IN THE CASE OF:	

		BOARD DATE:	       18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018844 


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, in effect, that his Noncommissioned Officer Evaluation Report (NCOER) for the period covering 1 November 2003 through 
31 October 2004 be removed from his Official Military Personnel File (OMPF). 

2.  The applicant states, in effect, that this NCOER is for overlapping dates and that he was rated for 13 months.  He also points out that the rater provided "No" entries for duty, respect, selfless service, honor, integrity, and personal courage in Part IV (Army Values/Attributes/Skills/Action Duty) on this NCOER.  He contends that a first lieutenant at the time was out to get him any way she could and she "redid" this NCOER from an NCOER he received in 2004.  

3.  The applicant provides DA Forms 2166-8 (NCO Evaluation Report) for the periods covering 1 November 2003 through 31 October 2004, March 2004 through 12 December 2004, and November 2003 through December 2004.

CONSIDERATION OF EVIDENCE:

1.  Having prior active service and inactive service in the U.S. Army Reserve, the applicant enlisted in the Army National Guard on 11 February 1999.  He is currently serving as a staff sergeant in the Army National Guard.   

2.  In support of his claim, the applicant provided an NCOER for the period covering November 2003 through December 2004 which shows the rater provided "No" entries for duty, respect, selfless service, honor, integrity, and personal courage in Part IV.  The bullet comments in Part IV included the entries, "will fully only (sic) the obligations he feels necessary," "continually disregards rules and guidelines," and "his personal time comes before his subordinates/duty."  He was rated as marginal by his rater for overall potential for promotion and he was rated as poor for overall performance and overall potential for promotion by his senior rater.  Part II (Authentication) of this NCOER shows the entry, Soldier Unavailable."  His rating chain signed this report in September 2004.  This NCOER is not contained in the applicant's OMPF on the integrated-Personnel Electronic Records Management System (iPerms).   

3.  The NCOER in question is for the period covering 1 November 2003 through 31 October 2004 for 4 rated months with no nonrated code(s) indicated.  This NCOER shows the rater provided "No" entries for duty, respect, selfless service, honor, integrity, and personal courage in Part IV.  The bullet comments in Part IV included the entries, "didn't follow all orders, was disrespectful to senior Officers and NCO'S, placed his own wants and desires above missions and Soldiers" and "didn't live up to the Army values, lacked integrity and personal courage, abused his authority, was belligerent, always looking for the ‘loop-hole’."  He was rated as marginal by his rater for overall potential for promotion and he was rated as poor for overall performance and overall potential for promotion by his senior rater.  The signature block of the Rated NCO in Part II (Authentication) of this NCOER is blank.  His rating chain signed this report on 18 June 2008. 

4.  The rating chain is the same on both of the above-mentioned NCOERs.  It is also noted that some of the bullet comments on these NCOERs are the same.

5.  The applicant also provided an NCOER for the period covering March 2004 through December 2004 which shows the rater provided "Yes" entries for duty, respect, selfless service, honor, integrity, and personal courage in Part IV.  The bullet comments in Part IV included the entries, "fully supports the unit and it's mission," "keeps soldiers welfare first and foremost," and "genuinely concerned for the soldier and his training."  He was rated as fully capable by his rater for overall potential for promotion, he was rated as successful for overall performance by his senior rater, and he was rated superior (Number 3) for overall potential for promotion by his senior rater.  Part II (Authentication) of this NCOER shows the applicant signed it on 6 November 2004.  His rating chain signed this report on 4 and 6 November 2004.  This NCOER is also not contained in the applicant's OMPF.   

6.  The rating chain on the above-mentioned NCOER is different than the two NCOERs described earlier.

7.  There is no evidence of record which shows the applicant submitted an appeal to have the NCOER in question removed from his records. 
8.  A review of the applicant’s OMPF on the iPERMS revealed a copy of the NCOER for the period covering 1 November 2003 through 31 October 2004 which he is now appealing.      

9.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time of the NCOER in question, states an NCOER accepted for inclusion in an NCO’s official record 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.  To justify deletion or amendment of an NCOER under the regulation, the applicant 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 applicant.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's arguments appear to have merit.  The two derogatory NCOERs in question have overlapping dates.  Although not identical, both NCOERs contain the same rating chain and several exact bullet comments.  The NCOER for the period covering November 2003 through December 2004 was signed by his rating chain in September 2004.  The NCOER for the period covering 1 November 2003 through 31 October 2004 was signed by his rating chain in June 2008, almost four years after the rated period.  Based on the foregoing, it appears the NCOER for the period covering 1 November 2003 through 31 October 2004 was recreated from the NCOER covering the period November 2003 through December 2004.  

2.  The provisions of Army Regulation 623-205 provide, in pertinent part, for the deletion or amendment of an NCOER, when the applicant is able to produce evidence that establishes clearly and convincingly that action is warranted to correct an injustice.  The evidence supports a conclusion that the manner in which the NCOER for the period covering 1 November 2003 through 31 October 2004 was rendered in and of itself creates an injustice which can only be overcome by the removal of this report from the applicant's OMPF.  Therefore, as a matter of equity, it would be appropriate to remove the NCOER for the period covering 1 November 2003 through 31 October 2004 from his OMPF.



BOARD VOTE:

____X____  ___X_____  ____X____  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented was sufficient to warrant a recommendation for relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  removing the NCOER for the period covering 1 November 2003 through 
31 October 2004 from his OMPF; and 

	b.  inserting a memorandum in the applicant's OMPF annotating the period 
1 November 2003 through 31 October 2004 as nonrated time.  




      _______ _   _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)                                         AR20080018844



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ABCMR Record of Proceedings (cont)                                         AR20080018844



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