IN THE CASE OF: BOARD DATE: 13 October 2016 DOCKET NUMBER: AR20160012787 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: 13 October 2016 DOCKET NUMBER: AR20160012787 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: 13 October 2016 DOCKET NUMBER: AR20160012787 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, in effect, removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 30 September 2013 through 29 September 2014 from her Official Military Personnel File (OMPF). 2. The applicant states: * she received an unjust NCOER for the period 30 September 2013 through 29 September 2014 * the supporting evidence does not support the Army Values "NO" block, senior rater "Fair-4" and "Superior-3" blocks, and supporting comments * she was investigated for not reporting a Sexual Harassment/Assault Response and Prevention (SHARP) complaint * the investigation was defective and has been used improperly to hurt her career * the NCOER is not reflective of her actual service 3. The applicant provides: * contested NCOER * undated and unsigned statement * another Soldier's reprisal against whistleblower questionnaire * redacted versions of documents pertaining to an investigation of a possible SHARP violation * NCOER for the period 30 September 2014 through 11 February 2015 * letter from a Member of Congress, dated 25 September 2015 * character-reference letters * service personnel records CONSIDERATION OF EVIDENCE: 1. The applicant is currently serving on active duty in the rank of staff sergeant. 2. She provided the findings and recommendations of an investigation pertaining to a possible SHARP violation, dated 16 September 2014, stating: a. She was counseled on 26 July 2014 for violating her duties as the company SHARP representative for talking to the alleged perpetrator about the incident. b. On 27 July 2014, she was removed from her duties as the company SHARP representative. 3. The contested annual NCOER covers the period 30 September 2013 through 29 September 2014. a. In Part IVa (Army Values), the rater placed an "X" in the "NO" block for Respect/Equal Opportunity/Equal Employment Opportunity and entered the following bullet comments: * constantly exhibited the highest standards of loyalty to her Soldiers * committed to mission accomplishment and mentoring Soldiers * failed to properly address an informal complaint of sexual harassment as a Victim Advocate b. In Part IV (Values/NCO Responsibilities), she was rated "Needs Improvement (Some)" for Leadership by her rater with the following bullet comments: * selected over more than 20 Staff Sergeants in the battalion to serve as the NCOIC [Noncommissioned Officer in Charge] of the secondary loads and equipment station of the Central Rail Operations Facility * mentored and inspired self development within her Platoons [sic] Soldiers; resulted in five WLC [Warrior Leader Course] graduates, four graduating Air Assault, and three promotions to Sergeant * violated complaint procedures as a Victim Advocate when addressing a informal sexual harassment complaint c. In Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), she was rated "Fully Capable" by her rater. d. In Part Vc (Overall Performance), she was rated "Fair-4" by her senior rater. e. In Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), she was rated "Superior-3" by her senior rater with the following bullet comments in Part Ve (Senior Rater Bullet Comments): * continue to groom for promotion to Sergeant First Class * slot for attendance to the Battle Staff NCO Course * continue assigning this Soldier in the capacity of leading Solders as a Platoon Sergeant * potential of this NCO should not be based off of one incident; this NCO possesses numerous skills that will serve as battlefield multipliers for any unit 4. She provided her DA Form 2166-8 covering the period 30 September 2014 through 11 February 2015 showing she was rated: a. "Fully Capable" by her rater for overall potential for promotion and/or service in positions of greater responsibility. b. "Successful-2" by her senior rater for Overall Performance and "Superior-1" for Overall Potential for promotion and/or Service in Positions of Greater Responsibility with the following bullet comments: * promote to SFC [sergeant first class] with peers * possesses unlimited potential to perform at the next higher grade * truly dedicated and motivated Soldier that [sic] displays the initiative to go the distance for the team * outstanding performance during Rail Head Operation 5. In February 2015, she requested a Commander's Inquiry into her contested NCOER. The records show the findings of the Commander's Inquiry which looked into any alleged errors, injustices, or legalities pertaining to the contested NCOER were provided the U.S. Army Human Resources Command on 20 May 2015. As a result of the Commander's Inquiry, the findings concluded the contested NCOER was accurate as written. The applicant was informed of the findings and recommendations and her right to file an appeal of the NCOER. 6. On 15 September 2015, she submitted a request to the Enlisted Special Review Board (ESRB) to remove her NCOER covering the period 30 September 2013 through 29 September 2014 from her OMPF. In summary, she stated: a. Her appeal is based on substantive and procedural errors in the NCOER. b. The procedural errors are a lack of proper counseling and mislabeling of her assigned duties. c. She is wholly innocent of the underlying misconduct associated with the NCOER. d. The NCOER is not a true reflection of her performance as an NCO. e. An investigation regarding the alleged SHARP violations later determined there was no wrongdoing and the allegations were unfounded and therefore should have no mention in the NCOER. 7. In September 2015, the Qualitative Management Program Selection Board conducted a comprehensive review of her record for potential denial of continued service under the Qualitative Management Program and recommended her retention. 8. She provided orders showing she was awarded the Army Good Conduct Medal (5th Award) for the period 8 November 2012 to 7 November 2015. 9. She provided a memorandum, dated 3 December 2015, showing she was appointed as Primary Victims Advocate Representative for the 3rd Battalion, 187th Infantry Regiment, effective 1 December 2015. 10. On 18 February 2016, the ESRB voted to deny her request. The ESRB determined the evidence presented did not establish 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. The ESRB determined the overall merits of her case did not warrant the requested relief. 11. Her OMPF in the interactive Personnel Electronic Records Management System contains a copy of the contested DA Form 2166-8 in the performance folder. 12. She provided numerous character-reference letters attesting to her outstanding professional performance and leadership potential. 13. She also provided pages 2-5 of an undated and unsigned statement wherein she states: a. She was considered by the Qualitative Management Program because the U.S. Army Forces Command Inspector General and her command failed her. The Inspector General and her command actions need to be investigated. She never received a response from the U.S. Army Forces Command Inspector General which shows that office doesn't follow through. b. It was never explained to her why her case wasn't a reprisal, she was just told she doesn't have a reprisal complaint. She was made to feel as if she had done something wrong because she complained about an SFC and her distrust of him. This SFC sent her someone else's information and rushed her to return the document because he had to close her case. A major ordered her to delete an email. She believes the only intent of SFC F____ when she met her was to close out her case to cover up for the Inspector General telling her command that she said they reprised against her. She feels a major sat behind her when she met SFC F____ to make eye contact to indicate what to say and what not to say to her. This was also reprisal. c. She went back to the Fort Campbell Inspector General office and requested review of her reprisal and SHARP investigation. She feels the Inspector General failed her by not being neutral and not looking into all of her issues. d. Before an investigation was launched she was reprised against by a captain, first sergeant, and colonel. The colonel accused her of everything and scolded her in front of everyone. e. She filed a Commander's Inquiry and she went to the legal office, the Inspector General, her old and new chains of command, but received no help. She also went to the Equal Opportunity Advisor. f. She has been harassed by her first sergeant since July 2014. REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes the policies governing the OMPF. Appendix B (Documents Authorized for Filing in the Army Military Human Resource Record and/or Interactive Personnel Electronic Records Management System) states NCOERs will be filed in the performance and service folders of the OMPF. 2. Army Regulation 623-3 (Evaluation Reporting System) prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 3-19 of Army Regulation 623-3 states references will be made only to actions or investigations that have been processed to completion, adjudicated, and had final action taken before submitting an evaluation report to Headquarters, Department of the Army. This restriction is intended to prevent unverified derogatory information from being included in evaluation reports. It will also prevent unjustly prejudicial information from being permanently included in a Soldier's OMPF. b. Paragraph 4-7 states an evaluation report accepted for inclusion in the official record of a rated Soldier's OMPF is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of preparation. c. Paragraph 4-11 states the burden of proof rests with the applicant. Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that: (1) the presumption of regularity will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. DISCUSSION: 1. Army Regulation 623-3 states that to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that: * the presumption of regularity will not be applied to the report under consideration * action is warranted to correct a material error, inaccuracy, or injustice 2. Her contentions and the character-reference letters are noted. However, there is no evidence of record and the applicant provided no evidence showing the information contained in the contested NCOER does not represent the considered opinion and objective judgment of the rating officials at the time of preparation. 3. The findings of the 2015 Commander's Inquiry concluded the contested NCOER was accurate as written. 4. Army Regulation 600-8-104 states NCOERs will be filed in the performance folder of the OMPF. 5. The NCOER in question is properly filed in her military records in accordance with the governing regulation. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160012787 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160012787 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2