IN THE CASE OF:	  

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:  AR20080015260 


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 that:

	a.  his "Relief for Cause" DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 20060801 through 20070731 be replaced with an "Annual" NCOER with the same through date; 

	b.  his NCOER for the period 200210 to 200302 be removed from his Official Military Personnel File (OMPF) or alternatively be transferred from the performance section to the restricted section of his OMPF.

	c.  his Enlisted Record Brief (ERB) be corrected to reflect his updated height/weight and Army Physical Fitness Test (APFT) score.

2.  The applicant states the following:

	a.  After careful consideration, his brigade commander directed that his "Relief For Cause" NCOER should be replaced with an "Annual NCOER."

	b.  The NCOER for the period 200210 to 200302 was given to him for personal rather than performance related reasons.  He adds that he has utilized different resources in an effort to have this matter resolved in a positive manner, including a formal Inspector General (IG) complaint, a formal Congressional complaint, and the NCOER appeal process to no avail.

	c.  His height/weight and APFT data has not been updated on his ERB.
3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DA Form 2166-8 for the period 20060801 to 20070731;

	b.  U.S. Army 5th Recruiting Brigade, Fort Sam Houston, Texas, memorandum, dated 1 November 2007, subject:  Withdrawal of Relief for Cause NCOER;

	c.  DA Form 2166-8 for the period 200210 to 200302;

	d.  DA Form 2166-8-1 (NCO Counseling Checklist), dated 1 October 2002;

	e.  DA Form 4856 (Developmental Counseling Form), dated 1 October 2002;

	f.  Headquarters, 90th Regional Readiness Command (RRC), North Little Rock, Arkansas, IG letter, dated 11 October 2005;

	g.  DA Form 2823 (Sworn Statement), dated 19 October 2004;

	h.  ERB, dated 10 September 2008;

	i.  DA Form 705 (Army Physical Fitness Test Scorecard), dated 16 March 2007; and

	j.  DA Form 5500-R (Body Fat Content Worksheet (Male)), dated 16 March 2007.

CONSIDERATION OF EVIDENCE:

1.  The applicant had previously submitted an appeal to the Army Special Review Board (ASRB) to have his "Relief for Cause" NCOER for the period 20060801 to 20070731 be replaced with an "Annual" NCOER.  The ASRB granted the applicant relief and directed his records be corrected to reflect the change and he was accordingly notified by separate correspondence.  As a result, the applicant’s NCOER for the period 20060801 to 20070731 will not be discussed further in this Record of Proceedings.

2.  The applicant requested his ERB be updated to reflect his most current height/weight and APFT data.  However, there is no indication that the applicant exhausted his administrative remedies and he was accordingly advised by separate correspondence.  As a result, the applicant’s height/weight and APFT will not be discussed further in this Record of Proceedings.
3.  The applicant’s records show he enlisted in the Regular Army on 12 September 1985 and was trained in military occupational specialty (MOS) 31C (Single Channel Radio Operator).  He attained the rank/grade of specialist/
E-4 and was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group on 11 September 1989.  He subsequently executed a series of reenlistments and/or extensions in the USAR and was promoted to staff sergeant on 12 December 1994.

4.  On 17 March 1997, the applicant entered the Active Guard Reserve program and subsequently completed the Army Recruiting Course and was awarded MOS 79R (Recruiter).  He was promoted to sergeant first class on 1 January 2000.

5.  On 12 January 2003, while assigned as a Center Retention and Transition NCO to the 90th Regional Support Command, Seagoville, Texas, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for leaving his appointed place of duty without authority, reacting to oral counseling from his supervisor by clearing his desk and workstation of all personal property and leaving his workplace while declaring that he was not "going to take it anymore." He also refused to return to his place of duty after being instructed to do so by a superior NCO in his chain of command.  

6.  On 13 February 2003, by memorandum, the applicant was notified that he was being relieved for cause.  The memorandum stated that the applicant failed to adhere to guidance and/or directives outlined in repeated counseling; was insubordinate toward his direct supervisor; wrongfully disobeyed his superior and his chain of command on numerous occasions; repeatedly feigned illness, physical disablement, and/or mental lapses with the purpose of avoiding work, duty, or service; and without authority left his appointed place of duty.

7.  On 19 March 2003, the applicant was issued a Relief for Cause NCOER for the period October 2002 through February 2003, as follows:

	a.  In Part IVa (Army Values) he received "NO" ratings for Loyalty, Duty, Respect/EO/EEO, and Integrity.  His rater entered the following bullet comments: "cannot be trusted to make honorable decisions, seeks self-gain," "unprofessional in conduct, disrespectful to superiors," and "violated AR 600-5 [Personnel-General]."

	b.  In Part IVb (Competence) he received a "Needs Much Improvement" rating.  His rater entered the following bullet comments:  "incapable of handling retention tasks without direct supervision," "ineffective time management henders [hinders] Army Reserve Readiness," and "has placed his honor in question, is insincere."
	c.  In Part IVc (Physical Fitness and Military Bearing) he received a "Needs Some Improvement" rating.  His Rater entered the following bullet comment:  "fails to maintain military bearing when counseled; displays inappropriate body language, facial expressions, and noises."

	d.  In Part IVd (Leadership) he received a "Needs Much Improvement" rating. His rater entered the following bullet comments:  "brings discredit to the command by constantly challenging guidance of supervisors in routinely breaking the Chain of Command," "becomes intolerably insubordinate when counseled with regard to corrective criticism," and "refused to do his job as a Retention NCO (79V) and said 'I quit.'"

	e.  In Part IVe (Training) he received a "Needs Much Improvement" rating.  His rater entered the following bullet comments:  "unable to train others due to his lack of knowledge in the Retention and Transition arena," "training consistently below minimum standard; continues to present incorrect guidance to units and supervisor," and "lacks desire to work as a team player with subordinates; attitude negatively impacts team morale."

	f.  In Part IVf (Responsibility and Accountability) he received a "Needs Some Improvement" rating.  His rater entered the following bullet comment:  "Soldier refuses to take responsibility for personal and professional failures" and "Soldier’s personal issues distract team’s ability to focus on mission accomplishment."

	g.  In Part Va (Overall potential for promotion and/or service in positions of greater responsibility) he received a "Marginal" rating.

	h.  In Part Vc (Overall Performance) and Part Vd (Overall Potential) he received a "Marginal" rating, and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments:  "Soldier fails to take responsibility for his actions while being disrespectful and insubordinate to superiors," "Soldier deserted his assigned duty post as defined in Article 85 of the Uniform Code of Military Justice," and "displays poor judgment and an unwillingness to adapt to current leadership; review closely for QMP [Qualitative Management Program]."

8.  The NCOER shows the rater and senior rater authenticated this form by placing their signatures in the appropriate places, and that the reviewer concurred with the rater and senior rater and authenticated this form by placing his signature in the appropriate place.  Furthermore, the applicant placed his signature in the appropriate place indicating the following:

"I understand my signature does not constitute agreement or disagreement with the evaluations of the rater and senior rater.  I further understand my signature verifies that the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IVc are correct.  I have seen the report completed through Part V, except Parts IId and IIe.  I am aware of the appeals process of AR 623-205."

9.  On 17 September 2008, the ASRB denied the applicant’s petition to have this NCOER removed from the OMPF.

10.  Army Regulation 623-205 (Evaluation Reporting System), in effect at the time, established the policies and procedures for the preparation and submission of the NCOERs for corporals through command sergeants major.  Paragraph 4-2 provided that an evaluation report accepted for inclusion in the official record of the NCO 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 preparation.  Paragraph 4-7 of that regulation states that the burden of proof in an appeal of an NCOER rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant must produce evidence that establishes clearly and convincingly that the presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice.  Paragraph 6-4 provides that each report will be an independent evaluation of the rated NCO for a specific rating period.

11.  Army Regulation 623-205, paragraph 2-15, provides that when it is brought to the attention of commanders that a report rendered by one of their subordinates or by a member of one of their subordinate commands may be illegal, unjust, or otherwise in violation of the regulation, they will look into the allegation.  These matters may be brought to the commander’s attention by the rated NCO or anyone having knowledge of the alleged illegality, injustice, or violation.  The Commander’s Inquiry will be made by a commander (major or above) in the chain of command above the designated rating official(s) involved in the allegations.  The commander will confine the inquiry to matters relating to the clarity of the report, the facts contained in the report, the compliance of the report with the regulation, and the conduct of the rated NCO and rating officials.

12.  Chapter 2 of Army Regulation 600-8-104 (Military Personnel Information Management/Records) governs the composition of the OMPF and states, in pertinent part, that the performance section is used for filing performance, commendatory, and disciplinary data.  Once placed in the OMPF the document becomes a permanent part of that file.  The document will not be removed from a section or moved to another part of the section unless directed by certain agencies, to include this Board.  Table 2-1 of Army Regulation 600-8-104 states, in pertinent part, that all evaluation reports are filed in the permanent section of the performance section of the OMPF.

DISCUSSION AND CONCLUSIONS:

1.  The contested report appears to represent a fair, objective, and valid appraisal of the applicant’s demonstrated performance and potential during the period in question.  The applicant authenticated this report indicating that the administrative data in Part I, the rating officials in Part II, the duty description to include the counseling dates in Part III, and the APFT and height/weight entries in Part IV were correct, and that he was aware of the appeal process.  Yet he appealed this NCOER to the ESRB over 5 years after the NCOER was processed.

2.  There is no evidence that the contested report contains any serious administrative deficiencies or that it was not prepared in compliance with applicable regulations and policy.  Furthermore, the applicant has not shown that the rating officials’ evaluations represented other than their objective judgment and considered opinions at the time they prepared the contested NCOER, or that they exercised faulty judgment in evaluating him as they did.

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.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  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 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)                                         AR20080015260



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ABCMR Record of Proceedings (cont)                                         AR20080015260



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