AR20160003441

IN THE CASE OF:

BOARD DATE: 22 March 2016

DOCKET NUMBER: AR20160003441

BOARD VOTE:

___x____ ___x____ ___x____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 22 March 2016

DOCKET NUMBER: AR2060003441

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 removing the NCOER for rating period 5 October 2011 through 4 October 2012 from her OMPF and placing a statement of non-rated time in her OMPF in lieu of this NCOER.

__________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.

IN THE CASE OF:

BOARD DATE: 22 March 2016

DOCKET NUMBER: AR20160003441

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 removal of the Annual DAForm2166-8 (Non-commissioned Officer Evaluation Report (NCOER)) for the rating period 5October 2011 through 4October 2012 (contested NCOER) from her official military personnel file (OMPF).

2. As an alternative, the applicant requests the “No” entry in the “Integrity” value block be changed to “Yes” and the corresponding bullet that shows she “violated General Order Number 1” be removed.

2. The applicant states, in effect, her appeal is based on substantive error. The governing regulation prohibits raters from basing their evaluations on unproven derogatory information. The rater checked the “No” block for the “Integrity” value indicating she did not always do what is legally and morally right; this is unjust and should be removed for two reasons: the rater failed to address the entry with substantive bullet comments and the regulation clearly states bullets must be specific. Substantive bullet comments are required for a “No” entry. The existing bullet comment is not specific and the rater desires to now recant his statement; therefore, she believes the NCOER is unjust.

3. The applicant provides four statements and the contested NCOER.

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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. The applicant enlisted in the Regular Army on 14 February 2005 and she holds military occupational specialty 25U (Signal Support Specialist). She was advanced to staff sergeant (SSG)/E-6 in February 2011.

3. She served through multiple reenlistments in a variety of stateside or overseas assignments, including Korea, Iraq, and Afghanistan. She arrived at Fort Bragg, NC, around October 2011.

4. During October 2012, she received an annual NCOER covering 12 months of rated time from 5 October 2011 through 4 October 2012 for duties as a Signal Support NCO while assigned to Company C, Headquarters and Headquarters Battalion, 82nd Airborne Division. Her rater was Sergeant First Class (SFC) TRM, the Signal Systems Integration and Oversight (SSIO) NCO; her senior rater was Chief Warrant Officer MRN, the SSIO Systems Maintenance Officer; and her reviewer was First Lieutenant SWW, the SSIO Officer in Charge. This NCOER shows she was counseled quarterly. It also shows in:

a. PartIVa (Army Values), the rater placed an “X” in the “Yes” blocks for all values except the “Integrity” value and entered a supporting bullet comment that reads “violated General Order number one.”

b. Parts IVb (Competence) and IVf (Responsibility and Accountability), the rater placed an “X” in the “Excellence” block and entered supporting bullet comments.

c. Parts IVc (Physical Fitness and Military Bearing), IVd (Leadership), and IVe (Training), the rater placed an “X” in the “Success” block and entered corresponding bullet comments.
d. PartVa (Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an “X” in the “Fully Capable” block.

e. In PartVc (Senior Rater Overall Performance), the senior rater placed an “X” in the “Successful/2” block. In PartVd (Senior Rater Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) the senior rater placed an “X” in the “Superior/2” block.

f. PartVe (Senior Rater Bullet Comments) the senior rater entered corresponding bullet comments.

5. The NCOER shows the rater and senior rater digitally signed the NCOER on 13 November 2012 and the reviewer concurred with the rater and senior rater and authenticated this form by placing his digital signature in the appropriate place on 23 October 2012. The applicant also digitally signed this report on 13November 2012.

6. There is no indication the applicant requested a Commander’s Inquiry or appealed the contested NCOER through the U.S. Army Human Resources Command to the Enlisted Special Review Board (ESRB).

7. The applicant provides:

a. A statement, dated 12 January 2016, from SFC TRM, her former rater, who states he worked with the applicant from October 2010 to November 2012 at the 82nd Airborne Division G-6. He served as her rater for the NCOER that has triggered her for the Qualitative Management Program (QMP) review. He supports her actions to appeal her NCOER. She is being considered for QMP due to an NCOER that she received from him while serving as a Signal System Support Specialist. He relied heavily on input from senior leadership which influenced his decision to rate her in the manner in which he did. He wishes to recant the “No” block on the NCOER dated of 20111005 through 20121004. She served admirably as a Signal System Support Specialist in combat, and upon returning from the deployment. She received an Article 15 for not having the door to her living quarters completely open that was filed locally due to the light nature of the article. He was influenced by his leadership to ensure the NCOER would be seen officially. He never once questioned her integrity. She thought she was following the rules outlined in General Order Number 1 and in no way violated her integrity. She admitted that she was wrong when questioned and accepted her punishment. He reiterates that he strongly urges the Board members to retain her for continued service in the Army and that the NCOER be immediately removed from her records.

b. A statement from Colonel JAC, who currently works at the Joint Staff. He states that he supports her NCOER Appeal. He has known her professionally for several years and has evaluated first hand her integrity, loyalty, and dedication to the United States Army. He considers her an excellent NCO and a leader the Army needs to retain even as we downsize. He served as the 82nd Airborne Division G6 from July 2010 through September 2012, where he got to know her personally through daily interaction. During their deployment to Afghanistan from 2011 to 2012, she was placed in a critical position that triaged IT-related incidents and support to all customers, including the senior members of the Joint Task Force (JTF) Headquarters. He was able to place her there due to her proven ability not to only quickly recognize the urgency and operational impact of an issue, but because she possessed the intellect, motivation, drive and commitment to always ensure mission accomplishment. However, during the deployment she did have a violation of the JTF’s General Order Number One (GO # I) for having a male in a female restricted area without the outside door to the living space being fully open and with all in the living quarters agreeing to the visit. The battalion commander reviewed the case and chose to address the issue internally, filing the Article 15 in her local file. He feels the rater placing the “No” check and supporting comment in Part IV(a) of her NCOER was a means to re-litigate the Article 15. While the event did occur, it was very minor in nature and did not rise to the level of transgression for similar offenses in that portion of GO # 1 that had normally resulted in an officially filed Field Grade Article 15 and subsequent returning of the Soldier to CONUS. That is why the actions were filed locally. It is his assessment that the applicant is of high character and a valued asset to the Army. It is for the reasons stated he recommends the NCOER in question be substantively removed.

c. A statement, dated 31 January 2016 from a retired sergeant major who states he served as the XVIII Airborne Corps G6 Sergeant Major until he officially retired on 1 September 2015. He served the Army for 28 years. He is writing on behalf of the applicant. He served as the 82nd Airborne Division G6 Sergeant Major from September 2009 until August 2013. Since her arrival at the 82nd Airborne Division, the applicant served as a Signal Systems Support NCO. She possesses outstanding work ethics and leadership qualities. Her integrity is unquestionable. He has faith and trust in her to always make rational and solid decisions. She is a credit to the Army, NCO Corp and the Signal Corps. She had a violation of the JTF’s GO # 1 for not having the door completely open while having a male visitor in the females’ shared quarters. Her GO # l violation was not found to be intentionally disobedient so the battalion commander filed the Article 15 in her local file. The rater failed to address the “No” entry in Part IV with substantive bullet comments. He opines that as her sergeant major, there was not a solid issue the rater could directly address to support the rating she was given. The rater must “ensure that specific bullet comments support appropriate ratings in part IV.” It is for that reason that he recommends the NCOER in question be removed.

d. A statement, dated 15 January 2016, from the Deputy Commandant, XVIII Airborne Corps. He states that he has known her professionally for several years, and has evaluated first hand her integrity, loyalty, and dedication to the United States Army as second to none. He served as the 82nd Airborne Division G3 Sergeant Major from May of 2011 through June of 2013. She served as a Signal Support NCO in the G6 both deployed and at the home base. The rater failed to address the “No” entry with substantive bullet comments. The rater must “ensure that specific bullet comments support appropriate ratings in part IV.” It is for that reason that he recommends the NCOER in question be removed.

REFERENCES:

1. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time the contested NCOER was rendered, shows in:

a. Paragraph 1-9, Army evaluation reports are assessments on how well the rated Soldier met duty requirements and adhered to the professional standards of the Army officer or noncommissioned officer corps. Performance will be evaluated by observing action, demonstrated behavior, and results from the point of view of the values, leadership framework and responsibilities identified on the evaluation forms, counseling forms, and as explained in DA Pam 6233 (Evaluation Reporting System).

b. Paragraph 1-11, when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or by a member of a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander will conduct an inquiry into the matter. The commanders 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 policies and procedures established by Headquarters, Department of the Army (HQDA) and the conduct of the rated Soldier and members of the rating chain. The results of the commanders inquiry may be provided to the rating chain and the rated Soldier at the appointing officials discretion.
c. Paragraph 3-39, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, has been prepared by the properly designated rating officials, and represents the considered opinions and objective judgment of the rating officials at the time of preparation. Requests that an evaluation report in a Soldiers OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individuals OMPF: statements from rating officials that they underestimated the rated Soldier; statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; requests that ratings be revised; statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential; and/or a subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldiers performance or potential in order to preserve higher ratings for another.

2. Army Regulation 600-8-104 Army Military Human Resource Records Management (AMHRR)) governs the composition of the AMHRR (which includes the OMPF) and states that the performance section is used for filing performance, commendatory, and disciplinary data. Once placed in the OMPF, the document becomes a permanent part of that file. The document will not be removed from or moved to another part of the OMPF unless directed by certain agencies, to include this Board. NCOERs are filed in the performance section of the OMPF.

3. DA Pamphlet 623-3 (Evaluation Reporting System), dated June 2012, i.e., in effect at the time this his NCOER was rendered states:

a. Army Values and NCO responsibilities. Army Values and NCO responsibilities/ requirements are the sole focus for performance evaluation in part IV of the NCOER. Box checks and bullet comments are used throughout the evaluation. Mandatory specific bullet comments are required for all “NO” entries. Bullets are to be short, concise, and to the point.

b. Part II is for authentication by the rated NCO and rating officials after the evaluation report has been completed at the end of the rating period. To facilitate the rated NCO in signing the NCOER after authentication by the rating officials, the NCOER can be signed and dated by each individual in the rating chain up to 14 days prior to the THRU date of the report; however, the NCOER cannot be forwarded to HQDA until the THRU date of the report. The following rules apply:

* The reviewers signature and date cannot be before the raters or senior raters signature
* The senior raters signature and date cannot be before the raters signature
* The rated NCOs signature and date cannot be before the raters, the senior raters, or the reviewers signatures

3. Several Military Personnel messages provide guidance and procedures in support of the QMP. The purpose of the QMP board is to identify selected NCOs for possible involuntary separation, specifically those with a general officer memorandum of reprimand, conviction by a court-martial or Article 15, Relief for cause NCOER, a “No” in the Army values on an NCOER, a senior rating of “4” on an NCOER, and NCO Education System failures.

DISCUSSION:

1. The applicant was deployed to Afghanistan from 2011 to 2012. During her deployment, she violated GO # 1, which covers prohibited activities for Soldiers within a JTF. It encompasses multiple issues including consumption of alcohol, possession of firearms, fraternization, visiting policy, etc.

2. It appears the applicant violated one of those prohibited items. On the surface, this appears to support her contention that the bullet is not specific enough. However, the supporting documents she provides clearly shows she violated the rules and received an Article 15 (that was filed locally). The statements made it clear that her rating officials, in an effort to protect her and not further penalize her, did not describe or disclose the violation in detail.

3. It is unclear why the applicant did not request a Commander’s Inquiry given her feeling of an injustice. It is equally unclear why she did not appeal the contested NCOER within the allotted time authorized by the governing regulation. Most importantly, however, she does not provide any documentary evidence to support her contention that the violation did not occur.

4. However, this NCOER is defective for another reason. The reviewer authenticated this NCOER with his digital signature on 23 October 2012, nearly a month before the rater and senior rater signed the contested NCOER. This does not appear to be an administrative error. By regulation, the reviewer cannot sign an NCOER before the rater or senior rater. The signature dates are evidence of a failure of due process that supports removing the contested NCOER.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) @#!CASENUMBER

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20160003441

7

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2