IN THE CASE OF:	   

		BOARD DATE:	       31 March 2009 

		DOCKET NUMBER:  AR20080018604 


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 an amended DA Form 2166-8 (NCO Evaluation Report (NCOER)) for the period 1 December 2005 through 9 August 2006 be removed from his official military personnel file (OMPF).

2.  The applicant states, in effect, that he was treated unfairly by his command, that he sent an electronic (email) message to his chief questioning her unfair rating of his duties while deployed and she answered him with an email message which he thought was more personal than professional, and that he received two NCOERs for the same period but with two different remarks.  He indicates that without the negative comments on his NCOER, the senior rater and reviewer would have otherwise made a different remark regarding this evaluation.

3.  The applicant points out that his commander recommended him for the Meritorious Service Medal.  He argues that if his command thought his service was deserving of such a medal, then the rating should justify the award recommendation.  He also states that his chief was in a position where she was supposed to be the subject matter expert in her field, yet she turned in an evaluation report that included an unauthorized comment and the commander supported her action.  He further states that these types of errors are not expected from her because the Army has a regulation which she could have used if she had any doubt.  He believes it was a deliberate act on her part to hurt his career and promotion potential.

4.  The applicant provides two NCOERs for the period 1 December 2005 through 9 August 2006; a DA Form 638 (Recommendation for Award), dated 15 May 2006; a document pertaining to prohibited and authorized NCOER comments; and two email messages in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving on active duty in the rank of staff sergeant.

2.  The applicant’s original DA Form 2166-8 for the period 1 December 2005 through 9 August 2006 shows the rater provided a "No" entry for loyalty in Part IV (Army Values/Attributes/Skills/Actions).  He was rated as "Needs Improvement (Much)" for Leadership with bullet comments "received an Article 15; for assaulting a junior Soldier within the detachment," "recommended for Article 15; for dereliction of duty and disobeying a direct order," and "unable to cope during wartime environment; received a command referral for mental health."  He was rated "Marginal" for overall potential for promotion and/or positions of greater responsibility by his rater.

3.  On 11 January 2007, the applicant appealed the NCOER to the Enlisted Special Review Board (ESRB).  The basis of his appeal was substantive inaccuracy.  He stated that the "No" entry for loyalty in Part IV was changed after he made several attempts to correctly identify the tasking that he was assigned to do while deployed in Iraq.  With reference to the bullet comments for Leadership on the NCOER, he states that the recommendation was never approved for such an Article 15, that the second Article 15 was not for assault, that he was never charged with any assault by an authority, and that he referred himself to combat stress only after he made several requests to be moved because he felt he was being singled out by his detachment sergeant.  He further states that he was recommended for the Meritorious Service Medal for his performance in Iraq.

4.  On 8 February 2008, the ESRB determined the evidence did not justify withdrawing the report but the NCOER was amended.  The applicant’s NCOER was amended by deleting bullet comments "received an Article 15; for assaulting a junior Soldier within the detachment," "recommended for Article 15; for dereliction of duty and disobeying a direct order," and "unable to cope during wartime environment; received a command referral for mental health" and changed the rating from "Need Improvement (Much)" to "Success."  Also, due to this change, Part Va (Overall Performance and Potential/Rater) was changed to "Fully Capable" instead of "Marginal."  The Board directed that the appeal correspondence be filed on the applicant's restricted section of his OMPF.

5.  It is noted that the amended NCOER shows the rater provided a "Yes" entry for loyalty in Part IV.
6.  A review of the applicant’s OMPF on the Integrated Personnel Electronic Records Management System revealed a copy of the amended NCOER in question.  His original NCOER and appeal are contained in the restricted section of his OMPF.

7.  In support of his claim, the applicant provided orders for the Army Commendation Medal for the period 14 November 2005 to 13 November 2006.

8.  Army Regulation 600-8-104 (Military Personnel Information Management/
Records) prescribes the policies governing the OMPF, the military personnel records jacket, the career management individual file, and Army Personnel Qualification Records.  Table 2-1 of the regulation provides, in pertinent part, that an NCOER will be filed permanently in the performance section of the OMPF.

9.  Army Regulation 623-3 (Evaluation Reporting System) states, in effect, that an evaluation report accepted for inclusion in the official record of a rated Soldier’s OMPF 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 the rating officials at the time of preparation.  The regulation also states that the burden of proof rests with the applicant.  Accordingly, to justify deletion or amendment of a report, the applicant will produce evidence that establishes clearly and convincingly that (1) the presumption of regularity referred to in paragraphs 3-39 and 6-7 will not be applied to the report under consideration and (2) action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  Evidence of record shows the applicant’s original NCOER for the period 1 December 2005 through 9 August 2006 was amended by the ESRB in 2008.  The amended NCOER shows that he was rated "Fully Capable" in his overall potential for promotion and/or positions of greater responsibility and he was rated "Success" for Leadership by his rater.  The bullet comments in Part IVd Leadership were deleted.  There is no evidence of record and the applicant has provided no evidence which shows that he should have received more favorable ratings by the rater.

2.  The amended NCOER covering the period 1 December 2005 through 9 August 2006 is properly filed in the applicant's military records in accordance with the governing regulation.  There is no evidence that it was improperly imposed.

3.  The contentions of the applicant have been carefully considered.  However, the applicant has not shown that the amended NCOER has not made him whole and all derogatory comments have been removed from the NCOER.  Therefore, there is an insufficient 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.



      ____________x_____________
                 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)                                         AR20080018604



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ABCMR Record of Proceedings (cont)                                         AR20080018604



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