IN THE CASE OF:	  

		BOARD DATE:	   22 May 2015

		DOCKET NUMBER:  AR20150005135 


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 her Noncommissioned Officer Evaluation Report (NCOER) for the period 30 September 2010 through 29 September 2011 (hereafter referred to as the contested NCOER) be corrected by:

* removing the negative comment entered in Part IVd (Leadership)
* removing the comments in Part Ve (Senior Rater Bullet Comments)

2.  The applicant states, in effect:-

   a.  On 10 April 2012, a human resources specialist with the U.S. Army Human Resources Command (HRC), Appeals and Corrections Section stated based on the evidence provided, the HRC Appeals Section would remove the senior rater's portion of the contested NCOER.

   b.  On 9 August 2012, she received her Enlisted Special Review Board (ESRB) Record of Proceedings which stated her appeal was denied and the contested NCOER would remain unchanged in her Official Military Personnel File (OMPF).

   c.  Her original NCOER appeal was submitted for two reasons.  First, the senior rater did not meet the senior rater qualifications and was not in the rating chain.  Second, undue command influence on the rater resulted in a negative comment being placed in Part IVd.
   
   d.  The ESRB stated it appeared, based on the rating scheme provided, the senior rater (first lieutenant (1LT) C________ met senior rater qualifications.  However, this is the main argument in her appeal.  1LT C________ was supposed to be the senior rater, but he did not agree with the negative portion and would not sign the report.  Subsequently, the commander had 1LT G______ sign the report as the senior rater despite never being in her rating chain and constitutes administrative inaccuracy.
   
   e.  Upon hearing the commander tell the first sergeant that a negative comment would be added to the report she went to her command sergeant major (CSM) for guidance.  His advice was to send the report forward because he believed she had valid grounds for appeal.  She did not understand the weight her signature carried and she now understands that she made a mistake.  She should have personally researched the issue and not relied solely on her CSM's recommendation. 
   
   f.  HRC requested a letter of intent from her rater who stated that it was not his intent to place the negative comment in Part IVd and referred to the draft NCOERs which had been sent to battalion for correction as proof of his intent.
   
   g.  She further states she received no negative counseling, was not removed from her duty position, and she did not receive a relief for cause report.  She received all "yes" ratings in Part IV (Army Values/Attributes/Skills/Actions).  If an inappropriate relationship had taken place, it would be reasonable to presume some sort of punishment under the Uniform Code of Military Justice would have been initiated.  She respectfully requests the Board consider all of her NCOERs as proof of her character.
   
3.  The applicant provides:

* 4 memoranda
* ESRB Record of Proceedings
* Contested NCOER
* 2 Draft NCOERs
* 7 NCO Rating Schemes
* 3 NCOERs
* an email

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  At the time of her application, the applicant was serving in the Regular Army as a staff sergeant, pay grade E-6.

3.  A review of the applicant's OMPF maintained in the Interactive Personnel Electronic Records Management System (iPERMS) shows the contested NCOER is filed in the performance section of her OMPF.  It also shows in:

   a.  Part I (Administrative Data)
   
* Unit:  Service Company, 5th Battalion, 7th Air Defense Artillery, U.S. Army Europe
* Reason for Submission:  Annual
* Period Covered:  30 September 2010 through 29 September 2011
* Rated Months:  12
   
   b.  Part II (Authentication) that the rating chain at the time was:

* Rater:  First Sergeant (1SG) IJH, First Sergeant
* Senior Rater:  1LT GRM, Company Executive Officer
* Reviewer:  Captain (CPT) LM, Company Commander

   c.  Part IV, block a (Army Values), shows all entries were all marked "YES" by the rater.
   
   d.  Part IV, block d (Leadership) shows the rater placed an "X" in the Success (Meets Standard) block and the bullet comments included the contested comment "was perceived to have an inappropriate relation with a Commissioned Officer in her Chain of Command."
   
   e.  Part V (Overall Performance and Potential) shows in:
   	
   (1)  block a (Rater - Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the Fully Capable block.
		(2)  block c (Senior Rater - Overall performance), the senior rater placed an "X" in the Successful 3 block.

		(3)  block d (Senior Rater - Overall potential for promotion and/or service in positions of greater responsibility), the senior rater placed an "X" in the Fair block.

		(4)  block e (Senior Rater Bullet Comments), the senior rater's bullet comments were as follows:

* do not promote at this time
* send to Senior Leaders Course at a later time or when slots are available
* executed operations sergeant duties to an extremely high standard
* assign this NCO to the same level of responsibility; with more time and experience will be an exemplary performer with unlimited potential

	f.  The reviewer indicated with an "X" that he concurred with the rater and senior rater evaluations.

   g.  The rater and senior rater digitally signed the NCOER on 1 December 2011.  The reviewer and applicant digitally signed the NCOER on 5 December 2011.

4.  There is no evidence which indicates the applicant initiated a Commander's Inquiry as part of the Evaluation Redress Program.

5.  On 10 April 2012, a human resources specialist with HRC, Appeals and Corrections Section stated based on the evidence she provided, they would remove the senior rater's portion of the contested NCOER.  However, since the applicant stated in her remedy to have the report totally removed the contest report was forwarded to the ESRB for adjudication.

6.  On 9 August 2012, the ESRB determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to the contested report or that action was warranted to correct a material error, inaccuracy, or injustice.  Therefore, by unanimous vote, the ESRB determined the overall merits of the case did not warrant the requested relief.





7.  The applicant provides:

   a.  Two draft copies of the contested report with pen and ink recommendations.  On both reports the rating scheme is the same as the contested report.

   b.  A memorandum for record, written by the 1SG, dated 10 January 2012.  The memorandum states the NCOER rating schemes provided by the applicant were the actual rating schemes which were posted in the company area.
   
   c.  A memorandum for record, written by the 1SG, dated 10 February 2012.  The 1SG states it was not his original intent to place the comment "was perceived to have an inappropriate relationship with a commissioned officer in her chain of command" on the contested report. 
   
   d.  NCOER rating schemes for the period 15 February 2011 through               1 September 2011.  The rating scheme for June 2011 was omitted.  Each rating scheme was authenticated by the 1SG's signature and dated 10 February 2012.
   
   e.  Evaluation reports prior and subsequent to the contested report which show the applicant was consistently rated "among the best."

8.  Army Regulation 623-3 (Evaluation Reporting System), effective 10 August 2007, then in effect, prescribed 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 contends the negative comment entered in Part IVd should be removed from the contested report because undue command influence was  placed on the rater.  The applicant provides a statement from the rater who  attests that it was not his original intent to place the comment on the contested report; however, it was his responsibility to be fair and accurate in his assessment of the applicant.

2.  The 1SG's statement makes no mention of command influence with regard to entering the negative comment on the applicant's evaluation. There is no evidence she requested a Commander's Inquiry prior to appealing the NCOER through HRC to the ESRB within the time allotted.  The absence of an investigation into the matter does not mean one was not conducted.  Nonetheless, she carries the burden of proof.  Therefore, the applicant's argument and the evidence supporting it is insufficient to support her contention. 
  
3.  With regard to removing the senior rater comments in Part Ve, the applicant contends 1LT C________ was supposed to be the senior rater, but he did not agree with the negative portion and would not sign the report.  Subsequently, the commander had 1LT G______ sign the report as the senior rater despite never being in her rating chain.

4.  When the applicant signed the contested NCOER on 5 December 2011, she verified the accuracy of the administrative data in Part I and the rating officials in Part II.  This action is intended to increase administrative accuracy of the report since the rated individual is most familiar with and interested in this information.  The applicant's contentions concerning the rating scheme along with the copies of the schemes she provided fail to overcome the presumption of regularity which is only strengthened by the applicant's signature verifying her rating chain was proper on the contested report.  The accuracy of the rating chain is further supported by the draft NCOERs provided by the applicant which also lists the same rating officials.

5.  There is insufficient evidence and the applicant has not provided sufficient evidence to show that the ratings and comments listed on the contested report are inaccurate and unjust and/or not consistent with the appellant's demonstrated performance of duty during the rating period.  It appears the comments listed simply represent the considered opinions and objective judgment of the rating officials.

6.  The applicant did not provide sufficient evidence to overcome the "presumption of regularity" to justify altering the contested report.  After a comprehensive review of the applicant's contentions and arguments, evidence submitted in support of her application, other than her dissatisfaction, the applicant did not show, by clear and convincing evidence, that the contested report contains a material error, inaccuracy, or injustice.  Therefore, she is not entitled to 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)                                         AR20150005135





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ABCMR Record of Proceedings (cont)                                         AR20150005135



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