IN THE CASE OF: BOARD DATE: 24 March 2022 DOCKET NUMBER: AR20210013579 APPLICANT REQUESTS: through counsel: * removal of her DA Form 2166-9-2 (Noncommissioned Officer (NCO) Evaluation Report (NCOER) (SSG-1SG/MSG)) covering the period 1 June 2019 through 31 May 2020 from her Army Military Human Resource Record (AMHRR) * a personal appearance hearing before the Board 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) * Counsel's Supplemental Statement, 6 August 2021, with numerous documents, tabbed and organized as follows: * Tab A – Contested NCOER * Tab B – Army Special Review Board (ASRB) Docket Number AR20210008598, 1 June 2021 * Tab C – Email Message, 6 August 2019 * Tab D – Informal Support Form via email to Rater, 16 May 2020 * Tab E – Draft Contested NCOER * Tab F – Applicant's Memorandum for Record (MFR) (Background Timeline of Situation Involving My NCOER), 12 June 2020 * Tab G – Email Message, 28 September 2020 * Tab H – Email Message, 26-27 October 2020 * Tab I – Counsel's Request for Commander's Inquiry (CI) for Applicant, 30 October 2020 * Tab J – Commander, 643d Regional Support Group, Memorandum (CI Report on a NCOER for (Applicant) from 1 June 2019 to 31 May 2020), 9 December 2020 * Tab K – NCOER Covering the Period 30 October 2018 through 31 May 2019 * Tab L – DA Form 2823 (Sworn Statement), 26 January 2021 * Tab M – two Battle Assembly Training Schedules, 20 May 2018 and 23 October 2019 * Tab N – DA Form 31 (Request and Authority for Leave) * Tab O – two Email Messages, 7 June 2020 * Tab P – Email Message, 8 June 2020 * Tab Q – Drug Testing Documents, 25 October 2020 * Tab R – two Email Messages, 10 July 2020 and 11 July 2020 * Tab S – Battle Rhythm for the 766th Transportation Battalion, South Bend, IN, 13 September 2019 * Tab T – Digital Training Management System (DTMS) Record, undated * Tab U – Unit Manning Roster (UMR), 766th Transposition Battalion, 4 January 2020 * Tab V – Airline Flight Receipt, 8 September 2019 FACTS: 1. The applicant states her contested NCOER covering the period 1 June 2019 through 31 May 2020 is untrue and unjust, and she requests its removal from her AMHRR. a. She was never counseled as required by Army Regulation 623-3 (Evaluation Reporting System), paragraph 1-8e, and was not notified of alleged deficiencies until she received the NCOER. b. The senior rater violated the regulatory procedure and the direct instructions given to her by the U.S. Army Human Resources Command (HRC) when she deliberately denied her an opportunity to review and sign the NCOER after it was corrected. c. She was never afforded an opportunity to discuss the final version of the NCOER with her rating chain. This was a critical missed opportunity to correct errors where her rater never conducted or documented any counseling throughout the rating period. d. She believes Part IV (Performance Evaluation, Professionalism, Attributes, and Competencies), blocks e (Intellect), f (Leads), and j (Comments) of the NCOER are untrue and unjust. She was never afforded notice or an opportunity to correct any perceived deficiencies during the rating period. Part V (Senior Rater Overall Potential), block b (Comments), incorrectly states twice that she refused to sign the NCOER. 2. Counsel states the applicant requests removal of her contested NCOER covering the period 1 June 2019 through 31 May 2020 from her AMHRR as it is untrue and unjust (see tab A). The HRC Evaluation Report Appeals Division (Enlisted Special Review Board (ESRB)) (also known as the Army Special Review Board (ASRB)) considered the applicant's request and denied relief in a 21 June 2021 decision (see tab B).? a. Basis of Appeal. (1) The applicant was never counseled as required by regulation and was not notified of the alleged deficiencies until she received the NCOER. There was no written counseling at any point. The applicant's rater claimed after the fact to have verbally counseled her, but the dates he claims to have verbally counseled her are dates when she was on leave. The ESRB ignores the lack of written counseling and the obviously after-the-fact manipulated verbal counseling dates by the rater. The ESRB attempts to blame her for being equally responsible for ensuring counseling occurred as the rated Soldier, but it misses the obvious point that we are talking about corrective counseling. It is obviously not the rated Soldier's responsibility to ensure that she receives corrective counseling. (2) The reason that no corrective counseling was ever issued during the rating period is that no poor performance occurred. Rather, the NCOER is retaliation against her. She was continuously reporting the behavior of both her rater and senior rater to the unit throughout the rating period. The applicant reported her rater to her senior rater for the misconduct and bullying her. She reported her senior rater to the Supervisory Staff Administrator (SSA), for various behaviors that constitute a "harassing and hostile work environment." She reported her senior rater, Captain (CPT) for being deceptive and dishonest, demonstrating rude and demeaning behavior, making false accusations against her, and addressing her by the incorrect rank repeatedly. She made this report to the SSA who agreed that the NCOER is improper (see tab O). She requested a CI, but the unit failed to conduct an inquiry. (3) The NCOER was completed and sent to HRC the first time without her signature and unbeknownst to her. It was only when the NCOER was returned to the unit for administrative correction that she learned the unit failed to conduct a CI and had finalized her NCOER without her knowledge. (4) The senior rater violated Army Regulation 623-3 procedures and the direct instructions given to her by HRC when she deliberately denied the applicant an opportunity to review and sign the NCOER after it was corrected. CPT the senior rater, was made aware that she wanted to review the changes when she sent her a follow-up email on 19 October 2020 (see tab H). (5) The ESRB attempts to rewrite history by framing the senior rater's actions as assuming that she would not sign. The senior rater stated in writing that the applicant refused to sign the amended NCOER. That statement is false and demonstrates the inequity. She was never afforded any opportunity to sign the NCOER in its current form. (6) Part IV, blocks e, f, and j, are untrue and unjust. She was never afforded notice and an opportunity to correct any perceived deficiencies during the rating period. Remarkably, the ESRB attempts to blame her for not receiving corrective counseling from her rater during the rating period. She cannot ask for corrective counseling if she does not know there is a problem. She can only go by what her raters are telling her, which was that she was doing a good job. Part V, block b, incorrectly states she refused to sign twice in the same block. b. Factual Background. (1) She is a staff sergeant currently serving on active duty as a member of the Active Guard Reserve Program. In early August 2019 during the rating period, Command Sergeant Major (CSM) informed her that she had spoken with her leadership and that her rater and senior rater believed she was "doing a good job" and that there were no issues with her performance. CSM specifically intervened on her behalf because she was concerned that her rater was going to give her a bad evaluation. The rater had the opportunity to tell CSM that she was failing to perform her duties if that was in fact the case. The rater instead stated the applicant was doing a good job and he had no issues with her performance. She was never given a negative counseling (see tab C). (2) Master Sergeant (MSG) her rater, claims to have counseled her verbally on the dates stated in the NCOER, despite verbal counseling being prohibited by regulation (see tab J). MSG claims to have counseled her on 7 December 2012. She attended a training course in a temporary duty status (TDY) for the Total Ammunition Management Information System (TAMIS). The TDY lasted from 8 through 17 December 2019 (see tab V). MSG would later fault her in her NCOER for failing to maintain knowledge learned at this TAMIS training. However, she was never counseled on any deficiencies she allegedly had after attending this training. (3) The next and most recent counseling date was on 8 March 2020. This date was a battle assembly for the unit (see tab M). However, she was on leave during that battle assembly and therefore was not counseled while she was on leave and out of the State (see tab N). (4) There were no other counseling sessions conducted during the rating period. The rater's comments that she failed to retain knowledge from training is clearly inappropriate; she was never counseled for any failures that she allegedly had during the rating period. She was never afforded any opportunity to correct any alleged deficiencies. That, of course, is the point of written counseling, which the rating chain simply failed to do. (5) Furthermore, the applicant complained of not receiving any counseling long before this appeal was filed (see tab O). The SSA concurred with her. He suggested she appeal the NCOER due to the negative comments without any supporting counseling during the rating period (see tab P). (6) In May 2020, she provided an informal support form to her rater at his request due to technical limitations associated with telework and the pandemic. No formal support form was used (see tab D). (7) The initial version of the NCOER was signed by the senior rater on 6 June 2020. The applicant requested a CI into the reprisal, stating it was untrue and unjust. She assumed the commander would initiate a flag against her rater until the investigation was completed. She sent several email messages inquiring about the status and was advised by the CSM that the battalion commander was tracking and was working on it. She did not become aware that the battalion commander changed his mind about investigating the allegations until the rater retired. This took away her opportunity to file a whistleblower claim because the rater was no longer in the military. Therefore, she was looking for legal assistance. Shortly after that, the evaluation was returned from HRC for improper comments. (8) Unbeknownst to her, the CI was never conducted and the initial version of the NCOER was submitted to Headquarters, Department of the Army (HQDA), without her signature. It was returned by HRC with errors. A printed copy from the HRC Evaluation Entry System shows the initial version (see tab E). (9) On 12 June 2020, she submitted an MFR explaining why the NCOER was untrue and unjust. This memorandum was part of her request for the CI (see tab F). An email, 12 June 2020, confirms her request for the CI was submitted prior to the NCOER being filed (see tab R). She never heard anything following submission of this request. She only refused to sign the NCOER due to the belief that her rater was attempting to get her to sign it prior to the conduct of the CI. She did not know at the time that her command would completely ignore her request for a CI and attempt to file the NCOER without her signature. (10) On 28 September 2020, the evaluation was returned from HRC for improper comments within the rater portion of the NCOER. The instructions clearly articulated the procedure to un-sign, change, and resign the NCOER, including having the applicant review and resign it (see tab G). (11) The applicant made the senior rater aware that she wanted to see the changes when she sent her an email inquiring about the status on 19 October 2020. The senior rater advised her that she needed help from S-1, leaving the impression that once she completed it, the applicant would have an opportunity to review it. She received any additional communication from the senior rater before being notified that the NCOER had been submitted to HRC (see tab H).? (12) On 26 October 2020, she received an email from HRC indicating that the revised NCOER had been filed in her AMHRR without her signature or ever receiving notice of the corrected NCOER. The same day, she emailed CPT to inquire as to what occurred since she was not provided a copy of the NCOER to review and resign. CPT stated she was instructed to resubmit the NCOER to HRC without allowing the applicant to review it or sign it. When she asked who instructed CPT to do that, she was told it was directed by the CSM (see tab H). (13) She requested a CI on 30 October 2020. She raised the issue of having never been counseled throughout the rating period and also that she was never afforded an opportunity to sign the NCOER (see tab I). (14) On 9 December 2020, the CI concluded that there was no error. Regarding the failure to counsel her, the investigating officer (IO) reported that MSG stated he verbally counseled her on the dates he provided. The IO accepted this response as being proper without even mentioning that the clear language of Army Regulation 623-3 prohibits verbal counseling and requires written counseling for this exact reason (see tab J). (15) Regarding the false statement that she refused to sign the NCOER after it was redrafted, she was never given the opportunity. The IO reported that CPT decided not to allow her to review and sign the NCOER because she believed she would refuse to sign it. This is inconsistent with CPT email when she resubmitted it without her signature as part of the procedure to correct and resubmit NCOERs (see tab H). She was present and available to sign the NCOER on 25 October 2020, the date the rater and senior rater signed it, which happened during unit urinalysis testing (see tab Q). (16) Over the prior rating period, she demonstrated competence in her field of expertise and had the approval of her rater and senior rater (who was the same senior rater in the contested NCOER) (see tab K). (17) She has always trained and cared for all of her Soldiers above and beyond what is expected (see tab L). The rater asserts she "fails to provide all junior Soldiers in the unit with purpose, direction and motivation…" She contends it is not her responsibility to do so for all Soldiers in the unit. The UMR confirms she was responsible for only one Soldier during the rating period (see tab U). The comment is clearly outside the scope of her responsibilities and unfairly characterizes her performance during the rated period. c. Relevant provisions in Army Regulation 623-3 for counseling note the requirement for the use of support forms by rating officers, while counseling provides the basis for performance counseling per paragraph 1-8(c)(2)(b). During the rating period, support forms and counseling sessions will aid the preparation of a final evaluation report per paragraph 1-8(d)(3). Counseling will be conducted within 30 days after the beginning of the rating period and quarterly thereafter and will be used to guide the rated Soldier's performance during the early part of the rating period. Use of the appropriate support form for grades warrant officer 1 (WO1) through colonel and NCOs is mandatory and required in conjunction with counseling per paragraph 1-8(e). Documentation of counseling is critical, particularly when the rated Soldier is not meeting performance standards. The support form becomes a source document and, through its use, can assist in altering substandard performance into performance that meets established standards per paragraph 3-4(e)(2). d. Relevant provisions in Army Regulation 623-3 for senior raters require them to ensure that all comments are consistent with counseling, support forms (or equivalent), or other communications between rating officials and the rated Soldier during the rating period per paragraph 2-16(a)(5). e. Relevant provisions in Army Regulation 623-3 regarding signing of the NCOER by the rated Soldier require that the rated Soldier will always be the individual to sign the evaluation report last, after rating officials, per paragraph 3-34(k)(2). If significant changes are made to a final evaluation report after the rated Soldier has signed it, the senior rater (or reviewing official for academic evaluation reports (AERs)) will ensure the rated Soldier has an opportunity to see the changed evaluation report as stated in paragraph 3-34k(5)(b). Once an evaluation report has been completed and signed by the rated Soldier, any changes to content will invalidate the electronic signature approval of the rated Soldier and/or relevant rating official and will require the evaluation report to be revalidated (digitally signed with a verified or approved signature) by the individual whose content was changed. Understanding that evaluation reports may be processed without the rated Soldier's electronic signature, when this situation occurs, the senior rater or reviewing official (AER) will ensure the rated Soldier has an opportunity to see the evaluation report if significant changes are made per paragraph 3-34(k)(5(b). f. Discussion. The applicant was never counseled during the rating period and was never notified of the perceived failures articulated in the rater's comments in blocks e, f, and j. It is unfair to insert negative comments and failures in an NCOER that pertain to the entire rating period where the rater never placed her on notice of any of his concerns. This failure in counseling is a violation of regulatory guidance and has caused her harm. Therefore, the NCOER should be removed entirely. If not removed, the rater comments in blocks e, f, and j should be redacted and the "Did Not Meet Standard" designators removed. 3. Following enlisted service in the U.S. Army Reserve (USAR), the Army National Guard (ARNG), and a break in service, the applicant enlisted in the USAR on 8 December 2011. After completion of initial entry training, she was awarded military occupational specialty 88N (Transportation Management Coordinator). 4. She was promoted to the rank/grade of staff sergeant/E-6 effective 1 May 2016. 5. HRC Orders R-08-803519, 10 August 2018, ordered her to active duty in an AGR status with assignment to the 766th Transportation Battalion as the Movement Supervisor with a reporting date of 12 September 2018. 6. She received the contested NCOER during the month of October 2020, an annual report covering 12 months of rated time from 1 June 2019 through 31 May 2020. Her rater was the Maintenance Supervisor, MSG and her senior rater was the S-3, Captain (CPT). Her principal duty title was "Movement Supervisor." The contested NCOER shows in: a. Part II (Authentication), block d1 (Counseling Dates), an initial counseling date of 2 June 2019, and three later counseling dates of 8 September 2019, 7 December 2019, and 8 March 2020. b. Part IVe (Intellect), the rater placed an "X" in the "Did Not Meet Standard" block and entered the following bullet comments: * she has difficulty with retaining information taught at formal schools, such as COPF [Command Post of the Future], RLAS [Regional Level Application Software], DTMS [Digital Training Management System], and TAMIS * as an AGR Soldier, [Applicant] lacks the database experience and knowledge of other SSG AGR in the Battalion * she can be very argumentative and questions her immediate first line leadership when given orders c. Part IVf (Leads), the rater placed an "X" in the "Did Not Meet Standard" block and entered the following bullet comments: * she fails to provide all junior Soldiers in the unit with purpose direction and motivation, key traits of an NCO * she lacks knowledge of common warrior task, and therefore I feel as she could not properly train junior Soldiers * Soldier must take initiative and responsibility to drive her own career, as she lacks the experience of similar NCO of the grade d. Part IVi (Rater Overall Performance – Select One Box Representing Rated NCO's Overall Performance Compared to Others in the Same Grade Whom You Have Rated in Your Career. I currently rate 1 Army NCOs in This Grade), the rater placed an "X" in the "Met Standard" block and entered the following bullet comments: * she has performed well at managing eLAS [Enhanced Logbook Automation System]; however, she has not taken a proactive approach to advancing her knowledge and overall experience as a Soldier within this rating period * she did not perform E6 level against Soldiers of the same grade within the command e. Part V (Senior Rater Overall Potential) (I currently senior rate 2 NCOs in this grade, block b (Comments), the senior rater entered the following bullet comments: NCO Refuses to sign. Soldier will perform at expected levels with further mentorship; through counseling on form DA 4856 [DA Form 4856]. Send to Senior Leaders Course when slot is available and promote with peers. Soldier refused to sign NCOER. 7. The contested NCOER shows the rater and the senior rater authenticated the form with their digital signatures in the appropriate places on 25 October 2020. The applicant did not authenticate the form with her signature. 8. Counsel requested a CI on 30 October 2020 based on the contested NCOER the applicant received covering the period 1 June 2019 through 31 May 2020. 9. The Commander, 643d Regional Support Group, memorandum (CI Report on a NCOER for (Applicant) from 1 June 2019 to 31 May 2020), 9 December 2020, opined: In accordance with AR [Army Regulation] 623-3, Evaluation Reporting System, paragraph 4-5i, a Commander's Inquiry was conducted to look into alleged errors, injustices, or illegalities pertaining to the NCOER for [Applicant]. My inquiry focused on whether CPT made a false statement concerning [Applicant] refusing to sign her NCOER, whether [Applicant] was counseled on the dates listed in the NCOER, and whether the updated NCOER was routed to [Applicant] for signature. As a result of interviews with CPT . MSG(R) [Retired] , LTC , and CSM , I have determined that these allegations do not hold merit. MSG(R) attested the counselings took place on the mentioned dates and were verbal, not written counselings. CPT MSG(R) and CSM all stated that [Applicant] was afforded the opportunity to sign on the original submitted NCOER but refused. The returned NCOER was sent back to the unit to fix administrative matters, and given the NCO's refusal to sign the first submission, all concerned believed [Applicant] would again refuse to sign; the NCOER was already late and the decision was made to submit as had been done previously. I recommend that this NCOER should remain as written and filed in the Soldier's Official Military Personnel File. The rated Soldier has been informed of my findings and recommendations and her right to file an appeal to the NCOER. 10. A review of her AMHRR shows the contested NCOER is filed in the performance folder. 11. On 11 December 2020, she reenlisted in the USAR for an indefinite period. She is currently still assigned to the 766th Transportation Battalion in the grade of E-6. 12. Her appeal was considered by the ASRB in Docket Number AR20210008598 on 1 June 2021 and, by unanimous vote, the ASRB determined there was no evidence to support the contested NCOER as inaccurate, unjust, or otherwise flawed. The ASRB denied the requested relief. 13. The applicant provided the following additional evidence through counsel that was not discussed above. a. Tab C contains a 6 August 2020 email message from CSM who states she spoke with the applicant's rater and senior rater who stated she was doing a good job. b. Tab D contains a 16 May 2020 email with attachment containing her brainstorming bullets for her NCOER to her rater. c. Tab E contains her NCOER before it was accepted by HRC. d. Tab F contains the applicant's MFR, 12 June 2020, providing her background and situation regarding the contested NCOER. She is amazed she went from her previous NCOER of "exceeding expectations" to areas listed as "Did Not Meet Standard." She states her rater falsified the counseling dates and removed work accomplishments noted in the previous version of the NCOER to put in all negative remarks. e. Tab G contains a 28 September 2020 email from HRC to the applicant and her rating chain, returning her NCOER to correct errors prior to HQDA processing. HRC notes: Part IVj – Rater Overall Performance Comments are limited to Performance. Performance comments should reference what has happened as opposed to future possibilities. DO NOT comment on recommendations for future schools and positions or promotions and potential ** Part IV a through j bullets must be preceded by a small o and start with a pronoun such as he/his, she/her or action word (verb), and lower case letter/NOT Soldiers rank and name. ** Signatures must be removed in the following order (Reviewer (if one is listed), Rated Soldier, Senior Rater and last Rater). Once signatures are removed, corrections can be applied. NOTE: If the signatures are removed prior to the rated soldier removing their [sic] signature, the rated soldier can remove their [sic] signature by clicking the Signature Removal button on the EES [Evaluation Entry System] homepage under the TOOLS column. After corrections are made, return with all signatures in proper sequence. f. Tab H contains email messages from CPT noting the corrections were made on the applicant's NCOER and based upon completion of the CI, the NCOER was sent back to HQDA based on the battalion CSM's guidance. g. Tab K contains a DA Form 2166-9-2 covering the period 30 October 2018 through 31 May 2019, a change-of-rater evaluation that shows she was rated in the same duty position with exceeding or meeting expectations/standards. Her senior rater was the same as in her contested NCOER (CPT ) who stated to send her to school at the first available seat and to promote with peers. h. Tab L contains a DA Form 2823, 26 January 2021, from writing a statement of support for the applicant. The applicant was his first line supervisor. He stated the applicant is a very supportive leader and trainer; very professional and knowledgeable in her duties. i. Tab M contains two battle assembly training schedules, 20 May 2018 and 23 October 2019. j. Tab N contains the applicant's DA Form 31 that shows she was scheduled to be on leave in Georgia for 3 days from 6 through 8 March 2020, of which one of those dates was listed as a counseling date in her contested NCOER. k. Tab O contains a 7 June 2020 email to the SSA wherein the applicant requests his assistance. and another 7 June 2020 email to CSM requesting assistance in reviewing her contested NCOER. Each email did not contain a response from either individual. l. Tab P contains 7-11 June 2020 email messages to the SSA wherein he noted her contested NCOER initial and midpoint counselings needed to happen along with any additional counseling when making negative remarks. m. Tab Q contains drug testing documents that show her unit administered a urinalysis test and the applicant was a part of the test group. Her signature is on the DD Form 2624 (Specimen Custody Document – Drug Testing) with a date of 25 October 2020. n. Tab R contains two email messages, 10 and 11 July 2020, with CSM discussing the CI status and submission of the NCOER. o. Tab S contains a 13 September 2019 battle rhythm schedule for the 766th Transportation Battalion, noting she was given the primary duty of managing this battle rhythm calendar. p. Tab T contains a DTMS record, undated, noting no warrior task testing was completed during her rating period. q. Tab U contains the UMR for the 766th Transposition Battalion, 4 January 2020, showing the applicant's duty position and the one position that fell under her responsibility – the Movements Specialist. r. Tab V contains an airline flight receipt for the period 8-17 December 2019, noting the applicant attending TAMIS training in a TDY status. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the applicant's military records, the Board found relief is warranted. 2. The Board concurred with the applicant's and counsel's argument that the evidence shows the applicant was not properly counseled on any deficiencies in her performance during the period in question and she was deprived of an opportunity to sign the contested NCOER. The Board found that there is evidence of a clear and convincing nature in support of relief in this case. Based on a preponderance of evidence, the Board determined the applicant's NCOER for the period ending 31 May 2020 and any associated documents should be removed from her AMHRR and replaced with a statement of non-rated time. ? BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION 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 removing from her AMHRR the NCOER for the period ending 31 May 2020 and any associated documents and replacing the NCOER with a statement of non-rated time. 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. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the Army Board for Correction of Military Records (ABCMR). The ABCMR begins its consideration of each case with the presumption of administrative regularity; it is not an investigative body. The applicant has the burden of proving an error or injustice by a preponderance of evidence. The ABCMR may, in its discretion, hold a hearing (sometimes referred to as an evidentiary hearing or an administrative hearing) or request additional evidence or opinions. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 2. Army Regulation 600-8-104 (Army Military Human Resource Records Management) prescribes Army policy for the creation, utilization, administration, maintenance, and disposition of the 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. 3. Army Regulation 600-37 (Unfavorable Information) provides that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority. Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF. Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered. 4. Army Regulation 623-3, 14 June 2019, prescribes the policy for completing evaluation reports and associated support forms that are the basis for the Army's Evaluation Reporting System. a. Paragraph 1-8e (Standards of Service – Initial Counseling) states counseling will be conducted within 30 days after the beginning of the rating period, and quarterly thereafter, for NCOs, WO1s, chief warrant officers 2, lieutenants (includes first lieutenants and second lieutenants), and CPTs. Counseling for all other grades will be on an as-needed basis. It is helpful to develop a duty description for the Soldier and identify major performance objectives to accomplish during the rating period. Counseling will also be used to guide the rated Soldier's performance during the early part of the rating period. Use of the appropriate support form for grades WO1 through colonel and NCOs is mandatory and required in conjunction with counseling. b. Paragraph 1-10 (Changes to an Evaluation Report). (1) Members of the rating chain, the battalion/brigade S-1 and/or servicing administrative office, or HQDA will point out obvious inconsistencies or administrative errors to the appropriate rating officials. Except to comply with this regulation and Department of the Army Pamphlet 623-3 (Evaluation Reporting System), no person may require changes be made to an evaluation report. (2) After necessary corrections are made, the original evaluation reports, with authenticated signatures, will be submitted to the appropriate agency. (3) HQDA review may result in necessary corrections to an evaluation report, after coordination with the appropriate rating officials, whenever possible. c. Paragraph 1-11 (CI) states that during the evaluation process or after it has been completed, when a commander or commandant discovers that an evaluation report rendered by a subordinate or a subordinate command may be illegal, unjust, or otherwise in violation of this regulation, her or she will conduct an inquiry into the matter. The definition of a rendered evaluation report is one that is authenticated by all designated rating officials with a senior rater's intent to present the final evaluation report to the rated Soldier for authentication, or apply the appropriate statement in the absence or inability for the rater Soldier to authenticate. The CI will be confined to matters related to the clarity of the evaluation report, the facts contained in the evaluation 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 accurate evaluation of a rated Soldier by a rating official that was made in good faith. The procedures used by the commander or commandant to process such an inquiry are described in chapter 4. d. Paragraph 3-4a states the support form communication process is characterized by initial and follow-up face-to-face counseling between the rater and the rated Soldier throughout the rating period. This process is used to achieve the purposes of the DA Form 67-10-1A and DA Form 2166-9-1A. The initial face-to-face counseling assists in developing the elements of the rated Soldier's duty description, responsibilities, and performance objectives. The follow-up counseling enhances mission-related planning, assessment, and performance development. e. Paragraph 3-4e states if the communication process has been properly executed, support forms will assist the rating chain in completing the OER or NCOER because the support forms are forwarded through the rating chain as evaluations are rendered. (1) To emphasize the importance of the support form in the evaluation process, the rated Soldier and rater will verify the face-to-face follow-up counseling by initialing the support form. (2) Documentation of counseling is critical, particularly when the rated Soldier is not meeting performance standards. The support form becomes a source document and, through its use, can assist in altering substandard performance into performance that meets established standards. (3) For both OERs and NCOERs, the support form accompanies the rater's evaluation of the rated Soldier when forwarded to the senior rater to provide information from the rated Soldier's point of view to the entire rating chain. f. Paragraph 3-4g states that although the support or form is an official document covered by regulation, it will not become part of the official file used by selection boards or career managers. Failure to comply with any or all support form or counseling requirements will not constitute the sole grounds for appeal of an evaluation report. The senior rater will ensure that a completed support form is returned to the rated Soldier when the OER or NCOER is forwarded to HQDA. g. Paragraph 3-34k(2) states proper sequencing of evaluation report authentication provides credibility in the evaluation process. The rated Soldier will always be the individual to sign the evaluation report last after rating officials. h. Paragraph 3-34k(5)(b) states once an evaluation report has been completed and signed by the rated Soldier, any changes to content will invalidate the electronic signature approval of the rated Soldier and/or relevant rating official and will require the evaluation report to be revalidated (digitally signed with a verified or approved signature) by the individual whose content was changed. Understanding that evaluation reports may be processed without the rated Soldier's electronic signature, when this situation occurs, the senior rater or reviewing official (AER) will ensure the rated Soldier has an opportunity to see the evaluation report if significant changes are made. i. Chapter 4 defines the Evaluation Redress Program and provides guidance regarding redress programs, including CIs and appeals. j. Paragraph 4-11a provides that the burden of proof rests with the appellant. Accordingly, to justify deletion or amendment of a report, the appellant will produce evidence that establishes clearly and convincingly that the presumption of regularity referred to in paragraphs 3-37a and 4-7a will not be applied to the report under consideration, and action is warranted to correct a material error, inaccuracy, or injustice. The evidence presented must be of a clear and convincing, and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy. k. Paragraph 4-11e states to be acceptable, evidence will be material and relevant to the appellant's claim. In this regard, note that support forms or academic counseling forms may be used to facilitate writing an evaluation report. However, these are not controlling documents in terms of what is entered on the evaluation report form. Therefore, no appeal may be filed solely because the information on a support form or associated counseling document was omitted from an evaluation, or because the comments of rating officials on the evaluation report are not identical to those in the applicable support form or counseling document. While there will be consistency between a rating official's comments on both forms, there may be factors other than those listed on a support form or counseling document to be considered when evaluating a rated Soldier. In addition, no appeal may be filed solely based on the contention that the appellant was never counseled. Evaluation reports written based on the findings of an Army Regulation 15-6 investigation will include a copy of the Army Regulation 15-6 investigation as an enclosure to the appeal. In addition, if there was a CI conducted, the results of the inquiry and commander's or commandant's decision on recommendations will be added as an enclosure to the appeal. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210013579 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1