***Personal Hearing*** IN THE CASE OF: BOARD DATE: 27 February 2019 DOCKET NUMBER: AR20170017374 BOARD VOTE: :X :X :X :X GRANT FULL RELIEF :X GRANT PARTIAL RELIEF DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 27 February 2019 DOCKET NUMBER: AR20170017374 BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is 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: a. Removing from her Official Military Personnel File her DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 1 February 2015 through 31 October 2015 and all allied documents; and b. Replacing the NCOER with a statement of non-rated time 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: 17 December 2018 DOCKET NUMBER: AR20170017374 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF :X : :X GRANT FORMAL HEARING : :X : DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 17 December 2018 DOCKET NUMBER: AR20170017374 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: The applicant defers to counsel for submission of her request, statement, and evidence. COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE: 1. Counsel requests the removal of the applicant's DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)), for the period 1 February 2015 through 31 October 2015 (hereafter referred to as the contested NCOER), from her official military personnel file (OMPF). Counsel further requests the applicant receive a personal appearance before the Board. 2. Counsel states, in a four-page letter, the basis of the applicant's request concerns the substantively inaccurate contained in the NCOER and its unjust rating. a. To fully understand the injustice in the present case, it is necessary to read the applicant's previous NCOERs, ERB, APFT scorecards, and developmental counseling forms. b. The applicant first joined the Tennessee Army National Guard (TNARNG) on 3 May 1994 and has served honorably for over 20 years. Over the past five years, she has performed well and above standard, consistently rating as a "2 (Performance) / 2 (Potential)" while achieving a score of 300 on her APFTs. However, on the contested NCOER, she was given four successes and one excellence, and was rated as "Fully Capable"; however, her senior rater rendered a rating of "3" for performance and "4" for potential. c. The applicant received an initial counseling and specifically requested additional training to accomplish her budget responsibilities after her rater offered it to her. The applicant's request for training and her need for training was specifically documented in her initial counseling (see Tab E). She was never given the additional training she requested and needed. d. The applicant's rater gave her one "Excellence" and four "Success" ratings. He had no negative comments in his rating. The applicant's senior rater noted in his comments that "future potential cannot be determined until given more responsibilities and re-assessed." He then determined her future potential as a "4" or "fair." e. On 19 July 2017, the ESRB decided the applicant's NCOER appeal (see Tab F). The ESRB's analysis and decision fails to address the internal inconsistencies within the NCOER, and improperly shifts the burden on the applicant to identify when the expectations of her have changed. f. An NCOER should be removed from a Soldier's record when it is erroneous, inaccurate or unjust (per Army Regulation 623-3 [Evaluation Reporting System], paragraph 4-11a). There is a presumption is that an NCOER "represents the considered opinions and objective judgment of the rating officials at the time of preparation." (Per Army Regulation 623-3, 3-36a(3) and 4-7a(3)). The burden of proof rests with the applicant to clearly and convincingly establish that "(1) The presumption ... will not be applied to the evaluation report under consideration ... [and] (2) Action is warranted to correct a material error, inaccuracy, or injustice." (Per Army Regulation 623-2, 4-11a). g. You do not have to look far to defeat the presumption that the rating officials used objective judgment in preparing the NCOER. The comments and evidence simply do not support such a low rating. Specifically, the applicant received four success ratings and one excellence from her rater. She was rated as "Fully Capable," and her rater did not mention a single negative aspect of her performance over the rating period (see Tab A). h. The senior rater completely disagrees with the rater's comments. Most significantly, he notes that the applicant's "future potential cannot be determined until given more responsibilities and re-assessed." This comment demonstrated a material inconsistency, unfairness, and injustice to Applicant for the following reasons: 2 (1) First, the applicant performed in accordance with her initial counseling. It appears that the senior rater; however, does not believe that he can rate the applicant's performance based on those responsibilities. The applicant is unaware of what additional responsibilities her senior rater would need to observe in order to make an opinion on her overall potential, as he never gave her an initial counseling detailing his expectations. That implies that her responsibilities in her initial counseling are not commensurate with her rank or position. If that is the case, then the command set her up for failure from the beginning by giving her diluted responsibilities. It is more likely that the senior rater's judgment is simply askew. (2) Second, it is inexplicable why the senior rater would say in his comments that "future potential cannot be determined ..." and then proceed to rate her future potential as a "4" or "fair." If her future potential "cannot be determined" from the rating period as indicated in his comments, then the senior rater cannot fairly assess a numerical rating. i. The senior rater also notes that her overall performance "required continued use of performance monitoring and continuous verbal counseling by supervisors." We know this is not true; however, as her supervisor (the rater), did not mention any problems of this sort or any verbal counseling in his comments. Simply put, the applicant's supervisor did not have any of these issues with her. It is entirely unclear where the senior rater is getting these undocumented and unsupported allegations from. j. Accordingly, the presumption that the rating officials exercised their considered opinions and objective judgement is defeated where the NCOER Senior Rater comments facially contradict his own numerical rating and the rater's comments. k. The material error, inaccuracy, or injustice is the same as above. The applicant received a "3/4" NCOER without any documentation of what she did wrong during the rating period, or written guidance on how she could improve throughout the rating period. There was no quarterly counseling, no documented feedback of any kind, no misconduct, and she accomplished her responsibilities identified in the initial counseling. The only documentation of the applicant's conduct/performance during the rating period is her APFT score card, showing that she scored a 300 on her APFT for that period. The senior rater references "continuous" verbal counseling that she needed from her supervisor, but her supervisor did not mention the need for any such counseling or issues. Finally, the training that she needed and made a point to request at the beginning of the a. rating period was never provided, despite her rater acknowledging that she needed the training. l. The ESRB points out in their decision that the applicant has a burden under the regulation to seek out counseling from her supervisors and to be aware of her responsibilities throughout the rating period. The board notes that if she did not understand the expectations of her then she should have sought clarity (see Tab F, paragraph 3 (a)(5)). The board completely missed the point. The applicant was informed of what was expected of her and she was not confused about the expectations. Rather, her leaders changed the standards for the purpose of her NCOER. The burden can't be on the Soldier to constantly confirm that clearly stated expectations remain in effect throughout a rating period. m. The ESRB acknowledged that the applicant's rating chain failed to follow the regulation regarding counseling her. In the same breath, the board faults the applicant for not providing written counseling to the board for review (see Tab F). (1) First, the board's acknowledgement that the rating chain does not have to follow regulations but can hold the applicant to the standard is toxic and contradicts fundamental principles of fairness. The regulations that the rating chain is meant to follow are part of the checks and balances that the ESRB highlights as an assurance that the applicant received a fair rating. If the rating chain is not following the regulations, then they deserve no deference in a review of their rating. (2) Second, the applicant cannot provide the ESRB or this board with copies of a written counseling that does not exist. That is why no such copy was provided in her appeal. The ESRBs assumption that the quarterly counseling would "shed some light on the issues" ignores the applicant's prior contention that no counseling existed. n. Accordingly, relief is warranted and the NCOER should be removed in its entirety. 3. Counsel provides numerous documents, tabbed and organized as follows: * Tab A – DA Form 2166-8 (contested NCOER) * Tab B – Enlisted Record Brief (ERB), with a brief date of 19 February 2014 * Tab C – Four DA Forms 2166-8 covering the periods from 15 October 2012 through 14 October 2013; 15 October 2013 through 31 January * 2014; 1 February 2014 through 30 September 2014; and 1 October 2014 through 31 January 2015 * Tab D – Two DA Forms 705 (Army Physical Fitness Test (APFT) Scorecard) covering six APFT from 30 October 2013 through 13 May 2016 * Tab E – DA Form 4856 (Developmental Counseling Form), dated 23 March 2015 with continuation sheets * Tab F – Enlisted Special Review Board (ESRB) Record of Proceedings, dated 19 July 2017 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. The applicant enlisted in the U.S. Army Reserve (USAR) on 3 May 1994. On 18 September 1998, she enlisted in the TNARNG and after serving through multiple extensions and/or reenlistments in a variety of assignments. 3. She is currently in the Active Guard/Reserve (AGR) Program, serving in military occupational specialty 42A (Human Resources Specialist). She was promoted to her current rank/grade of sergeant first class (SFC)/E-7 on 3 December 2009. 4. The applicant received the contested NCOER during the month of March 2016, a "Change of Rater" report covering 9 months of rated time from 1 February 2015 through 31 October 2015. Her rater was the Operations Sergeant Major (SGM) D.A.; her senior rater was the S-3, Captain (CPT) R.C.; and her reviewer was the Deputy Commander, Major (MAJ) B.A. Her principal duty title was "Administrative NCO." The NCOER shows: a. The rater evaluated her as "Success" (meeting standards) in all categories except "Physical Fitness & Military Bearing" where she was rated as "Excellent." a. Part Va (Rater – Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater placed an "X" in the "Fully Capable" block. b. Part Vc (Senior Rater – Overall performance), the senior rater placed an "Check-mark" in the "Successful/3" block. c. Part Vd (Senior Rater – Overall potential for promotion and/or service in positions of greater responsibility), the senior rater placed an "Check-mark" in the "Fair/4" block. d. Part Ve (Senior Rater Bullet Comments) the senior rater entered the following bullet comments: * with 14 years Active Federal Service and 21.5 years of total service; this SFC has demonstrated the ability to meet the standard * challenge this senior NCO over next rated period; potential lies within her; future potential cannot be determined until given more responsibilities and re-assessed * overall performance as a[n] administrative NCO required continued use of performance monitoring and continuous verbal counseling by supervisors * non recommend for promotion at this time; this NCO is still growing as an E7 * Soldier has been counseled but refuses to sign this evaluation 5. The contested NCOER shows two counseling dates were conducted during the 9 month rating period between the applicant and the rater. The contested NCOER shows the rater and the senior rater authenticated the form with their digital signatures in the appropriate places and the reviewer concurred with the rater and senior rater and affixed his digital signature. The applicant refused to authenticate the form with her signature. 6. The applicant's available record does not contain evidence that shows she requested a Commander's Inquiry (CI) regarding the contested NCOER. 7. Her appeal was considered by the Army ESRB on 19 July 2017, and by unanimous vote, the ESRB determined there was no evidence to support the contested NCOER as inaccurate, unjust, or otherwise flawed; therefore, denying the requested relief. 8. The applicant provided, through counsel, the following additional evidence not discussed above. 1. a. An ERB with a brief date of 19 February 2014. It shows the applicant has been a member of the ARNG since 18 September 1998; however, it is unclear as to the applicant's intent with this document. b. Four DA Forms 2166-8 covering the periods from 15 October 2012 through 14 October 2013; 15 October 2013 through 31 January 2014; 1 February 2014 through 30 September 2014; and 1 October 2014 through 31 January 2015 leading up to the contested NCOER. These evaluation reports show the applicant was rated as meeting standards and her fully capable for promotion with her peers. c. Two DA Forms 705, confirming she passed all her APFTs, since 13 October 2013, was within height/weight standards, and scored a "300" on 30 October 2015, the one conducted within the period of the contested NCOER. d. A DA Form 4856 that shows the applicant was counseled, with a continuation sheet, by the Operations SGM, SGM D.A., on or about 23 March 2015. This counselling discussed her duties and responsibilities as a Resource Management Specialist (Budge NCO), Army values, duty hours and leave, and expectations. The form was authenticated with her signature indicating she agreed with the key points of the counseling, understood her duties and responsibilities, and need for additional training. The SGM acknowledged he would provide the required training and assist her in the training. REFERENCES: 1. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. It is not an investigative body. The ABCMR may, in its discretion, hold a hearing. Applicants do not have a right to a hearing before the ABCMR. The Director or a panel of the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 623-3 prescribes the policy for completing 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 (ERS). Procedures, tasks, and steps pertaining to the 1. completion of each evaluation report and support form are contained in DA Pamphlet 623-3. a. Paragraph 1-9 states, in relevant part, 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. b. 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 (CI) 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. c. Paragraph 3-26a and paragraph 4-7a both states an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications; and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. d. Paragraph 4-11a states the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of an evaluation report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraph's 3-36a and 4-7a will not be applied to the report under consideration; and, action is warranted to correct a material error, inaccuracy, or injustice. a. e. 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. f. Paragraph 4-11d 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 (see DA Pam 623-3). 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 CDR's or Commandant's Inquiry may provide support for an appeal request. g. By definition, the rater is the first-line supervisor of the rated Soldier who is designated as the rater on the rating scheme. Primary role is that of evaluating, focusing on performance, and performance counseling. Conducts face-to-face performance counseling with the rated Soldier on duty performance and professional development within the first 30 days of each rating period and, for a majority of Soldiers, at least quarterly thereafter; for others, periodically, as needed. h. By definition, the senior rater normally, the second-line rating official who is in the direct line of supervision of the rated Soldier and senior to the rater by either pay grade or date of rank. Primary role is evaluating and focusing on the potential of the rated Soldier; responsible for providing a performance/potential assessment of the rated Soldier. Obtains the rated Soldier’s signature on the evaluation report or enters appropriate statement if rated Soldier refuses, is unable, or unavailable to sign. 2. Department of the Army Pamphlet 623-3 (Evaluation Reporting System) prescribes the procedures for completing evaluation reports that support the ERS. 2. a. Paragraph 3-6, Table 3-3, counseling dates will be entered on the NCOER. If omitted the senior rater will enter a statement in Part Ve (Senior Rater Bullet Comments) explaining why counseling was not accomplished. The absence of counseling will not be used as the sole basis for an appeal. However, the lack of counseling may be used to help support other claims made in an appeal. b. Paragraph 3–8 provides Part V of the NCOER, structured potential rating for overall performance and potential consists of, and includes, rater box marks for promotion/service potential; rater specific positions recommendation; senior rater overall performance and potential; and senior rater choice of alternatives for future performance. (1) Part Vc: Senior Rater evaluates overall performance by placing one computer generated, typewritten or handwritten "X" (in black ink) in the appropriate box. The senior rater's box marks are independent of the rater's. There is no specific box mark ratings required of the senior rater based on box marks made by the rater. The following definitions will be used when completing Part Vc: * Successful/superior. A "1" rating represents the cream of the crop and is a recommendation for immediate promotion. A "2" rating represents a very good, solid performance and is a strong recommendation for promotion. A "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion * Fair. A "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time * Poor. A "5" represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. Do not promote and consider for DA imposed bar to reenlistment under the QMP (2) Part Vd: Senior Rater evaluates overall potential by placing one computer generated, typewritten or handwritten "X" (in black ink) in the appropriate box. The senior rater's box marks are independent of the rater's. There is no specific box mark ratings required of the senior rater based on box marks made by the rater. The following definitions will be used when completing Part Vd: * Successful/superior. A "1" rating represents the cream of the crop and is a recommendation for immediate promotion. A "2" rating represents a very good, solid performance and is a strong recommendation for * promotion. A "3" rating also represents a good performance and, should sufficient allocations be available, is a recommendation for promotion * Fair. A "4" rating represents NCOs who may require additional training/observation and should not be promoted at this time * Poor. A "5" rating represents NCOs who are weak or deficient and, in the opinion of the senior rater, need significant improvement or training in one or more areas. Do not promote and consider for DA imposed bar to reenlistment under the QMP DISCUSSION: 1. The applicant, through counsel, requests the removal of the contested NCOER and a personal appearance before the Board. 2. The applicant contends, through counsel, her evaluated ratings/comments between the rater and the senior rater were completely in disagreement with each other. a. In accordance with the governing regulatory guidance the role of the rater is that of evaluating, focusing on performance and performance counseling. The senior rater's role is evaluating and focusing on the potential by a performance/potential assessment of the rated Soldier. b. The rater evaluated the applicant overall as a "Success" and "Fully Capable" during the rating period. The senior rater evaluated the applicant in performance as a "Successful/3" representing a good performance and in potential, his main responsibility, as a "Fair" representing a NCO requiring additional training/observation and should not be promoted at this time. c. It appears both rater and senior rater were in agreement with evaluating the applicant as a "Success" during the rating period in performance and the senior rater determined her potential as needing additional training/observation, well within his purview and responsibilities. The contested NCOER shows the appellant received quarterly counseling and the senior rater noted she received continuous verbal counseling by her supervisors. 3. The applicant contends, through counsel, the ESRB had acknowledged that the rating chain did not follow regulatory guidance and applied an unrealistic expectation on the applicant in regards to counseling responsibilities. However, a review of the ESRB Record of Proceedings did not show the ESRB acknowledged that the rating chain failed to follow regulatory guidance. It stated 1. the applicant did receive written and verbal counseling, and should have requested additional guidance if needing additional assistance in her expectations and responsibilities. 4. The available evidence does not show the contested NCOER contains any administrative or substantive deficiencies or inaccuracies or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluation rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the NCOER was prepared or that they exercised faulty judgment in evaluating her as they did. 5. Through counsel, the applicant's arguments provided in this case address her dissatisfaction with her rating and her belief that it was an unfair assessment. However, she did not provide any evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice. 6. The governing Army regulation clearly states an evaluation report included in the official record of a rated Soldier is presumed to be administratively correct; to have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and to represent the considered opinions and objective judgment of the rating officials at the time of preparation. 7. The purpose of maintaining the OMPF is to protect the interests of both the U.S. Army and the Soldier. In this regard, the OMPF serves to maintain an unbroken, historical record of a Soldier's service, conduct, duty performance, and evaluations, and any corrections to other parts of the OMPF. Once placed in the OMPF, the document becomes a permanent part of that file and will not be removed from or moved to another part of the OMPF unless directed by an appropriate authority. In this case, there is no evidence the contested NCOER was unjust or untrue or inappropriately filed in the applicant's OMPF. 8. The applicant's request for a personal appearance hearing was carefully considered. A formal hearing may be authorized by the ABCMR or by the ABCMR Director whenever justice requires or if the evidence of record is insufficient to render a fair and equitable decision at this time. //NOTHING FOLLOWS//