IN THE CASE OF: BOARD DATE: 6 March 2020 DOCKET NUMBER: AR20180008272 APPLICANT REQUESTS: removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 24 June 2014 through 31 October 2014 from her Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Letter, Applicant, dated 23 April 2018, with enclosures * Memorandum, Secretary of the Army, Washington, dated 19 June 2014, subject: Army Directive 2014-20 (Prohibition of Retaliation Against Soldiers for Reporting a Criminal Offense) * DA Form 1559 (Inspector General Action Request), dated 10 October 2014 * DA Form 2823 (Sworn Statement), Applicant, dated 3 November 2014 * DA Form 4856 (Developmental Counseling Form), Applicant, dated 3 November 2014 * DA Form 2166-8 with Memorandum, 2nd Battalion, 338th Regiment, Camp Atterbury, IN, dated 5 December 2015, subject: NCOER Nonconcurrence Memorandum for (Applicant) * Email, Applicant and Captain Z____, dated 5 December 2015 through 9 December 2016, subject: NCOERs for Signature * Memorandum, Applicant, dated 8 December 2015, subject: Commander's Inquiry for (Applicant) * Email, Applicant, dated 9 December 2015, subject: (Applicant's) Commander's Inquiry Request for NCOER * Seven Supporting Statements * Email, Applicant, dated 6 January 2016, subject: Commander's Inquiry Request * Email, Captain Z____, dated 15 March 2016, subject: Evaluation * Email, Applicant, dated 21 June 2016, subject: (Applicant's) Commander's Inquiry Request for NCOER * Email, Applicant, dated 11 May 2016 through 26 May 2016, subject: Status Check (Applicant's) Information Requested * Memorandum, Headquarters, 157th Infantry Brigade, Camp Atterbury, IN, dated 30 October 2017, subject: Record of Commander's Inquiry – (Applicant) * Letter, Headquarters, First Army, Rock Island, IL, dated 18 January 2017, with Memorandum, 2nd Battalion, 289th Regiment, Camp Atterbury, IN, dated 4 November 2014, subject: Army Regulation 15-6 (Procedures for Investigating Officers (IOs) and Boards of Officers) Informal Investigation Concerning Allegations against Major M____ and Command Sergeant Major S____, Headquarters 2nd Battalion, 338th Regiment, Camp Atterbury, IN * Phone and Text Record, Applicant, 20 May 2014 through 19 November 2014 * Memorandum, U.S. Army Human Resources Command, dated 21 July 2017, subject: Evaluation Report Appeal REFERENCES: 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. 2. Army Regulation 15-6 (Procedures for Investigating Officers (IOs) and Boards of Officers) establishes procedures for conducting preliminary inquiries, administrative investigations, and boards of officers when such procedures are not established by other regulations or directives. Paragraph 5-2 states IOs may use whatever method they deem most efficient and effective for acquiring information. Although witnesses may be called to present formal testimony, information may also be obtained by personal interview, correspondence, telephone inquiry, or other informal means. 3. Army Regulation 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy and tasks for the Army's Evaluation Reporting System focused on the assessment of performance and potential. a. Paragraph 3-4g (The Support Form Communication Process) stated failure to comply with any or all support or counseling form requirements will not constitute the sole grounds for appeal of an evaluation report. b. Paragraph 4-3 (Applicability) stated commanders are required to look into alleged errors, injustices, and illegalities in evaluation reports. c. Paragraph 4-7 (Policies) stated an evaluation report accepted for inclusion in the official record of a rated Soldier's Official Military Personnel File is presumed to be administratively correct, have been prepared by the proper rating officials, and represent the consideration opinion and objective judgment of the rating officials at the time of preparation. d. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated the burden of proof rests with the applicant. 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. e. Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) stated limited support is provided by statements from people who observed the applicant's performance before or after the period in question; letters of commendation or appreciation for specific but unrelated instances of outstanding performance; or citations for awards, inclusive of the same period. 4. Department of the Army Pamphlet 623-3 (Evaluation Reporting System), in effect at the time, prescribed the policy and tasks for Army's Evaluation Reporting System focused on the assessment of performance and potential. 5. Army Regulation 600-8-104 (AMHRR Management) prescribes policies governing the AMHRR Management Program. Appendix B is the authoritative source for documents required for filing in the AMHRR and its subsequent folders. Appendix B shows the DA Form 2166-8 is filed in the performance folder of the AMHRR. FACTS: 1. The applicant did not file within the 3-year time frame as provided in Title 10, U.S. Code, section 1552(b); however, the ABCMR 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 the basis for her request is substantive error and/or injustice. a. She received no initial counseling during the rating period. She did not receive a copy of her rater's or senior rater's support forms during her rating period. She believed she was doing a good job due to receiving verbal praise from her rating chain and the brigade command sergeant major. b. The bullet comment "[Applicant] failed to report nine times during this rating period" is erroneous, inaccurate, and constitutes an injustice. The comment was placed in the NCOER based on retaliation from an Inspector General (IG) complaint she filed against Major M____ and others. The day after she requested an IG investigation, Major M____ proceeded to give her a counseling statement alleging she failed to report on nine separate occasions. The counseling session was conducted outside of her rating period. c. The negative senior rater comments constitute an adverse or unfavorable personnel action in retaliation for making an IG complaint in violation of Army Directive 2014-20. The bullet comment "rated Soldier refuses to sign" is not accurate. An investigation should have been conducted regarding her request for a Commander's Inquiry and the finding should have been submitted to Headquarters, Department of the Army. The senior rater had no factual basis or evidence to support the low rating for her overall performance and overall potential for promotion. d. The supporting statements from her peers and superiors who worked directly with her and observed her work performance clearly refutes the senior rater's comments. The senior rater's comments constitute an adverse or unfavorable personnel action in retaliation for making an IG complaint. e. The failure to conduct a Commander's Inquiry constitutes legal error and/or injustice and violates Army Regulation 623-3, paragraph 4-3. f. The NCOER has effectively created a roadblock in her career progression. She has served the Army for over 18 years and her career accomplishments are substantial, including: * graduated the Battle Staff Course and was awarded the additional skill identifier 2S (Battle Staff Operations) * graduated the Army Basic Instructor Course and currently holds the instructor identifier * earned a Bachelor's Degree in Business Management with a 3.39 grade point average * earned the Associate Professional in Human Resources Certification from the Human Resources Certification Institute * received two Meritorious Service Medals * certified as an observer coach/trainer through completion of the First Army Academy Training * completed the Senior Leader Course and received superior ratings in oral communication, leadership skills, contribution to group work, and research ability * completed the Unit Administrator Basic Course and Unit Pay Course * effectively performed the duties of the Unit Administrator, Operations/Training NCO, Supply NCO, Physical Security Manager, Facility Manager, and Armorer concurrently as the rear Detachment Senior NCO * currently serving as the Personnel Actions Branch NCO in Charge for a 2-star command comprised of over 36,000 Soldiers 3. The applicant was serving in the U.S. Army Reserve in an Active Guard Reserve status in the rank/grade of sergeant first class/E-7 at the time of her contested NCOER. 4. On 10 October 2014, she completed a DA Form 1559 (IG Action Request), requesting assistance in resolving a conflict that had arisen between her and the battalion command sergeant major. 5. The 2nd Battalion (Training Support), 289th Regiment, memorandum, dated 4 November 2014, subject: Army Regulation 15-6 Investigation Concerning Allegations against (redacted) Headquarters, 2nd Battalion, 338th Regiment, Camp Atterbury, IN, states: a. The IO was appointed on 23 October 2014 to investigate allegations that two members of the applicant's command failed to foster a healthy command climate (toxic leadership), specifically toward Soldiers under their leadership authority. b. Since there was no complainant named in the allegation, the IO conducted the inquiry into alleged toxic leadership through sensing sessions and individual interviews. The IO interviewed the two Soldiers the applicant named in her complaint. Both interviewees believed the allegations were a result of the applicant being disgruntled with them due to a recent issue involving a request for leave extension. c. The IO found the allegations against the two members of the applicant's unit were not substantiated due to the preponderance of the evidence showing the command climate was healthy and positive. d. The IO recommended that no further action be taken by the brigade in reference to the applicant's allegations and that the battalion commander be allowed to deal with the situation. 6. A review of the applicant's AMHRR in the interactive Personnel Electronic Records Management System shows the NCOER covering the period 24 June 2014 through 31 October 2014 is filed in the performance folder. a. Part II (Authentication) shows the reviewer marked "Nonconcur with Rater and/or Senior Rater Eval[uation]" and the signature of the rated NCO is blank. b. Part IIIf (Counseling Dates) shows no entries. c. Part IVb-f (Values/NCO Responsibilities) shows the rater marked "Excellence" for Competence, Leadership, and Training. There were no adverse or derogatory comments from the rater. d. Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows the rater marked "Among the Best." e. Part Ve (Senior Rater Bullet Comments) shows the senior rater entered the following comments: * promote to Master Sergeant with peers * demonstrates technical skills at her current grade level * (Applicant) failed to report nine times during this reporting period * rater did not conduct written counseling during the rated period * rated Soldier refuses to sign f. Part Vc (Overall Performance) shows the senior rater marked "Fair/4." g. Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows the senior rater marked "Superior/3." 7. On 3 November 2014, the Battalion Executive Officer, Major M____, counseled her in writing for failing to report from 5 through 10 October 2014, 20 through 22 October 2104, 31 October 2014, and 3 November 2014. He stated the failures were due to her failure to return from leave or failure to report to morning meetings at 0930. She disagreed with the developmental counseling and elected to submit a written rebuttal. In her rebuttal she provided explanations for each date under review. She questioned the coincidence to the developmental counseling the day after an investigation was conducted involving the complaint she made against him and stated, "I am wondering if this is some type of retaliation for my IG complaint." 8. The memorandum for record from the reviewer, Colonel R____, dated 5 December 2015, subject: NCOER Nonconcurrence Memorandum for (Applicant), Change of Rater NCOER from 24 June 2014 through 31 October 2014, states he nonconcurred with the rater's evaluation of the applicant. a. He acknowledged she worked past the end of the duty day on occasion, which he believed was partially as a result of her poor time management skills and consistent failure to arrive to work on time. b. In leadership, her strongest bullet was for being selected to stand in for a sister battalion's command sergeant major during a ceremony. While this was an important event, he did not think it contributed toward an excellence bullet. Her primary responsibility was to just stand in front of the formation during the ceremony with no other associated tasks. c. He reviewed the applicant's rebuttal document to the developmental counseling she received on 3 November 2014. While she did attempt to contact the Executive Officer, she did not follow up to ensure the information was received and that excusal was granted. Effective communication is another systemic issue that he witnessed from her during this rating period. d. He found her inability to deliver information in an organized manner and in meeting timelines to be an issue during this rating period. Her overall actions were not in line with what is expected from a leader. 9. On 8 December 2015, she requested a Commander's Inquiry into the contested NCOER. Her AMHRR contains no evidence of a Commander's Inquiry. 10. On 21 July 2017, the U.S. Army Human Resources Command returned her NCOER appeal without action and advised her that Army Regulation 623-3 outlines certain parameters for what does not constitute an appeal. She was also informed that two of her third-party statements identified time periods outside of the rating period. She was advised to contact her local Freedom of Information Act office for assistance acquiring the results of any investigations. BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documents and evidence in the records. The Board considered the applicant’s statement that the NCOER flawed due to substantive error and/or injustice, her record of service, an IG Action request, a Memorandum, subject AR 15-6 Investigation and recorded results, the contested NCOER, the absence of counselling dates, the counselling for her failure to report on multiple dates and her response, the Reviewer Nonconcurrence with Rater and/or Senior Rater evaluation, the request for a Commander’s Inquiry with no further evidence. The Board found insufficient evidence to show that the applicant did not fail to report as documented. Based on a preponderance of evidence, the Board determined that the contested NCOER in her records was not in error or unjust. 2. After reviewing the application and all supporting documents, the Board found that relief was not warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180008272 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1