RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 July 2007
	DOCKET NUMBER:  AR20070003312 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. John N. Sloane

Chairperson

Mr. David K. Haasenritter 

Member

Ms. LaVerne M. Douglas

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, removal of his Relief from Annual Training (REFRAT) Noncommissioned Officer Evaluation Report (NCOER) covering the period January 2001 to February 2001 from his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, that his REFRAT NCOER covering the period January 2001 to February 2001 should be removed from his OMPF. 

3.  The applicant provides an additional 6-page statement.  He describes and elaborates on the events that occurred prior to, during, and after his NCOER covering the period January 2001 to February 2001 which he never received.

4.  The applicant provides a copy of his NCOER covering the period January 2001 through February 2001 and a copy of a response to a Congressional Inquiry in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 April 2003, the date of his transfer to the Retired Reserve.  The application submitted in this case was received on 8 March 2007.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant enlisted in the US Army Reserve on 9 May 1985, in the pay grade of E-4, as a Motor Transport Operator, in military occupational specialty, 64C, with prior Regular Army service.  He was promoted to master sergeant (MSG) effective 1 November 1996.

4.  On 23 July 1997, the Army Reserve Personnel Center (ARPERCEN) (now known as the Army Human Resources Command (AHRC)-St. Louis) notified the applicant that he had completed the required years of service to be eligible for retired pay, on application, at age 60 (20-Year Letter).
5.  The applicant provided a copy of his NCOER for the period January 2001 through February 2001, a REFRAT report.

6.  In Part IVa, under Values/NCO Responsibilities (Rater), the rater indicated in the bullet comments block that, "During AT (annual training) spent most of the tour of duty on personal matters rather than mission."

7.  In Part IVb, under "Competence" the rater gave the applicant a "Needs Improvement (Much)" rating.  He indicated that the applicant "Lacked required knowledge of 88Z50 to properly complete mission; did not show interest in being trained for these duties.  Showed up for AT without any funds; left behind debts to housing, quartermaster laundry, and a local cab company.  Picked up by MPs (military policemen) after getting into a verbal altercation with housing staff over nonpayment of lodging bill; turned over to HHC (Headquarters and Headquarters Company) 1SG."

8.  In Part IVc, under "Physical Fitness," the rater gave the applicant a "Needs Improvement (Some)" rating.  He indicated that the applicant "Failed to complete the APFT (Army Physical Fitness Test) during this tour.  Reported for duty in Class B uniform with civilian windbreaker due to cab company confiscating bags for nonpayment of fare." 

9.  In Part IVd, under "Leadership," the rater gave the applicant a rating of "Needs Improvement (Much)."  He indicated that the applicant "Failed to complete his AT mission due to constant pursuit of personal matters.  Assigned a SGT escort by the HHC, 1SG to ensure that he got to where he was suppose to be."

10.  In Part IVe, under "Training," the rater gave the applicant a rating of "Needs Improvement (Some)."  He indicated that that the "Constant absences from duty kept him from receiving the training that would have allowed us to utilize him properly."

11.  In Part IVf, under "Responsibility and Accountability," the rater gave the applicant a rating of "Needs Improvement (Much)."  He indicated that the applicant "Failed to properly turn in TMP (transportation motor pool) vehicle assigned to him.  Drew CIF (Central Issue Facility) gear even though told it was not needed.  Failed to turn in CIF gear as directed prior to departure.  Failed to show up for return flight to California, costing the government $370.57.”

12.  In Part V (Overall Performance and Potential), block a (Rater. Overall potential for promotion and/or service in positions of greater responsibility), the rater placed an "X" in the "Marginal" block.  

13.  In Part Vc, the Senior Rater’s (SR) overall rating of the applicant's performance was "Poor" (with a Numerical Score of "5") and his "Overall potential for promotion and/or service in positions of greater responsibility" as "Poor" (with a Numerical Score of "5").

14.  In Part Ve (Senior Rater Bullet Comments) the SR indicated, "Remove from the IMA (Individual Mobilization Augmentee) program and IRR (Individual Ready Reserve).  Totally wasted this training opportunity causing the Army lost dollars in TDY (temporary duty) funds, CIF gear, and missed flight.  During 12 days of AT, did not do one positive thing worth noting on this NCOER."

15.  The applicant’s REFRAT NCOER was signed by his rater and senior rater on 21 February 2001 and on 22 February  2001 by his reviewer.  The applicant was unavailable to sign this referred report.

16.  The applicant served until he was transferred to the Retired Reserve effective 17 April 2003.  

17.  A review of the applicant's OMPF reveals that this REFRAT NCOER, for the period January 2001 thorough February 2001 is currently shown on his "P" (Performance) fiche, of his OMPF.

18.  The applicant's Summary of Retirement Points shows that he had completed 21 years, 9 months, and 26 days of qualifying service for retirement purposes.  

19.  On 4 January 2006, the Human Resources Assistance, Appeals Office, Army Human Resources Command (AHRC)-St. Louis, prepared a memorandum for the Army Review Boards Agency, St. Louis.  AHRC indicated that their records did not indicate that the applicant ever appealed the NCOER in question, and suggested that he prepare an NCOER appeal per Army Regulation 623-205, chapter 6.

20.  On 21 August 2006, the applicant appealed his NCOER for the period January 2001 through February 2001 to the Department of the Army, Enlisted Special Review Board (ESRB).  The ESRB indicated that the applicant was retired and he had missed the 3-year limitation on submitting a substantive NCOER appeal, thus if such an appeal were submitted, the applicant would be required to apply to this Board.
21.  The applicant provided a copy of a response to a Congressional Inquiry.  The applicant's Congressman informed him, in writing, that he was in contact with the Congressional liaison office at Fort Riley, Kansas, which called him to inform him of the outcome of their investigation into his inquiry.  The Congressman's report elaborated on the events that occurred during the rating period for the REFRAT NCOER.  The Congressman also informed the applicant that the staff at the Fort Riley liaison office regretted that his most recent tour was not a completely enjoyable one.  The same staff assured the applicant that his concerns had been reviewed.

22.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  Chapter 6 contains guidance on NCOER appeals.  Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record is presumed to be administratively correct, to have been prepared by the proper rating officials, and to represent the considered opinion and objective judgment of rating officials at the time of preparation.  

23.  Paragraph 6-8, of the same regulation, pertains to timeliness.  It states that because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible.  As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult.  Substantive appeals will be submitted within 3 years of the NCOER's thru date.  Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception.  Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered.  The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended.

24.  Paragraph 6-10, of the same regulation, contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF.  It states, in pertinent part, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.  



25.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the Official Military Personnel File, the Military Personnel Records Jacket, the Career Management Individual File (CMIF), and Army Personnel Qualification Records.  Paragraph 2-4 of this regulation states that once a document is placed in the Official Military Personnel File it becomes a permanent part of that file and will not be removed from that file or moved to another part of the file unless directed by the Army Board for Correction of Military Records, DASEB, Army Appeals Board, the Chief of Appeals and Corrections Branch of the AHRC, or the Official Military Personnel File custodian when documents have been improperly filed, AHRC an exception, Chief of the Appeals Branch of the Army Reserve Personnel Center, and Chief of the Appeals Branch of the National Guard Personnel Center.  

26.  Table 2 of the regulation pertains to the composition of the OMPF.  It states, in pertinent part, that NCOERs will be filed in the Performance section.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was rendered a REFRAT  NCOER covering the period January 2001 through February 2001.  On 21 August 2006, he appealed this report to the ESRB.  The ERSB indicated that he had retired and had missed the 3-year limitation on submitting a substantive NCOER appeal.  

2.  The applicant's NCOER, for the period January 2001 to February 2001, was properly filed on the Performance fiche of his OMPF in accordance with applicable regulations.  

3.  The applicant’s request to have his NCOER removed from his OMPF has been considered.  However, he has not shown that his NCOER, for the period January 2001 to February 2001, was filed in error or was unjust.

4.  The self-authorized statement submitted by the applicant as new evidence does not satisfy this regulatory burden of proof.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 April 2003; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 April 2006.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

_LD_____  __DKH__  __S____   DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




_____John N. Sloane_____
          CHAIRPERSON




INDEX

CASE ID
AR20070003312
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070717
TYPE OF DISCHARGE
HD
DATE OF DISCHARGE
19860513
DISCHARGE AUTHORITY
AR . 140-10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
111
2.

3.

4.

5.

6.


1.  The applicant's contention that the SR rating of 4 he received in Part Vc of the NCOER in question is not supported by the overall evaluation he received in the report, and that it was based on his being improperly charged with misusing a Government credit card, and the support statement he provided as new evidence, were carefully considered.  However, the factors raised in his self-authored statements restate arguments that were considered during the Board's original review of this case.  As a result, there is not sufficient mitigating evidence to support amendment of the original Board decision. 

2.  By regulation, in order to support a successful appeal, a member must provide clear and convincing evidence to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.  The self-authored statement submitted by the applicant as new evidence does not satisfy this regulatory burden of proof.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  

20.  AR 623-205 establishes the policies and procedures for the NCOER system. In pertinent part, it states that an NCOER accepted for inclusion in an NCO’s 
OMPF is presumed to be administratively correct, to have been prepared by the properly designated rating officials, and to represent the considered opinion and objective judgment of the rating officials at the time of its preparation.  It also states that the burden of proof in an NCOER appeal rests with the applicant. Accordingly, to justify deletion or amendment of an NCOER under the regulation, the applicant must produce evidence that clearly and convincingly overcomes the presumptions referred to above and that action to correct an apparent material error or inaccuracy is warranted.

Chapter 6-8  
6-8. Timeliness 
a. Because evaluation reports are used for personnel management decisions, it is important to the Army and the rated individual that an erroneous report be corrected as soon as possible. As time passes, people forget and documents and key personnel are less available; consequently, preparation of a successful appeal becomes more difficult. 
b. Substantive appeals will be submitted within 3 years of an OER, NCOER, or AER THRU date. Failure to submit an appeal within this time may be excused only if the appellant provides exceptional justification to warrant this exception. 
c. Administrative appeals will be considered regardless of the period of the report and a decision will be made in view of the regulation in effect at the time the report was rendered. The likelihood of successfully appealing a report diminishes, as a rule, with the passage of time. Prompt submission is, therefore, recommended. 


Army Regulation 623-205 serves as the authority for the preparation and submission of the NCOER.  It provides, in pertinent part, that a relief for cause is defined as the removal of a NCO from a ratable assignment based on a decision by a member of the NCO's chain of command or supervisory chain that the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrant removal in the best interest of the Army.  If relief for cause is contemplated on the basis of an informal investigation conducted under Army Regulation 15-6, the referral procedures contained in that regulation must be complied with before the act of initiating or directing relief.  If the relief is directed by an official other than the rater or SR (Senior Rater), the official directing the relief will describe the reasons for the relief in an enclosure to the report.  Regardless of who directs the relief, the rater will enter the statement "The rated NCO has been notified of the reasons for the relief." 

28.  The above cited regulation also provides, in pertinent part, that there are no provisions for referring an adverse NCOER to an NCO; however, the rated NCO has the option to request a commander's inquiry and to submit an appeal of the NCOER to the ESRB. 


1.  The evidence shows that the applicant appealed his NCOER with a through date of July 2002 and October 2003.  The applicant based his appeal on the contention that the contested reports contained substantive inaccuracies and the applicant requested that several comments be deleted.  


1.   On 22 March 2004, the applicant appealed his NCOER for the period November 2002 through March 2003 to the Department of the Army, Enlisted Special Review Board (ESRB).  He based his appeal on administrative and substantive error.  The administrative error was that the SR listed on the NCOER was not the officer that served in that position during the rating period.  The SR, Captain, J____ C. S______ was the Battery Commander of Alpha Battery,          1st Battalion, 9th Field Artillery Regiment, during the rating period and served as the SR.  Captain (CPT) W______ B_____ who was listed as the SR, and who signed the NCOER did not become the Battery Commander until June 2003 (See Officer Record Brief [ORB]), three months after the rating period ended for this NCOER.  In addition, in Part III(d), of the NCOER, CPT S________ is listed with his e-mail address as the SR whereas in Part II (b), CPT B______ is listed as the SR and signed the NCOER as such.  He was also never notified that a Relief for

2.  

3.  

4.  

XX.  Records show the applicant should have discovered the alleged error or injustice now under consideration on (enter date); therefore, the time for the applicant to file a request for correction of any error or injustice expired on (enter date).  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.



1.  The applicant’s request for promotion to MSG/E-8 and for removal of a contested NCOER, and the supporting evidence he submitted were carefully considered.  However, there is insufficient evidence to support granting the requested relief.  

2.  By regulation, in order to support a successful appeal, a member must provide clear and convincing evidence to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.  The self-authored statement submitted by the applicant as new evidence does not satisfy this regulatory burden of proof.  Therefore, there is an insufficient evidentiary basis to support granting the requested relief.  
The NCOER was properly filed in the applicant's OMPF in accordance with the applicable regulation