IN THE CASE OF:	  

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090018449 


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 his DA Form 2166-8 (NCO Evaluation Report (NCOER)) be removed from his military record. 

2.  The applicant states the derogatory NCOER covering the period "200302 through 200311" [further referred to as the contested evaluation report] reverses his honorable discharge to a dishonorable discharge and prevents him from finding employment.  He further states the contested evaluation report is a form of reprisal and an attempt that was made by his motor sergeant to criminalize him.  He was treated unequally, harassed, and threatened with a bad evaluation.  He notes the following administrative errors:

	a.  he never served in Operation Enduring Freedom (OEF) as indicated in Part IId (Duty Description Areas of Special Emphasis);

	b.  he was never awarded the Army Physical Fitness Badge as indicated in 
Part IVc (Physical Fitness & Military Bearing); and

	c.  the evaluation was written 6 months after his reassignment to another unit.

3.  The applicant provides four self-authored statements detailing the unfair treatment he received from his motor sergeant and the numerous unsuccessful attempts he made to get assistance from his chain of command and the Inspector General.  In addition, he furnishes an undated copy of the contested evaluation.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Army on 22 May 1997.  He met the training qualification standards and was awarded military occupational specialty (MOS) 63J (Quartermaster and Chemical Equipment Repairer).

2.  On 31 December 2007, the applicant was medically discharged under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) with an honorable characterization of service.  He completed 10 years, 7 months, and 9 days active service.

3.  The contested evaluation report shows the applicant received unfavorable bullets detailing threats against his senior maintenance supervisor, indicating he needed specific instructions in order to accomplish ordinary tasks, his failure to properly supervise subordinates, and his failure to take responsibility for actions unless they resulted in positive outcomes.

4.  The rater rendered an assessment of "Marginal" in Part IV (Values/NCO Responsibilities).  The senior rater rendered a "Fair" assessment in Part V (Overall Performance and Potential).

5.  The contested evaluation report shows the following bullet comments:

* "Movement of Division to OEF" in Part IIId (Areas of Special Emphasis)
* "achieved a 300 on the APFT has been awarded the PT Badge" in Part IVc (Physical Fitness & Military Bearing)

6.  The applicant and all rating chain officials signed the contested evaluation report on 28 November 2003.

7.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant was awarded the Iraq Campaign Medal.
 
8.  The applicant provides four self-authored statements that attest to his repeated mistreatment while under the supervision of his senior rater/motor sergeant.

9.  The applicant does not provide any third party statements to support his claim of mistreatment.


10.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) states evaluation reports accepted for inclusion in the official record of a Soldier 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 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.

11.  Army Regulation 623-205, paragraph 6-11d, states for a claim of inaccuracy or injustice of a substantive type in an evaluation report, evidence will include statements from third parties, rating officials or other documents from official sources.  Third parties are persons other than the rated officer or rating officials who have knowledge of the appellant's performance during the rating period.  To the extent practical, such statements will include specific details of events or circumstances leading to inaccuracies, misrepresentations, or injustice at the time the report was rendered.  

12.  Army Regulation 600-8-22 (Military Awards) states Soldiers who obtain a minimum score of 270 or above, with a minimum of 90 points per event on the Army Physical Fitness Test (APFT) and meet the body fat standards will be awarded the Physical Fitness Badge for Physical Fitness Excellence.  Soldiers are required to meet the above criteria each record test to continue to wear the badge.  Permanent Orders are not required for award of the Physical Fitness Badge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested evaluation report removed from his military record was carefully considered but there is insufficient evidence to grant relief.

2.  The applicant states he was "constantly treated unequally, harassed and threatened with a bad evaluation" by his motor sergeant.  Although the four self-authored statements provided by the applicant are compelling, there is no other evidence or official documentation which shows he reported this abuse or sought assistance with these issues.  Absent such evidence, the statements are insufficient evidence to support his contentions.

3.  The award of the Army Physical Fitness Badge does not necessitate the issuance of permanent orders as indicated in the contested evaluation and the presumption is made that the applicant qualified for the award.  Therefore, the statement, "achieved a 300 on the APFT has been awarded the PT Badge," is considered a minor administrative error and does not require correction.

4.  The applicant further contends he did not serve in OEF, therefore, the comment indicated in Part III d (Areas of Special Emphasis) which reads "Movement of Division to OEF" is inaccurate.  He was awarded the Iraq Campaign Medal and this award is authorized for service in direct support of Operation Iraqi Freedom on or after 19 March 2003 to a future date to be determined by the Secretary of Defense or the cessation of the operation. However, the contested statement does not clearly imply the applicant served in OEF but rather the movement of the division was an area of special emphasis.  In addition, the period of the report also indicates that the unit may very well have been alerted for OEF but was then diverted to Iraq when that war started.  The statement is too subjective to affirm it is factually inaccurate and administrative correction is not required.

5.  There is no evidence the contested evaluation report was not administered in a timely manner.  The contested evaluation is a Change of Rater report.  The applicant's record is void of any information to support his contention he was reassigned to another unit or the date of such reassignment.  The contested evaluation contains the applicant's and all rating chain officials' signatures within the specified rating period and complies with regulatory guidelines for timeliness.

6.  The applicant's record shows he served with distinction and honor but as noted above in the governing regulation, 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.  The applicant has not met this threshold of proof.

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)                                         AR20090018449



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ABCMR Record of Proceedings (cont)                                         AR20090018449



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