous record throughout the years of evaluation, except for reports rendered on Individual Ready Reserve (IRR) or Individual Mobilization Augmentee (IMA) Soldiers.
b. Paragraph 5-21g stated a "Change of Rater" report was required when an Army National Guard of the United States NCO or the rater transferred to another unit.
c. Paragraph 6-7 stated an evaluation report accepted for inclusion in the official record of a rated Soldiers OMPF is presumed to:
* be administratively correct
* have been prepared by the proper rating officials
* represent the considered opinion and objective judgment of the rating
officials at the time of preparation
d. Paragraph 6-11 stated the burden of proof rested with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that:
* the presumption of regularity referred will not be applied to the report under consideration
* action is warranted to correct a material error, inaccuracy, or injustice
e. Clear and convincing evidence will be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. If the adjudication authority is convinced that an appellant is correct in some or all of the assertions, the clear and convincing standard has been met with regard to those assertions.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends the contested NCOER is a fraudulent NCOER and that her signature was forged. She contends she was not available for signature because she was deployed. However, her signature on the contested NCOER is dated 5 December 2008, after the ending date of her NCOER completed by the 39th BTB. The contested NCOER contains signatures of the applicant, the rater, and the senior rater. The Board neither validates signatures nor is it an investigative body. The applicant has the burden of proof to show that her signature was forged and she has not met that burden.
2. The applicant contends she was not assigned to the 429th FSB during the period of the contested report. However, the evidence shows she was assigned to Company E, 429th Support Battalion on 1 April 2007 and she was ordered to active duty with her unit on 11 May 2007.
3. Her NCOER for the period 2 May 2008 through 20 November 2008 and the period for which the Army Commendation Medal was awarded are sufficient to show she had a change of rater on or about 1 May 2008.
4. The period of the contested report overlaps the period of the NCOER with an ending date of 20 November 2008. The check in the Marginal box of the contested report is not consistent with the overall evaluation. The contested report does not contain any incidents of poor performance. Therefore, the entry in the Marginal box appears to be in error.
5. In view of the above, it would be equitable to remove the contested report from her OMPF and replace it with a statement reflecting the period from
1 December 2007 to 1 May 2008 as non-rated. The memorandum, dated
30 September, requesting non-rated time for the period of 2 October 2008 through 30 November 2008 should also be removed.
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:
a. Removing the following documents from her OMPF:
* NCOER for the rating period 1 December 2007 through 1 October 2008
* Headquarters, 429th Brigade Support Battalion memorandum dated
30 September, to JFHQ, VA
b. Placing a statement of non-rated time in her OMPF for the period
1 December 2007 through 1 May 2008.
_______ _ _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) AR20150000027
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