IN THE CASE OF:	

		BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090020467 


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 correction or removal of a Noncommissioned Officer Evaluation Report (NCOER) covering the period July 2005 through December 2005 from his official military personnel file (OMPF).

2.  The applicant states, in effect, the NCOER in question is administratively incorrect because it failed to comply with the regulatory counseling requirements which require a Soldier be counseled prior to receipt of his NCOER.  He further states he was never counseled prior to receiving the NCOER in question and that the opinions of the rating officials were unfair and unjust based on the facts and evidence of that period of service.  He further states that the rating officials produced an NCOER that questioned his Army Values even though there is no evidence of record to support such a supposition.

3.  The applicant provides the following documents in support of his application:  DA Form 2166-8 (NCOER); U.S. Army Human Resources Command (HRC) memorandum, dated 16 October 2009; NCOER appeal, dated 21 September 2009; Enlisted Record Brief; Headquarters, 10th Mountain Division (Light Infantry) and Fort Drum, Fort Drum, New York, letter, dated 5 June 2006; memoranda for record, dated 30 November 2005 and 1 December 2005; electronic mail messages; and DA Form 2823 (Sworn Statement).

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 record shows he enlisted in the Regular Army and entered active duty on 3 August 1983.  He continues to serve on active duty as a sergeant major at Fort Hood, Texas, as of the date of his application to the Board.

3.  On 9 December 2005, the 3rd Infantry Division Commander, a major general, issued the applicant a general officer memorandum of reprimand (GOMOR) in which he reprimanded the applicant for his involvement in the submission of falsified promotion packets in both July and September 2005.  The imposing general officer stated that an investigation concluded that the promotion packets did, in fact, contain false information and he directed the GOMOR be filed in the applicant's OMPF.

4.  On 13 December 2005, the applicant submitted a rebuttal to his GOMOR in which he argued that although he accepted responsibility for making mistakes, he was never knowingly involved in the submission of false promotion packets.

5.  On 27 April 2006, while serving as the command sergeant major of a brigade support battalion in Iraq, the applicant received a relief-for-cause NCOER covering the period July 2005 through December 2005.  The applicant refused to sign the NCOER.  In Part IV (Army Values/Attributes/Skills/Actions) the rater responded "NO" to questions a3 (Respect/EO/EEO:  Treats people as they should be treated) and a6 (Integrity:  Does what is right - legally and morally).

6.  In Part IV (Values/NCO Responsibilities) of the NCOER, the rater gave the applicant a "Needs Improvement (Some)" rating in Part IVb (Competence) and supported this rating with the bullet comments "allowed promotion process to improperly consider invalid promotion packets almost resulting in promotion of unqualified candidates" and "showed poor judgment by not consulting commander regarding the right course of action to validate questionable promotion packets."  The rater also gave the applicant a "Needs Improvement (Some)" rating in Part IVd(Leadership) and supported this rating with the bullet comments "set a poor example; did not prevent submission of falsified promotion packets, nor did he accept responsibility for his actions."  The rater further gave the applicant a "Needs Improvement (Some)" rating in Part IVf (Responsibility and Accountability) and supported this rating with the bullet comment "the rated NCO has been notified of the reason for relief."

7.  In Part V (Overall Performance and Potential) the rater gave the applicant a "Marginal" rating.  The senior rater placed the applicant in the "4 (Fair)" block in Part Vc (Overall Performance) and in the "5 (Poor)" block in Part Vd (Overall Potential).  The senior rater provided the following bullet comments to support his ratings:  "relieved for knowingly processing fraudulent promotion packets"; "failed to maintain the integrity of the promotion system in the battalion"; "when confronted, failed to accept responsibility for his actions"; and "does not have the potential to serve in positions of greater responsibility, monitor closely."

8.  On 21 September 2009, the applicant submitted an appeal to the NCOER in question to the U.S. Army Enlisted Records and Evaluation Center, Indianapolis, Indiana, requesting that Parts IVd and V of his NCOER either be blocked out or that the entire NCOER in question be removed from his OMPF based on substantive inaccuracy and administrative errors.  The applicant stated that the NCOER was administratively incorrect because he was never counseled prior to receipt of his NCOER and as a result it failed to comply with the requirements of paragraph 1-8, Army Regulation 623-3 (Evaluation Reporting System), which requires that command give counseling at 30 days and quarterly.

9.  On 16 October 2009, the HRC Appeals and Corrections Branch Chief informed the applicant that based on regulatory guidance, substantive appeals were required to be submitted within 3 years of the ending date of the report and that waivers would be considered if exceptional justification was provided.  He further notified the applicant that due to the large number of cases pending Enlisted Special Review Board review, no appeals in excess of the 3-year limit, regardless of the justification provided, would be accepted.  This official further advised the applicant to submit his appeal through this Board in accordance with Army Regulation 15-185 (Army Board for Correction of Military Records).

10.  Army Regulation 623-205 (Noncommissioned Officer Evaluation Reporting System), in effect at the time, set forth the policies and procedures governing the NCOER System.  It provided instructions for preparing, processing, and submitting DA Form 2166-8 (NCOER) and DA Form 2166-8-1 (NCO Counseling Checklist/Record).  It also provided guidance on appealing evaluation reports.  Paragraph 3-32 provided guidance on relief-for-cause NCOERs.  It states, in pertinent part, that an NCOER is required when an NCO is relieved for cause regardless of the rating period involved.  A relief for cause occurs when the NCO's personal or professional characteristics, conduct, behavior, or performance of duty warrants removal in the best interest of the U.S. Army.

11.  Chapter 6 of the same regulation contained guidance on NCOER appeals.  Paragraph 6-6 stipulated that a report accepted for filing in an NCO's record by Headquarters, Department of the Army (HQDA), 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.

12.  Paragraph 6-10 of the NCOER regulation contained 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 stated, in pertinent part, 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 attached to reports accepted for filing by HQDA should not be applied to the report in question and/or action is warranted to correct a material error, inaccuracy, or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that the NCOER in question either be amended or removed from his OMPF because regulatory counseling requirements were not met was carefully considered.  However, the evidence is insufficient to support this claim.

2.  By regulation, an NCOER accepted for filing by HQDA is presumed to be administratively correct, to have been prepared by the properly designated rating officials, to represent the considered opinions and objective judgment of the rating officials at the time of preparation.  The regulatory burden of proof requires the applicant produce evidence that establishes clearly and convincingly that this presumption of regularity should not be applied to the report under consideration and that action is warranted to correct a material error, inaccuracy, or injustice in order to justify deletion or amendment of a NCOER.

3.  The evidence of record fails to support the applicant's assertion that he was not properly counseled in conjunction with his receipt of the NCOER in question. Further, the NCOER was based on conduct outlined in a properly issued and processed GOMOR after an investigation had been completed.  Absent any evidence of record or independent evidence exonerating the applicant of the conduct in question, it is concluded the NCOER was processed and accepted for filing in the OMPF in accordance with applicable regulations.

4.  Further, there is insufficient clear and compelling evidence to overcome the regulatory presumption of regularity attached to the NCOER, which was accepted for filing in the OMPF by HQDA, or that would support changing or removing the contested report from the record at this time.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090020467



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ABCMR Record of Proceedings (cont)                                         AR20090020467



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