IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001453 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001453 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 28 September 2017 DOCKET NUMBER: AR20160001453 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 her Noncommissioned Officer Evaluation Report (NCOER) covering the period 29 June 2014 through 25 March 2015 from her record. In the alternative, she requests redaction of the “needs improvement” bullet comments and all other negative comments from her NCOER. 2. In a self-authored statement, the applicant indicates the basis for this appeal is that the NCOER in question contains substantive inaccuracies. Additionally, she states: a. With regard to Values/NCO Responsibilities (Part IV), the NCOER alleges she “failed to stay abreast of basic daily functions of the S4 shop; [which] resulted in being consistently unprepared for brigade briefs.” The section continues that she "failed to participate in any battalion physical training event within the limits of her profile.” Both of these allegations are incorrect. Furthermore, no counseling was given regarding either of these bullets. Regarding Physical Fitness and Military Bearing (Part IVc), the NCOER describes completion of the Army Physical Fitness Test (APFT) as "passed alternate APFT." Like other Soldiers, she has suffered physical injuries that limit her ability to conduct physical training. She had a profile and passed the APFT in accordance with that profile; the “alternate APFT” does not accurately describe her maintaining physical readiness in accordance with Army regulations. b. In Leadership (Part IVd), the NCOER states she “struggled to follow up with tasks given by the company [first sergeant (1SG)]; resulted in the S4 section being delinquent on several assigned tasks.” A second bullet adds that she “withdrew herself from a leadership position as S4 [non-commissioned officer in charge (NCOIC)]; opted to pass her responsibilities on to a junior NCO without approval.” First, the second bullet that she passed responsibilities without approval to another NCO is unfounded; no counseling or other evidence supports this contention. Second, she did not withdraw from her position; she requested that the unit provide her the opportunity to support her family. That request led to her being assigned to another position. The Army supports families; requesting to support her family falls within the Army Values and should not be held against her unjustly. Finally, the tasks for which she was counseled for being late (see enclosed 5 March 2015 counseling) are factually incorrect. Specifically, she did not fail to contact 1SG U____ at the tactical operations center (TOC) per SFC B____ because she called the TOC on 25 February 2015. After calling she went to the emergency room and received quarters. She did not fail to appoint two Soldiers to serve as foreign disclosure representatives because she notified leadership on 27 February 2015 and 3 March 2015 that 1LT M____ and SSG I____ had been appointed and were in the process of completing the class on those dates. On 4 March, she did not fail to locate 1SG U____; instead, she had appointments during that time that occupied much of her time that day. c. For Responsibility and Accountability (Part IVf), the NCOER alleges that she “failed to ensure regular preventative maintenance was conducted on the sections assigned equipment.” This allegation is incorrect because it is incomplete. As reflected on her 11 February 2015 counseling, the preventative maintenance was completed, albeit late. The maintenance was completed late because she was given other assignments that took priority: (1) mandatory training, (2) discussing Soldier issues with the headquarters company commander, and (3) escorting a Soldier to behavioral health appointments. d. In Part IVa (Army Values), Duty and Honor contain "No" enties. The “No” entries are not substantiated by a command or other official investigation. 3. Other bullets are inaccurate because they are incorrect or vague. For example, one bullet claims that she “failed to meet expectations and perform required duties outlined in initial counseling.” The duties are not listed; thus it is impossible to contest this unclear assertion. 4. Ultimately, the conclusions reached on the NCOER, to include the ratings of 4 for both overall performance and overall potential for promotion are based on faulty information. Quarterly counseling statements do not reflect the claims set forth in the NCOER. See the 24 October 2014 counseling and 18 December 2014 counseling. Furthermore, the ratings are indicative of a discriminatory and unprofessional command climate. See enclosed Memoranda for Record (MFR), dated 27 April 2015 and 10 June 2015. 5. Army Regulation 623-3 (Evaluation Reporting System), paragraph 3-25, provides that activities or behavior otherwise prohibited by Army Regulation 600-20 (Army Command Policy), or behavior that is inconsistent or detrimental to good order, conduct, and discipline, may be mentioned in an evaluation report when substantiated by a completed command or other official investigation. Here, the evaluation report alleges, among other things, that she failed to perform required duties, did not satisfy the Army values of Duty and Honor, failed to participate in any battalion physical training event within the limits of her profile, and withdrew from a position and passed her responsibilities without approval. These acts, if true, would violate Army Regulation 600-20's requirements in paragraphs 4-1 through 4-4 that all persons strictly obey legal orders and maintain discipline. The allegations in the evaluation report reflect a violation of the duty to maintain good order and discipline; therefore, the allegations may be included only if they were substantiated by a command or other official investigation. No investigation was conducted, nor did she receive the results of any investigation. Thus, the allegations were not substantiated and their inclusion is inappropriate under Army Regulation 623-3. 6. Given the number and extent of errors in the NCOER, she requests the NCOER be removed and the rating period be treated as unrated time; there are too many errors to correct. In the alternative, she requests all bullets and information be redacted in Parts IVa, IVb (Competence), IVd, IVf, Va (Rater. Overall potential for promotion and/or service in positions of greater responsibility.), Vc (Senior Rater. Overall performance.), Vd (Senor Rater. Overall potential for promotion and/or service in positions of greater responsibility.), and Ve (Senior rater bullet comments); that the word "alternate" be redacted in the first bullet in Part IVc, and that the Army Values bullets also be redacted. 7. The applicant provides: * DA Forms 4856 (Developmental Counseling Form), dated 16 September 2014, 24 October 2014, 18 December 2014, 11 February 2015, and 5 March 2015 * MFR, dated 5 March 2015 and 10 June 2015 * NCOER, dated 9 April 2015 * letter of support, dated 27 April 2015 CONSIDERATION OF EVIDENCE: 1. The applicant, a sergeant first class (SFC), while assigned to a Stryker Infantry Battalion, Fort Carson, CO, in a senior supply sergeant position, received the contested NCOER, which was a relief for cause NCOER. 2. The rater marked in: a. Part IVa: * Duty: Fulfills their obligations – No * Honor: Lives up to all the Army values – No * Bullet comments – * failed to meet expectations and perform required duties outlined in initial counseling * must realize the importance of finishing assigned tasks without supervision * never hesitates to voice an honest opinion b. Part IVb – Needs some improvement * maintained a functioning S4 section despite regular turnover of personnel at the battalion level * failed to stay abreast of basic daily functions of the S4 shop; resulted in being consistently unprepared for brigade briefs and meetings * failed to participate in any battalion physical training event within the limits of her profile c. Part IVc – Success * passed alternate APFT * uniform and personal appearance always meet the standard d. Part IVd – Needs some improvement * struggled to follow up with tasks given by company 1SG; resulted in the S4 section being delinquent on several assigned tasks * withdrew herself from a leadership position as S4 NCOIC; opted to pass her responsibilities on to a junior NCO without approval * supported the Army SHARP and Equal Opportunity program e. Part IVf – Needs some improvement * passed the Division Level Government Purchase Card Inspection as the Battalion Billing Official * failed to ensure regular preventative maintenance was conducted on section and assigned equipment * the rated NCO has been notified of the reason for the relief f. Part Va –marginal g. Part Vc – fair (4) h. Part Vd – fair (4) i. Part Ve – * do not promote to Master Sergeant * lacks potential for positions of increased responsibility; retain in current grade * lacked personal drive to accomplish assigned tasks * failed to comply with instructions given to her from the chain of command 3. The applicant did not sign the NCOER. 4. The counseling statements, letter of support, and the MFRs the applicant provided are related to her job performance or clarifying instructions regarding her performance. These documents also show she was asked to provide a childcare plan. An MFR from Sergeant S______ addresses how unfairly injured Soldiers are treated by the applicant’s chain of command. An MFR from Staff Sergeant I_____ speaks highly of the applicant about her skills and abilities. One of the MFRs is a rebuttal statement written by the applicant addressing “failure to perform tasks as the [platoon sergeant]/NCOIC.” REFERENCES: Army Regulation 623-3 prescribes the policy for completing the DA Form 2166-8 (NCO Evaluation Report) and associated DA Form 2166-8-1 (NCOER Counseling and Support Form) that are the basis for the Army's Evaluation Reporting System. Procedures, tasks, and steps pertaining to completion of each evaluation report and support form are contained in DA Pamphlet 623-3. a. Paragraph 1-8f states support and/or counseling forms and evaluation reports will reflect the rating officials published in the official rating scheme. DA Pamphlet 623-3 explains what information is required for each form and how rating officials can accomplish the process from the initial performance counseling to the submission of a complete and accurate evaluation report to Headquarters, Department of the Army (HQDA). b. Paragraph 1-9 states Army evaluation reports are independent assessments of how well the rated Soldier met duty requirements and adhered to the professional standards of the Army's Officer Corps or NCO Corps within the period covered by the report. Performance will be evaluated by observing actions, demonstrated behavior, and results from the point of view of the Army values, the Army's leadership framework, and responsibilities identified on evaluation report forms and counseling forms. Potential evaluations will be performance-based assessments of rated officers' or NCOs' ability to perform in positions of greater responsibility and/or higher grades/ranks compared to others of the same rank. These assessments will apply to all officers and NCOs, regardless of their opportunity to be selected for higher positions or grades, and will ignore such factors as impending retirement or release from active duty; potential evaluations continually change and are ultimately reserved for HQDA. c. Paragraph 1-11 states when it is brought to the attention of a commander or commandant that a report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, that commander or commandant will conduct an inquiry into the matter. The Commander's or Commandant'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 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. d. Paragraph 2-1 stipulates the rated Soldiers will: (1) Periodically evaluate their own performance and, when in doubt, seek the advice of the rating officials in the rating chain; (2) Participate in counseling and provide and discuss with the rating chain the duty description, performance objectives, academic standards, and/or course requirements with the rater within 30 days after the beginning of each new rating period and at least quarterly thereafter; (3) Assess (with the rater) the validity of the objectives or compliance with academic standards throughout the rating period; (4) Describe (with the rater) duties, objectives, and significant contributions (as applicable) on evaluation support forms (or equivalent); and (5) Review and sign the evaluation report after it has been completed by the senior rater before departing from a unit of assignment or military or civilian school of instruction. The rated Soldier's signature verifies that administrative data including SSN, counseling dates, APFT, and height and weight entries on the form are correct and confirms the rated Soldier has seen the completed report. e. Paragraph 3-4g states although the support or counseling form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. The senior rater will ensure that a completed support or counseling form is returned to the rated Soldier when the evaluation report is forwarded to HQDA. f. Paragraph 3-33k states the rated Soldier will always be the last individual to sign the evaluation report. The rated Soldier's signature will verify the accuracy of the administrative data in Part I, including the accuracy of the name and SSN on the evaluation report, rank and date of rank, branch or MOS data, period covered and nonrated time; the rating officials in part II; APFT and height and weight entries. This procedure ensures the rated Soldier has seen the completed report. It also increases the administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data. In the event the rated Soldier is not available or refuses to sign, senior raters will provide an explanation in their narrative or bullet comments. If significant changes are made to a final evaluation after the rated Soldier has signed it, the senior rater will ensure the rated Soldier has an opportunity to see the changed evaluation report. g. Paragraph 4-7h(2) states that claims based on deviation from the established rating chain, insufficient period of observation by the rating officials, errors in the report period, and errors in the APFT and/or height and weight entries, will be adjudicated by the U.S. Army Human Resources Command as administrative appeals. h. Paragraph 4-11b states 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. i. Paragraph 4-11 d states for a claim of inaccuracy or injustice of a substantive type, evidence will include statements from third parties, rating officials, or other documents from official sources. Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period. Such statements are afforded more weight if they are from persons who served in positions allowing them a good opportunity to observe firsthand the appellant's performance as well as interactions with rating officials. Statements from rating officials are also acceptable if they relate to allegations of factual errors, erroneous perceptions, or claims of bias. To the extent practicable, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered. The results of a Commander's or Commandant's Inquiry may provide support for an appeal request. j. Paragraph 4-13a(2) states limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances); letters of commendation or appreciation for specific, but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. DISCUSSION: 1. The appellant appeals the contested evaluation report on the basis of substantive inaccuracies. In order to justify deletion or amendment of a report, the appellant must produce evidence that clearly and convincingly establishes that the presumption of regularity should not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 2. There is no evidence that the ratings and comments on the applicant’s contested NCOER were anything other than the considered opinions of the rating officials at the time the report was rendered. The Board must determine if a preponderance of the evidence supports a conclusion that there is material error, inaccuracy, or injustice in the NCOER in question that warrants relief. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160001453 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160001453 9 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2