IN THE CASE OF:    

		BOARD DATE:  13 October 2015	  

		DOCKET NUMBER:  AR20150009984 


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 that a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 3 May 2010 - 2 May 2011 (hereafter referred to as the contested NCOER) be removed from her official military personnel file (OMPF).

2.  The applicant states:

     a.  She is requesting the removal of the contested NCOER that was uploaded into her record right after the correct NCOER for the period 2 May 2010 through 7 January 2011 was uploaded and returned for corrections.  Instead of making corrections to the correct NCOER, the contested NCOER was submitted instead.

     b.  Records show the contested NCOER was not correct and should not have been filed in her records.  She is requesting the contested NCOER be replaced with the correct NCOER.  The contested NCOER was quickly submitted after a disagreement between her and her former commander.

     c.  She has evidence to show she was asked to sign for equipment that her unit did not have and she refused.  If she would have signed for the equipment the unit would have been accountable for the equipment.  Her commander was upset with her decision so he created the contested NCOER. 

     d.  The contested NCOER was signed by people she had never met or worked with.  They signed it and quickly had it uploaded into her records.  She does not have any negative information in her record, to include negative counseling and nonjudicial punishment.  She received only positive emails from her commander.  Documents show she was recommended for the Warrant Officer Board prior to the contested NCOER.  The original NCOER and the contested NCOER were completely opposite of each other within 1 month.

     e.  She has appealed the contested NCOER on several occasions over the past 3 years.  She is currently in a unit that is trying to help her.  The contested NCOER could cause her to lose her entire career.  She has over 15 years of service.  She is a dedicated Soldier and loves taking care of other Soldiers.  Her performance has been exemplary.  She requests the contested NCOER be reviewed and it be determined that she deserves to continue to serve on active duty. 

    f.  She has been identified for separation under the Qualitative Management Program (QMP) due to two adverse NCOERs.  The contested NCOER does not accurately and fairly reflect her performance as a Soldier. Her life and the life of her family could be forever changed due to a former disagreement and terrible action which is causing her to be denied further service. 

     g.  Some of her contributions as a Soldier and leader include being awarded the Quartermaster Regimental Honorable Order of Saint Martin, graduating with a Bachelor of Science in Kinesiological Sciences from the University of Nevada, being an active volunteer for the Tragedy Assistance Program for Survivors, and various other awards.

3.  The applicant provides:

* three DA Forms 2166-8 (to include an a copy of the contested NCOER which does not bear her name)
* Statement of Options, QMP
* memorandum, subject:  Notification of Denial of Continued Active Duty Service under the QMP, dated 13 April 2015
* orders
* memorandum, subject:  Assumption of Command Orders, dated 1 June 2010 
* memorandum, subject:  Memorandum of Agreement on Duties and Supervision of 650th Regional Support Group Rear Detachment Personnel, dated 20 July 2010
* rating scheme
* six letters of recommendation
* emails
* memorandum, subject:  Noncommissioned Officer Evaluation Report
* self-authored statement 
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.  Having had prior enlisted service in the Regular Army, the applicant enlisted in the United States Army Reserve (USAR) on 20 March 2002.  She is currently serving on active duty in the Active Guard Reserve program.  

3.  On 6 August 2009, she accepted nonjudical punishment for:

* failing to go to her appointed place of duty on 27 May 2009 and 8 June 2009
* violating a lawful general regulation by wrongfully using a government vehicle for unofficial purposes and wrongfully using a government issued credit card
* being derelict in the performance of duty
* making statements with the intent to deceive

4.  On 20 April 2010, she received and signed an annual NCOER that covered 12 months of rated time from 10 November 2008 through 9 November 2009.  This NCOER was not contested.  

5.  This NCOER shows the following entries:

	a.  In Part IVa (Army Values), the rater placed an "X" in the "No" block for Integrity (Does what is right – legally and morally).  The rater placed an "X" in the "Yes" block for the remaining six values.  The following bullet comments were entered:

* her integrity was compromised by lying to her superiors 
* constantly seeks ways to learn, grow and improve
* meets challenges head on

	b.  In Part IVd (Leadership) the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* consistently displayed a total disregard for mission accomplishment 
* lacked the self-discipline and professionalism to set any example to
      peers and subordinates 
* created numerous issues of liability with regard to the care and welfare       of Army applicants

    c.  In Block IVf (Responsibility & Accountability) the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* demonstrated little concern for the security and accountability of a
     government vehicle and government travel card; willful misuse
* integrity compromised upon submission of false projections of 
     applicants for enlistment  
* put the blame on others for her shortcomings; never took responsibility 

   d.  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.

   e.  In Part Vc (Senior Rater. Overall performance) the senior rater placed an "X" in the "4 - Fair" block and in Part Vd (Senior Rater. Overall potential for promotion and/or service in positions of greater responsibility) he placed an "X" in the "4 - Fair" block.

	f.  In part Ve (Senior Rater bullet comments) the senior rater entered the following comments:

* do not promote at this time 
* integrity compromised during this rating period
* do not select for advance noncommissioned officer education system
     schooling 
* assign to duties with increasing responsibility as opportunity arises;
     fully committed to the welfare of Soldiers 

6.  On 31 May 2011, she received and signed the contested NCOER, as an annual NCOER, that covered 12 months of rated time from 3 May 2010 through 2 May 2011.  Her signature verified the administrative data in Part I (Administrative Data), the rating officials in Part II (Authentication), and the duty description to include the counseling dates in Part III (Duty Description).  She also indicated she was aware of the appeals process in Army Regulation 623-3 (Evaluation Reporting System).

7.  Part II - Authentication shows:

* Captain (CPT) C, Headquarters and Headquarters Detachment (HHD) Commander as her rater
* Lieutenant Colonel (LTC) V, Executive Officer as her senior rater
* Colonel (COL) D, Brigade Commander as her reviewer

8.  Part IIIa (Principle Duty Title) shows her principle duty as "HHD Detachment Sergeant."  

9.  Part IIIf (Counseling Dates) shows she was initially counseled on 4 May 2010 with later counseling on 11 June 2010, 22 January 2010, and 1 May 2011.

10.  The contested NCOER shows the following additional entries:

	a.  In Part IVa the rater placed an "X" in the "No" block for Duty (Fulfills their obligations).  The rater placed an "X" in the "Yes" block for the remaining six values.  The following bullet comments were entered:

* has failed to comply with orders within expected time frame
* unable to take initiative on her own; requires constant supervision

	b.  In Part IVd the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* leadership and managerial skills need improvement to qualify for next
     rank 
* was ineffective as the Rear Detachment Commander and failed to use
     time wisely, consistently failed to complete duty assignments
* often failed to finish assigned duties without supervision

    c.  In Block IVf the rater placed an "X" in the "Some" block of "Needs Improvement."  This block contained the following bullet comments:

* unexcused absence from duty left Soldiers unsupervised and failed to
     meet directed suspenses
* Soldier’s lack of initiative and follow up caused her not to have access
     to critical logistical systems to manage unit property  
* Soldier’s failure to coordinate OCIE turn-in made the company
     delinquent on meeting CIF-ISM transition requirements 
   d.  In Part Va the rater placed an "X" in the "Marginal" block.

   e.  In Part Vc the senior rater placed an "X" in the "4 - Fair" block and in Part Vd he placed an "X" in the "4 - Fair" block.

	f.  In part Ve the senior rater entered the following comments:

* shows potential for successful execution of tasks when focused 
* lacked appropriate communication skills when addressing family
     members and superiors
* inappropriately used USAR affiliation for personal business reasons 
* failed to maintain positive accountability of sensitive items
* needs to apply herself more fully if desiring promotion and higher
     positions 

11.  There is no evidence the applicant appealed the contested NCOER to the Army Special Review Board (ASRB) within the 3-year period from the "THRU" date of the contested NCOER.

12.  She provides a rating scheme for the 505th Brigade covering the period     10 November 2009 through 2 May 2010; however, this rating scheme appears to have been applicable prior to the period of the contested NCOER.

13.  She provides a complete the record NCOER for the period 3 May 2010 through 7 January 2011.  She signed the NCOER on 2 February 2011.  Part II - Authentication of this NCOER shows the rater was First Lieutenant O___, the senior rater was CPT C___, and the reviewer was COL Y__.  Part IIIf (Counseling Dates) shows she was counseled on 4 May 2010 and                      14 September 2010.  This NCOER did not contain any negative comments.  However, records show this NCOER was rejected by the U.S. Army Human Resources Command (HRC).

14.  She provides a change of rater NCOER for the period 3 May 2010 through   7 January 2011.  She signed the NCOER on 2 February 2011.  Part II - Authentication of this NCOER shows the rater was First Lieutenant O___, the senior rater was CPT C___, and the reviewer was COL Y__.  Part IIIf shows she was counseled on 4 May 2010 and 14 September 2010.  This NCOER did not contain any negative comments.  However, records show this NCOER was rejected by HRC as a duplicate.

15.  She provides a memorandum, dated 20 June 2011, addressed to Commander, Enlisted Records and Evaluation Center in which she requests to appeal the contested NCOER; however, she does not provide the response she received to this request.  There is no evidence that she requested a commander’s inquiry. 

16.  She provides a Letter of Recommendation from the rater on the contested NCOER, dated 29 October 2010, which shows he recommended she be selected as a warrant officer.  It shows he had been her supervisor for 6 months.

17.  On 13 April 2015, by letter, HRC notified the applicant that the QMP Selection Board conducted a comprehensive review of her records for potential denial of retention under the QMP and recommended she be denied continued active duty service.  As a result, the Director of Military Personnel Management approved the board's recommendation and she is to be involuntarily discharged from the Army no later than 1 November 2015.  

18.  On 20 April 2015, the applicant acknowledged receipt of the QMP notification.   She did not make an election regarding submission of an appeal, requesting voluntary discharge, or applying for regular retirement (if eligible). 

19.  On 23 April 2015, she acknowledged having been notified by her Commander on 23 April 2015 of the QMP board's decision to deny her retention on active duty.  She indicated she would submit an appeal.  She did not submit a copy of her appeal.
 
20.  Army Regulation 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.  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 2-3f(2) states the rating chain will consist of the rated NCO, the rater, the senior rater, and the reviewer.  The reviewer will be a commissioned officer, warrant officer, command sergeant major (CSM), or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater.  NCO rating chains will not include an intermediate rater.

   c.  Paragraph 2-8b (NCOER reviewer eligibility and responsibility) states the reviewer will be a U.S. Army officer, CSM, or SGM in the direct line of supervision and senior in pay grade or date of rank to the senior rater. Promotable master sergeants may serve as reviewers, provided they are working in an authorized CSM or SGM position.
   
   d.  Every NCOER will be reviewed by the first sergeant, CSM, or SGM and signed by an official who meets the reviewer requirements of paragraph 2-8b. The reviewer is responsible for rating safeguard over watch and will:

   (1)  Ensure that the proper rater and senior rater complete the report.

   (2)  Examine the evaluations rendered by the rater and senior rater to 
ensure they are clear, consistent, and just, in accordance with known facts. Special care will be taken to ensure the specific bullet comments support the appropriate excellence, success, or needs improvement ratings in Part IVb-f.

   e. The reviewer will comment only when in disagreement with the rater and/or senior rater. 
   
   f.  An evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF is presumed to:

  (1)  Be administratively correct.

   (2)  Have been prepared by the proper rating officials.

     (3)  Represent the considered opinion and objective judgment of the rating officials at the time of preparation.

   g.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER will normally be returned without action unless accompanied by additional substantiating evidence.

   h.  Appeals based on administrative error only will be adjudicated by the Headquarters, Department of the Army, Evaluation Appeals Branch (AHRC-PDV-EA) for active Army NCOERs.  Claims of administrative error pertain to Parts I, II, and III of the NCOER (DA Form 2166-8).  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 report period, and errors in the height/weight.

   i.  The rated Soldier’s authentication in Part II 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 Army physical fitness test (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.
   
   j.  Alleged bias, prejudice, inaccurate or unjust ratings, or any matter other than administrative error are substantive in nature and will be adjudicated by the Army Special Review Board (ASRB).  Claims of inaccuracy of a substantive type pertain to Parts III, IV, and V of the DA Form 2166-8.  These are generally claims of an inaccurate or an unjust evaluation of performance or potential or claims of bias on the part of the rating officials.
   
   k.  Substantive appeals will be submitted within 3 years of an NCOER "THRU" date.  Failure to submit an appeal within this time will require the appellant to submit his or her appeal to the ABCMR.  The ASRB will not accept appeals that are over 3 years old or appeals from Soldiers who are no longer on active duty or part of the USAR or ARNG.
   
   l.  Administrative appeals will be considered regardless of the time that has elapsed since the period of the report and a decision will be made in view of the regulation in effect at the time the evaluation report was rendered.  The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended.
   
   m.  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.
	
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends her contested annual NCOER should be replaced with a change of rater NCOER for the period 3 May 2010 through                        7 January 2011 that was prepared and signed.  However, the evidence shows the NCOER she believes should replace the contested NCOER was rejected by HRC.  There is no evidence of error in that decision. 

2.  She contends her contested NCOER was signed by people she did not know or work with; however, her signature on the contested NCOER verified the rating officials in Part II (Authentication) and the duty description to include the counseling dates in Part III (Duty Description).  It also indicates she was aware of the appeals process of Army Regulation 623-3.

3.  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.  

4.  She provide a copy of her rating scheme; however, the rating scheme she provides does not appear to cover the period of the contested NCOER.  There is no evidence of error in the rating officials shown on the contested NCOER.
 
5.  She contends the contested NCOER was written based on a disagreement with her commander, not actual facts.  However, she has not provided any substantive evidence to support the contention. 

6.  While it is true that her rater on the contested NCOER recommended she be selected as a warrant officer, the recommendation letter was written half way through the rating period; it appears his opinion changed at some point during the rating period.  

7.  She contends her record is void of any negative information to include nonjudical punishment; however, records show she accepted nonjudical punishment on 6 August 2009.

8.  The contested NCOER appears to be correct and represent a fair, objective, and valid appraisal of her demonstrated performance and potential during the period in question.  There is no evidence and she has not provided any evidence to show her rater and/or senior rater did not comply with the regulatory requirements to evaluate 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.



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)                                         AR20150009984



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ABCMR Record of Proceedings (cont)                                         AR20150009984



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