IN THE CASE OF:	  

		BOARD DATE:	    20 May 2010

		DOCKET NUMBER:  AR20090020055 


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 that his Noncommissioned Officer (NCO) Evaluation Report (NCOER) for the period ending 29 April 2002 be removed from his records.

2.  The applicant states that the NCOER is dated after his discharge.  In addition, his signature on the form is a clearly a forgery.

3.  The applicant continues that the contested NCOER is extremely false and the soldiers listed on that NCOER as his rater, senior rater and reviewer are people he never worked with.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the contested NCOER.

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’s military records show that he enlisted in the Regular Army on 11 January 1994 with prior active and inactive service.

3.  On 30 April 2002, an NCOER which covered the period September 2001 to March 2002 was forwarded to the applicant.  The NCOER was derogatory, containing statements which included "does not care enough about specific duties to be effective and lacks dedication to the mission of the Army . . . does not follow the structure that has been established for solving problems . . . performed his additional duties as the unit NBC NCO below standard resulting in loss of unit equipment . . . demonstrated lack of judgment on numerous occasions resulting in being reported AWOL for 5 days . . . has missed many opportunities to improve abilities enough to accomplish his job . . . was not mission-focused; can rarely be depended on to accomplish the mission . . . lacked basic leadership skills . . . etc."

4.  This NCOER shows the applicant, rater, senior rater and reviewer all entered 29 April 2002 as the date they signed the form.  The dates entered are all by the same date stamp and are all entered at the same angle, indicating that all dates were entered at the same time by the same person.

5.  The applicant was honorably discharged for hardship on 12 April 2002 in pay grade E-5.  His DD Form 214 shows that the period 22 February to 6 March 2002 was lost time.

6.  All of the documents in the applicant's records which reflect his signature are signed with his full name, to include his middle name, with the exception of the contested NCOER.

7.  Army Regulation 623–205 (Noncommissioned Officer Evaluation Reporting System), dated 17 December 2001 (in effect at the time), paragraph 3–8, Part II, stated that NCOERs will be dated by the rating officials and rated NCO when signed and prior to forwarding.

DISCUSSION AND CONCLUSIONS:

1.  It is evident that the date the applicant signed the contested NCOER was entered after he was discharged.

2.  It would appear that because the applicant was an unprogramed loss (a hardship discharge), the NCOER could not be completed prior to the applicant's departure from the unit.  

3.  While the applicant contends his signature is an obvious forgery on the NCOER, his signature appears consistent with his signature on other documents in his records with the exception of the NCOER not being signed with the applicant's full name.

4.  Therefore, the error in this case is the date the applicant signed the NCOER since it would appear that the applicant signed the NCOER but did not date the form.  However, since the actual date the applicant signed the NCOER is not a matter of record, it is impossible to determine what the proper date is. 

5.  While the applicant also charges the contested NCOER is extremely false and the soldiers listed on that NCOER as his rater, senior rater and reviewer are people he never worked with, he has not submitted any evidence to support either contention.  The fact that the applicant was charged with lost time for the period 22 February to 6 March 2002 lends credence to the rating.

6.  In view of the foregoing, there is no 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)                                         AR20090020055





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ABCMR Record of Proceedings (cont)                                         AR20090020055



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