IN THE CASE OF:	

		BOARD DATE:	  01 June 2010

		DOCKET NUMBER:  AR20090018634 


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, removal of a Noncommissioned Officer Report Evaluation Report (NCOER) [further addressed as the contested report] from his Official Military File (OMPF).

2.  The applicant states that on 26 March 2008, he received a personnel file with another copy of his Honorable Discharge and the contested report.  He claims the contested report falsely describes his work performance, character, integrity, trustworthiness, and reliability.  He further states, he was not granted due process for an appeal because he was not given a chance to review the contested report prior to it being filed in his OMPF.  He is applying for a commission and feels this report may hinder his opportunity to progress through his Army career. The applicant notes the following inaccuracies below:

	a.  Part IV (Values/NCO Responsibilities), a1 (Places dedication and commitment to goals and missions of the Army and nation over personal welfare):  NO;

	b.  Part IV (Values/NCO Responsibilities), a2 (Is committed to and shows a sense of pride in the unit - works as a member of the team):  NO;

	c.  Part IVc (Physical Fitness & Military Bearing) reads, "Did not take the APFT during this rating period due to temporary medical condition;" and

	d.  IVf (Responsibility & Accountability) reads, "His attendance has been below standard due to unresolved work conflicts"
3.  The applicant states he provided letters of recommendation from previous and present Commanding Officers; however, those documents were not with the application.  The applicant provides the following in support of his application:

* Copy of the mailing envelope from the Department of the Army and Air Force, Office of the Adjutant General of Virginia, Joint Force Headquarters - Virginia, ATTN:  G-1, 316 Tenth Street (Bldg 316), Fort Pickett, Blackstone, Virginia, postmarked 24 March 2008
* Virginia Army National Guard (VAARNG) Letter, dated 26 June 2002
* SF 93 (Report of Medical History), dated 15 August 1998
* U.S. Navy Evaluations, dated prior to the contested report
* DA Form 2166-7 (NCO Evaluation Report) for the period of December 1998 through November 1999
* Civilian Evaluations (Full and Part time employment)
* Honorable Discharge Certificate from the Army National Guard, dated
17 December 1999
* DA Forms 705 (Army Physical Fitness Test Scorecard), dated 20 May 2009 and 27 June 2007 
* Miscellaneous Training certificates and awards
* DA Form 1059 (Service School Academic Evaluation Report), for the period of 12 June 1999 through 26 June 1999

CONSIDERATION OF EVIDENCE:

1.  On 9 January 2000, the applicant received an annual NCOER covering the period of December 1998 through November 1999.  He was evaluated as the Operations Assistant in military occupational specialty (MOS) 14M (Man Portable Air Defense System Crewmember).

2.  In Part IV (Values/NCO Responsibilities) of the contested report, the rater gave the applicant the following ratings

* Part IVa “NO”
* Part IVb "NO"
* Part IVc "Success" and a bullet comment stating "Did not take the APFT during this rating period due to temporary profile"
* Part IVd (Leadership) a "Needs Some Improvement" rating and comment stating "Has not demonstrated that the mission of the VaARNG has priority in his affairs
* Part IVf a "Needs Some Improvement" and comment of "His attendance has been below standard due to unresolved work conflicts"

3.  The Navy and civilian performance evaluations/support forms submitted by the applicant will not be addressed.  There are no regulatory provisions to allow Navy or civilian performance evaluations to be considered when submitting Army performance evaluations and these types of reports are not authorized for filing in the OMPF.  In addition the APFT evidence submitted is outside the period of the contested report and bears no relevance to his fitness at the time of the report was rendered, therefore, will not be considered.

4.  The record contains evidence that on 26 June 2002, the Department of Military Affairs, State of Virginia, separated the applicant from the Virginia Army National Guard and provided him a copy of his discharge orders, all documents not required to be maintained for historical purposes, and his original discharge certificate.

5.  The contested report indicates the Noncommissioned Officer (NCO) was not available of signature.  

6.  The applicant provides an envelope postmarked 24 March 2008 which he states is the date he first received the contested report.

7.  A review of the applicant's record on the Interactive Personnel Electronic Records Management System (iPERMS) shows the contested report was placed in the restricted section of his OMPF on 23 July 2005.

8.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System) sets the policies and procedures governing the Noncommissioned Officer Evaluation Reporting System (NCOERS).  Paragraph 3-2 provides evaluation principles and states, rating officials must prepare complete, accurate, and fully considered evaluation reports.  This responsibility is vital to the long range success of the Army’s missions.  With due regard to the NCO’s grade, experience, and military schooling, evaluations should cover failures as well as achievements to the rated NCO.  

9.  Chapter 3 states the rater will explain an APFT entry of “FAIL” or “PROFILE.” Comments on “PROFILE” (both permanent and temporary) will describe the rated NCO’s ability to perform assigned duties.

10.  Chapter 6 of the evaluation regulation contains guidance on NCOER appeals.  Paragraph 6-6 stipulates that a report accepted for filing in a NCOs record 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 rating officials at the time of preparation.  

11.  Paragraph 6-10 of the same regulation contains guidance on the burden of proof necessary for a successful appeal of an NCOER that has already been accepted for filing in the OMPF.  It states, that in order to justify amendment or deletion of a report, clear and convincing evidence must be provided to show that the presumption of regularity should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.  

12.  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.  

13.  Army Regulation 623-205, paragraph 6-7 states substantive appeals must be submitted within 5 years of the NCO-ER's completion date.  Failure to submit an appeal with this time may be excused only if the appellant provides exceptional justification to warrant this exemption. In his application to the ABCMR the applicant states the contested report falsely describes his work performance, character, integrity, trustworthiness, and reliability.  He further states, he was not granted due process for an appeal

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have the contested report removed from his OMPF was carefully considered, however, there in insufficient evidence to grant relief.

2.  Although, the training records and awards provided by the applicant are compelling, there is no other evidence or official documentation to support his contentions that he was never on a temporary profile, that he tried to make provisions to complete missed drills, or he was not afforded due process to appeal the contested report.

3.  The applicant states he was never on a temporary profile as indicated in Part IVc  (Physical Profile), however, the contested report does address his ability to perform his duties and therefore meets regulatory requirements.  The fact that the applicant was not on a temporary profile is considered a minor administrative error and does not serve as a basis to invalidate the report or warrant correction.

4.  The applicant admits in his application to the ABCMR that he missed one drill but never received a counseling statement or the opportunity to make up the training.  The applicant has failed to provide any statements from third parties, rating officials or other documents from official sources to support the inaccuracies he claims in the contested report.  Absent such evidence, and lacking evidence or official documentation which confirms the applicants contentions there is no basis to grant relief.

5.  He further states he was not afforded due process for an appeal because he did not receive the report until March 2008.  In order to make the argument for the lack of due process, the applicant must first prove a probable error or injustice occurred.  The applicant has failed to meet this burden of proof.  However, a review of the applicant's OMPF shows the contested report was not input until 23 July 2005 and placed in the restricted section of his file.  It is unclear why the contested report was submitted into the OMPF so late or why it was placed in the restricted section.  In any case, as not to cause any undue harm upon the applicant, the contested report will not be moved to the performance section of his file.

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)                                         AR20090018634





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ABCMR Record of Proceedings (cont)                                         AR20090018634



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