IN THE CASE OF:  	  

		BOARD DATE:  27 October 2015

		DOCKET NUMBER:  AR20150009127


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 correction of her DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the rating period 31 August 2012 through 5 July 2013, specifically to recreate the NCOER with the proper rating chain and change her duty position to Platoon Sergeant.  

2.  The applicant states, in effect, that:

     a.  The NCOER is administratively inaccurate and an unjust evaluation of her performance and potential.

     b.  An incident occurred in her personal life, of which she told her Company Commander, and later she requested to be moved to another company as a result of being stressed working with personnel within her company.  The Command Sergeant Major moved her to another company in July 2013.

     c.  She acted as the Platoon Sergeant for three separate Basic Combat Training Cycles, and signed for all the platoon's equipment when her Platoon Sergeant was performing temporary duty (TDY) during the rating period.

     d.  During the contested rating period, she went to the Advanced Leaders Course (ALC) and received the Distinguished Leadership Award and made the Commandant's List; neither of these accomplishments were listed on the NCOER.  

     e.  She believes the negative comments were those from her Company Commander (the reviewer).  

3.  The applicant provides:

* a memorandum from the applicant to Commander, U.S. Army Enlisted Records and Evaluation Center (EREC), Indianapolis, IN, dated                9 February 2015, subject: NCOER Appeal for 31 August 2012 thru 5 July 2013 
* a memorandum from SFC D.C. (applicant's rater) to Commander, EREC, Indianapolis, IN, dated 9 February 2015, subject: NCOER Appeal for      31 August 2012 thru 5 July 2013 for [Applicant]
* a memorandum from U.S. Army Human Resources Command (HRC), Fort Knox, KY, to the applicant dated 20 March 2015, subject: Evaluation Report Appeal (20120831-20130705)
* a memorandum from SFC M.I. (a co-worker) to Commander, EREC, Indianapolis, IN, dated 29 March 2015, subject: NCOER Appeal for         31 August 2012 thru 5 July 2013 for (Applicant)
* a memorandum from HRC, Fort Knox, KY to the applicant, dated 
25 April 2015, subject: Evaluation Report Appeal (20120831-20130705)
* a copy of the contested NCOER
* DA Form 1059 (Service School Academic Evaluation Report), dated 
19 April 2013
* a copy of her Enlisted Record Brief (ERB)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 26 July 2006 and was trained in military occupational specialty (MOS) 42A (Human Resources Specialist).  She was promoted to the ranks/grades of sergeant (SGT)/E-5 on 1 November 2009 and staff sergeant (SSG/E-6) on 1 December 2012.  She was assigned to Company D, 3rd Battalion, 13th Infantry Regiment, at Fort Jackson, SC, for duty as a Drill Sergeant.  

2.  The applicant's official military personnel file (OMPF) contains a                   DA Form 1059 (Service School Academic Evaluation Report (AER)) that shows she completed ALC Class 014-13, conducted at the U.S. Army Soldier Support Institute, Fort Jackson, SC, during the period 4 March 2013 through 19 April 2013.  This AER shows:

* she exceeded course standards
* she was placed on the Commandant's List for academic excellence
* she received the Distinguished Leadership Award
3.  The applicant received the contested NCOER during the month of October 2013, a "Change of Rater" report covering 8 months of rated time from 31 August 2012 through 5 July 2013.  Her rater was her Platoon Sergeant, SFC D.C.; her senior rater was her First Sergeant, 1SG J.S.; and her reviewer was her Company Commander, CPT J.A.  She was rated during this period for principal duty as a "Drill Sergeant."  The NCOER shows in:

     a.  Part IVa (Army Values/Attributes/Skills/Actions), the rater placed an "X" in the "No" block for "Integrity" and entered the following comments:   

* demonstrated a serious lack of integrity and poor judgment
* exhibited a high level of esprit de corps, which carried over to her platoon
* performed as a team player while placing the mission and training of Soldiers above all else

     b.  Part IVb (Competence), the rater placed an "X" in "Needs Improvement (Some)" with the following comments:

* served as the interim Platoon Sergeant during two separate cycles in the absence of the Senior Drill Sergeant; obtained excellent results
* established a platoon tracker that helped maintain a very comprehensive way of keeping the Soldiers['] information updated and accurate
* demonstrated questionable integrity; made a false official statement after numerous attempts were made for her to tell the truth 

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

     d.  Part Vc (Senior Rater – Overall Performance), the senior rater placed an "X" in the "Successful/3" block and 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. 

     e.  Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments:

* do not promote to SFC at this time
* send to SLC when performance improves and at the needs of the Army 
* questionable integrity causes concern for all she has done; cannot be trusted
* has the potential to be an excellent NCO; continue to groom and mentor this young SSG through mentorship and counseling
* rater failed to counsel Soldier [in accordance with] [Army Regulation] 623-3 [Evaluation Reporting System]

4.  The NCOER shows the rater, senior rater, and applicant authenticated this form with their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater with his digital signature. 

5.  The applicant's available records do not contain evidence that shows she requested a Commander's Inquiry (CI) regarding the contested NCOER. 

6.  The applicant did submit an appeal to the Army Enlisted Special Review Board (ESRB) on 9 February 2015.  Her appeal was based on her contention that the subject NCOER was an unjust evaluation based on her performance and potential and administrative inaccuracy.   Her appeal was specifically focused on the following:

     a.  An incident occurred in her personal life of which she told her Company Commander, who was also her reviewer.  He asked about the validity of the incident and she told him it was not true.  He instructed her to go home and think about it and the next day she told him the truth about the incident.  Later, she requested to be moved to another company as a result of being stressed working with personnel within her company.  The Command Sergeant Major moved her to another company in July 2013.

     b.  She acted as the Platoon Sergeant, and she signed for all the platoon's equipment for three separate Basic Combat Training Cycles due to the fact her Platoon Sergeant was TDY during the rating period.

     c.  During the contested rating period, she went to ALC and received the Distinguished Leadership Award and made the Commandant's List; neither of these accomplishments were listed on the NCOER.  

     d.  The negative comments in the contested NCOER were those of her Company Commander, CPT J.A., the reviewer.  The comment about "the rater failed to counsel the Soldier IAW AR 623-3" can be explained that the rater, SFC D.C., was not present for most of the rating period.

     e.  The first time she saw the NCOER, around July 2013, Part IV had all "Yes" blocks checked.  Also, Part Vc had an "X" in the "Successful/2" block and Part Vd had an "X" in the "Superior/1" block.  

     f.  She recommended that the contested NCOER be recreated with the proper rating chain (First Sergeant, Company Commander, Battalion Executive Officer), with her being rated as the Platoon Sergeant.

7.  Her appeal was returned without action by the ESRB on 20 March 2015, based on insufficient evidence.  The ERSB explained the process to her and stated that she did not request a remedy (e.g., to remove or modify certain statements/sections).  

8.  The applicant was honorably discharged from the Army on 28 March 2015.  Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 8 years, 8 months, and 3 days of net active service.  

9.  The applicant provides:

	a.  A memorandum from the ESRB, dated 25 April 2015, subject: Evaluation Report Appeal, which shows her appeal was returned without action.  This memorandum notified her that the ESRB does not adjudicate evaluation appeals for Soldiers who have been separated from military service.  It further informed her that redress needed to be accomplished by the Army Board for Correction of Military Records (ABCMR).  It is presumed that the applicant submitted her appeal to the ESRB again after her discharge from the Army.   

   b.  A memorandum from her Rater, SFC D.C., addressed to Commander, EREC, dated 9 February 2015, subject: NCOER Appeal for 31 August 2012 thru 5 July 2013 for the applicant.  He states the following:

        (1)  The basis of the appeal is an unjust evaluation of the applicant's performance and potential.

        (2)  He did not write the contested NCOER.  During the time the applicant was assigned to the company, he did not work with her for 90 days as he was in a military school or was on a TDY assignment.  1SG J.S. should have been her rater and she should have been rated as the Platoon Sergeant.  

        (3)  His chain of command changed the original evaluation he wrote for the applicant and he believes it should be removed from her record.

   c.  A memorandum from a co-worker, SFC M.I., addressed to Commander, EREC, dated 29 March 2015, subject: NCOER Appeal for 31 August 2012 thru   5 July 2013 for the applicant.  She states the following:
     
      (1)  The basis of the appeal is an unjust evaluation of the applicant's performance and potential and administrative inaccuracy and should be removed from her record. 

        (2)  She was another platoon's Platoon Sergeant and worked alongside the applicant who was performing the duties of Platoon Sergeant for her platoon.

        (3)  SFC D.C., the Platoon Sergeant, was not present for 90 calendar days due to being in a military school or on a TDY assignment.  1SG J.S. should have been her rater and she should have been rated as the Platoon Sergeant. 

   d.  An ERB that lists her duty title during the period of the contested NCOER as "Drill Sergeant."  
   
   e.  A DA Form 1059 that shows she attended the ALC from 4 March 2013 through 19 April 2013.  This AER shows she exceeded course standards, was placed on the Commandant's List and was awarded the Distinguished Leadership Award.

10.  Army Regulation 623-3 prescribes the policy for completing DA Form 2166-8 and DA Form 2166-8-1 (NCOER Counseling and Support Form), which form the basis for the Army's ERS.  Procedures, tasks, and steps pertaining to completion of each evaluation report and support form are contained in Department of the Army Pamphlet 623-3 (ERS).

     a.  Paragraph 1-8 states the two school evaluations forms are DA Form 1059 (for military institutions) or DA Form 1059-1 (for civilian institutions).  The evaluations on these two forms focus exclusively on the Soldier's performance and accomplishments while attending a school or course.

     b. Paragraph 3-14 states service school academic evaluation reports are used to document the performance, accomplishments, potential, and limitations of Soldiers while attending military schools and courses or instruction or training.  The reporting official will be responsible for the qualitative and quantitative assessment of students' abilities and the accuracy of the information in the completed AER.  The time period covered by an AER is counted as nonrated time on the NCOER covering the same period.

     c.  Paragraph 3-33 c (2) states nonrated time encompasses periods of time when a rated Soldier cannot be evaluated.  These periods include a wide variety of circumstances when a Soldier is not performing duty in an assigned position under a valid rating chain.  Qualifying periods of nonrated time are documented on evaluation report forms (DA Form 2166-8) using nonrated codes and they become part of a Soldier's rating history.  Comments on events or accomplishment during periods of nonrated time (such as periods of military schooling or training covered by an AER) will not be made on NCOERs (emphasis added).  
  
     d.  Paragraph 4-1 states the Evaluation Report Redress Program consists of several elements at various command levels.  The program is both preventive and corrective, in that it is based upon principles structured to prevent and provide a remedy for alleged injustices or regulatory violations, as well as to correct them once they have occurred.

     e.  Paragraph 4-2 states an NCOER may have administrative errors or may not accurately record the rated Soldier's potential or the manner in which he or she performed his or her duties.  The Redress Program protects the Army's interests and ensures fairness to the evaluated NCO.  At the same time, it avoids impugning the integrity or judgment of the rating officials without sufficient cause. A CI and an evaluation report appeal are separate and distinct actions.  Rated Soldiers seek an initial means of redress through a CI; however, a CI is not a prerequisite for submission of an appeal.

     f.  Paragraphs 4-3 through 4-5 state in pertinent part, the process and procedures of a CI.  When 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 CI 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.

     g.  Paragraph 4-7h stipulates that appeals based on administrative error only will be adjudicated by HQDA, Evaluation Appeals Branch for active Army NCOERs.  Such claims may include but are not limited to deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the reporting period, and errors in the APFT and/or height and weight entries.
     h.  Paragraph 4-11 states that evaluation reports accepted for inclusion in the Soldier's official record are presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment or 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.

     i.  Paragraph 4-11e states that evidence will be material and relevant to the applicant's claim.  In this regard, note that support forms (or equivalent) or academic counseling forms may be used to facilitate writing an evaluation.  However, these are not controlling documents in terms of what is entered on the evaluation report form.  Therefore, no appeal may be filed solely because the information on a support form (or equivalent) or counseling form was omitted from an evaluation or because the comments of rating officials on the evaluation report form are not identical to those in the applicable support form or counseling form.

11.  Department of the Army Pamphlet 623-3 provides procedural guidance for completing and submitting evaluation reports and associated support forms that are the basis for the Army's ERS.  Chapter 3 states, in pertinent parts, that the rated Soldier's authentication in Part I of a DA Form 2166-8 verifies the information in Part I.  It also confirms that the rating officials named in Part II are those established as the rating chain and authenticates the accuracy of the APFT performance and height and weight data entries made by the rater.  Appeals based on alleged administrative errors in those portions of a report previously authenticated by the rated Soldier (Parts I, II, and IIIa) will be accepted only under the most unusual and compelling circumstances. The rated Soldier's signature also verifies the rated Soldier has seen a completed evaluation report.  Correction of minor administrative errors seldom serves as a basis to invalidate an evaluation report.  Removal of a report for administrative reasons will be allowed only when circumstances preclude correction of errors, and then only when retention of the report would clearly result in an injustice to the Soldier.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for correction of the contested NCOER, specifically, the recreation of the contested NCOER to show the proper rating chain and her duty position as the Platoon Sergeant, was carefully considered.  

2.  The available evidence shows the applicant filed two appeals related to her contested NCOER, one of which was returned without action by the ESRB on   20 March 2015 for insufficient evidence and reason, and a second that was returned without action by the ESRB on 25 April 2015, after she had been discharged from the Army.  

3.  She contends the contested NCOER is an unjust evaluation of her performance and potential and was administratively inaccurate.  She provides a co-worker’s memorandum that disputes the applicant's NCOER as being unjust and not an accurate depiction of her performance and potential; however, this third party was not a part of the applicant's chain of command and was not in a position to accurately reflect or document her overall performance during the rating period.  

4.  She also provided a memorandum from her rater who stated he did not write the contested NCOER.  However, he validated the comments contained within the contested NCOER by affixing his digital signature on the report.  He contends he was TDY for 90 calendar days, the applicant should have been rated by the First Sergeant, and the contested NCOER should be removed from her record.  She provides no further evidence that supports either her or her rater's contention that he was not qualified to be her rater.

5.  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.

6.  The applicant further contends that her accomplishments during her attendance at the ALC were not included on her NCOER.  In accordance with applicable regulations, comments on events or accomplishment during periods of nonrated time (such as periods of military schooling or training covered by an AER) will not be made on NCOERs.  

7.  There is insufficient evidence that shows the contested report contains any administrative or substantive deficiencies or inaccuracies or that it was not prepared in compliance with applicable regulations and policies.  Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating her as they did.

8.  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.  

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)                                         AR20150008466



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20150009127



10


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1