IN THE CASE OF:	  

		BOARD DATE: 	        22 May 2009

		DOCKET NUMBER:  AR20090000223 


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)) for the rating period June 2002 through January 2003 [hereafter referred to as the contested report] be removed from the performance portion of his Official Military Personnel File (OMPF).

2.  The applicant states, in effect, violations of Army Regulation 623-205 (Evaluation Reporting System), a flawed Commanders Inquiry, and several NCOERs withheld from him for two years contributed to him not being selected for promotions. 

3.  The applicant provides the contested report, two DD Forms 214 (Certificate of Release or Discharge from Active Duty), a Commanders Inquiry results memorandum in reference to the contested report, a response to the applicant's request for appeal to the contested report, and one memorandum of support for this application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was assigned to the 530th Military Police Battalion as an Administrative Sergeant in military occupational specialty (MOS) 75H.
The contested report shows that the applicant was rated by the senior personnel service sergeant, senior rated by the S1 Officer, and reviewed by the battalion executive officer.

3.  The contested report shows that the applicant received a rating of "needs some improvement" in part IVb (Competence) with the following bullet comments: "frequently away from place of duty due to personal and family appointments" and "completes work at a slow rate."  It was also noted in Part IVc (Physical Fitness & Military Bearing) that no annual physical fitness test was taken during the rating period as well as his height being listed as 72 inches and his weight was listed at 254 pounds showing that the applicant did not meet the height and weight standards.

4.  Part IVd (Leadership) was rated "needs some improvement" with the following bullet comments:  "More concerned about time off than missions and responsibilities" and "has not set an example of a consistent work routine or work ethic."  Part V (Overall Performance and Potential) (Rater portion overall potential for promotion and/ or position of greater responsibility) was rated as marginal.

5.  Part Ve (Senior Rater Bullet Comments) of the contested report shows the following comments:  "displayed poor example to others by numerous absences from work place over various appointments," "frequent conflicts with others caused many distractions at work and numerous investigations," "inability to work closely with others," "work performance was slow and below standard due to frequent absences from work and lack of attention to detail."  

6.  Part Vc (Senior Rater Overall performance) of the contested report shows the applicant was rated "poor."  Part Vd (Senior Rater Overall potential for promotion and/or service in positions of greater responsibility) was rated as "fair."

7.  On 11 August 2003, the applicant requested that a Commanders Inquiry be conducted on the contested report based on various claims consisting of failure to receive counseling, marital status prohibited on the NCOER, failure to mention that he passed a command inspection, claims that he was never entered into the weight control program, that an NCOER cannot reference an investigation, and the number of rated months for the report.  The inquiry was conducted addressing all of the applicant's claims of inaccuracies and administrative errors.  The inquiry included a detailed examination of all available information.  The recommendation from the Investigating Officer (IO) was that the contested report should stand as written.

8.  On 19 November 2003, the Brigade Commander approved the recommendations of the Commanders Inquiry IO.  He determined that the comments and rating included in the contested report did reflect the organization's view of the rated NCO, the report was considered true and accurate, and the rating was done objectively.

9.  The applicant submitted an appeal of the contested report (date of submission is not furnished) to the evaluation appeal authority at Human Resources Command (HRC) St. Louis.  

10.  On 21 November 2004 a response to the applicant's appeal from the Human Resources Command, St. Louis  (HRC - STL) was provided informing him of the administrative corrections that were made to the contested report based on the evidence submitted.  Corrections were made to part Ie changing the MOS to reflect 75H20 instead of 75B20, part If changed to add "HHC" to the unit address, part Ii was changed to reflect 7 instead of 8 months, part Ij was changed to add "S" instead of a blank, and part Iv was changed to reflect the correct social security number.  Within the same response memorandum the applicant was informed that the furnished evidence was not clear and convincing enough to invalidate the remainder of the contested report.  He was also informed of example evidence that would provide better support to his request.  

11.  The applicant retired from the Army and received an honorable discharge with a separation date of 23 September 2007.  On 10 January 2008, after his discharge, the applicant submitted a Congressional Inquiry requesting assistance in his efforts to have the previous mentioned Commanders Inquiry corrected based on his view that it was flawed. 

12.  On 21 March 2008, the applicant's last command responded to the Congressional Inquiry informing the requesting Congressman that the inquiry in question was conducted in a proper manner and that it will remain as is, and that no corrective actions to inquiry will be taken based on the findings.

13.  The applicant requested an appeal to the contested report again (date of request unknown) to HRC - STL.  A memorandum from HRC - STL, dated        23 December 2008, was returned without action due to the applicant's retired status.  The applicant was informed on the proper appeal process for a retiree. 

14.  Army Regulation 623-205 (Evaluation Reporting System), in effect at the time, states that evaluation reports accepted for inclusion in the official record of an NCO are presumed to be administratively correct, 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 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 appellant.

15.  The regulation states, in pertinent part, that the primary purpose of a Commander's Inquiry is to provide a greater degree of command involvement in preventing obvious injustices to the rated Soldier and correcting errors before they become a matter of permanent record.  A secondary purpose is to obtain command involvement in clarifying errors or injustices after the evaluation is accepted at HQDA.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the contested NCOER should be removed due to a flawed Commanders Inquiry and that he was denied promotion due to evaluations being withheld for two years was carefully considered and determined to be without merit.

2.  Although the applicant has provided several documents in support of this application, they fail to provide sufficient evidence to clearly and convincingly support his contentions.

3.  The response memorandum to the applicant's request for appeal from       HRC - STL addressed the administrative errors that were corrected on the report and the applicant's lack of evidence to prove that the remainder of the contested report was untrue, unfair, or presented an injustice. 

4.  The applicants Congressional Inquiry request was addressed by his unit and provided a sufficient response to the requesting congressman. The applicant continued to serve and retired from service receiving an honorable discharge.

5.  There is no evidence showing that he was not provided promotion opportunities. 
6.  Based on the foregoing, and the fact that the applicant did not provide sufficient evidence which shows that the contested report was inequitable, unjust, or otherwise flawed, there are no basis to grant 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)                                         AR20090000223





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ABCMR Record of Proceedings (cont)                                         AR20090000223



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