IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080009456 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests removal of his Noncommissioned Officer Evaluation Report (NCOER) covering the period 1 February 2006 – 23 January 2007 from his Official Military Personnel File (OMPF), and replacement with an updated "draft" NCOER for the same period. 

2.  The applicant states, in effect that:  (a) there were 3 versions of the NCOER covering the same period in question and the pages were crossed; (b) neither he nor the rater ever viewed the NCOER prior to filing; (c) the senior rater (SR) claimed that the incorrect NCOER was filed in his OMPF; and (d) the SR signed the NCOER prior to the rater. 

3.  The applicant provides a copy of the NCOER in question; a copy of a "draft" NCOER and all associated documents; a statement from the rater, dated 
19 December 2007; electronic mail (e-mail) traffic between the SR and the applicant's unit; and a copy of his appeal to the Army Enlisted Special Review Board (ESRB) and all associated documents.

CONSIDERATION OF EVIDENCE:

1.  The applicant is a sergeant first class in the U.S. Army Reserve (USAR) serving on active duty as an Active Guard Reserve (AGR).

2.  The applicant's contested NCOER shows that he served as the USAR Career Counselor, Headquarters and Headquarters Company, 77th Regional Readiness Command, Fort Totten, New York.  The appellant was rated by the Area Leader, a master sergeant (MSG)/E-8, and the SR was the sergeant major (SGM)/E-9.  It was reviewed by a major.  The rater's and the reviewer's signatures are dated 
13 June 2007.  The SR's signature is dated 16 April 2007.

3.  A review of the applicant's appeal to the ESRB shows that he claimed there were 3 versions of the NCOER and he provided a copy of the NCOER in question and 2 "draft" NCOERs.  With his application to this Board, he also claims there were 3 versions of the NCOER; however, he only included one of the "draft" NCOERs with his application. 

4.  In part Vc and d (SR Overall Performance) of the NCOER in question, the SR rated the applicant's overall performance and overall potential for promotion as 
"3-Successful/Superior" with comments in part Ve (SR Bullet Comments) of "promote after peers," "Soldier needs supervision," "Assign to positions that require less attention to detail," and "NCO refuses to sign."

5.  The applicant provides a "draft" NCOER that contains the same information as the contested report with the exception that the SR comments consist of "promote with peers" and "Soldier capable of working unsupervised."

6.  The rater provided a statement, dated 19 December 2007, stating that on the initial NCOER, he rated the applicant as "Success" in all five blocks of Parts IVb-f and "Fully Capable" in Part Va (Overall Performance and Potential).  After the applicant received the NCOER, he asked him (the rater) to adjust some comments, if possible, to reflect more in detail his performance throughout the rating period.  The applicant's request was granted and the rater indicated that he adjusted his bullet comments.  The rater then called the SR who had been reassigned to Texas and discussed with him changing his bullet comments also. The SR agreed.  The rater later discovered that the initial NCOER was filed in the applicant's OMPF rather than the "draft" NCOER with the new bullet comments.

7.  In e-mail traffic from December 2007, the SR indicates that he agreed to rewrite his bullet comments at the request of the rater based on the rater's assurance that the change would help lift the applicant's morale and increase production from his team.  He was later advised that the changed NCOER was not filed on the OMPF.

8.  Army Regulation 623-3 (Evaluation Reporting System) prescribes the policies for completing evaluation reports that support the Evaluation Reporting System. Paragraph 3-39 states, in pertinent part, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to: 

	(a) Be administratively correct; 
	(b) Have been prepared by the properly designated rating officials; and 

	(c) Represent the considered opinions and objective judgment of the rating officials at the time of preparation. 

9.  Requests that an evaluation report in a Soldier's OMPF be altered, withdrawn, or replaced with another report will not be honored. The following will not be used to alter or withdraw a report or be included in the rated individual's OMPF: 

	(a) Statements from rating officials that they underestimated the rated Soldier; 

	(b) Statements from rating officials that they did not intend to rate the rated Soldier as they (rating officials) did; 

	(c) Requests that ratings be revised; 

	(d) Statements from rating officials claiming administrative oversight or typographical error in recording block selection indicating professional competence, performance, or potential. Therefore, it is imperative that rating officials ensure that these evaluations are accurately recorded on the NCOER prior to signing that report; 

	(e) Statements from rating officials claiming OERs were improperly sequenced from the field to HQDA; or

	(f) A subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier's performance or potential in order to preserve higher ratings for other officers (for example, those in a zone for consideration for promotion, command, or school selection) will not be a basis for appeal. 

10.  Appeals based solely on statements from rating officials claiming administrative oversight or typographical error of an NCOER, or AER will normally be returned without action unless accompanied by additional substantiating evidence.  The rated Soldier or other interested parties who know the circumstances of a rating may appeal any report that they believe is incorrect, inaccurate, or in violation of the intent of this regulation.  To justify deletion or amendment of a report, the appellant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration or that action is warranted to correct a material error, inaccuracy, or injustice.  Clear and convincing evidence must be of a strong and compelling nature, not merely proof of the possibility of administrative error or factual inaccuracy.  The burden of proof rests with the appellant.
11.  Paragraph 3-37 of Army Regulation 623-3 states that the rated Soldier will always be the last individual to sign the evaluation.  The rated Soldier's signature will verify the accuracy of the administrative data in part I, to include nonrated time; the rating officials in Part II; the APFT and height and weight date; and that the rated Soldier has seen the completed report.  This action increases administrative accuracy of the report and will normally preclude an appeal by the rated Soldier based on inaccurate administrative data.  In the event the rated Soldier is not available or refuses to sign, SRs will provide an explanation in their narrative or bullet comments.  If significant changes are made to a final evaluation after the rated Soldier has signed it, the SR will ensure the rated Soldier has an opportunity to see the evaluation. 

12.  Additionally, the regulations states for NCOERs, the reviewer's signature and date will not be before the rater's or SR's.  The rated Soldier may not sign or date the report before the rater, SR, or reviewer.  Rating official and rated Soldiers will use Command Access Card to execute their electronic approval.

DISCUSSION AND CONCLUSIONS:

1.  The applicant only included as evidence the contested NCOER and 1 "draft" NCOER which he requests be filed in his OMPF in place of the contested NCOER.

2.  The applicant contends that neither he nor the rater saw the NCOER before it was filed.  This contention is confusing because it is difficult to discern which NCOER he is talking about; the contested NCOER or the "draft" NCOER.  However, the rater signed and dated the contested NCOER 2 months after the SR, and the applicant refused to sign the contested NCOER, so it is clear that both of them viewed the contested NCOER prior to filing.  The "draft" NCOER which was to allegedly replace the contested NCOER was electronically signed by the SR on 16 April 2007, and neither the rater nor the applicant signed it, which leads to the conclusion that it was never accepted for processing and filing in place of the contested NCOER.

3.  It appears that the applicant's central argument rests on the premise that because the "draft" NCOER was prepared with the SR's changes and properly completed prior to the final filing of the contested NCOER, it should be accepted in lieu of the contested NCOER which was prematurely fixed.  Since Army regulations prohibit an evaluation report in a Soldier's OMPF to be altered, withdrawn, or replaced with another report based on statements from rating officials that they did not intend to rate the rated Soldier as they did, the applicant contends that the changes to his NCOER occurred prior to the filing.  However, there is insufficient evidence to show that the "draft" NCOER was ever processed for filing in the applicant's OMPF because it appears to be incomplete without the rater's or the applicant's signatures.  While the rater and SR may have allegedly agreed to the changes, it does not appear as if the changes actually occurred.

4.  The applicant has not shown that the SR's comments in the contested NCOER were incorrect or unjust.  Indeed, the SR did not have a private reflection and come to the individual conclusion that he had rendered an inaccurate or flawed depiction of the applicant's performance for the period covered in the contested NCOER.  He was contacted by the rater, who in turn, had been contacted by the applicant, who requested the changes in his NCOER.  Although the SR indicates that he agreed to minor changes at the request of the rater, the reasoning cited by the SR from the rater was it would "help lift the applicant's morale and increase production from his team."  As such, the reason cited for the requested changes does not show the contested NCOER was incorrect or unjust.

5.  The applicant contends that the SR signed the contested NCOER prior to the rater.  Nothing in Army regulations prohibits this.  That the NCOER was signed out of sequence is not sufficient evidence to invalidate the report.

6.  The "draft" NCOER consists of only minor changes in the SR's bullet comments that do not substantiate the applicant's request to have the entire contested NCOER removed from his OMPF.  Indeed, the changes the SR made do not effectively change the entire report as he did not change the applicant's overall performance and overall potential for promotion ratings.

7.  The applicant has failed to show that the "draft" replacement NCOER was actually processed to completion and accepted for filing in his OMPF.  Further, he has failed to show that the contested NCOER contains any errors or unfairly evaluated his performance for the period covered.  Therefore, there is no basis upon which to grant the applicant's request.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:

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.




      ___        XXX                ___
                CHAIRPERSON
      
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.

ABCMR Record of Proceedings (cont)                                         AR20080009456



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ABCMR Record of Proceedings (cont)                                         AR20080009456



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