IN THE CASE OF:	  

		BOARD DATE:	26 August 2009   

		DOCKET NUMBER:  AR20090007498 


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 reconsideration of his earlier request for correction of his Noncommissioned Officer Evaluation Report (NCOER) for the period from September 2004 to March 2005 (hereafter referred to as the contested NCOER).

2.  The applicant states that the lack of response from his previous Rater and Senior Rater to his and other agencies’ telephone calls, emails, letters, and/or inquiries make it apparent that these two officials have no interest in redressing the issues in the contested NCOER, which is indicative of the nature of these two officials.  

3.  The applicant provides an email statement, dated 3 December 2008, from a his counterpart and former member of his unit; an email, dated 8 April 2009, from his former Rater; an email statement, dated 8 April 2009, from a coworker at the American Legion; an email statement, dated 19 May 2009, from a supervisor at the American Legion; and a letter, dated 19 May 2008, from the House of Commons, United Kingdom (UK) Ministry of Defense, London, England, in support of his request.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080000393, dated 3 April 2008.  On 7 April 2008, the ABCMR informed the applicant that the decision in his case was final and that he may request reconsideration of the portion of his application which was denied by the Board within one year if he could present new evidence or argument that was not previously considered by the Board.  The applicant submitted a request for reconsideration, on 6 April 2009, which was within one year of the ABCMR letter dated 7 April 2008. 

2.  The applicant submitted a new argument, four email statements, and a letter from the UK Ministry of Defense, which were not previously reviewed by the ABCMR; therefore, they are considered new evidence and as such warrant consideration by the Board.

3.  The applicant’s records show he enlisted in the Regular Army for a period of 2 years and 22 weeks on 22 August 1996 and held military occupational specialty (MOS) 54B (Chemical Specialist).  He was honorably released from active duty on 22 January 1999 and was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) for completion of his Reserve obligation.

4.  The applicant’s records also show he enlisted in the USAR for a period of 4 years on 13 July 2001.  He held MOS 38A (Civil Affairs Specialist) and was assigned to the 403rd Civil Affairs Battalion, Mattydale, NY.

5.  On 29 July 2002, the applicant was ordered to active duty in support of Operation Enduring Freedom and subsequently served in Afghanistan from 12 September 2002 to 1 March 2003.  He was honorably released from active duty to the control of his USAR unit on 25 June 2003.

6.  On 30 August 2004, the applicant was ordered to active duty in support of Operation Iraqi Freedom and subsequently served in Iraq from 16 September 2004 to 11 March 2005.  He was honorably released from active duty to the control of his USAR unit on 13 April 2005.

7.  During the month of April 2005, the applicant received a change of rater NCOER which covered 7 months of rated time, from September 2004 to March 2005 for the applicant's duties serving as "Civil Affairs Team Sergeant.”  His duties included being an assistant to the team leader in the daily operations of the civil affairs team in supporting a maneuver battalion in Iraq.  He supervised Soldiers and ensured proper maintenance and accountability of all team equipment and sensitive items.  He assisted with civil military operations planning and project development and coordinated logistic support for the team.  His Rater was a captain (CPT), his Senior Rater was a major (MAJ), and his Reviewer was a lieutenant colonel (LTC).  The NCOER shows the following entries:

	a.  In Part IVb (Competence) he received a "Success" rating.  His Rater entered the following bullet comments:  "often challenged by performance standards," and "when focused, capable and proficient."

	b.  In Part IVc (Physical Fitness and Military Bearing) he received a "Success" rating.  His Rater entered the following bullet comment:  "APFT (Army Physical Fitness Test) was not given during period due to deployment in OIF."

	c.  In Part IVd (Leadership) he received a "Needs Some Improvement" rating. His Rater entered the following bullet comments:  "often fell short in setting a good example for subordinates" and "was lax in enforcing uniform and appearance standards of subordinates.”

	d.  In Part IVe (Training) he received a "Success" rating.  His Rater did not enter any bullet comments. 

	e.  In Part IVf (Responsibility and Accountability) he received a "Needs Some Improvement" rating.  His Rater entered the following bullet comment:  "organizational skills need some improvement" and "often struggled with setting priorities."

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

	g.  In Part Vc (Overall Performance) he received a "Fair" rating, in Part Vd (Overall Potential) he received a "Poor" rating, and in Part Ve (Senior Rater Bullet Comments) the senior rater entered the following comments:  "showed good intentions," "lacked the stamina to go the distance," and "Soldier left assignment early based on medical recommendations."

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 entry "Soldier Not Available for Signature" was placed in the appropriate place indicating the applicant was not available to sign the NCOER.

9.  There is no available evidence showing that the applicant requested a commander's inquiry regarding the subject NCOER.  



10.  On 3 April 2008, The ABCMR granted the applicant partial relief in the form of removing the statement "Soldier left assignment early based on medical recommendations" from Part Ve and replacing it with the statement "Soldier identified for early release from active duty based on operational requirements."

11.  The applicant submitted the following statements in support of his request for reconsideration:

	a.  in an email, dated 8 April 2009, the applicant’s former Rater states that the applicant was part of his team during his deployment in Iraq and that due to time constraints, he pre-signed the applicant’s contested NCOER and that the company commander and Senior Rater completed (wrote) the contested NCOER; 

	b.  in an email statement, dated 3 December 2008, the applicant’s counterpart and currently retired former member of his unit states that the applicant led his team with bravery, skill, and tenacity, and that he did a great job leading his team in Iraq despite the absence of senior leadership in the applicant’s unit.  He adds that despite his well-known medical problems, he did a great job;

	c.  in an email, dated 8 April 2009, the applicant’s colleague at the American Legion and retired colonel states that he assisted the applicant in drafting his appeal of the contested NCOER and that when he examined the facts with the applicant, it was clear to him that this was a matter of very questionable integrity as well as violation of Army evaluation system regulation.  He adds that after the applicant told him the contested NCOER was pres-signed, he (the retired colonel) spent months trying to reach the Rater and/or senior Rater by emails, phones, and other correspondence with no luck.  However, the Rater finally came forward to confirm the injustice and unfairness as well as the impropriety that occurred in the preparation of this NCOER; 

	d.  in an email, dated 19 May 2009, a staff member of the American Legion states that the failure of the applicant’s chain of command to follow proper Army regulations invalidates the contested NCOER as evidenced by the email submitted by the applicant’s former Rater and that had this information been available at the time of the original ABCMR’s decision, a more favorable decision would have been rendered; and

	f.  in a letter, dated 19 May 2008, from the House of Commons, UK Ministry of Defense, the applicant is recognized for his contributions to a study onto the National Recognition of the British Armed Forces.

12.  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.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his earlier request for correction of his NCOER should be reconsidered.

2.  The former Rater’s email nearly four years after the through date of the contested NCOER is noted.  However, an evaluation report accepted by HQDA and included in the official record of a rated Soldier is presumed to be administratively correct, have been prepared by the properly designated rating officials, and represent the considered opinions and objective judgment of the rating officials at the time of preparation.  The contention that the Rater pre-signed the NCOER and that the Senior Rater wrote the entire evaluation is not supported by any corroborating evidence.  A subsequent statement from a rating official that he/she rendered an inaccurate evaluation of a rated Soldier’s performance is generally not a basis for appeal.

3.  The emails of support provided by the applicant’s former co-workers and/or other officials of the American Legion are noted.  However, none of these individuals were aware of the expectations of his rating chain or were in a better position to appraise the applicant’s performance than his rating chain. 

4.  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.

5.  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 provide sufficient, relevant, and convincing evidence showing that the rater's evaluations and comments in the subject NCOER are inaccurate or unjust and should be changed.

BOARD VOTE:

____x____  ____x____  ___x_____  GRANT FULL RELIEF 

____ ___  ____ ____  ___ ____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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 to amend the decision of the ABCMR set forth in Docket Number AR20080000393, dated 3 April 2008.



      _______ _   _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)                                         AR20090007498



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ABCMR Record of Proceedings (cont)                                         AR20090007498



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