ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 May 2019 DOCKET NUMBER: AR20170000717 APPLICANT REQUESTS: * removal of two DA Forms 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER’s), for the periods 4 June through 12 November 2012 and 12 November 2012 through 20 February 2013, from her Army Military Human Resource Record (AMHRR)/Official Military Personnel File (OMPF) and replace with non-rated time statements * removal of an Article 15 from the performance section to the restricted section of her AMHRR/OMPF APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) * Memorandum For Record (MFR) * two DA Forms 2166-8 ending on 12 November 2012 and 12 February 2013 * five supporting electronic mail (email)correspondence * four DA Forms 2823 (Sworn Statement) * Supporting Statement for Evaluation Report Appeal memorandum * DA Form 1574 (Record Proceedings By Investigating Officer/Board of Officers) * three Commander’s Inquiry Interview Notes and emails * Findings and Recommendation for Army Regulation (AR) 15-6 (Boards, Commissions, and Committees Procedures for Administrative Investigations and Boards of Officers) Commander’s Inquiry memorandum * Legal Review of AR 15-6 Commander’s Inquiry memorandum * Final Notification and email correspondence FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states: a. The evaluation provided to her while deployed was not developed in accordance with Army Regulation (AR) 623-3 (Evaluation Reporting System). She requested a commander’s inquiry that resulted in a finding of administrative corrections. This generated two evaluations based on a change of rater that occurred mid-way through the deployment. In questioning the command’s evaluation, she was left with two almost identical evaluations. It is her opinion and perception that she was being punished for making a complaint against the command regarding the accuracy of her evaluation. b. Even though the NCOERs are over 3 years old, as of the date of this request, the final action did not get processed until December 2015 and she did not receive a copy of the commander’s inquiry results until 6 January 2016. c. The evaluation, for the period 4 June through 12 November 2012: (1) Does not consider the “whole” Soldier in several blocks. Specifically, Part IV (Values/NCO Responsibilities), contains negative comments in the bullets. Part V (Overall Performance and Potential), block e (Senior Rater Comments), again, only negative comments and nothing that identifies how she performed overall and does not project an accurate picture. In Part III (Duty Description), block f (Counseling Dates), the counseling dates need to be removed. She never received an initial or quarterly counseling. In the commander’s inquiry, the rater was asked to provide copies of these counseling forms, they were never provided and thus supports this identified error. (2) In Part IV, block f (Responsibility and Accountability), the first bullet has no merit. There was an investigation regarding improper relations, but the results were negative. The second bullet comment is based on the Article 15 results. The commander’s inquiry concluded the comments in block e as “comments are similar and consideration should be made to consolidate” since they were based on one act, it should only be reflected in one evaluation. The through date is not valid, as according to Staff Sergeant B_’s sworn statement from the commander’s inquiry, he left on 21 October 2012. The actual through dates should be 4 December through 21 October 2012. d. The evaluation, for the period 12 November 2012 through 20 February 2013, does not consider the “whole” Soldier in several blocks, the rater used the event to general mirror like commander addressed on the previous evaluation. Specifically, Part IV, bullet comments are only negative with no supporting documentation to substantiate the negative comments. The current FROM/THRU date would not support the commander, as it was outside the rating period. (1) In Part IV, block e, the bullet comment “did not learn from previous mistakes; inefficient in her ability to perform duties as a sergeant (SGT).” Again, no supporting documentation to substantiate the comment. (2) In Part IV, block d, bullet “tended to pass off responsibility to negative observations onto junior subordinates” comment has no support, per SGT X_’s sworn statement, this never happened. In Part IV, block f, duplicate comments in the first and second bullet. The third bullet “removed from duty position due to professional conflict” per the commander’s injury no evidence was found to support this bullet. d. In 2012, she was assigned to Headquarters Service Company, 935th Aviation Support Battalion. The unit deployed in support of Operations Enduring Freedom (OEF) and they were located in Kuwait from 4 August 2012 to 16 January 2013. They were demobilized through Fort Hood, TX, and started their transition leave on 2 February 2013. She was released from active duty on 21 February 2013. While deployed she worked as an Equipment Records/Parts Specialist. She had a section of 1 Soldier that worked on her team and she accepted responsibility in mentoring, particularly through setting the example. This is supported by the sworn statements of her subordinate SGT X_, Command Sergeant Major X_, and Lieutenant Colonel (LTC) X_. e. The overall evaluation for both contested NCOERs are based on an Article 15, received on 27 October 2012. On 25 September 2012, she received counseling that her command was initiating an investigation and a flag for her maintaining an inappropriate relationship with a married Soldier (Sergeant First Class X_). During the investigation, she was relocated by her chain of command to unit TOC from her duty position and location. Her punishment included a suspended reduction to pay grade E-4, forfeiture $1,181.00 pay for 2 months, and restriction for 60 days. She appealed the punishment. The Brigade Commander, on 19 November 2012, granted the reduction of the forfeiture of pay and left all the other findings and punishments the same. f. Once the investigation and appeal were completed, she was ordered to return to her duty positon and location. She requested not to return to her duty positon because of her leadership and the ridicule they had put her through. The request was denied and she was returned to the same section/position (which contradicts one of the bullet comments on the second evaluation (Part IV, block f). Even though she was forced back to her old duty position, her work ethic never changed. g. The commander’s inquiry was started on 27 January 2014. On 2 June 2014, she sat down with Major X_ and gave her sworn statement. That was the last she had heard regarding the commander’s inquiry. After many attempts requesting the results from the 935th Battalion (BN), their Readiness NCO emailed her the two NCOER’s and the reason for submission. After receiving an incomplete copy of the commander’s inquiry, she contacted the Assistant Inspector General Master Sergeant (MSG) X_, who at the time was in charge of her case. MSG X_ indicated that he could not do anything to change the comments or ratings. Both NCOERs, which she refused to sign, were added to the records. h. After reviewing the commander’s inquiry, she verified that most of the changes recommended were not made and the rating scheme had no evidence to support their comments. The 935th Battalion only made changes that supported their position or to make the administrative data appear correct. In the process of attempting to correct these errors, she somehow became the recipient of two negative evaluations instead of one. This was not the recommendations the Investigating Officer (IO) wrote. i. She has been fighting for her career for more than 2 years, she did everything by the regulation and it did not work. She has already stated that this evaluation is a second punishment from her Article 1 and she has attempted to prove this to the 935th Battalion, but they refuse to acknowledge this inequity. j. These evaluations will be in her file for the remainder of her military career. She is willing to accept responsibility for her actions, but also wants acknowledgement for the things she performed well or even stellar, as a letter of recommendation would lead someone to have supporting documentation of her abilities. If the command refused to fix the NCOER’s, then she requests their removal from her Interactive Personnel Electronic Records Management System (IPERMS) record on the account that they do meet the intent of the Army’s evaluation process and regulatory guidance. She does not believe any correction to the evaluations would result in a fair and accurate depiction of who she was as a Soldier for that time period under that rating chain. She would rather have a statement of non-rated time in her file than a constant reminder of this inequity. She attempted to think of an alternative request for correction of her military record; however, she is at a loss of how to do this if the rating chain refuses to provide a fair and accurate evaluation of how she performed. 3. Review of the applicant’s military record shows: a. She enlisted in the Texas Army National Guard on 28 September 2004 and she held military occupational specialty 92A (Automated Logistical Specialist. On 28 September 2004, she interstate transferred to the MOARNG. b. She served on active duty and in Iraq from 6 February 2006 to 4 September 2007. She was promoted to SGT on 23 October 2009. c. She was ordered to active duty in support of OEF and entered active duty on 4 June 2012. She served in Kuwait from 4 August 2012 to 16 January 2013. d. On 27 October 2012, she accepted punishment under Article 15 for, having received a lawful command from her commanding officer, a superior commissioned officer, to have "no further contact with Staff Sergeant (SSG) X__ unless the mission requires it, nor will she be located near or around SSG X___ without another Soldier present", or words to that effect, did at or near Camp Buehring, Kuwait, on or about 20 September 2012, willfully disobey the same. Her punishment included a suspended reduction to pay grade E-4, a forfeiture of $1,182.00 pay for 2 months, and restriction for 60 days. She elected to appeal and submit additional matters. d. On 19 November 2012, the imposing authority found the punishments imposed were not unjust or disproportionate to the offense committed. He granted a reduction in the forfeiture of pay to $590.00 per month for 2 months and left all other findings and punishments to remain the same. He directed filing of the Article 15 in the performance section of the applicant’s OMPF. e. A change of rater DA Form 2166-8, for the rating period 4 June 2012 through 12 November 2012 shows she served as an Equipment Records/Parts Specialist rated by the senior mechanic SSG, the platoon sergeant, and platoon leader (first lieutenant (1LT)). The NCOER shows the following entries in: * Part IV(a) (Army Values), she received a “No” for honor and integrity” * Part IVf, the rater rated her as “Successful” and entered the bullet: disobeyed lawful order from Company Commander * Part Ve, the senior rater rated her a “Marginal” and entered the bullets: * declined suggestions for improvement and actively worked against the orders of her superiors * her inability to comply with commands and directive coupled with defiance of direct orders indicate that she is not ready for increased responsibility * exhibited a deficiency in several leadership areas that need to be rectified before a promotion should be considered * NCO refused to sign f. A change of duty DA Form 2166-8, for the rating period 13 November 2012 through 20 February 2013 shows she served as an Equipment Records/Parts Specialist rated by the platoon SSG, ammunition officer (1LT), and battalion commander (LTC). The NCOER shows the following entries in: * Part IV(a), she received a “No” for honor and integrity” * Part IVf, the rater rated her as “Successful” and entered the bullets: * integrity was questioned on professionalism for improper relations * disobeyed lawful order from Company Commander * removed from duty position due to professional conflict * Part Ve, the senior rater rated her a “Fully Capable” and entered the bullets: * has exhibited lack in military bearing, lapse in sound judgment, and in following orders * Good Soldier that needs to get things in order to be ready for promotion * NCO refused to sign g. She was honorably released from active duty on 21 February 2013 and was transferred to an MOARNG unit. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows she completed 8 months and 18 days of active service. 4. The applicant provides: a. An MFR dated 1 January 2013, commending her for the professionalism shown throughout the deployment and her outstanding service. b. A DA Form 1574, dated 26 January 2014, showing commander’s inquiry investigation convened and memorandum, dated 27 January 2014, assigning an IO. c. Two emails, dated 3 Feb 2014, advising addition of the NCOER to her IPERMS record and recommending she pursue the appeal process. d. Four DA Forms 2823 and Supporting Statement memorandum, dated between 3 and 20 May 2014, submitted in support of her appeal of the NCOER’s. e. Three Commander’s Inquiry Interview Notes, dated 3 May and 11 June 2014, pertaining to interviewed subjects. f. A Findings and Recommendation for AR 15-6, Commander’s Inquiry memorandum, dated 26 June 2014, wherein the IO recommended: * completion of a “change or rater” NCOER for the dates of 4 June 2012 through 12 November 2012 with the applicant’s initial raters * completion of a “change or rater” NCOER for the dates of 13 November 2013 through 21 February 2013 with an updated rating scheme as designated by the Commander * her initial raters * billet comments would be made only to actions or investigations that had been processed to completion, adjudicated, and had final action taken before submitting an evaluation report; comments shroud focus on the behavior that led to the court-martial rather than the court-martial itself * comments related to the Article 15 are similar and consideration should be made to consolidate, assuming comments are based on one sour of behavior and/or conduct * addition of non-rated time for the applicant’s gaining unit’s evaluation period, which could be an “annual” with less than 12 months of rated time or an “extended annual” with 12 months of rated time g. A Legal Review of AR 15-6 Commander’s Inquiry memorandum, dated 30 June 2014, wherein the Command Judge Advocate found the investigation complied with the legal requirements of AR 15-6. He recommended approving and adopting the findings and recommendations of the IO. h. A Final Notification, dated 20 November 2015, wherein the IO advised the applicant that his office was closing her request. i. Two emails, dated 5 and 6 January 2016, wherein she was advised that the 935th BN was not authorized to give her a copy of the investigation and providing her with the IO’s findings from the commander’s inquiry. 7. By regulation: a. AR 623-3 – Evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. To justify deletion or amendment of a report, an 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. b. AR 27-10 – a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander. When a person is reduced in grade as a result of an unsuspended reduction, the date of rank in the grade to which reduced it the date the punishment of reduction was imposed. The Soldier is a defense attorney, given the right to demand trial by court-martial, and afforded the opportunity to appeal the Article 15 through the proper channels. * the Board does not normally reexamine issues of guilt or innocence under Article 15 of the UCMJ; this is the imposing commander's function and it will not be upset by the ABCMR unless the commander's determination is clearly unsupported by the evidence * the basis for any set aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice * "Clear injustice" means that there exists an unwaived legal or factual error that clearly and affirmatively injured the substantial rights of the Soldier 8. By regulation (AR 600-8-104), states once placed in the OMPF, an evaluation report and/or Article 15, 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was warranted. The applicant accepted non-judicial punishment for misconduct and the basis for the misconduct was listed on her NCOER for the period. She received a subsequent NCOER in which comments were made pertaining to the misconduct already noted on the previous NCOER. The Board agreed the NCOER covering the period 13 November 2012 thru 20 February 2013 should be removed from her OMPF as the bullet comments should not have been repeated. The Board also agreed to transfer the contested UCMJ to the restricted folder of her OMPF. No further relief is recommended. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: a. Removing the from her Official Military Personnel File DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 13 November 2012 thru 20 February 2013 and all allied documents; b. Replacing the NCOER with a statement of non-rated time; and c. Transferring DA Form 2627, dated 27 October 2012 from the performance folder of her OMPF to the restricted folder. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to removing DA Form 2166-8 covering the period 4 June 2012 thru 12 November 2012 from her OMPF. 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. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three 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 three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Army Regulation (AR) 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. The regulation states in: a. Paragraph 3-2i (Evaluation requirements) – rating officials have a responsibility to balance their obligations to the rated individual with their obligations to the Army. Rating officials will make honest and fair evaluations of Soldiers under their supervision. On the one hand, this evaluation will give full credit to the rated individual for his or her achievements and potential. On the other hand, rating officials are obligated to the Army to be discriminating in their evaluations so that Army leaders, selection boards, and career managers can make intelligent decisions. b. Paragraph 3-39 (Modification to previously submitted reports) – evaluation reports accepted for inclusion in the official record of a Soldier are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of the rating officials at the time of preparation. 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 administrative error or factual inaccuracy. The burden of proof rests with the appellant. 3. AR 27-10 (Military Justice) prescribes the policies and procedures pertaining to the administration of military justice. The regulation states in: a. Paragraph 3-6 (Filing Determination) – a commander’s decision on whether to file a record of nonjudicial punishment (NJP) on the performance section of a Soldier’s official military personnel file (OMPF) is as important as the decision on whether to impose NJP itself. In making a filing determination, the imposing commander must weigh carefully the interests of the Soldier’s career against those of the Army to produce and advance only the most qualified personnel for positions of leadership, trust, and responsibility. In this regard, the imposing commander should consider the Soldier’s age, grade, total service (with particular attention to the Soldier’s recent performance and past misconduct), and whether the Soldier has more than one record of NJP directed for filing in the restricted section. However, the interests of the Army are compelling when the record of NJP reflects unmitigated moral turpitude or lack of integrity, patterns of misconduct, or evidence of serious character deficiency or substantial breach of military discipline. In such cases, the record should be filed in the performance section. b. Paragraph 3-43 (Transfer or Removal of Records of Nonjudicial Punishment) – guidance for transfer or removal of records of NJP from the OMPF. Applications for removal of a DA Form 2627 from the OMPF based on an error or injustice will be made to the Army Board for Correction of Military Records (ABCMR). It further indicates the performance portion of the OMPF will, on approval of the member’s application, be processed in accordance with the instructions of the ABCMR. 4. AR 600-8-104 (Military Personnel Information Management/ Records) provides the principles of support, standards of service, policies, tasks, rules, and steps governing all work required to support maintaining the OMPF. a. Chapter 2 provides detailed guidance and instructions with regard to the initiation, composition, maintenance, changing, access to, and transfer of the OMPF. Documents authorized for filing in the OMPF are kept to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluation periods; and corrections to other parts of the OMPF. It also serves to protect the interests of the Soldier and the Army. 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 the ABCMR or other authorized agency. b. Appendix B (Documents Required for Filing in the AMHRR and/or Interactive Personnel Electronic Records Management System) shows a DA Form 2627 will be filed in the performance or restricted folder of the OMPF as directed by the issuing commander (item 4b of the DA Form 2627). //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170000717 2 1