IN THE CASE OF: BOARD DATE: 31 January 2023 DOCKET NUMBER: AR20220005923 APPLICANT REQUESTS: removal of the DA Form 2166-8 (Noncommissioned Officer (NCO) Evaluation Report (NCOER) covering the period 15 February 2014 through 23 June 2014 from her Army Military Human Resource Record (AMHRR). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552) * Exhibit A – * Congressional Representative Letter, 4 June 2014 * 423d Military Police Company Memorandum ((Applicant's) Deployment Orders), 23 March 2014 * Headquarters, 200th Military Police Command, Orders UF-139-0001, 19 May 2014 * Exhibit B – * Email (423d Military Police Company Operational Needs Statement), 13 May 2014 * Email (423d Military Police Company Joint Service Lightweight Integrated Suit Technology), 17 June 2014 * Email (423d Military Police Company Total Package Fielding), 24 June 2014 * Email (Property Book Unit Supply Enhanced Access), 26 June 2014 * Email (Shipped Organizational Clothing and Individual Equipment (OCIE)), 21 August 2014 * Email (Scanned Document), 21 August 2014 * Email (OCIE), 20 November 2014 * Email (OCIE Lateral Transfer), 26 November 2014 * Exhibit C – Headquarters, 200th Military Police Command, Orders UF-139-0001(R), 11 June 2014 * Exhibit D (1) – Email (Updated Pre-Mobilization Packet as of 21 February 2014), 5 May 2014 * Exhibit D (2) – 423d Military Police Company Memorandum (Supporting Statement for Evaluation Appeal of (Applicant)), Specialist (SPC) 12 May 2015 * Exhibit E – 23d Military Police Company Memorandum (Supporting Statement for Evaluation Appeal of (Applicant)), Sergeant First Class (SFC) 13 April 2015 * Exhibit F – Headquarters and Headquarters Company, 310th Military Police Battalion, Memorandum (Observation of Work Performance for (Applicant)), 30 September 2014 * Exhibit G – Text Messages, 8 May through 20 June * Exhibit H(1) – * Mission Essential Equipment List (MEEL), 9 September 2013 * 333d Military Police Brigade Memorandum (Operational Needs Statement for 423d Military Police Company), 19 May 2014 * Email (Modification Table of Organization and Equipment Items), 12 June 2014 * Exhibit H (2) – Email (Guantanamo Bay Quantity in MEEL), 6 May 2014 * Exhibit H (3) – * Email (423d Military Police Company Logistical Issues), 16 June 2014 * Email (423d Military Police Company (MEEL)), 17 June 2014 * Email (423d Military Police Company), 17 June 2014 * Joint Detention Group, Joint Task Force Guantanamo, Memorandum (Force Tracking Number 2016 Updated Joint Detention Group Consolidated Equipment Requirements for Rotational Units Mobilized to Joint Task Force Guantanamo, U.S. Naval Station, Guantanamo Bay, Cuba), 19 September 2013 * Exhibit I – * DA Form 2166-8 covering the period 15 February 2014 through 23 June 2014, 10 July 2014 * DA Form 2166-8 covering the period 15 February 2014 through 23 June 2014, 13 August 2014 * Email (Army Board for Correction of Military Records (ABCMR) Request (Docket Number AR20220005923), Suspense: 31 January 2023), 21 January 2023 * U.S. Army Human Resources Command (HRC) Memorandum (Appeal of Denial of Continued Active Duty Service under the Qualitative Management Program), 24 February 2016 * HRC Orders C-02-602043, 17 February 2016 * HRC Orders C-02-602043R, 1 March 2016 * DA Form 4856 (Developmental Counseling Form), 10 June 2014 * DD Form 1610 (Request and Authorization for Temporary Duty of Department of Defense Personnel), 12 June 2014 * Defense Travel System (DTS) Per Diem and Reimbursable Expenses, 20 January 2023 * DTS Document History, 20 January 2023 (2) * DTS Reservation Summary, 20 January 2023 * DTS Travel Voucher, 20 January 2023 * DTS Documents Adjustments, 20 January 2023 * 423d Military Police Company Memorandum (Request to Speak with Command Sergeant Major (CSM) 23 March 2014 * Email (423d Military Police Company Memorandum for Equipment Shipment to Home Station), 17 July 2014 * Email (New Supply Sergeant), 26 June 2015 * 423d Military Police Company Memorandum (Assumption of Command by Authority of Army Regulation 600-20 (Command Policy), Paragraph 2-5a), 3 December 2014 FACTS: 1. The applicant did not file within the 3-year time frame 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 NCOER covering the period 15 February 2014 through 23 June 2014 should be removed from her records due to the unsubstantiated claims listed in the NCOER. She further states: a. The NCOER has hindered her career by causing her to be passed over for multiple promotions, significantly reducing her chances of being accepted into the Warrant Officer Corps, disqualifying her from broadening assignments, causing humiliation, and contributing to a hostile work environment once the NCOER was discovered. b. The NCOER was rendered a result of a reprisal against her due to a Congressional complaint she filed against the senior rater. The senior rater served as both the unit administrator and the commander of the unit. On 2 June 2014, Captain (CPT) refused to allow her ample time to relocate her family after receiving her final temporary change of station (TCS) orders 8 days prior to deployment. After receiving revocation orders, she was frequently counseled, intimidated, and reprimanded in front of her seniors, peers, and subordinates. The facts prove the NCOER is inaccurate and she should have never been forced to accept it. 3. In her memorandum for record ((Applicant's) Deployment Orders), 23 March 2014 (presumed to mean 23 May 2014), she stated: a. On 1 May 2014, she emailed the company commander and first sergeant (1SG) to inform them in writing that it was time for them to look into obtaining another supply sergeant for the deployment because she did not receive any orders and she would not be able to rush the process of having her family set up. b. On 19 May 2014, she received her TCS orders from the commander. She coordinated with the Fort Hamilton Transportation Office to setup movement of her household goods. c. On 22 May 2014 during her transportation appointment, the technician noticed there were no funds listed in the orders and the orders did not say anything in reference to her dependents. She attempted to call the commander six times, but could not get ahold of him. She then called SFC and asked him to contact the commander on her behalf. Some time passed and she called SFC again and he informed her that the commander did not know what to do because she is an Active Guard Reserve (AGR) Soldier. d. The technician at the transportation office spoke with someone at the 200th Military Police Command who did not publish her orders because her file was locked, but stated it was a generic order used for Reserve troop program unit Soldiers and the person who published her orders did not look at her file. 4. The DA Form 4856, retrieved from Enlisted Special Review Board (ESRB) Docket Number AR20150010356, 26 April 2016, shows she was counseled on 10 April 2014 by 1SG . It was an event-oriented counseling that also included aspects of performance. The reasons for the counseling occurred in the afternoon/evening of 8 April 2014. The form states: a. The performance portion herein is a failure in recordkeeping that led to the erroneous accountability of three weapons that never left the Reserve Center arms room. The error led to the applicant alerting the commander that the unit was missing three M-4 carbines. In fact, those weapons were deadlined before annual training, never brought to Joint Base McGuire-Dix Lakehurst, and as a result, the entire company was spread across the post and several ranges until midnight in a vain search for weapons that were not missing. b. The event portion herein is a series of public accusations made by the applicant that impugned NCOs junior to her, peers, and senior NCOs. Specifically, she verbally accused a peer, SSG of having knowledge of missing weapons that were never missing. She followed this with text messages making the same allegation against that same Soldier. This was followed by an accusation that two junior NCOs, SGT and SGT were involved in the alleged scheme to smuggle and hide weapons. This went further by then publicly maligning Master Sergeant (MSG) and MSG and the operations section as a whole. c. Additionally, he observed several tendencies that affect her performance and others that contributed to this event. He verbally counseled her about these before. He listed: * doing everything herself instead of using competent Soldiers she trained * paperwork systems that become illegible with use due to "tic" marks, highlights, scratched through information, and marginal notes * a tendency to "lash out" when frustrated * a tendency to not hear out an entire problem and assessing before responding d. 1SG stated the applicant responded by stating: (1) She did not speak to SSG She communicated via text message. (2) She did not address the operations section directly until a problem session was mediated by the commander and 1SG. (3) She attempted to apologize to MSG but he walked away. SSG accepted the apology. (4) The counseling and letter of reprimand are unfair because she gives her "all" to the company. (5) The weapon density for this exercise was provided by the executive officer. e. In the plan of action, 1SG stated: (1) Before all movement of weapons, a density report for those weapons and any other equipment she manages will be provided to the commander, the operations section, and himself.? (2) If her behavior continued or did not improve, her NCOER would reflect the bullet comment: "Soldier launched false accusations against numerous NCOs, junior, peer, and Senior." (3) If her recordkeeping shows no further errors of this magnitude or worse, then this aberration shall not be reflected in her NCOER. However, no improvement will be reflected by the bullet comment: "Soldier made a damaging recordkeeping error that caused her to lose disposition of three weapons to be temporarily unknown." f. The applicant disagreed with the counseling and stated the statement is incorrect. She will be going to seek counsel from a judge advocate general. She signed the counseling, but disagreed. 5. Headquarters, 200th Military Police Command, Orders UF-139-0001, 19 May 2014, deployed her in a TCS status to Guantanamo Bay, Cuba, in support of Operation Enduring Freedom. She was ordered to proceed through Fort Bliss, TX, on or about 10 June 2014 and then depart on or about 31 July 2014. 6. On 4 June 2014, a Congressional representative wrote to the Team Chief for the U.S. Department of the Army on behalf of the applicant. He stated: a. At the end of May 2014, the applicant received mobilization orders for a TCS to Fort Bliss, TX, prior to her deployment to Afghanistan. She received her orders on 24 May 2014, which provided her less than 30 days to implement her Family Care Plan. She has been ordered to mobilize on 10 June 2014. b. The applicant has two dependents. She owns a home in as well as renting two apartments in. Since she will be overseas, she is attempting to relocate her family to her home in which she has owned since 2008 and is where her support network resides. She submitted a request for 30 days of leave as well as an allowance for transportation of her family and household goods. This request was denied. c. Her husband is retired from the military with a disability pension. His disability prevents him from relocating their family on his own. The applicant requests approval of 30 days of leave and a transportation allowance so her family affairs can be properly handled. 7. Her records do not contain and she did not provide her Family Care Plan. 8. On 10 June 2014, the commander counseled her. The DA Form 4856 states her mobilization orders were not published in sufficient time to allow her to make arrangements for her family. The counseling further shows:? a. Three options were discussed concerning the deployment: (1) She would use 14 days of leave to handle her personal affairs and prepare for deployment, mobilize to Fort Bliss as a late arrival, and deploy to Guantanamo Bay as a late arrival. (2) She would remain on duty now, travel to Fort Bliss as part of the "White Cell," and not deploy. (3) She would remain on duty now, travel to Fort Bliss, and travel and deploy as usual. b. She decided after consultation with her family members that 2 weeks would not be adequate time to execute plans for her family. Her preferred choice was to travel to Fort Bliss as part of the "White Cell." At the end of the unit's train-up, she would return to the Reserve Center to perform her normal duties as a supply sergeant with the rear detachment. The applicant was supposed to travel to Fort Bliss before Monday. c. The applicant agreed with the counseling. She stated that she, the commander, and the 1SG did not discuss the time frame during which she was to go to Fort Bliss. Stating the end of the unit's train-up activity is a general statement and she does not have dates to enter into DTS. The commander stated she should travel to Fort Bliss before Monday as he and the 1SG were walking away. 9. Headquarters, 200th Military Police Command, Orders UF-139-0001(R), 11 June 2014, revoked Orders UF-139-0001, 19 May 2014. 10. Her NCOER covering the period 15 February 2014 through 23 June 2014 shows the reason for submission as change of rater. She provided two NCOERs covering the same period. One version shows the rater authenticated the NCOER on 10 July 2014, the senior rater authenticated the NCOER on 10 July 2014, and the reviewer authenticated the NCOER on 13 July 2014. The second version shows the rater authenticated the NCOER on 10 July 2014, the senior rater authenticated the NCOER on 13 August 2014, and the reviewer authenticated the NCOER on 25 August 2014. The second version is uploaded in the applicant's AMHRR. The two NCOERs are nearly the same except in the second version Part V(e) (Senior Rater Bullet Comments) contains the additional comment: "Soldier refused to sign NCOER." The NCOER further shows: a. In Part IV (Army Values/Attributes/Skills/Actions), the rater marked "NO" in subparagraph a(2) (Duty) and commented: "NCO had to be ordered to mobilization duty station after missing movement." b. In Part IV(b) (Competence), the rater marked "NEEDS IMPROVEMENT (SOME)" and commented: * Soldier did not provide to the Command team packing lists and hand receipts as directed in the plan of action from a previous counseling * packing list for movement to mobilization station was inaccurate and difficult to interpret at the point of disembarkation, resulting in distractions to arrival processing c. In Part IV(c) (Physical Fitness and Military Bearing), the rater marked "NEEDS IMPROVEMENT (MUCH)" and commented: * Soldier's military courtesy was inconsistent, at times proper, but in other instances dismissive and not fully respectful in dialogue with the Commander and First Sergeant * in interactions with the Soldier, she was often challenging to senior leaders * failed to inform her evaluator or members of the AGR staff of her movements d. In Part IV(f) (Responsibility and Accountability), the rater marked "NEEDS IMPROVEMENT (SOME)" and commented: * due to faulty recordkeeping, tracking of three weapons was misreported, causing the diversion of the entire unit to establish accountability of said weapsons [sic] * did not ship the equipment needed at Ft [Fort] Bliss mobilization location despite performing a site visit and being briefed on mission requirements * communication with command team poor; frequently the Soldier did not keep the Commander, XO [executive officer], or 1SG apprised, and was often unresponsive to outreach e. In Part V (Overall Performance and Potential): (1) block a (Rater. Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the rater marked "MARGINAL"; (2) block c (Senior Rater. Overall Performance), the senior rater marked "FAIR"; (3) block d (Senior Rater. Overall Potential for Promotion and/or Service in Positions of Greater Responsibility), the senior rater marked "FAIR"; and (4) block e, the senior rater commented: * promote when military bearing shows noticeable improvement * has potential that is tarnished by frequent lapses in military bearing * can perform with supervision, needs detailed instruction to sort through implied tasks * Soldier refused to sign NCOER 11. The DA Form 4856, retrieved from ESRB Docket Number AR20150010356, 26 April 2016, shows the applicant was counseled on 24 June 2014 by CPT . The counseling was to document the applicant's failure to follow instructions. The form states: a. On 23 June 2014, she was instructed by the commander himself to change her flight to a later flight out of El Paso, TX. Her original flight to New York from Texas was scheduled for 0600 on 24 June 2014. She was also instructed to brief the 1SG of her new flight time prior to movement. b. As of 24 June 2014, she failed to take an action toward this requirement and did not provide a valid reason for her inaction. Her movement on 24 June 2014 was not recommended, discussed, or approved by him as her commander. c. Failing to follow instructions, no matter who delivers them or how trivial she may consider them to be, is a serious offense and will not be tolerated. Her actions and example have a negative effect on unit morale and discipline and threatens team cohesiveness and strength. d. Failing to follow instructions is the same as disobeying a lawful order. Failure to follow orders is a violation of the Uniform Code of Military Justice. e. This is not the first counseling he has given to her. He will recommend nonjudicial punishment. f. In the Plan of Action, the commander: (1) directed her to write an original 500-word essay on the importance of following orders with emphasis on how it applies to their unit and specialty; (2) informed her that she will not be approved for any pass or "day of no activities" until after 48 hours of his arrival to Guantanamo Bay; (3) directed her to develop a plan for future temporary duty movement that includes alternate plans of travel in order to report on time for temporary duty assignments; and (4) directed her to keep the acting rear detachment 1SG, SFC informed of all emergencies and any issues that he must be aware of in accordance with his policy memorandums which were emailed to her upon her assignment and are posted in the common area. g. The applicant disagreed with the counseling and stated: (1) On 23 June 2014 while speaking to Specialist (SPC) and SPC the commander and 1SG approached her regarding her departure the next morning. Both the commander and 1SG stated they were not tracking her departure which was supposed to be 10 days from 15 June 2014 per the direct order she received during another counseling. (2) The 1SG proceeded to tell her that he felt she was not loyal to him. He stated he already submitted her NCOER to CSM and that it was not a good NCOER. The commander asked her if this was her first AGR tour. After she said yes, they both told her it would probably be her last. She responded with "okay." The commander then said that if she decided to fly tomorrow, he would recommend her removal from the AGR Program. Again, her response was "okay." At that point, the 1SG said he was done with the conversation and walked away with the commander following behind him. (3) Approximately 30 minutes later, SPC came to her and said the commander and 1SG asked him to push the flight time back to 0800. The 1SG then changed his request and asked her flight to be changed to 1000. The applicant called the company, left a message, and procured a ride. She texted the 1SG to let him know she left a message and she was able to get a ride. The commander was informed about all of her flight information by Mr. because Mr. volunteered to notify him. 12. On 30 September 2014, SFC provided a statement on behalf of the applicant wherein he stated: a. He has been with the 310th Military Police Battalion since July 2013. Within that time frame, he has witnessed the applicant perform all duties given to her in a truly professional manner. She displayed the qualities befitting of a Soldier in the U.S. Army. As the battalion S-4, he has conducted several Command Supply Discipline inspections. The 423d Military Police Company was one unit he inspected. The applicant was the only supply sergeant who impressed him and the property book officer at the time. Her unit supply area was the most properly organized unit within the battalion and her accountability of property was maintained at almost 100 percent in accordance with the regulation. The few errors were noted and rectified by the applicant. Her professionalism and attention to detail, along with her "no quit" mentality gained her much appreciation and respect from him, the property book officer, and the fellow supply sergeants within the battalion.? b. The applicant has proven time and time again that she is a Soldier who holds the Army core values deep within her heart. She is disciplined and a professional. She is an asset to the Army and the unit she is in. c. He would recommend the applicant for promotion to the next higher grade without any hesitation, knowing that the Army has an outstanding Soldier within its ranks. 13. Numerous emails from varying dates beginning 5 May 2014 through 26 November 2014 show her efforts to coordinate her unit's operational needs during deployment. 14. On 13 April 2015, SFC provided a statement on behalf of the applicant wherein he stated: a. He was assigned to the 423d Military Police Company Combat Support as the motor sergeant from January 2013 to present. During that time, he witnessed the working relationship between the company commander, CPT the 1SG, 1SG and the applicant acting in her capacity as the supply sergeant. b. After reviewing the applicant's disputed NCOER, several statements were inaccurate as they pertain to her. In Part IV, the applicant received an inaccurate rating for her duty performance. All equipment listed on the MEEL was inventoried, packed, loaded, and shipped by the applicant. The unit did not receive an approved MEEL from the 310th Military Police Battalion, 333d Military Police Brigade, or 200th Military Police Command. They were instructed by both the battalion and brigade staffs to work off the copy provided. Additionally, each section was instructed by the company commander to pack any additional equipment they required for daily operations and provide the packing list to the applicant. At no time did CPT or 1SG provide any input pertaining to the mission or training requirements to be conducted upon the unit's arrival at the mobilization site. c. On 6 June 2014, he and SPC a Directorate of Mobilization and Deployment representative, inventoried and inspected the equipment that was shipped to Fort Bliss for the unit's mobilization. All items listed were accounted for, signed, and stored by the mobilization team. SPC maintained control of the container keys until the unit departed Fort Bliss. The applicant provided a detailed listing of the items required for mobilization according to the MEEL. She was instructed by both the battalion and brigade staffs that if the items were not on the MEEL or on an approved Operational Needs Statement, then they should not be shipped. d. The bullet comment "NCO had to be ordered to mobilization duty station after missing movement" is inaccurate. The applicant was very proactive in trying to obtain her orders in a timely manner. He witnessed the applicant months in advance of the unit's movement constantly reminding the unit about her needs to receive the orders so she could make arrangements for her family and household goods. After receiving her orders 8 days prior to mobilization, the applicant requested an extension from the commander. The commander stated he would not authorize her to show up late to the mobilization site and he advised her to store her household goods at the Reserve Center, continue to maintain her apartment while deployed, or take leave beginning that day for the duration of the time. The commander was fully aware of the duties and responsibilities assigned to the applicant preparing the unit for movement that included being the only person with access to the unit arms room, packing all the equipment for the unit's movement, and being directly responsible for ensuring the equipment was transported to the mobilization site. e. The bullet comment "Failure to inform her evaluator or members of the AGR staff of her movement" did not reflect what he witnessed as a staff member and a platoon sergeant. Every task or mission the applicant conducted, which included lateral transfers, turn-ins, equipment fielding, shipments, and equipment maintenance, he was briefed prior to execution and informed after the mission was completed. He personally assisted the applicant in the completion of any tasks if she was not immediately available. He was always aware of the applicant's operations and activities. 15. On 12 May 2015, SPC provided a statement on behalf of the applicant wherein she stated: a. During the period of April 2012 through present day, she served as the supply clerk at the 423d Military Police Company Combat Support. In that position, she became knowledgeable of the working relationship between CPT 1SG and the applicant. b. Throughout her time as the unit supply clerk, the applicant allowed her the opportunity to be placed on orders to assist the section in preparation of the mobilization. She sat in on numerous training meetings held by the company commander and 1SG, CPT and 1SG She never witnessed the applicant being disrespectful to either personnel. They worked diligently during and after duty hours planning and preparing for the event. Leading up to the unit mobilization, there was uncertainty as to whether the advanced party would fly on time. SPC flight was confirmed the day prior to departure. That evening, the applicant dropped off a binder with multiple hard copies and a disc that contained everything required for the mobilization. c. Upon arrival at Fort Bliss, TX, she met with SFC the headquarters platoon sergeant, and the "White Cell" NCO in charge. When the equipment arrived from home station, SPC SFC and Mr inventoried the equipment. While inventorying the weapons, Mr. did not have the most updated information that was sent to Mr. , who was the point of contact from the mobilization site visit. SPC provided Mr. the updated copy as Mr. was not available. At the end of the inventory, there were no discrepancies. All equipment and proper documentation were submitted to the Directorate of Mobilization and Deployment team. d. When the applicant arrived at the mobilization site, SPC witnessed the company commander and 1SG treating the applicant in an unprofessional manner. They yelled at her front of Soldiers, blaming her for things that were not logistics related or beyond their control. It was clear to see the applicant was receiving repercussions for her Congressional inquiry. 16. On 26 April 2016 in Docket Number , the ESRB denied the applicant's request to remove the NCOER covering the period 15 February 2014 through 23 June 2014 from her AMHRR. The board determined the evidence presented did not establish clearly and convincingly that the presumption of regularity should not be applied to her NCOER or that action was warranted to correct a material error, inaccuracy, or injustice. Therefore, by unanimous vote, the ESRB determined the overall merits of this case did not warrant the requested relief. In the discussion, the board stated there was insufficient evidence provided which supports the contention that the negative bullet comments and ratings reflected in the contested NCOER resulted from filing a Congressional complaint against the senior rater of the contested NCOER. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was not warranted. The applicant’s contentions, the military record, and regulatory guidance were carefully considered. a. The Board noted that the applicant is appealing a COR NCOER covering the period 15 February 2014 thru 23 June 2014, while serving in the rank/grade of SSG/E- 6/AGR. She wants its removal from her AMHRR. Her appeal is based on what she believes as “unsubstantiated claims listed in the NCOER.” The Board determined there is insufficient evidence provided which supports the contention that the negative bullet comments and ratings reflected in the contested NCOER, resulted from filing a Congressional complaint she filed against the senior rater of the contested NCOER. The Board note that the applicant received three developmental counseling addressing her performance shortcomings during the rating period. She was aware of the rating officials view of her performance and the counseling support the negative ratings and comments reflected in the contested NCOER. The Board also considered the third party statements provided by the applicant; while they spoke highly of her character and duty performance during the rating period; their opinions are insufficient to undermine the applicant’s rating officials’ assessment of her performance. b. The Board determined there is insufficient evidence to support a conclusion that the contested report contains administrative or substantive errors or that it was not prepared in compliance with applicable regulations and policies. Furthermore, the applicant has not shown the evaluations rendered by the rating officials represented anything other than their objective judgment and considered opinions at the time the contested NCOER was prepared or that they exercised faulty judgment in evaluating him as they did. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X 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. ? 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 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 15-185 (Army Board for Correction of Military Records), 31 March 2006, prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. The ABCMR considers individual applications that are properly brought before it. The ABCMR will decide cases on the evidence of record; it is not an investigative body. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 3. Army Regulation 600-37 (Unfavorable Information), 2 October 2020, sets forth policies and procedures to ensure the best interests of both the Army and Soldiers are served by authorizing unfavorable information to be placed in, transferred within, or removed from an individual's AMHRR. Paragraph 7-2a(3) (Appeals Involving Document with Regulatory Appeal Authority) stated this regulation does not apply to documents that have their own regulatory appeal authority, such as evaluation reports or records of courts-martial. 4. Army Regulation 623-3 (Evaluation Reporting System), 31 March 2014, prescribed the policies and tasks for the Army's Evaluation Reporting System. a. Paragraph 3-36 (Modifications to Previously Submitted Evaluation Reports) stated an evaluation report accepted by Headquarters, Department of the Army, and included in the official record of a rated Soldier is presumed to: (1) be administratively correct, (2) have been prepared by the properly designated rating officials who meet the minimum time and grade qualifications, and (3) represent the considered opinions and objective judgment of the rating officials at the time of preparation. b. Paragraph 4-7f stated an appeal will be supported by substantiated evidence. An appeal that alleges an evaluation report is incorrect, inaccurate, or unjust without usable supporting evidence will not be considered. The determination regarding adequacy of evidence may be made by the Headquarters, Department of the Army, Evaluation Appeals Branch; National Guard Bureau Appeals Section; or the appropriate State Adjutant General (Army National Guard). c. Paragraph 4-11 (Burden of Proof and Type of Evidence) stated 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: (1) the presumption of regularity will not be applied to the evaluation report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice. d. 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. e. For a claim of administrative error, appropriate evidence may include: (1) the published rating scheme used by the organization during the period of the evaluation report being appealed; (2) assignment, travel, or temporary duty orders; (3) DA Form 705 (Army Physical Fitness Test Scorecard), DA Form 5500 (Body Fat Content Worksheet (Male)), and DA Form 5501 (Body Fat Content Worksheet (Female)); (4) leave records; (5) organization manning documents; (6) hospital admission, diagnosis, and discharge sheets; (7) statements of military personnel officers or other persons with knowledge of the situation pertaining to the evaluation report in question; (8) the results of a Commander's or Commandant's Inquiry, Inspector General, and/or Equal Opportunity investigation; and (9) other relevant documents.? f. 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. 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 evaluation report was rendered. The results of a Commander's or Commandant's Inquiry or Army Regulation 15-6 (Procedures for Administrative Investigations and Boards of Officers) investigation may provide support for an appeal request. g. Paragraph 4-13 (Appeals Based on Substantive Inaccuracy) stated a decision to appeal an evaluation report will not be made lightly. Before deciding whether or not to appeal, the prospective appellant will analyze the case dispassionately. The prospective appellant will note that: (1) pleas for relief citing past or subsequent performance or assumed future value to the Army are rarely successful and (2) limited support is provided by statements from people who observed the appellant's performance before or after the period in question (unless performing the same duty in the same unit under similar circumstances), letters of commendation or appreciation for specific but unrelated instances of outstanding performance, or citations for awards, inclusive of the same period. h. Once the decision has been made to appeal an evaluation report, the appellant will state succinctly what is being appealed and the basis for the appeal. For example, the appellant will state: (1) whether the entire evaluation report is contested or only a specific part or comment and (2) 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. i. Most appellants will never be completely satisfied with the evidence obtained. A point is reached, however, when the appellant will decide whether to submit with the available evidence or to forgo the appeal entirely. The following factors are to be considered: (1) The evidence must support the allegation. The appellant needs to remember that the case will be reviewed by impartial board members who will be influenced only by the available evidence. Their decision will be based on their best judgment of the evidence provided. (2) Correcting minor administrative errors or deleting one official's rating does not invalidate the evaluation report. 5. Army Regulation 600-8-104 (Army Military Human Resource Records Management), 7 April 2014, prescribes the policies and operating tasks for the Army Military Human Resource Records Management Program. The AMHRR includes, but is not limited to, the Official Military Personnel File (OMPF), finance-related documents, and non-service related documents deemed necessary to store by the Army. It provides that once properly filed in the OMPF, a document becomes a permanent part of that file. The document will not be removed from the OMPF or moved to another part of the OMPF unless directed by competent authority. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220005923 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1