IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20090020134 


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 a DA Form 2166-8 (Noncommissioned Officer Evaluation Report (NCOER)) for the period 1 August 2008 through 4 November 2008 be removed from his official military personnel file (OMPF).

2.  The applicant states, in effect, he received an NCOER for the period 11 August 2008 to 4 November 2008, authenticated on 20 January 2009, and he refused to sign it because his rater originally submitted an NCOER with a through date of 15 October 2008.  He contends the through date of the NCOER he was told he must sign had been changed to 4 November 2008 after his rating officials had signed it.  His rating officials for the NCOER with a through date of 15 October 2008 did not concur with the NCOER with the through date of 4 November 2008.  He indicates the NCOER did not fall within the guidelines as prescribed by paragraph 3-9e of Army Regulation 623-3 (Evaluation Reporting System) in that the date of relief determines the through date of the report and the report was not signed during the closing or following month of the report.  He was given a final copy of the NCOER for his records and then he signed out on transition leave on 6 February 2009.

3.  The applicant states on or about 13 April 2009 he discovered a completely different version of the NCOER posted in his OMPF.  He indicates the new NCOER had an entirely different rating chain, different comments, and it was authenticated on 6 March 2009, which was 1 month after he returned to the United States on transition leave.  He points out this NCOER says he did not concur and refused to sign.  He claims he had not seen and was not aware of the existence of this NCOER before he found it in his OMPF.  He states this NCOER is, in fact, fraudulent and a false statement made by a senior officer.  He has contacted his original rating chain and they are not willing to make any statements on record for fear of repercussions from the colonel (senior officer).  His original rating chain told him the colonel is the one who directed the through date on the original NCOER be changed and directed the new NCOER be created.  He further states the NCOER in his OMPF is an illegitimate document, it does not meet the requirements set forth in Army Regulation 623-3, it contains false and prejudicial statements, and the existence of such a document can be detrimental to his future employment.

4.  The applicant provides:

* NCOER for the period 31 July 2008 through 15 October 2008
* NCOER for the period 11 August 2008 through 4 November 2008
* NCOER for the period 1 August 2008 through 4 November 2008
* DA Form 31 (Request and Authority for Leave)

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 19 February 2004 for a period of 3 years.  He attained the rank of sergeant effective 1 April 2007.

2.  Records show the applicant received NCOER's for the periods 1 April 2007 through 31 March 2008 and 1 April 2008 through 31 July 2008.

3.  The applicant provided a 5-month relief-for-cause NCOER covering the period 31 July 2008 through 15 October 2008.  This form was authenticated by his rater (master sergeant), senior rater (civilian), and reviewer (major) on 20 January 2009.

4.  The rater provided a "No" entry for honor and integrity in Part IV (Army Values/Attributes/Skills/Actions) with bullet comments:  "took actions to wrongfully produce false documents," "displays poor judgment when presented with an unethical situation," and "displays positive attitudes."

5.  He was rated as "Needs Improvement (Much)" for Part IVf (Responsibility and Accountability) with a bullet comment:  "the rated NCO has been notified of the reason for the relief."

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

7.  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 "5-Poor" and "5-Poor" respectively, with a bullet comment:  "do not promote."

8.  The applicant provided a 5-month relief-for-cause NCOER covering the period 11 August 2008 through 4 November 2008.  This form was authenticated by his (same) rater (master sergeant), (same) senior rater (civilian), and (same) reviewer (major) on 20 January 2009.

9.  The rater provided a "No" entry for honor and integrity in Part IV with bullet comments:  "took actions to wrongfully produce false documents," "displays poor judgment when presented with an unethical situation," and "displays positive attitudes."

10.  He was rated as "Needs Improvement (Much)" for Part IVf with a bullet comment:  "the rated NCO has been notified of the reason for the relief."

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

12.  The senior rater rated the applicant in Part Vc and Part Vd as "5-Poor" and 5-Poor" respectively, with bullet comments:  "do not promote" and "Soldier did not concur with this evaluation and refused to sign."

13.  The applicant also provided a 5-month relief-for-cause NCOER covering the period 1 August 2008 through 4 November 2008.  This form was authenticated by his (different) rater (captain), (different) senior rater (lieutenant colonel), and (different) reviewer (colonel) on 6 March 2009.

14.  The rater provided a "No" entry for honor and integrity in Part IV with bullet comments:  "submitted false documents in violation of Article 123, UCMJ [Uniform Code of Military Justice]; forgery," "committed actions in violation of Article 132, UCMJ; fraud," and "fulfilled extra duty requirements with a positive attitude and was respectful to others."

15.  He was rated as "Needs Improvement (Much)" for Part IVf with a bullet comment:  "the rated NCO has been notified of the reason for the relief."

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

17.  The senior rater rated the applicant in Part Vc and Part Vd as "5-Poor" and 5-Poor" respectively, with bullet comments:  "do not promote," "displayed poor judgment and unethical behavior in falsifying promotion documents," "Soldier's actions were in violation of UCMJ which will result in separation [in accordance with] [Army Regulation] 635-200," and "Soldier did not concur with this evaluation and refused to sign."

18.  According to the applicant, he was discharged on 15 April 2009 with a general discharge for misconduct (commission of a serious offense).  The applicant's OMPF in the interactive Personnel Electronic Records Management System (iPERMS) does not contain a DD Form 214 (Certificate of Release or Discharge from Active Duty).

19.  In support of his claim, the applicant provided a DA Form 31, dated 5 February 2009, which shows he was granted ordinary (transition leave) for the period 6 February 2009 to 15 April 2009.

20.  A review of the applicant's OMPF on the iPERMS revealed a copy of the NCOER covering the period 1 August 2008 through 4 November 2008.

21.  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 that an NCOER will be filed permanently in the performance section of the OMPF.

22.  Paragraph 3-9e of Department of the Army Pamphlet 623-3 (Evaluation Reporting System), dated 13 August 2007, states the date of relief determines the through date of the report.  Relief-for-cause reports may be signed at anytime during the closing or following month of the report.

23.  Army Regulation 623-3 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 NCOER for the period 11 August 2008 through 4 November 2008, authenticated on 20 January 2009, did not fall within the guidelines as prescribed by paragraph 3-9e of Army Regulation 623-3 was noted.  However, all three NCOER's provided by the applicant were not authenticated during the closing or following month of each report.  Although the governing pamphlet states a relief-for-cause report may be signed at anytime during the closing or following month of the report, incorrect authentication dates by rating officials do not dispute the information contained in an NCOER.

2.  The applicant's contentions the NCOER for the period 1 August 2008 through 4 November 2008, authenticated on 6 March 2009, had an entirely different rating chain, different comments, and was authenticated 1 month after he returned to the United States on transition leave were noted.  He also contends this NCOER is fraudulent and false.  However, there is no evidence of record and the applicant provided no evidence which shows this NCOER was flawed (such as a published rating scheme) or his rating chain was improper.  The applicant has not provided sufficient evidence to show this NCOER did not represent the considered opinion and the objective judgment of the rating chain at that time.  It is noted the applicant was on transition leave during the period 6 February 2009 to 15 April 2009, but as his signature is not on this NCOER, the relevancy of his being on leave is unclear.

3.  The three NCOER's provided by the applicant were noted.  However, since the evidence of record shows the applicant received NCOER's for the periods 1 April 2007 through 31 March 2008 and 1 April 2008 through 31 July 2008, the correct beginning date for his next NCOER would be 1 August 2008.

4.  The NCOER covering the period 1 August 2008 through 4 November 2008 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)                                         AR20090020134



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ABCMR Record of Proceedings (cont)                                         AR20090020134



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