IN THE CASE OF:	

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090015594 


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 an amended DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 September 2005 through 31 August 2006 be removed from his official military personnel file (OMPF).

2.  The applicant states that during appeal of the NCOER the Army Special Review Board (ASRB) analyst found errors in the report and noted the report was not prepared in accordance with the applicable regulation and further recommended the report be removed in its entirety from his OMPF.

3.  The applicant provides:

* memorandum from Reserve Component Appeals, U.S. Army Human Resources Command, St. Louis, Missouri
* ASRB proceedings
* amended NCOER
* original evaluation report appeal with 19 enclosures outlined on the last page of his appeal

CONSIDERATION OF EVIDENCE:

1.  The applicant is currently serving in an Active Guard Reserve status in the rank of sergeant first class.

2.  The applicant's original DA Form 2166-8 for the period 1 September 2005 through 31 August 2006 shows the rater provided a "No" entry for loyalty in Part IV (Army Values/Attributes/Skills/Actions) with a bullet comment:  "needs to devote more time to developing effective working relationships with the company."

3.  He was rated as "Needs Improvement (Some)" for Part IVb (Competence) with the bullet comments:  "failed postal inspection on two separate occasions; was remiss on making required changes," "lacks the initiative to utilize the skills that he should have gained during the pay training course," and "does not demonstrate consistent understanding of tasks necessary to function in assignment."

4.  He was rated as "Needs Improvement (Some)" for Part IVd (Leadership) with the bullet comments:  "section constantly in a state of unrest because of a lack of emphasis placed on working as a team," "does not have a positive influence on the section or the full-time battalion staff," and "lacks desire to work with and train Soldiers."

5.  He was rated as "Needs Improvement (Some)" for Part IVe (Training) with the bullet comments:  "demonstrates disrespect toward subordinates; this behavior has created an unwholesome training environment"; "section is not clear about what is expected and approaches training with trepidation"; and "the Soldiers in the section are not motivated to work and are suffering a loss of morale."

6.  He was rated as "Needs Improvement (Some)" for Part IVf (Responsibility and Accountability) with the bullet comments:  "section is not involved in purposeful learning activities, but just busy work and unnecessary exercises"; "has a negative effect on the character of some of the section members"; and "does not follow through with tasks assigned."

7.  He was rated "Marginal" for overall potential for promotion and/or positions of greater responsibility by his rater.

8.  The senior rater rated the applicant in Part Vc (Overall Performance) and Part Vd (Overall Potential for Promotion and/or Service in Positions of Greater Responsibility) as "4-Fair" and 4-Fair" respectively, with the bullet comments:  "fails to take responsibility for his actions and often becomes argumentative when discussing his shortcomings"; "does not apply himself; do not promote at this time"; and "continue to groom to meet the responsibilities of an SFC."

9.  On 28 January 2008, the applicant appealed the NCOER to the ASRB.  The basis of his appeal was administrative errors, an improper Commander's Inquiry, and a rater who did not meet the qualifications.  He pointed out the following administrative errors:

* in Part II (Authentication), Part IIa, b, and c respectively, the contested report has the city and state listed in the duty assignment section and no dates are present
* in Part III (Duty Description), Part IIIf (Counseling Dates), he argues some of the counseling dates are incorrect and the only correct dates for the counseling are 2 April 2006 and 31 August 2006
* he should have received a change-of-rater NCOER from Major P____ covering the period 1 September 2005 through 31 March 2006
* he did not receive a change-of-rater NCOER and the new rater arrived to the unit at the end of March 2006
* the new rater gave him his initial counseling on 2 April 2006 and the next and final counseling was not until 31 August 2006

10.  The applicant submitted a list of events (time line) for requesting a Commander's Inquiry to be conducted during the period 5 October 2006 to 26 October 2007.  He argued he was never trained in postal operations and the inspector/evaluator stamped the results of the inspection as "training" and for a re-inspection to be conducted in 30 days.  The applicant further stated he received a "satisfactory" rating on the follow up inspection.

11.  On 21 November 2008, notwithstanding the analyst's recommendation to remove the contested NCOER in its entirety from the applicant's OMPF because of numerous errors and that it was not prepared in accordance with the applicable regulation, the ASRB unanimously determined the evidence did not justify removing the report; however, the NCOER was amended.  The applicant's NCOER was amended to show the following:

* the period 1 September 2005 through 31 March 2006 was nonrated
* in Part Ii (Rated Months) was 5 months vice 12 months
* entering "Q" in Part Ij (Nonrated Codes)

12.  The ASRB directed the appeal documentation, the Board's decision memorandum, and the ASRB proceedings be filed in the restricted section of the applicant's OMPF.

13.  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.



14.  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.

15.  Army Regulation 623-3 (Evaluation Reporting System) states 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.  The applicant's contention the ASRB analyst found errors in the report and noted the report was not prepared in accordance with the applicable regulation and further recommended the report be removed in its entirety from his OMPF was noted.  However, despite the ASRB analyst's recommendation, the ASRB unanimously determined that only partial relief was warranted and amended his NCOER based on evidence provided by the applicant.

2.  The applicant's original NCOER for the period 1 September 2005 through 31 August 2006 was amended by the ASRB in 2008.  The amended NCOER shows the period 1 September 2005 through 31 March 2006 was nonrated, in Part Ii the rated months was changed to 5 months instead of 12 months, and a nonrated code of "Q" was entered in Part Ij.

3.  The amended NCOER covering the period 1 September 2005 through 31 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.  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)                                         AR20090015594



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ABCMR Record of Proceedings (cont)                                         AR20090015594



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