ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 28 April 2020 DOCKET NUMBER: AR20190002757 APPLICANT REQUESTS: through counsel, reconsideration of removal of the DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) covering the period 2 June 2014 through 27 May 2015 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, Counsel, dated 7 February 2019 * Enclosure 1 – Army Board for Correction of Military Records (ABCMR) Docket Number AR20170009015, dated 3 August 2017 * Enclosure 2 – Letter, Counsel, dated 27 June 2017, subject: Request for Exception to Policy to Permit Retention of (Applicant), Active Guard Reserve (AGR), to Remain on Active Duty Pending Completion of Her Application to the ABCMR, with associated email correspondence, dated 27 June 2017 through 30 August 2017 * Enclosure 3 – Email Correspondence, Applicant, dated 22 August 2017 * Enclosure 4 – Email Correspondence, Sergeant First Class C____, dated 25 August 2017 through 28 August 2017 * Enclosure 5 – Freedom of Information Act Request and Response, dated 20 November 2017, with associated email correspondence, dated 23 May 2017 through 13 September 2017 * Enclosure 6 – Letter, Counsel, dated 18 May 2017, subject: Appeal of the Enlisted Special Review Board's (ESRB) Denial of Removal or Case of Amendment of an Erroneous NCOER in the Case of (Applicant), AGR (original petition) REFERENCES: 1. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the Army Military Human Resource Record (AMHRR). Paragraph 3-6 provides that once a document is properly filed in the AMHRR, the document will not be removed from the record unless directed by the ABCMR or other authorized agency. 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 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 Leadership Requirements Model, and responsibilities identified on evaluation reports and counseling support forms. b. Paragraph 3-55 states a "relief for cause" NCOER (code 05) is required when an NCO is relieved for cause. An NCO can be relieved for cause regardless of the rating period involved; however, a waiver is required to render relief-for-cause NCOERs covering a period of less than 30 days. Relief for cause is defined as the removal of an NCO from a specific duty or assignment based on a decision by a member of the NCO's chain of command or supervisory chain. A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the U.S. Army. c. Paragraph 4-11 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 will not be applied to the report under consideration and action is warranted to correct a material error, inaccuracy, or injustice. 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. d. Paragraph 4-13 states appeals based on substantive inaccuracy must include the basis for the belief that the rating officials were not objective or had an erroneous perception of the performance. A personality conflict between the appellant and a rating official does not constitute grounds for a favorable appeal; it must be shown conclusively that the conflict resulted in an inaccurate or unjust evaluation. 3. Military Personnel (MILPER) Message Number 16-251 (Procedures for the Fiscal Year 2017 Qualitative Management Program (QMP)) provides guidance and procedures in support of the QMP. a. A Soldier under QMP consideration or approved for QMP separation remains eligible for referral to the Disability Evaluation System. b. Soldiers selected for denial of continued service may, within 7 days of receipt of the QMP notification memorandum, elect to appeal and request retention on active duty on the basis of newly discovered evidence, the subsequent removal of documents from the Soldier's AMHRR, or material error in the Soldier's record that was reviewed by the QMP screening board. If an appeal of unfavorable information in the AMHRR has been submitted to the Army Review Boards Agency (ARBA), the case number, date submitted, and anticipated completion date should be provided when submitting the QMP appeal to HRC. The mailing address to submit an appeal for U.S. Army Reserve AGR Soldiers is Commander, U.S. Army Human Resources Command, Attention: AHRC-EPF-M, 1600 Spearhead Division Avenue, Department 364, Fort Knox, KY 40122-5306. Additionally, Soldiers may scan and forward appeals via email to usarmy.knox.hrc.mbx.epmd-transition-branch@mail.mil. c. Soldiers who elect to appeal must continue processing for separation/discharge. Appeals that are submitted outside the time prescribed above, without compelling justification, will not be accepted. Appeals that do not meet the criteria will not be used as a reason to delay separation under the QMP. d. Requests for exception to policy must be processed through the special court- martial convening authority or first colonel/O-6 commander in the chain of command and submitted to Commander, U.S. Army Human Resources Command, Attention: AHRC-EPF-M, 1600 Spearhead Division Avenue, Department 364, Fort Knox, KY 40122-5306, for processing. Commanders may scan and submit requests for exception to policy via email to usarmy.knox.hrc.mbx.epmd-transition-branch@mail.mil. FACTS: 1. Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20170009015 on 3 August 2017. 2. The applicant defers to counsel. 3. Counsel states the relief-for-cause NCOER was erroneous and unjust. The applicant submits additional evidence showing her command did not have an objective basis for removing her for cause. Rather, it is clear all actions by the command were subjective and based on emotion rather than reason. a. The applicant submitted a request for an exception to policy through her command, requesting that she be permitted to remain on orders pending completion of the Board's review of Docket Number AR20170009015. The applicant submitted a request for exception to policy on 25 June 2017 and was scheduled to separate on 1 August 2017. b. The brigade commander confirmed receipt on 30 June 2017. The applicant's request for exception to policy to remain on active duty was not processed as required. MILPER Message 16-251 states such requests must be processed through the special court-martial convening authority or first colonel/O-6 commander in the chain of command and submitted to HRC. c. Due to medical issues which resulted in the applicant's referral to a medical evaluation board, she was not separated on 1 August 2017. She continued to serve on orders and receive pay. On 23 August 2017, she was given conflicting information by the immediate command. She was told the QMP decision was being rescinded. She was also told she should have processed out of the unit on 1 August 2017. Counsel spoke with Sergeant First Class C____, who stated no request for an exception to policy to remain on active duty had been processed by the command. Despite these efforts, the applicant was separated. d. Following the applicant's separation on 1 August 2017, counsel submitted a request to HRC for information regarding the exception to policy request submitted on 27 June 2017, to include all written correspondence, electronic mail, and endorsements. As a result, counsel received copies of the redacted military correspondence, which shows HRC never received the applicant's request for an exception to policy to remain on active duty. HRC stated they typically grant extensions in 60-day increments for Soldiers who have cases pending before ARBA. e. It is clear from the email exchange that the command likely knew that if the request for exception to policy was submitted to HRC, then based on HRC's policy of granting extensions when an ARBA petition is pending, she was likely to be extended. In an effort to remove her from the command as quickly as possible, her command purposefully chose to violate the MILPER message and not forward her request as required. This action, or inaction, by the command is indicative of the subjective bias toward the applicant, and is direct evidence of the arbitrary and capricious manner in which her command originally removed her for cause. Based on this evidence, the applicant requests reconsideration of her initial petition and find the relief-for-cause NCOER was erroneous and unjust. 4. Her AMHRR contains her NCOER covering the period 1 June 2014 through 27 May 2015. The NCOER shows she was serving in the rank/grade of staff sergeant/E-6 in the U.S. Army Reserve AGR Program as the 718th Engineer Company Supply Sergeant. a. Part Ig (Reason for Submission) shows "Relief for Cause." b. Part IId (Reviewer) shows the Battalion Executive Officer, Captain M____, concurred with the rater and senior rater evaluations. c. Part IIe (Rated NCO) shows the applicant did not sign the NCOER to verify the administrative data, to include rating officials, duty description, counseling dates, or entries in the Army Physical Fitness Test and height/weight entries, are correct. d. Part IIIb (Duty Military Occupational Specialty Code) shows she was serving in a position for which she was qualified. e. Part IVa (Army Values) shows blocks 1 through 7 (Loyalty, Duty, Respect/Equal Opportunity/Equal Employment Opportunity, Selfless-Service, Honor, Integrity, and Personal Courage) are marked "No" and contains the following bullet comments: * openly disobeyed orders for personal gain * continuously engaged in the use of provoking language fostering a toxic work environment * lacks any degree of loyalty, integrity, and personal courage f. Part IVb (Competence) shows she was rated "Needs Improvement (Much)" by her rater and contains the following bullet comments: * deliberately disobeyed directives from company, battalion and brigade to cross-level OCIE [organizational clothing and individual equipment], causing the 718th EN Co [Engineer Company] to be the only non-compliant unit in the Brigade * failed to follow-up on turn-ins IAW [in accordance with] BN [battalion] guidance, resulting in 4 motorized scrapers delinquent for 3 months * erroneously filed 4 FLIPLs [financial liability investigations of property loss] totaling $65,048 for lost equipment, later found to be on-hand by the newly assigned supply sergeant g. Part IVc (Physical Fitness and Military Bearing) shows she was rated " Needs Improvement (Much)" by her rater and contains the following bullet comments: * decreased Unit morale through numerous outbursts and open criticism of Army Policy and Command decisions, contributed to a toxic work environment * continuously refused to accept the authority of those placed in a supervisory role above her h. Part IVd (Leadership) shows she was rated " Needs Improvement (Much)" by her rater and contains the following bullet comments: * shirked responsibilities as Squad Leader and openly stated unwillingness to supervise Soldiers * her constant insubordination hindered the Unit's mission and jeopardized the training of Soldiers in more than one occasion i. Part IVe (Training) shows she was rated "Needs Improvement (Much)" by her rater and contains the following bullet comments: * failed to follow direct order to attend the annual Yearly Training Brief Workshop, causing her to be in an AWOL [absent without leave status] * failed to provide documentation for absences following initial requests from first line leader, resulting in unexcused absences during mandatory training events * failed to coordinate MOS [military occupational specialty] proficiency training and to establish a Unit supply training program j. Part IVf (Responsibility and Accountability) shows she was rated "Needs Improvement (Much)" by her rater and contains the following bullet comments: * the rated NCO has been notified of the reason for the relief * lacked initiative and effective management resulting in two failed physical security inspections * ignored guidance for completion of a Family care plan resulting in an unauthorized work schedule hindering the Unit's mission k. Part Va (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows she was rated "Marginal" by her rater. l. Part Vb (List 3 Positions in Which the Rated NCO Could Best Serve the Army at His/Her Current or Next Higher Grade) shows her rater listed: * Squad Leader * MOS Instructor * Supply Sergeant m. Part Vc (Overall Performance) shows she was rated "Poor/5" by her senior rater. n. Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) shows she was rated "Poor/5" by her senior rater. o. Part Ve (Senior Rater Bullet Comments) contains the following bullet comments: * Soldier refused to sign * do not promote, reduce one grade * remove from AGR program * lacks all the necessary skills to perform as an NCO * one of the most unreliable NCOs I have ever worked with in my career 5. Her AMHRR is void of any nonjudicial punishment or court-martial proceedings for violation of the Uniform Code of Military Justice. Her record is void of any adverse administrative action taken for the reason leading to her relief from duties as the 718th Engineer Company Supply Sergeant. 6. Counsel provided a copy of redacted email to the applicant from HRC, dated 14 February 2017, subject: (Applicant's) QMP Orders. It provides separation and transition orders, along with a transition checklist. It also provides instructions for completing the required supporting transition assistance. 7. On 21 March 2017, the ESRB denied her request to remove the contested NCOER from her AMHRR. 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 was warranted to correct a material error, inaccuracy, or injustice. By a unanimous vote, the ESRB determined the overall merits of this case did not warrant the requested relief. 8. Counsel provided a copy of redacted email from the applicant to HRC, dated 5 May 2017, subject: (Applicant's) QMP Orders. The applicant requested guidance from HRC on how to use her terminal (transition) leave. She stated she had surgery on 29 March 2017 and was placed on convalescent leave for 30 days. As a result, she cannot start her terminal (transition) leave, which exceeds 75 days, until June when she is released by her doctor. 9. Counsel provided a copy of redacted email within HRC, dated 19 May 2017, subject: (Applicant's) QMP Orders. The sender states the applicant is pending involuntary separation on 1 August 2017 under QMP and requests guidance regarding the applicant's leave inquiry. The response, dated 19 May 2017, stated there are no provisions under the QMP to extend the applicant beyond the board-appointed date of 1 August 2017. MILPER Message 16-251 identifies submission guidelines to submit an exception to policy. If the applicant becomes enrolled in the Disability Evaluation System on or prior to 1 August 2017, she can request to be deferred from involuntary separation. As of that date, she was not shown as enrolled in the medical evaluation board process or that she has submitted an exception to policy. Her separation date remains 1 August 2017 under the QMP. 10. Counsel provided a copy of her email to Colonel M____, dated 27 June 2017, subject: Request for Exception to Policy to Permit Retention of (Applicant) to Remain on Active Duty Pending Completion of Application to the ABCMR. She states the applicant is seeking an exception to policy based on consideration by the ABCMR to remove the subject NCOER. The exception to policy does not address any medical reasons or referral to the Disability Evaluation System, pending the outcome of a medical evaluation board. 11. Counsel provided a copy of email from Colonel M____, dated 30 June 2017, subject: Request for Exception to Policy Retention (Applicant). He states he acknowledges receipt of her email and attachment. 12. On 1 August 2017, the applicant was honorably discharged. Her DD Form 214 (Certificate of Release or Discharge from Active Duty) shows: * she completed 8 years, 5 months, and 9 days of active duty service during this period * the separation authority as Army Regulation 635-200, chapter 4 * the narrative reason for separation as "Non-retention on Active Duty" 13. On 3 August 2017, the ABCMR denied her request to remove the subject NCOER from her AMHRR. The Board determined the evidence presented did not demonstrate the existence of a probable error or injustice. 14. Counsel provided a copy of email from the applicant, dated 22 August 2017, subject: Receipt Notice from Department of the Army. The applicant states she received conflicting information regarding her separation. a. She received bimonthly pay on 1 and 15 August 2017. b. Before her surgery at the end of July, the 718th Engineer Company Commander stated she was not being processed for separation under QMP. She was given 30 days of convalescent leave and was awaiting reassignment orders from HRC. c. Command Sergeant Major J____, 926th Engineer Battalion, called her on Sunday (20 August 2017), stating he had to get her NCOER completed by Friday (25 August 2017). d. This afternoon Command Sergeant Major J____ told her the career manager was new. She had a previous order effective 1 August 2017, but it was not coded in the system and she now needed to out-process. 15. Her AMHRR is void of any records showing she was counseled her QMP decision was rescinded, she was extended on active duty, or she was placed on orders as a result of her medical condition or a pending medical evaluation board. 16. Counsel provided a copy of her email to Sergeant First Class C____, dated 29 August 2017, subject: Request for Exception to Policy Retention (Applicant). Counsel inquired into the status of the request Colonel M____ acknowledged on 30 June 2017, and if the applicant would be able to remain on orders pending a determination. 17. Counsel provided a copy of email from Colonel M____, dated 30 August 2017, subject: Request for Retention Exception to Policy (Applicant). He stated the applicant was not approved for continuation. She has she received orders and instructions to out- process. Fort Benning has been instructed by HRC to issue her a DD Form 214 without her signature if she is not present. 18. There are no records showing the unit's recommendation or action taken in response to the applicant's request for an exception to policy to remain on active duty pending completion of her application to the ABCMR. 19. Counsel provided a copy of redacted email from the 718th Engineer Company to the 412th Theater Engineer Command, dated 31 August 2017, subject: Terminal Leave Request. The sender stated documents were attached for the applicant regarding her DD Form 214 being voided and her orders being amended (the referenced attachments were not provided). The sender spoke with HRC earlier in the day. The information entered stated the "Soldier refused to leave unit." The applicant submitted a leave request in May and June to complete her terminal (transition) leave. The applicant was also present for duty other than when attending doctor's appointments and surgeries. The applicant was present for duty from 1 August 2017 through 7 August 2017. The applicant had surgery on 8 August 2017 and was on convalescent leave from 9 August 2017 through 7 September 2017. The applicant was referred to a medical evaluation board on 25 August 2017. Per HRC guidance, the first colonel/O-6 in the chain of command must write to him so the applicant's QMP orders can be amended and her DD Form 214 voided until completion of her medical evaluation board. 20. Counsel provided a copy of redacted email from HRC to ARBA, dated 6 September 2017, subject: ABCMR Appeal (Applicant). HRC stated the applicant separated on 1 August 2017 and did not request an extension. Soldiers must submit extension requests through HRC for final determination. Typically, if a Soldier is pending review of a case at ARBA, he or she is granted extensions in 60-day increments. 21. Counsel provided a copy of redacted email from HRC to the 412th Theater Engineer Command, dated 6 September 2017, subject: Source Documents and Background Information on (Applicant), in response to the above referenced email, dated 31 August 2017. HRC stated: a. HRC does not have the authority to adjust the board-appointed separation date beyond 1 August 2017. The Department of the Army Office of the Deputy Chief of Staff, G-1, is the approval authority in the event the applicant wants to submit a request for an exception to QMP policy. As of 6 September 2017, HRC has not received a request for an exception to policy. b. HRC does not have any documentation showing the applicant was in the medical evaluation board process prior to her involuntary separation date of 1 August 2017. c. The medical evaluation board paperwork provided as "view profile PDF" is not signed by anyone and does not constitute entrance in the medical evaluation board process. All Army Activities Message 59-2017 provides guidance on the starting date of a Soldier in the medical evaluation board process. Paragraph 4.C states: "A Soldier is considered in the DES [Disability Evaluation System] process as of the date the DA Form 3349 [Physical Profile] is approved by the physician approving authority (second signature) referring the Soldier to the MEB in accordance with reference 1.E." What was submitted, and unsigned, does not conform to those standards. d. As of 9 September 2017, the applicant is not showing as enrolled in the Disability Evaluation System. 22. On 20 November 2017, counsel requested that HRC provide all written correspondence, to include email and endorsements, regarding the request for an exception to policy submitted on 27 June 2017. Under the provisions of the Freedom of Information Act and Privacy Act, HRC provided the redacted documents that have been incorporated above. 23. There is no documentary evidence showing the applicant's command purposefully violated the MILPER message or was working to remove her from assignment as quickly as possible. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the documentary evidence presented by the applicant, her counsel, and found within the military service record, the Board found insufficient evidence of an error or injustice which would warrant a correction of the applicant’s record. After reviewing the facts and circumstances, the Board found that all due process protections were afforded the applicant and that the processing of the NCOER was done within regulatory guidelines and standards. For that reason, the Board recommended that denying the requested relief was appropriate. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : XXX :XX :XXX 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 to amend the decision of the ABCMR set forth in Docket Number AR20170009015 on 3 August 2017. 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) AR20190002757 11 1