IN THE CASE OF:	  

		BOARD DATE: 	        22 May 2009

		DOCKET NUMBER:  AR20080020003 


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 the DA Form 2166-8, (NCO Evaluation Report (NCOER)) covering the period March 2005 through February 2006 [herein after referred to as the contested report] received while serving in the rank of staff sergeant be amended. 

2.  The applicant states, in effect, the contested report should be changed in several areas because it is inaccurate.

3.  The applicant argues that a statement should be added to part IIId which reads "Preparation for OEF VII deployment"; ratings in part IVb, c, and f should be changed to "excellence"; part Vc should be changed to a "two"; part Vd should be changed to a "one"; the senior rater comments which read, "performance has improved over last three months" and "potential to perform in positions of greater responsibility with supervision" should be deleted and comments added that are consistent with the rater's assessment; and the overall ratings should be changed to "excellence" and "among the best."

4.  The applicant provides no additional documentary evidence in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The contested report was an annual report for a period of eight months where he was rated in the position of a Military Intelligence Maintainer/Integrater Sergeant.
2.  The contested report was authenticated by the applicant's rater, a first lieutenant; his senior rater, a captain; and his reviewer, a lieutenant colonel.
Part IIc (Signature of Rated NCO) of the contested report shows the applicant was unavailable for signature.  

3.  Part IVa (Army Values) shows the "Yes" block marked in all the designated blocks in Part IV – Army Values/Attributes/Skills/Actions.  

4.  In Part IV (Rater, Values/NCO Responsibilities) of the contested report the applicant was rated as "Success" in all areas.  The applicant's rater ranked his potential for promotion and/or service in positions of greater responsibility as fully capable, the middle ranking of a three-level ranking system.

5.  In Part Vc (Senior Rater, Overall Performance) there is an "X" in the three block, indicating an overall successful rating.

6.  In Part Vd (Senior Rater, Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) there is an "X" in the three block, indicating an overall superior rating.  The applicant's senior rater stated that the applicant has potential for greater responsibility with supervision; he should be promoted when allocations allow, and his performance had improved over the last three months.  

7.  The applicant's case was reviewed by the Enlisted Special Review Board (ESRB) in February 2008.  The ESRB determined the evidence did not justify withdrawing the report; however, the Board determined the report should be amended.   The contested report was amended in part IIc to read, NCO unavailable for signature; in part IIIf to show all counseling dates were deleted; and part Ve was changed to read "Soldier was not counseled in accordance with regulatory guidance. "

8.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, states that evaluation reports accepted for inclusion in the official record are presumed to be administratively correct, have been prepared by the proper rating officials, and represent the considered opinion and objective judgment of rating officials at the time of preparation.  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 applicant.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested report should be changed is not supported by the evidence of record.

2.  The applicant has not provided any evidence to show that his performance of duty or execution of responsibilities was so remarkable that he should have been rated as "excellence" in any of the rated duties or responsibilities.  His contention that the bullet comments were strong enough to support an "excellence" box check mark is not supported by the evidence of record.  

3.  While the applicant may believe that he should have been given a stronger evaluation for his performance during the contested report's rating period, there is no evidence to show the opinions of the rating officials at the time were, unjust, or otherwise flawed.

4.  Additionally, the applicant did not provide sufficient evidence and his records do not contain sufficient evidence to show that the contested report was inaccurate.

5.  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.




      _______ _    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)                                         AR20080020003





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ABCMR Record of Proceedings (cont)                                         AR20080020003



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